PLJ 1998 Judgments

PLJ 2008 Sh PLJ 2008 Sh.C. (AJ&K) 87 Present: Iftikhar Hussain Butt, J. MUHAMMAD JAMIL--Appellant versus SAFINA BIBI--Respondent Civil Appeal No. 31 of 2007, decided on 6.2.2008. Guardian and Wards Act, 1890 (VIII of 1890)-- ----S. 17--Appointment of guardian--Custody and Welfare of minor girl--Strong circumstances--Held: According to the age, sex and personal law of minor, the mother is most befitting and proper person to lookafter and bring up her daughter--Love and affection which a mother can provide to her minor daughter cannot be provided by a father, even though he is a very rich person--Held: Minor girl had been previously bring with her father and she was also attending a school does not deprive the mother/respondent from seeking the custody or her appointment as guardian of the minor girl--Appeal dismissed. [P. 89] A & B 1998 SCR 140, fol. Mr. Saadat Ali Kayani, Advocate for Appellant. Nemo for Respondent. Date of hearing: 6.2.2008. Order This appeal has been directed against the decision of learned Judge Family Court Mirpur passed on 27.03.2007, whereby the custody of minor girl was handed over to the respondent, mother. The brief facts forming background of the instant appeal are that the respondent, herein; filed an application for appointment of guardian on 8.11.2006 before the Judge Family Court Mirpur, alleging therein that Mst. Isha her daughter, aged 3 years has been snatched away from her by the appellant, herein, while she was ousted from the house of the appellant. The respondent also filed a separate application for temporary custody of her daughter. The appellant refuted the allegations of the respondent and averred in his objections that the respondent has got no cause of action and she left the minor with him, when the minor was one month old. The appellant further stated that respondent has got no source of income, therefore, the welfare of the minor lies with the appellant, father and not with mother. Mst. Safina, respondent appeared in the witness box in support of her claim, whereas appellant Muhammad Jamil also entered into the witness box and produced Shahzad Ahmed and Abdul Ghanni as his witnesses. After completion of the proceedings the learned Judge Family Court passed the impugned decision and appointed the respondent, mother guardian of the minor girl and also directed the appellant to hand over the minor to the respondent vide its decision dated 27.3.2007. Hence this appeal. Saadat Ali Kayani, the learned Counsel for the appellant, vigorously argued that the learned Judge Family Court fell in grave error while appointing the respondent guardian of the minor because the respondent left her minor daughter when her age was one month; therefore, she is not entitled to be appointed guardian of the minor daughter. The learned Counsel further pointed out that the respondent has got nine other sisters and youngest one is also three years old; therefore, she does not possess sufficient means to bring up the minor in a proper and befitting manner. The learned Counsel maintained that as the minor is living with her father for the last three years; therefore, she is more familiar to her father instead of the mother, respondent. On account of absence of the respondent and her learned Counsel no argument could be advanced on her behalf. It transpires from the close scrutiny of the file that Mst. Safina Bibi got her statement recorded before the Court below but she could not produce any witness. She testified that Mst. Isha is her daughter and she wants to bring her up in a better manner than the appellant. She further deposed that nobody else could look after her daughter except her. She refused the suggestion that she left her minor daughter when she was one month old, rather she stated that at that time after physically ill-treatment, she was ousted from the house by the appellant. On the other hand, Shahzad and Abdul Ghanni, the witnesses for the appellant, stated that the minor Isha is living with her father, whereas it is admitted by Abdul Ghanni that a mother could bring up a child in a better way as compared to a father. Muhammad Jamil, appellant, testified that his minor daughter is living with him and she was left by her mother when she was one month and fifteen days old. He further stated that his wife has got other eight sisters; therefore, she cannot afford the expenses of up brining of her daughter. Now the question arises as to whether the mother should be appointed guardian of the minor girl or the father, who is already having her custody. Under Section 17, The Guardians and Wards Act while appointing and declaring the Court has to take into consideration the welfare of the minor. In this respect, the Court shall have regard to the age, sex and the nearness of the kin of the minor. In the instant case, it is admitted that Mst. Isha is a minor girl and she is about three years old. She is a Muslim girl and the welfare of minor would be presumed with the person who is entitled to it under the Muslim Law until and unless otherwise proved. However, in such a case there must be strong circumstances justifying to refuse the prayer to one who is entitled to the same under Muslim Law. In the instant case the mere fact that the minor has been previously living with her father and she is also attending a school does not deprive the respondent from seeking the custody or her appointment as guardian of the minor-girl. A host of case law owns this view but I have preferred to refer one case only which holds the consistent view of the Apex Court . Mst. Zakia Khatoon v. Muhammad Hayat Khan & 5 others (1998 SCR 140). Keeping in view the age, sex and personal law of minor, the respondent-mother is most befitting and proper person to look after and bring up her. The love and affection which a mother can provide to her minor daughter cannot be provided by a father, even though he is a very rich person. Whereas the appellant has also meager source of income. Furthermore the appellant has not leveled any allegation of corruption or bad character against the respondent, which could be made basis for refusal to appoint her guardian of the minor-girl. In such state of affairs, the impugned decision does not suffer from any legal defect nor otherwise infirm, such finding is not open to interference. The upshot of the above discussion is that finding no merits in this appeal, it is hereby dismissed. (M.S.A.) Appeal dismissed.

PLJ 2008 Sh PLJ 2008 Sh.C. (AJ&K) 93 Present: Iftikhar Hussain Butt, J. STATE & others--Complainants versus RAZZAQ & others--Respondents Murder Reference No. 43 of 2007 and Crl. A. No. 44 and 49 of 2007, decided on 14.5.2008. Azad Penal Code, 1860-- ----Ss. 302(a) & 34--Pakistan Arms Ordinance, 1965, Ss. 13/20/65--Conviction and sentence recorded against accused by trial Court--Challenge to--Criminal reference--Appreciation of evidence--Presence of accused--Fact of firing by pistol and death of deceased by firing shots was admitted by defence--To shot a fire with an intention of murder fired straight shots--Trial Court giving weight to prosecution story of FIR duly supported by eye-witnesses, medical evidence and corroboratory circumstances--Cause of death--Death occurred due to damage to blood vessels and loss of blood from injuries accused by firearm--According to FIR deceased sustained only one injury of pistol in abdomen but according to prosecution he sustained two injuries whereas PW stated accused fired three shots but in light of post-mortem report deceased sustained two injuries caused by firearm, one upon abdomen and other upon his right shoulder--Held: Prosecution proved its case against accused "M.R." beyond any shadow of doubt who is found guilty of offence of murder of deceased--Sentence of Qisas awarded by trial Court has to be confirmed. [Pp. 110 & 113] H & AA Azad Penal Code, 1860-- ----Ss. 302 & 34--Conviction and sentence recorded against accused by trial Court--Challenge to--Lalkara--Appreciataion of evidence--No injury attributed--Interest of justice--Benefit of doubt--Acquittal--Conviction and sentence to extent appears to be based on flimsy and artificial grounds--Allegation against accused is of raising lalkara--Accused was not armed with any lethal weapon and did not cause any injury to deceased or witness--Held: Accused was attributed only a proverbal lalkara, it will be in the interest of justice to acquit him of charge while extending the benefit of doubt--Appeal partly accepted. [P. 113] BB Manner of Occurrence-- ----Required to be proved by prosecution--Aimless and erratic suggestions put to prosecution witnesses in cross-examination does not mean the admission of guilt or involvement of accused in offence. [P. 107] A 1998 SCMR 1847, ref. Occurrence-- ----Manner of--Burden of proof--Only the manner of occurrence has been disputed by defence--Held: Burden of proof shifts upon the defence instead of prosecution to prove different manner of occurrence and presence of circumstances bringing the case with any of general exceptions. [P. 107] B PLJ 1984 Cr.C. (AJK) 167, ref. Duty of Prosecution-- ----Principle--Benefit of doubt--It is always the basic duty of prosecution to prove the criminal case beyond any reasonable shadow of doubt--Held: Principle cannot be taken into consideration even the prosecution version is clear, cogent and reliable. [P. 108] C Evidence-- ----Corroboratory piece of evidence--Sufficient to prove--Evidence of prosecution can be considered as strong corroboratory piece of evidence because their presence at time of occurrence is also admitted by defence. [P. 108] D Recovery Witnesses-- ----Interested witnesses--Ulterior motive--Validity--Only relationship is not a ground for discarding of evidence of witnesses because interested witness is one who falsely implicates an innocent person with ulterior motive. [P. 108] E PLD 1988 SC (AJK) 134, 2007 SCR 1, ref. Chance Witnesses-- ----Natural course of events--Abundantly proved--Validity--All the eye witnesses are chance witnesses and their presence at the spot is not possible in natural course of events, does not appear to be well founded because it has been abundantly proved on record--Held: Complainant stated that he had not presented at the time of occurrence therefore, they could not be treated as chance witnesses--Chance witnesses could not be taken lightly brushed-away--Further held: Deposition of the chance witnesses should be scrutinized with care and caution but it does not mean that such testimony should be relied upon if same is corroborated by independent eye-witnesses. [P. 109] F 2001 SCR 240, ref. Ocular Version-- ----Corroboratory evidence--Conviction can be recorded on deposition of eye-witnesses alone if their evidence rings true but Courts look for corroboration as a rule of caution and in order to exonerate the innocent person. [Pp. 109 & 110] G FIR-- ----Scope of--Appreciation of evidence--Sacrosanct evidence--FIR is not a sacrosanct document or a piece of substantive evidence--Purpose of FIR is only to set at motion the police agency that each and every detail should be given in it rather it can only be used for contradicting or corroborating the maker thereof. [P. 110] I 2003 SCMR 1419, ref. Prosecution Version-- ----Supplementary statement introduced two versions--Held: On account of two versions the accused was acquitted of the charge. [P. 110] J PLJ 1996 Cr.C ( Lahore ) 314, ref. F.I.R.-- ----F.I.R. was recorded after spot-inspection and preliminary investigation--Validity--Registration of a case after spot-inspection creates a serious doubt in ones mind and sanctity of FIR losses its credibility. [P. 110] K Evidence-- ----Eye-witnesses are unanimous on the point that two bullets hit the deceased--Statement of prosecution witnesses about firing by accused does not make the case totally doubtful and suspicious because casual assertion by witness cannot destroy the overall affect of his statement until and unless he resiles from his major part of deposition. [P. 111] L 1996 SCR 197, ref. Criminal Jurisprudence-- ----Evidence should not be considered in isolation but whole of it should be taken into consideration. [P. 111] M PLD 1993 SC 898. Recovery of Empties-- ----Sufficient to exonerate--Recovery of empties from the place of occurrence is not by itself sufficient to exonerate the accused from the charge of murder because it may be an irregularity. [P. 111] N Ocular Version-- ----Nature of supportive evidence--Recovery of blood-stained clay, stones, grass and leaves, clothes of deceased, trouser, string and blood stained shirt are also in nature of supportive evidence--Report of Forensic Science Laboratory further confirms the ocular version. [P. 111] O Site-Plan-- ----In light of site-plan, the firing of shots from left side is not possible--Court had examined the post-mortem report and site-plan but did not find any reason as to why shots could not be fired from the left side by assailant to victim--Fact of firing has not been categorically stated by eye-witnesses and supported by medical evidence, but also admitted by defence. [P. 111] P Natural Witness-- ----Not producing as witness--Serious suspicion--Held: On account of not producing present person at occurrence as witness raises a serious suspicion against prosecution version. [P. 111] Q Duty of Prosecution-- ----It is not the duty of prosecution to produce each and every witness--Validity--It depends upon the prosecution to produce such witness whom it deems necessary for proving the guilt of accused. [P. 112] R Recovery Evidence-- ----Interested witness--Recovery evidence is not reliable because recovery witnesses do not belong to locality and they are closely related to complainant party--Relationship of recovery witness with deceased is not a valid ground for disbelieving their evidence. [P. 112] S & T Recovery of Weapon-- ----Recovery of weapon of offence, which was taken into possession from a house under construction, wherein the weapon of offence was safely hidden within the bricks--Held: Recovery of weapon of offence provides strong corroboration to the version of the eye witnesses. [P. 112] U Motive-- ----Contention--Motive has not been proved because the first occurrence could not be proved against accused person--Held: On filing of FIR about first occurrence, motive alleged by prosecution stands proved. [P. 112] V Motive-- ----Ocular evidence--Not necessary to prove--If the case is primarily based on ocular evidence, it is not necessary to prove motive. [P. 112] W 2001 SCR 240, ref. Ocular Evidence-- ----Appreciation of evidence--Prosecution has proved its case with sufficient, cogent and trustworthy ocular evidence which is supported by ample corroboratory and confirmatory. [P. 112] X Testimony of Witness-- ----Minor discrepancies--Reject of--Minor discrepancies and some variations are not sufficient ground to reject the testimony of the eye-witnesses and same as doubtful. [P. 113] Y & Z Ch. Ali Muhammad Chacha, Advocate for Appellants. Mr. Muzaffar Ali Zaffar, A.A.G. for State. M/s. Ch. Muhammad Azam and Ch. Muhammad Mehfooz, Advocates for Complainant/Appellant. Date of hearing: 14.5.2008. Order Muhammad Razzaq and Muhammad Yaseen Sons of Dewan Ali were tried upon the charge under section 302/34 APC read with section 13/20/65 AA for the allegation of committing the murder of Jahangir Hussain, brother of Muhammad Ameen, complainant by Additional District Criminal Court Dudyal Camp Mirpur. Muhammad Razzaq was convicted and sentenced to death as Qisas under Section 302 (a) APC and five years R.I along with a fine of Rs. 5000/-under Section 13/20/65 AA in default of which to undergo sentence of two months S.I with a benefit of Section 382-B, Cr.P.C whereas Muhammad Yaseen was also convicted and sentenced to three years R.I under Section 302/34 APC vide judgment dated 04.06.2007. The appellants have challenged their conviction and sentence through Criminal Appeal No. 44 of 2007 and Karam Hussain father, Fazal Begum mother and Muhammad Ameen complainant, brother of deceased through the Criminal Appeal No. 49 of 2007 have sought enhancement of sentence of Muhammad Yaseen appellant. The trial Court has sent Murder reference No. 43 of 2007 under Section 338-D, APC to this Court for confirmation of death sentence awarded to Muhammad Razzaq. All three matters are being disposed of together through this single judgment. According to the prosecution the occurrence in the instant case took place at 4:30 p.m. on 11.12.2002. A report was lodged by Muhammad Ameen (P.W.1), through FIR Exh.PB on the same day at 6:30 p.m. with Police Station Dudyal situated at 19 Km from the place of occurrence. As per facts unfolded therein, that on 11.12.2002 at 1:00 p.m. brother of complainant Jahangir along with his father and uncle were riding in a car when Muhammad Razzaq fired a shot upon them near the graveyard daggar and also pelted stones upon the car along with Yaseen, Ashfaq and Arif. A report of occurrence was lodged at Police Station Dudyal where a case was registered. Whereupon the police sent Muhammad Yaseen and Abdul Ghafoor police constables to arrest the accused persons along with the complainant and his brother Jahangir. They hired Jeep No. 3553 IDE owned by Raja Muhammad Mushtaq from Rata and proceeded toward village Tharra when they reached Tharra they boarded Mehboob and Muhammad Shabir in the jeep for identification of the accused persons and proceeded toward Malot. When at about 4:30 p.m. they reached on a poultry-farm situated in village Malot near the road, they found Muhammad Razzaq and Yaseen Sons of Dewan Ali standing thereby. They pointed out to the police about their presence. When all the persons were stepping down from the jeep and proceeding towards them, Muhammad Yaseen raised Lalkara and asked Razzaq to shot a fire whereupon Razzaq with an intention of murder fired straight shots with .30-bore Pistol amongst one hit Jahangir at his abdomen who after sustaining injury fell down. The accused persons fled away from the scene of occurrence. Jahangir succumbed to the injury while on his way to the Dudyal Hospital . The occurrence was witnessed by the complainant, Mehboob S/O Abadat Ali, Muhammad Shabir S/O Allah Dita, Muhammad Mushtaq S/O Gul Bahar and the police personals. On this report the case was registered by Muhammad Ilyas S.I (P.W.17). On 11.12.2002 after arriving at the spot Muhammad Ilyas S.I police prepared inquest report Exh.PI and injury form Exh.PH. On 12.12.2002 blood-stained clay, stones, grass, leaves P-5 (vide recovery memo Exh.PG) and three empties of .30-bore pistol P-6, P-7, P-8 from the place of occurrence were taken into possession by Muhammad Ashraf S.I police (P.W.18) (vide recovery memo Exh.PF) in the presence of Karamat Hussain (P.W.9) and Kafayat Ali (P.W.10). On the same day the accused appellants were apprehended. Muhammad Razzaq accused led to the recovery of .30-bore pistol P-4, which was taken into possession by Irfan Saleem Inspector Police (P.W.19) (vide recovery memo Exh.PO), from his new house, under construction in the presence of Mehboob Hussain (P.W.11) and Muhammad Ramzan (P.W.12). After the post-mortem, on the same day blood-stained trouser P-1, string P-2 and shirt P-3 of the deceased were taken into possession by the said Muhammad Ashraf Khan S.I police (P.W.18), vide recovery memo Exh.PCC, in the presence of aforementioned P.Ws 11 and 12. He also handed over dead body to Muhammad Amin complainant vide receipt Exh.PC. On 22.12.2002 Irfan Saleem S.I Police (P.W.19) got prepared the site-plan Exh.PD from Abdul Malik Patwari (P.W.13). In the light of document Exh.PBB, it was reported by the Director Forensic Science Laboratory Panjab, that three crime empties were found to had been fired from .30-bore pistol, recovered from accused Razzaq. It was reported by Chemical Examiner vide its report dated 11.01.2003 (not exhibited) that the clay stones, grass, leaves and cloths of deceased were found stained with blood. The Post-mortem of the dead body of Jahangir Hussain, deceased was performed on 12.12.2007 by doctor Anjum Shehzad (P.W.16) Civil Medical Officer Tehsil Headquarter Dudyal vide post-mortem report Exh.PK. He noticed the following injuries on the dead body of the deceased caused by fire-arm:-- (1) Injuries. Entrance wound of ½" size which was 3" left to umblicus just below 12th thoracic rib on the abdomen. Exit wound:--1" in size just 3" right of spinal cord on the back of dead body, just below 12th thoracic rib. (2) Entrance wound of ½" size just about 1.1/2" above the elbow joint on back side of Rt-arm causing fracture of Rt-humerus. Exit wound:--In the middle of Rt-arm of about 1" size e" irregularities. The accused-persons during their examination under Section 242, Cr.P.C pleaded not guilty and claimed the trial. Muhammad Ameen, the complainant (P.W.1), Mehboob (P.W.2), Muhammad Shabir (P.W.3), Muhammad Mushtaq (P.W.4), Muhammad Yasin Constable Police No.158 (P.W.5), Abdul Ghafoor Constable Police No. 1438 (P.W.6), Karam Hussain (P.W.7), Karamat Hussain (P.W.9), Kafayat Ali (P.W.10), Mehboob Hussain (P.W.11), Muhammad Ramzan (P.W.12), Abdul Malik Patwari (P.W.13), Qurban Ali Constable Police No.73 (P.W.14), Shakeel Kazmi Constable Police No.247 (P.W.15), Doctor Anjum Shehzad (P.W.16), Muhammad Ilyas S.I Police (P.W.17), Muhammad Ashraf S.I police (P.W.18), Irfan Saleem Inspector Police (P.W.19), Muhammad Tariq D.S.P. (P.W.20) and Sardar Ghalib Hussain Inspector/SHO (P.W.21) were produced in support of the prosecution. After completion of the prosecution evidence on 03.10.2006, an opportunity was provided to the accused-persons to explain their possession in respect of the evidence produced against them by the prosecution during the examination under Section 342 Cr.P.C. Both the accused persons denied their presence and participation in the occurrence and pleaded false implication. After completion of the trial, the learned Additional District Criminal Court giving weight to the prosecution story of the FIR duly supported by eye-witnesses, medical evidence and other corroboratory circumstances found the accused-persons guilty of the charge. They were accordingly convicted and sentenced under Section 302/34 APC read with Section 13/20/65 AA. Ch. Ali Muhammad Chacha, the learned counsel for the accused-appellants vigorously argued that a false case has been registered against the accused-appellants on account of enmity. The learned counsel pointed out that the case about the first occurrence alleged to have taken place at 1:00 p.m., could not be proved by the prosecution and the accused were acquitted of the charge which makes the prosecution story suspicious and doubtful. The learned counsel also contended that the place of occurrence has been pointed out poultry-farm of Malot but the prosecution has failed to prove the same as place of occurrence. Similarly the time of occurrence and the manner of occurrence could also not be proved. The learned counsel maintained that FIR in case was lodged after deliberation and consultation with an advocate which was also written by an advocate, therefore, it cannot be considered as an FIR. The learned counsel laid great stress upon the point that all the prosecution witnesses do not belong to the locality, all of them are interested witnesses and close relatives of the deceased. The learned counsel argued with vehemence that the motive of the occurrence could also not be proved because in the light of the judgment of the trial, first occurrence has been proved a false story. The learned counsel agitated that it is an unseen occurrence and the evidence of the eye-witnesses is fake, ambiguous and self-contradictory which cannot be relied upon. The learned counsel further argued that according to the FIR, one fire hit the deceased whereas Muhammad Ameen, the complainant (P.W.1), Mehboob Hussain (P.W.2), Muhammad Shabir (P.W.3) deposed that Razzaq made two fires upon the deceased amongst one hit him upon his abdomen and other on his right arm. Whereas Muhammad Mushtaq (P.W.4) testified that Razzaq fired three shots but Muhammad Yaseen (P.W.5) stated that when he, along with Abdul Ghafoor (P.W.6), reached at the place of occurrence he found Jahangir injured whereas according to the Abdul Ghafoor, he did not witness the act of firing rather he heard the sound of firing. The learned counsel pressed into service the submission that medical evidence also does not support the prosecution version because according to the report of the post-mortem the shot was fired from the left side whereas according to the site-plan shots could not be fired from the left side in the light of the key-notes 1 and 2 of the site-plan. The learned counsel further contended that according to the post-mortem report, deceased died after 10/20 minutes of the injury. In this manner according to the prosecution, the deceased died at 4:40 or 4:50 p.m. but according to the post-mortem report the occurrence took place at 8:00 p.m. or 10:00 p.m. and not at 4:30 p.m. The learned counsel took pains to substantiate his contention that the corroboratory evidence is also not worthy of any credence, because in the light of recovery memos Exh.PF and Exh.PG the place of occurrence has been prescribed as Pabbi Daggar and not the poultry-farm. Similarly the weapon of offence .30-bore pistol has been alleged to be recovered from an open house, under construction, therefore, such type of recoveries cannot be considered as supportive evidence in case of capital punishment. The learned counsel went on to argue that according to the FIR, the place of occurrence is poultry-farm near Malot whereas according to the recovery witnesses the empties of .12-bore pistol, clay, stone, grass and leaves were taken into possession from Pabbi Daggar, but according to the deposition of Irfan Saleem S.I police (P.W.19) place of occurrence is poultry-farm near Ropparie, therefore, the prosecution miserably failed to prove the time and place of occurrence, which casts serious doubt upon the prosecution tale. The learned counsel further maintained that according to the PWs, at the time of occurrence one person was present in the poultry-farm who was natural witness but withheld by the prosecution whereas all other P.Ws are chance witnesses and their presence at the spot is not possible in natural course of events. The learned counsel again pointed out that the witnesses of recoveries did not belong to locality; therefore, their evidence cannot be taken into consideration. The learned counsel finally submitted that the prosecution story is full of doubts and material contradictions but the trial Court without applying its judicial mind and without appreciating the evidence in a legal fashion, recorded the impugned judgment in a hasty manner which could not be maintained, therefore, the accused-appellants may be acquitted of the charge. In support of the contention the learned counsel cited the following authorities:-- (1) PLD 1963 S.C 17, (2) PLD 1965 (W.P) Karachi 76, (3) 1975 P.Cr.L.J 750, (4) PLJ 1976 ( Lahore ) 258, (5) 1995 S.C.M.R. 1134, (6) PLJ 1996 Cr.C.( Lahore ) 314, (7) 1998 S.C.M.R 1847, (8) 2003 S.C.M.R 1419. Ch. Muhammad Mehfooz, the learned counsel for the complainant controverted the arguments raised by the learned counsel for the appellants and submitted that the present case is of a day-light occurrence whereby the accused appellants have been nominated in the FIR along with the eye-witnesses. The FIR was lodged without any delay because distance between the place of occurrence and police station is 19 Km. The learned counsel further argued that all the witnesses have fully supported the prosecution story which is amply corroborated by sufficient confirmatory evidence like site-plan, report of the postmortem, the report of the experts and other incriminating evidence. The learned counsel pointed out that in the light of the suggestions made to the prosecution witnesses the time, the place of occurrence, the presence of the deceased and P.Ws has been admitted, therefore, need not to be proved by the prosecution. The learned counsel further maintained that the defence has also admitted the fact that the shots were fired at the place of occurrence in consequence of which deceased was severely injured. The learned counsel pressed into service the submission that the motive has also been proved because the enmity between the parties has been fully established by the P.Ws. The learned counsel laid great stress upon the point that in the light of the evidence of Muhammad Shabir (P.W.3) the place of occurrence "Malot" has been admitted by the defence. The learned counsel vehemently argued that Karam Hussain (P.W.7) has testified about first occurrence and the judgment of the acquittal has not yet attained finality because it has been challenged before the appellate Court, therefore the judgment of the trial Court about the first occurrence does not adversely affect the prosecution case. According to the learned counsel, the prosecution has proved its case beyond any reasonable shadow of doubt, therefore, the appeal filed by the accused appellant may be dismissed and the sentence awarded to Yaseen accused be enhanced. M. Azam Khan, the learned counsel for the complainant in his written arguments supported the arguments raised by the learned counsel Ch. Muhammad Mehfooz, however, he submitted that all the prosecution witnesses are natural and truthful witnesses. According to him, the minor discrepancies do not affect the main story of the occurrence. The learned counsel agitated that prosecution has proved the intention of both the accused persons, therefore, not only death sentence of Razzaq accused be maintained but co-accused Yaseen may also awarded death sentence. In support of the arguments reliance was placed upon the following case law:-- 1. PLD 1979 S.C (AJK) 23, 2. PLD 1993 S.C 895, 3. PLJ 2001 S.C (AJK) 120. Mr. Muzaffar Ali Zaffar, the learned Additional Advocate General appearing on behalf of the state has fully owned and supported the arguments raised by the learned counsel for the complainant party. I have taken into consideration the respective contentions of the learned counsel for the parties, carefully examined the record and the case law cited. The prosecution has tried to prove its case against the accused-appellants on the basis of ocular version, medical evidence and the motive behind the murder of Jahangir Hussain. First of all, I would like to deal with the eye-witnesses account. Muhammad Ameen, (P.W.1) the complainant deposed that on the fateful day, on account of first occurrence S.H.O deputed Muhammad Yaseen (P.W.5) and Abdul Ghafoor (P.W.6) police constables to arrest the accused persons. He along with Muhammad Yaseen and Abdul Ghafoor went to Rata Bandsabeelan and hired a jeep owned by Raja Mushtaq (P.W.4) and proceeded towards Tharra. He also boarded Mehboob (P.W.2) and Muhammad Shabir (P.W.3) in the jeep for the identification of the accused persons and proceeded further. When they reached village Malot near poultry-farm they found accused standing thereby. The complainant along with deceased Jahangir, Mehboob, Muhammad Shabir, Mushtaq, Muhammad Yaseen and Abdul Ghafoor alighted from the jeep and started going towards the accused persons, thereon Yaseen accused raised a lalkara and asked Razzaq to fire a shot whereupon Razzaq fired straight shots of pistol upon his brother Jahangir which hit him upon his abdomen and on the right shoulder who fell down. The accused person fled away after the occurence. The complainant along with eye-witnesses mounted Jahangir in the jeep but he succumbed to the injuries while his way to the hospital. According to the complainant, the occurrence was witnessed by him, Mehboob, Muhammad Shabir, Muhammad Mushtaq, Muhammad Yaseen Constable Police and Abdul Ghafoor Constable Police. During the cross-examination he explained that FIR (Exh.PA) to the extent of hitting of one fire is not correct and Muhammad Razzaq accused fired two shots upon the deceased. Mehboob (P.W.2) stated that on 11.12.2002 he along with Muhammad Shabir (P.W.3) was present in village Tharra. They found Jahangir deceased, Ameen and two police constables riding in a jeep coming from Ratta which was driven by Muhammad Mushtaq (P.W.4). Muhammad Ameen and deceased Jahangir also mounted them in a jeep. When jeep reached village Malot near poultry-farm, they found Razzaq and Yaseen accused. When they went towards accused persons Yaseen raised a lalkara and asked Razzaq to fire a shot whereupon Razzaq fired straight shots which hit Jahangir upon his abdomen and right shoulder who after sustaining injuries fell down and the accused-appellants fled away. Muhammad Shabir (P.W.3) testified that on 11.12.2002, he along with Mehboob Hussain (P.W.2) was present in village Thara while Jahangir deceased and Muhammad Ameen with two police constables riding in a jeep arrived there and also boarded them in a jeep. When they reached village Malot near poultry-farm, they found Razzaq and Yaseen standing thereby. They stopped the jeep and went towards the accused-persons whereat Muhammad Yaseen raised a lalkara and asked Razzaq to fire a shot whereupon Razzaq fired shots upon Jahangir with a pistol which hit him upon his abdomen and right shoulder who fell down. Meanwhile accused persons fled away from the scene of occurrence. Muhammad Mushtaq (P.W.4) also stated that on 11.12.2002 he was standing near-by his Jeep No. 3553 IDE in village Ratta Bandsabeelan whereby Muhammad Ameen complainant and Jahangir deceased asked him to proceed to village Malot. He boarded both of them along with two police constables in his jeep. He also boarded Mehboob and Muhammad Shabir from Tharra bazaar and proceeded towards village Malot. He stopped the jeep on left side of the road on a poultry-farm near village Malot. Thereupon the complainant and deceased Jahanagir pointed out the police constables about the presence of Yaseen and Razzaq accused-persons. When all of us after alighting from the jeep, went towards the accused-persons, Yaseen raised a lalkara and asked Razzaq to fire a shot whereupon Razzaq fired three shots from .30-bore pistol amongst one hit Jahangir upon his abdomen and other on his right shoulder. After sustaining injuries deceased fell down and the accused persons fled away. All of us picked up Jahangir and mounted him in the jeep but he succumbed to the injuries on his way to the hospital at village Rajoya. Muhammad Yaseen Police Constable No. 158 (P.W.5) testified that on the direction of Additional S.H.O he along with Abdul Ghafoor constable went to arrest the accused persons. Muhammad Ameen complainant and Jahangir deceased also accompanied them. They boarded in the jeep of Mushtaq P.W from village Ratta and also mounted Mehboob and Shabir P.Ws from village Tharra. When they reached village Malot they found two persons standing near by poultry-farm. On pointation of the Muhammad Ameen and Jahangir, deceased when they alighted from the jeep, the accused-persons run away towards Pubbi. When they chased them, they raised lalkara and Razzaq started firing.. When they reached near Jahangir deceased they found Jahangir injured by firing but he was alive. They laid him on a cot and climbed up but after some time Jahangir succumbed to the injuries. Abdul Ghafoor constable (P.W.6) deposed that on 11.12.2002 Karam Hussain got registered a case against the accused-persons and on the direction of Addl.S.H.O he along with Muhammad Yaseen constable went to arrest the accused persons. Muhammad Ameen complainant and Jahangir deceased also accompanied them for the identification of the accused persons. They hired jeep of Raja Mushtaq from village Ratta and proceeded towards village Tharra. Mahboob and Shabir P.Ws also boarded in the jeep from village Tharra. When they reached village Malot near poultry-farm, Ameen and Jahangir deceased pointed out about accused-persons. When they stepped down from the jeep, the accused persons went down towards Pubbi. Yaseen accused raised lalkara and Razzaq-accused started firing which hit Jahangir who after sustaining injuries fell upon the earth. They picked up the injured Jahangir but he succumbed to the injuries while his way to the hospital. In cross-examination he explained that he did not see the accused firing however, he heard the sound of firing and at that time Yaseen constable was accompanying him. He further stated that the complainant told him about the accused who raised lalkara and who made firing. A careful perusal of the aforementioned ocular version except Muhammd Yaseen Constable Police (P.W.5) and Abdul Ghafoor Constable Police (P.W.6), reveals that the deceased was killed by the firing of Razzaq-accused who fired two shots one of which hit him upon his abdomen and other on his right shoulder. After sustaining injuries the deceased fell down upon the earth and succumbed to the injuries on his way to the hospital. It will be relevant to point out that it appears from the suggestions of the defence put to the prosecution witnesses that the place of occurrence, the presence of the complainant along with his deceased brother Muhammad Jahangir and eye-witnesses, the presence of the accused persons, the fact of firing by .30-bore pistol and the death of the deceased by firing shots is admitted by the defence. For instance it was suggested to Muhammad Ameen (P.W.I) at page 13 of his statement in the following manner:-- It was also suggested to the complainant at page 15 of his deposition as under:-- It was suggested to Mehboob Hussain (P.W.2) at page 7 of his statement in the following manner:-- It was further suggested to the said P.W on page 8 of his statement as under:-- It was against suggested to the said (P.W. 2) which appears on page 11 of his statement as under:-- Likewise a suggestion was also put to Muhammad Shabir (P.W.3) which appears on page (2) of his deposition in the following manner:-- Similarly it was suggested to Muhammad Mushtaq (P.W.4)on page (3) of his statement as under:-- It was further suggested to Muhammad Yaseen Constable Police (P.W.5) on page (7) of his statement as under:-- It was again suggested to Abdul Ghafoor Constable Police (P.W.6) on page (5) of his statement in the following manner:-- A close scrutiny of the afore-stated style of cross-examination and suggestions put to the P.Ws, time and place of occurrence, the presence of accused party, the presence of deceased and eye-witnesses, the death of deceased by firing the shots stand admitted on the part of the defence, as held above. Thus, only the manner of occurrence is required to be proved by the prosecution. I am cognizant of the fact that aimless and erratic suggestions put to the P.Ws in cross-examination does not mean the admission of guilt or involvement of the accused in the offence, as held in "Muhammad Chiragh's" case (1998 S.C.M.R 1847), referred to by the learned counsel for the accused-appellants but in the instant case, as stated above in detail, the situation is almost different from the case law cited because in the present case a specific defence has been taken by the accused-appellants that the deceased was put to death by firing of Muhammad Ameen, complainant in the presence of eye-witnesses, therefore, the aforementioned authority does not render any help to the appellant's case. As discussed above, only the manner of occurrence has been disputed by the defence, therefore, the burden of proof shifts upon the defence instead of prosecution to prove different manner of occurrence and presence of the circumstances bringing the case with any of general exceptions.(PLJ 1984 Cr.C (AJK) 167). I am also alive of the fact that it is always the basic duty of the prosecution to prove the criminal case beyond any reasonable shadow of doubt, therefore, if the above mentioned principle cannot be taken into consideration even otherwise the prosecution version is clear, cogent and reliable. As for as the evidence of Muhammad Yaseen Constable Police (P.W.5) and Abdul Ghafoor Constable Police (P.W.6) is concerned, if not relied upon even otherwise the evidence of four eye-witnesses including Muhammad Mushtaq (P.W.4) an independent eye-witness is sufficient to bring guilt home to the accused-appellant, Muhammad Razzaq. However, the evidence of above-mentioned P.Ws 5 and 6 can be considered as strong corroboratory piece of evidence because their presence at the time of occurrence is also admitted by the defence. It has been amply proved on the record that they accompanied Muhammad Ameen and Jahangir deceased from the police station. They were also present at the time of hiring the jeep from Muhammad Mushtaq (P.W.4) and they also witnessed the fact when the complainant asked Mehboob Hussain (P.W.2) and Muhammad Shabir (P.W.3) to accompany them for the identification of the accused-appellants. I find little force in the plea of the learned counsel for the accused-appellants that all the eye-witnesses and recovery witnesses are closely related to the complainant, therefore, their evidence cannot be taken into consideration. It is by now, settled position of law that only relationship is not a ground for discarding of the evidence of the witnesses because interested witness is one who falsely implicates an innocent person with ulterior motive. In this regard, a host of case law can be refered but I chose to cite the following cases only:-- 1. PLD 1988 SC (AJK) 134; 2. 1992 SCR 249; 3. 1992 SCR 294; 4. 2001 SCR 240; 5. 2007 SCR 1; It is important to observe here that all the eye-witnesses are not closely related to the complainant because Muhammad Mushtaq (P.W.4) is an independent person. So for as the argument of the learned counsel for the accused-appellants is concerned that all the eye-witnesses are chance witnesses and their presence at the spot is not possible in natural course of events, does not appear to be well founded because it has been abundantly proved on the record that on the direction of Addl.S.H.O Police Station Dudyal, Muhammad Yaseen and Abdul Ghafoor constables accompanied Muhammad Ameen complainant and Jahangir Hussain deceased while Muhammad Ameen hired a jeep from Muhammad Mushtaq (P.W.4) and boarded Mehboob Hussain and Muhammad Shabir P.Ws for identification of the accused-appellants because according to the complainant, at the time of the first occurrence he was not present, therefore, they cannot be treated as chance witnesses. Even otherwise testimony of the chance witnesses cannot be taken lightly brushed-away. However deposition of the chance witnesses should be scrutinised with care and caution but it does not mean that his testimony should be relied upon only if the same is corroborated by the independent eye-witnesses, as opined in "Abdul Rasheed and others case". (2001 SCR 240). After a thorough probe the same view was affirmed by a case reported as "Muhammad Khurshid Khan versus Muhammad Bisharat & another" (2007 SCR 1), whereby the following principle was enunciated at page 22 of the report in the following manner:-- "It would be also useful to mention here that if a chance witness reasonably explains his presence at the place of occurrence and states about the occurrence in such a way that it inspires confidence and it is also corroborated by any other evidence or circumstances, then the same can be considered along with the other circumstantial evidence". In this context an authority, cited by the learned counsel for the appellants PLD 1963 S.C.17, does not need any detailed analytical survey because in the case under report natural witnesses were not produced and the chance witnesses were animus to the accused. Whereas in the instant case no rancour or enmity of the P.Ws with accused-persons could be proved on the record. The learned counsel laid great stress upon the point that the place of occurrence has not been proved by the prosecution. As already held in the earlier part of the judgment, that in the light of the suggestions put to the P.Ws and by the trend of the cross-examination, the place of occurrence has been admitted by the defence, therefore, the aforementioned argument does not need any detailed discussion. In the present case, ocular version is supported by ample corroboratory evidence. Before dealing with the corroboratory and supportive evidence, it will be relevant to point out that the conviction can be recorded on the deposition of eye-witnesses alone if their evidence rings true but the Courts always look for the corroboration as a rule of caution and in order to exonerate the innocent person. In this regard reference can be made to a case titled "Zahir Hussain Shah versus Shah Nawaz Khan and 3 others" and "The State Versus Shah Nawaz Khan and 2 others". (2000 SCR 123), wherein it was observed as under:-- "It therefore follows that where ocular evidence is reliable and satisfactory, conviction in law can be recorded on such evidence alone without any further corroboration but in the present case the ocular evidence gets further support from ample circumstantial evidence". In the instant case Dr. Anjum Shehzad (P.W.16) fully supported the post-mortem report (Exh.PK) who found firing of shots exactly on the same parts of the body of the deceased whereat stated by the eye-witnesses. According to him, the death occurred due to damage to blood vessels and loss of blood from the injuries caused by the firearm. At this stage it will be relevant to resolve an objection raised by the learned counsel for the accused-appellants that according to the FIR deceased sustained only one injury of pistol in his abdomen but according to complainant he sustained two injuries whereas according to Muhammad Mushtaq (P.W.4) Razzaq fired three shots but in the light of the post-mortem report the deceased sustained two injuries caused by the firearm, one upon his abdomen and other upon his right shoulder. It will be fruitful to mention here that FIR is not a sacrosanct document or a piece of substantive evidence. The purpose of FIR is only to set at motion the police agency and it is not necessary that each and every detail should be given in it rather it can only be used for contradicting or corroborating the maker thereof. Thus, the exclusion of the second fire in the FIR cannot entirely destroy the case of the prosecution. In this respect the learned counsel has cited certain authorities but none of these could extend any help to the accused-appellants because of the distinguishable facts. For instance "Khalid Javed & another's case (2003 S.C.M.R 1419), the prosecution itself vide F.I.R and supplementary statement introduced two versions of the incident whereas the accused had supported the prosecution version mentioned in the F.I.R, therefore, on account of two versions the accused-appellant was acquitted of the charge. Similarly in `Nazir Masih's case" (PLJ 1996 Cr.C (Lahore) 314), the F.I.R was recorded after spot-inspection and preliminary investigation, therefore, it was held that the registration of case after the spot-inspection creates a serious doubt in ones mind and the sanctity of F.I.R losses its credibility whereas in the present case the F.I.R was recorded promptly and without any investigation. The complainant has explained his position and clearly deposed before the trial Court that Yaseen accused fired two shots and aforementioned version has been supported by P.Ws Mehboob, Muhammad Shabir and Muhammad Mushtaq. The perusal of injury form (Exh.PH) and column 10 of inquest report (Exh.PI) also support the prosecution story in this context. It may be necessary to point out here that all the eye-witnesses are unanimous on the point that two bullets hit the deceased. As for as the statement of Muhammad Mushtaq (P.W.4) about the firing of 3 shots by Razzaq accused is concerned, does not make the prosecution case totally doubtful and suspicious because a casual assertion by a witness cannot destroy the overall affect of his statement until and unless he resiles from his major part of deposition (1996 SCR 197) . It is also settled position of criminal jurisprudence that the evidence should not be considered in isolation but whole of it should be taken into consideration. (PLD 1993 S.C 895). Similarly the recovery of three empties from the place of occurrence is not by itself sufficient to exonerate the accused-persons from the charge of murder because it may be an irregularity. The fact of recovery is however substantiated by the site-plan (Exh.PD) prepared by Abdul Malik Patwari (P.W.13) and by its Key-notes (Exh.PE), wherein the distance of various points has been shown. The aforestated site-plane and the Key-notes are not in conflict with the version of the eye-witnesses. The recovery of blood stained clay, stones, grass and leaves P-5, the clothes of the deceased trouser P-1, string P-2 and blood stained shirt P-3 are also in nature of supportive evidence. The report of Forensic Science Libortary (Exh.PBB), further confirms the ocular version. Let me now deal with another objection raised by the learned counsel for the accused-appellants that in the light of the site-plan (Exh.PD) the firing of shots from the left side is not possible. I have carefully examined the post-mortem report (Exh.PK) and the site-plan (Exh.PD) but I do not find any reason as to why the shots could not be fired from the left side by the assailant to the victim especially when the fact of firing has not only been categorically stated by eye-witnesses and supported by the medical evidence, but also admitted by the defence. I also cannot subscribe to the view of the learned counsel for the accused-appellants that the person present in the poultry-farm was a natural witness and on account of not producing him as P.W raises a serious suspicion against the prosecution version. It may be mentioned here that it is not the duty of the prosecution to produce each and every witness. It depends upon the prosecution to produce such witness whom it deems necessary for proving the guilt of the accused. I am not persuaded to hold that the recovery evidence is not reliable because recovery witnesses do not belong to locality and they are closely related to the complainant-party. It is admitted on the record that the deceased and complainant belong to village Pubbi Tharra whereas the accused-appellants belong to village Malot and the murder has been committed in village where the accused are residing. In such state of affairs, it was quite impossible for the prosecution to produce the witnesses from the village in which the accused-persons are residing. Even otherwise, it is not imperative in every case to produce the witnesses from the locality. So for as the relationship of the recovery witnesses with the deceased is concerned, is not a valid ground for disbelieving their evidence. (2007 SCR 1). The recovery of pistol P-4, weapon of offence has also been proved by the evidence of Mehboob Hussain (P.W.11) and Muhammad Ramzan (P.W.12) (not related to the complainant), which finds further support from the deposition of Irfan Saleem S.I Police (P.W.19). The P.Ws have categorically testified the recovery of weapon of offence, which was taken into possession from a house under construction, wherein the weapon of offence was safely hidden within the bricks. Mehboob Hussain (P.W.11) has even stated the number of pistol i.e 5187B. In this manner the recovery of weapon of offence provides strong corroboration to the version of the eye-witnesses. The contention of the learned counsel is also devoid of force that motive has not been proved because the first occurrence could not be proved against the concerned accused-persons. Suffice to note that the case of first occurrence is subjudice before the Appellate Court and it has also been amply proved on the record that on filing of F.I.R about the first occurrence Muhammad Yaseen Constable Police (P.W.5) and Abdul Ghafoor Constable Police (P.W.6) were ordered to arrest the accused-persons, therefore, the motive alleged by the prosecution stands proved. It may also be pointed out that this is a well settled principle of law that if the case is primarily based on ocular evidence, it is not necessary to prove motive. (2001 SCR 240). In the instant case, as observed herein above, the prosecution has proved its case with sufficient, cogent and trustworthy ocular evidence which is supported by ample, corroboratory and confirmatory evidence. Thus, I am satisfied that the witnesses as for as Muhammad Razzaq accused-appellant is concerned, are telling truth and there is nothing to cast doubt on their deposition. The minor discrepancies and some variations are not sufficient ground to reject the testimony of the eye-witnesses and the same as doubtful. Therefore, in my view, the prosecution has proved its case against Muhammad Razzaq accused-appellant beyond any shadow of doubt who is found guilty of offence of murder of deceased Jahangir Hussain. At the same time the eye-witnesses produced by the prosecution are found adil and they also fulfil the standard and requirements of evidence needed in case of Qisas, therefore, the sentence of Qisas awarded by Additional District Criminal Court has to be confirmed. So for as the case of Muhammad Yaseen is concerned, the conviction and sentence to his extent, appears to be based on flimsy and artificial grounds. It has been admitted on the record that the allegation against him is of raising a Lalkara. He was not armed with any lethal weapon. He did not cause any injury to the deceased or the P.Ws. The prosecution also failed to prove on the record that co-accused was aware of the fact that his brother Muhammad Razzaq was armed with a pistol. Muhammad Yaseen Constable Police (P.W.5) did not nominate Muhammad Yaseen during his examine-in-chief. Therefore, keeping in view the attribution to him, only a proverbal lalkara, it will be in the interest of justice to acquit him of the charge while extending the benefit of doubt. The aforesaid view finds support from a case reported as "Liaqat Hussain & another versus Ulfat Khan & another, Mst. Rajbi & 3 others versus Liaqat Hussain & 2 others, Khan Muhammad versus Ulfat Khan & another". (2007 SCR 39). The analysis of the above discussion is that, I partly accept this appeal by setting aside the impugned judgment of conviction and sentence passed against Muhammad Yaseen accused-appellant and acquit him of the charge while extending him the benefit of doubt. Consequently, the appeal filed by the heirs of the deceased for enhancement of the sentence stands dismissed. However, the appeal filed by Muhammad Razzaq accused-appellant is hereby dismissed and the sentence of Qisas awarded to him is maintained. The convict-appellant shall be hanged till he is dead. The reference also stands confirmed. The copies of the judgment shall be annexed with other files. (R.A.) Order accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 3 Present : GHULAM SARWAR SHEIKH, J. Hqji HUSSAIN & two others-Petitioners versus STATE-Respondent Cr. M. No. 991-B-1996/BWP, accepted on 19.5.1997. Bail-- —- S. 497 Cr.P.C.-Bail grant of-Prayer for--Offenee u/s 302/380/148/149/109 & 201 P.P.C.-There is no cavil with fact that in investigation, petitioners have been found to be innocent as no incriminating material has been collected against them-Nothing can be said at this stage as to whether principal accused, at time of occurrence had acted independently or under influence of petitioners unless evidence to reach any definite conclusion is recorded-Petitioners H & G are aged persons, their case falls within ambit and compass of proviso to section 497(1) Cr.P.C. and no motive or any other overt act has been ascribed to them, cannot be lightly ignored and brushed aside-According to sub­ section (2) of section 497 Cr.P.C., where there are reasonable grounds for believing that accused has committed non-bailable offence, but there are sufficient ground for further inquiry, be released on bail-Held : Petitioner cannot be allowed to incarcerate for indefinite period on mere fact that they are closely related to principal accused who is still absconder-Petitioners admitted to bail. [P. 5] A & B Malik Miihammad Farrukh Mehmood, Advocate for Petitioners. Mr, Muhammad Javed Akhtar Pirzada, Advocate for Complainant. Mr. Muhammad Afzal Cheema, Advocate for State. Date of hearing: 19.5.1997. judgment Heard. 2. For causing/committing double murder of Zahoor Ahmad and Mst. Sughara; in the back ground of an igniting motive and allegedly at the behest and instigation of Haji Hussain, Ghulam Hassan, Manzoor Ahmad and Muhammad Aslam, a case, under Sections 302/380/148/149/109 & 201 PPC stand registered at Police Station Sadar Bahawalpur vide F.I.R. 153/96 dated 21.7.1996 against them and their co-accused namely, Muhammad Ashraf alias Sheri, Zahoor Ahmad, Nazeer Ahmad, Muhammad Akram, Bilal, Muhammad Nawaz, Muhammad Iqbal, and Mukhtar alias Mana. 3. Entire episode, as gleaned out and reflected of F.I.R., which of course, set the law into motion, need not be re-capitulated as only allegation against petitioners, who, seek to be admitted to bail through instant application, is to the effect that the occurrence/incident was the result of conspiracy hatched by three petitioners and Manzoor Ahmad, as indicated above. 4. Concession, asked for, has been claimed on the grounds enumerated in paragraphs No. 2 to 11 of application. With reference thereto, it has been contended, inter alia, of course, with vehemence that, in any event, there are sufficient grounds for further inquiry into the guilt of petitioners attracting sub-section (2) of section 397 Cr.P.C. On pointation of having been declared to be innocent during investigation conducted by D.S.P. Dr. Muhammad Aslam vs. The State (1993 S.C.M.R. 2288), Muhammad Hussain vs. The State (1996 S.C.M.R. 73), Abdur Rehman vs. The State (1994 P.Cr.L.J. 1020), Miran Bakhsh v. The State (1989 S.C. 34), SyedAman Ullah vs. The State (PLD 1996 S.C. 241) and Muhammad Akram . The State (1992 P.Cr.L.J. 1617) have been referred to stress that, in such eventuality, petitioners' participation in the offence, prima facie becomes doubtful, even conflicting findings ought to be resolved in favour of an accused and in any case renders the case to be of "further inquiry". 5: It has been opposed and resisted vigorously with the assertions that the petitioners are vicariously liable for the act of the principal accused, who is still at large, Courts are not bound to believe and rely on "ipse dixit" of police and such material cannot entail benefit of provisions relatable to cases which warrant further inquiry. Reliance has been placed upon Syed Ikhlaq Hussain Shah v. The State, (1997 P.Cr.L.J. 610), MaulviAshiq Hussain and others vs. The State (P.Cr.L.J 131), Syed Ikhlaq Hussain and others vs. The Statae (P.Cr.L.J. 1114) and Nazir Baig alia Jahangir Baig v. Muhammad Anwar and another (1994 S.C.M.R. 451), in support of the submissions. 6. There is no cavil with the fact that in the investigation, so far, carried out, the petitioners, have been found to be innocent inasmuch as no incriminating material has been collected against them. As expounded in Syed Amanullah Shah v. The State (N.L.R. Crl. 188), Syed Amanullah Shah vs. The State (PLD 1996 S.C. 241), Abdul Khan v. Abdul Qayyum and another (1996 S.C.M.R. 493), Muhammad Siddiq v. The State (1997 P.Cr.KJ. 143) and Syed Qaim All Shah v. The State (1992 P.Cr.L.J. 9) alleged conspirator or abettor not present on spot, like petitioners, is entitled to bail as his case stands on lower footing than persons, who, happen to be present, at the spot and raise lalkara. As enunciated in James Sardar and another vs. The State (1966 P.Cr.L.J. 1422) nothing can be said at this stage as to whether the principal accused, at the time of occurrence had acted independently or under the influence of present petitioners, unless evidence to reach any definite conclusion is recorded. 7. According to sub-section (2) of Section 497 Cr.P.C. where there are reasonable grounds for believing that the accused has committed a nonbailable offence, but, there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. While interpreting the above provisions in the case of Arbab Mi vs. Kamiso and others (1985 S.C.M.R. 195) it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition con­ tained in sub-section (1) of Section 497 Cr.P.C. into the guilt of the accused. 8. Apart from that, factors, that Muhammad Rafiq, and Nazeer Ahmad, both witnesses on the point of abetment/instigation are real brothers; there is no independent evidence, site plan is bereft of mention of etitioners, Haji Hussain and Ghulam Hassan are aged persons, their case falls within the mbit and compass of proviso to Section 497 (1) Cr.P.C., and no motive or any other overt act has been ascribed to them, cannot be lightly ignored and brushed aside. Undoubtedly, they are behind the bars for the last about then months. Investigation has not yet been finalised, what to, speak of, submission of challan in Court, commencement and conclusion of the trial. In these circumstances the petitioners cannot be allowed to incarcerate for an indefinite period, on mere fact that they are closely related to principal accused, who, is still absconder. 9. Consequently, application is accepted and the petitioners are admitted to bail in the sum of Rs. 1,00,000/- (one lac) each with two sureties each in the like amount to the satisfaction of learned Sessions Judge, Bahawalpur. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 6 Present: DR. MUNIR AHMED MUGHAL, J. MUHAMMAD ABDULLAH-Appellant versus STATE-Respondent Criminal Appeal No. 42 of 1993, accepted on 9.7.1997. Pakistan Penal Code, 1860 (XLV of I860)- —S. 161 read with Prevention of Corruption Act, 1947, S. 5(2)—Dlegal gratification-Offence' of-Conviction for-Appeal against-There is contradiction as to presence of witnesses at time of demand or actual payment of bribe—None of witnesses had in fact seen occurrence—They also contradicted each other on point of motive—Appellant-accused working as patwari was a public servant-Offence alleged against him falling in category of "scheduled offences", hence, case could not have been registered against him by local police-No raid was conducted and no recovery was affected-Matter was reported to police with a delay of one year and witnesses are collaterals—Appeal accepted both on merits as well as on law. [Pp. 7 to 10] A to E 1988 P.Cr.L.J. 653 and 1992 MLD 311 ref. Mr. Ghulam Hussain Qureshi, Advocate for Appellant. Mr. Ghulam Hussain Malik, Advocate for State. Date of hearing: 9.7.1997. judgment This is an appeal against the judgment dated 26.4.1993 passed by the learned Special Judge Anti-Corruption, Lahore whereby the appellant was convicted under section 161 P.P.C. and sentenced to nine months RI and a fine of Rs. 10,000/- and in case of default of payment of fine, to undergo further RI for five months. It was also ordered vide the impugned judgment that Rs. 5,000/- out of the fine, if recovered, shall be paid to the complainant. 2. The background of the case is that Muhammad Saeed, complainant, alleged in his report dt. 12.12.88 that Muhammad Hussain fabricated a document qua a piece of agricultural land about ten years ago about which a civil litigation was pending in the Court. In the meanwhile, ,the appellant Muhammad Abdullah, Patwari, Halqa Sattoki met the complainant and induced him to pay Rs. 5,000/- in lieu of a promise to get the land mutated in His name. The next day, the complainant paid the amount to the appellant in the presence of Muhammad Shafi and Muhammad Mansha. The needful was not done and the case was got registered. 3. After investigation, the matter was sent to the trial Court wfiere the appellant was charge-sheeted under section 161 Cr.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 to which he pleaded not guilty and the prosecution examined the complainant Muhammad Saeed (PW. 1) who produced the report Ex. PW. 1/1, Muhammad Shafi (PW. 2), Javed-ulameed Inspector, Investigation Officer (PW. 3) and Muhammad Ashraf, Moharrir Head Constable (PW. 4) who recorded the formal FIR Ex. PW. 1/1. The appellant-accused in his statement under section 342 Cr.P.C. denied the allegations of having demanded and accepted Rs. 5,000/- from Muhammad Saeed, complainant as illegal gratification. 4. The accused-appellant produced in his defence, previous statement of Muhammad Shafi about his caste being Arain and not Rajput as Ex. DA. Ex. DB, Ex. DC and Ex. DD were regarding the litigation between the parties concerning the land in question. The learned trial Court declared Ex. DE not admissible on the ground that it was not a certified copy and Ex. DH on the ground that it was neither a public document nor relevant. He believed the evidence of complainant, Muhammad Saeed and Muhammad Shafi, PW on the ground that they were not inter se related nor interested witnesses nor they had any enmity with the accused. The learned trial Court did not find the justification to award separate punishment under section 5(2) of the Prevention of Corruption Act, 1947 while awarding sentence under section 161 P.P.C. 5. Learned counsel for the appellant contended that there are material contradictions as to the presence of the witnesses at the time of demand or at the time of actual payment; on the point of motive for which the illegal gratification was accepted by the accused-appellant and also regarding the going of the witnesses together from the village Sattoki. According to the learned counsel, neither any raid was conducted nor any recovery was affected. It was also contended that the FIR itself was illegal as it was fully known that the accused was a public servant and could only be reported against by the Anti Corruption Establishment. On these premises, it was argued that the appellant is entitled to acquittal. 6. Learned counsel for the State has supported the impugned judgment. 7. I have heard learned counsel for the parties at length and have gone through the record with their able assistance. 8. The ocular evidence on record shows that there is contradiction as to the presence of the witnesses at the time of demand or actual payment of the bribe inasmuch as Muhammad Saeed (PW. 1) stated that Muhammad Mansha and Muhammad Shafi were present with the complainant when the accused-appellant had demanded the illegal gratification of Rs. 5,000/- while Muhammad Shafi (PW. 2) stated that the amount was paid to the accused in his presence. The other witness who was allegedly present at the time of passing of the amount was not examined by the prosecution. It, therefore follows that none of the witnesses had in fact seen the occurrence or they were present. Further, the prosecution witnesses also contradicted each other on the point of motive as to whether the mutation was to be entered, revised or it was to be set aside. According to Muhammad Saeed, PW. 1, it was to be revised in one breath and to be set aside in the next breath while Muhammad Shafi, PW. 2, stated that the accused had told that he will get the record relating to title of Muhammad Hussain cancelled. 9. The documentary evidence on record shows that mutation No. 3049 was sanctioned by AC-II on 23.1.1969, that is, 21 years before the FIR and not ten years before it and an appeal titled "Ali Muhammad versus Ghulam Muhammad and 2 others" was filed before the Assistant Commissioner with the powers of Collector Kasur who vide his order dated 6.7.1991 (Ex. DC) dismissed the appeal and observed that the Revenue Officer committed no irregularity in implementing a registered document of voidable transaction. The remedy of the appellant lies clearly in civil Court. A civil suit titled "Ali Muhammad and 2 others versus Muhammad Sharif and 3 others" was instituted which was dismissed on 9.5.1979. Again a civil suit was titled "Muhammad Said and 8 others versus Mst. Bakhtawar and 18 others" was filed on 29.10.88 (Ex. DE) which was fully contested and dismissed on 6.1.1991 (Ex. DB) being barred by time. The complainant was plaintiff No. 1 in that suit and fully aware of the whole situation. There was, thus, no question of inducement of the appellant to the complainant for entering or cancellation of the mutation. 10. So far as the company of the witnesses from the village Sattoki is concerned, that too is not believable as according to Muhammad Saeed (PW. 1) they got a lorry from their village for Raja Jang and from there got another lorry to reach Kasur while according to Muhammad Shafi (PW. 2) he alongwith the complainant left the village in the morning for Rukhanwala on foot and from there, got a lorry to reach Kasur. 11. Now coming to the question as to whether the police of Police Station B Division, Kasur was competent to register the case under section 161 Gr.P.C. when admittedly, the accused-appellant was a civil servant? This controversy earlier became subject matter of a Constitutional Petition bearing No. 4636 of 1989 and the matter was reported as Muhammad Afzal and 2 others versus Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others (1992 M.L.D. 311). The learned Judge dealt with the matter exhaustively and held as under: - "Under section 3 of the Ordinance the Government has been empowered to establish Anti-Cor-uption Establishment. The said sections of the P.P.C. under which the said F.I.R. was got registered are scheduled offences. The said offences committed by public servants jointly with other person are to be tried and investigated in accordance with the provisions of the said ordinance and the rules made thereunder. Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 provides that preliminary inquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources. Under rule 7 a Deputy Director or an officer of or above his rank has been empowered to initiate preliminary inquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information. Rule 8 of the said Rules deal with the registrations of case against public servants and any other person who commits offences jointly with public servants. This rule provides that criminal cases shall be registered by the Establishment under the Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance. According to this rule a criminal case shall be registered against public servant under a written order of officer of Establishment mentioned in sub-clauses (a), (b) and (c) of sub-rule (2). The case against the public servant in BPS 1 to 16 according to this rule can be registered under the written orders of an officer not below a Deputy Director and against public servants in BPS-17 and 18 under the orders of the officer not below an Additional Director and against civil servants in BPS-19 and above by a Director. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein". It was further ruled as under:- "A close scrutiny of the relevant provisions of law as discussed above leaves no doubt that the case against the petitioners could not have been registered except under the orders of the officers mentioned in Rule 8 as discussed above." The writ petition in the supra case was accepted and the order of the learned Additional Sessions Judge for registration of a case and registration of the case through FIR was declared to have been passed and registered without lawful authority and of no legal effect and quashed. 12. The appellant-accused in this case was admittedly working as Patwari Halqa Sattoki district Kasur as is evident from his statement, recorded under section 342 Cr.P.C., as such, the appellant being a public servant and the offence alleged against him falling in the category of "scheduled offences", under the Punjab Anti Corruption Establishment Rules, 1985 framed under section 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the case out. of which these proceedings arise could not have been registered against him by the local police. 13, It is also an admitted position on record that no raid was conducted, no recovery was affected, the matter was reported to the Police with a delay of one year and the witnesses are collateral. In a case of such like nature, this Court has held that it created doubt in the prosecution story. Reliance can be placed on Saleh Muhammad vs. The State (1988 P.Cr.L.J. 653). 14. As a result of the above discussion, the appeal is liable to be accepted both on merits as well as on law. Order accordingly, and as a result thereof, the impugned conviction and sentence is set aside. The appellant is on bail and is discharged from the bail bonds. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 10 Present: muhammad islam bhatti, J. Mst. SAJIDA PERVEEN-Petitioner versus ASHIQ ALI etc.—Respondents Crl. Misc. 1589-BC/1997, accepted on 19.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(5)»Bail--Caricellation of--Offence U/Ss. 10 and 11 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979-Bail can be allowed only where no ground exists for believing that accused had committed a nonbailable' offence and there were sufficient grounds for "further enquiry" into their guilt-Seen from any angle facts and circumstances of this case do not entitle respondents to concession of bail as granting bails to accused in cases of heinous nature will definitely add to agony of victims of high-handedness-Offence committed by accused in fact amounts to gang rape and after addition of sub-section (4) in Section 10 death punishment to rapists has been prescribed-Application accepted and bails allowed to respondents recalled. [Pp. 12 & 13] A, B & C Muhammad Azam Bhaur, Advocate for Petitioner. Ch. Muhammad Akbar Gill, Advocate for Respondents. M/s S.B. Qureshi and Abdul Karim Bhutto, Advocates for State. Date of hearing: 19.9.1997. order This order shall dispose of Crl. Misc. No. 1589-BC/1997 and Crl. disc. No. 2242-BC/1997, both brought by Mst. Sajida Parveen complainant i case FIR No. 99/1996, for cancellation of bails granted to the accused in le case. 2. The facts leading to the filing of these petitions, briefly put, are that on 29.9.1996 Mst. Sajida Parveen aged 17/18 years made a statement efore Ghulam Hazoor, Sub-Inspector at Police Station Tirkhani District Faisalabad on the basis of which the aforesaid FIR was recorded at about 3.00 p.m. under section 10 and 11 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979. According to this FIR the complainant had gone to the fields (on 29.9.1996) at about Namaz Wela (Fajar prayer times) in order to answer the call of nature. After easing herself she was about to tie the string of her shalwar when suddenly four persons emerged from the adjoining sugarcane filed and came running towards her. They were Ashiq Ali armed with 12 bore carbine, Muhammad Afzal armed with 12 bore gun, Muhammad Khaliq armed with a pistol, and Arif Ali, who was also allegedly armed. They were all identified by the complainant, being of the same village. The complainant also described the various roles performed by them in the commission of the offence and added that all of them committed rape with her, one by one. She claimed that during this occurrence her shalwar and shirt were also torn. The alarm raised by her attracted her real brother Muhammad Ayub and her uncles Nazir Ahmad and Bashir Ahmad who also saw the occurrence. Muhammad Ayub allegedly recovered the carbine with four live cartridges from Ashiq Ali accused. All the accused, however, allegedly succeeded in slipping away firing in the air. 3. The investigation in this case was initiated by Ghulam Hazoor Sub-Inspector but was completed by Muhammad Sarfraz SI/SHO Police Station Tirkhani. He found all the accused guilty. An application moved by the accused resulted in the entrustment of the case for further investigation by Muhammad Abdul Rehman DSP/SDPO Samundri. He found Ashiq Ali, Muhammad Afzal and Arif Ali innocent and it was only Muhammad Khaliq accused who was found guilty. The main reason for arriving at this conclusion by him was that the complainant party was not willing to accept Oath or Man given by the accused regarding their innocence. He, therefore, directed that the names of Muhammad Afzal, Ashiq Ali and Arif Ali be kept in column No. 2 of the challan-. On another application to the S.S.P. Faisalabad, the investigation was entrusted to Qazi Muhammad Ayaz DSP. He found the prosecution version correct and disagreeing with the investigation carried out earlier concluded that all the accused were guilty. 4. Ashiq Ali, Muhammad Afzal and Arif Ali accused, however, moved an application for bail which was accepted on 18.12.1996 by the learned Additional Sessions Judge on the ground that they had been adjudged innocent by the police. On 23.2.1997 the complainant moved an application for cancellation of their bail alleging that they had been found guilty in the subsequent investigation carried out by Qazi Muhammad Ayaz and also that they had been misusing the concession of bail but the learned dditional Sessions Judge dismissed this application on 10.3.1997. He also granted bail to Muhammad Khaliq accused on 31.3.1997. Mst. Sajida Parveen complainant was, therefore, obliged to come to this Court on 3.4.1997 for moving an application under section 497(5) Cr.P.C. for cancellation of bails allowed to Ashiq Ali, Muhammad Afzal and Arif Ali and on 14.5.1997 for cancellation of bail allowed to Muhammad Khaliq. 5. I have today heard the learned counsel for the parties and have also carefully considered the facts and circumstances of the case as they can be gathered from the record. I find that all the respondents were duly nominated by the complainant as her rapists. There was obviously no good reason for the complainant to have nominated Ashiq Ali, Muhammad Afzal and Arif Ali accused falsely. A large number of people supported the prosecution version before the various Investigating Officers. .The complainant and other PWs who were allegedly attracted to the scene of occurrence by the alarm raised by her also filed their affidavits in support of their version. It is a settled principle of law that bail can be allowed only where no ground exists for believing that accused had committed a nonbailable offence and there were sufficient grounds for "further enquiry" into their guilr.. The reasoning advanced by the learned Additional Sessions Judge in first allowing the bail to Ashiq Ali, Muhammad Afzal and Arif Ali and then refusing to cancel the bail allowed to them, is totally faulty and un­ convincing. I fail to understand as to how the number of pages of proceedings carried out by some Investigating Officer could play a role in holding the accused innocent or guilty. Similarly how do the findings recorded by Muhammad Abdul Rehman D.S.P. cany more weight than the findings recorded by Qazi Muhammad Ayaz? Again the mere fact that Ashiq Ali, Muhammad Afzal and Arif Ali were found innocent by one of the Investigating Officers could not be a good reason for the learned Additional Sessions Judge to come to the conclusion that the case of Muhammad Khaliq was also of further enquiiy into his guilt. 6. The argument of the learned counsel for the respondents based on the assumption that Ashiq Ali and his two other co-accused who were found innocent had nothing to do witl. the commission of the offence and they had gone to spot only in order to surprise Muhammad Khaliq who had a liaison with Mst. Sajida Parveen to the knowledge of his friends and who had earlier claimed before them that they could not catch him and Mst. Sajida Parveen red handed, though impressed Muhammad Abdul Rehman DSP yet I find it devoid of any force. I do not find anything in law enabling the investigating Officers to decide the fate of ciie criminal cases on the basis of Oath or Nian. I also fail to uncieisU-uu! .;.:-, to who gave Ashiq Ali etc., the licence to go to the ijx.-i in order to give a :u-pnse to Muhammad Khaliq. It shall l)c too early to make any obsen-aticm which may adversely effect the merits of the case bill suun fu;?;' ar.y angle the facts and circumstances of this case do not ontiile i.'ne ies;;ra;aeui,T i.o Un. 1 concession of bail or to remain on bail, I cannot help observing that, granting bails to the accused in cases of heinous nal.ure so lightly will definitely add !<; the agony of the victims of high-handedness. The growing intmaees of ever increasing violence in the society is already reaching alarming liiiighu; and enabling the criminals t come out of the lock ups so conveniently, at the initial stages, would amount to putting premium to their cirminal activities. 7. I may add at this stage that of late (i.e. on 21.4.1997) an amendment has been brought about in the relevant law and Sub-Section (4) has been added in Section 10 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 which reads as unden- "(4) When zina-bil-jabr liable to tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death." In the context of this change in law the learned counsel for the petitioner has vehemently urged that the offence committed by the accused in fact amounts to gang rape. This contention cannot be burshed aside lightly. 8. For all these reasons, I accept both these applications, recall the bails allowed to the respondents and direct that they should be taken into custody forth with. (MFYK) Applications accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 13 [Rawalpindi Bench] Present: raja MUHAMMAD khurshid, J. MUHAMMAD SAEED-Petitioner versus KASHIF KHAN etc.-Respondents Criminal Misc. No. 23 CB and 236 CB of 1997, dismissed on 22.9.1997. Criminal Procedure Cf?d<.\ 1SS3 (V of 18S8)- —-S. 497(5)~Bail--Cancellation of--Offence U/S 302 FFC-Though affidavits being a weak evidence should not be readily accepted at bail stage but each case has to be decided on its own facts—Unfortunate deceased was last seen by two witnesses trot both of them did not support prosecution version-Likewise, extra-judicial confession being a weak type of evidence had become still weaker after witnesses before whom such confession was made tendered their affidavits disowning prosecution version -Recovery of churri became a matter of further enquiry after recovery witnesses resiled from prosecution version through their affidavits-Under such circumstances, discretion exercised by lower Court does not appear to be arbitrary or fanciful—No convincing grounds for re-calling orders whereby respondents were admitted to bails—Petitions dismissed. [P. 14] A Ch. Fazal-ur-Rehman, Advocate for Petitioner. Ch. Zamurrad Hussain, Advocate for Respondents. Syed Qaisar Hussain Zahidi, Advocate for State. Date of hearing: 22.9.1997. order Since both the above captioned petitions arise out of the same FIR, therefore, those are intended to be disposed of by this common order. 2. A case under Section 302 PPC was registered against the respondents of both the petitions vide FIR No. 305 dated 6.8.96 at P.S. Wah. All the three respondents were granted bails vide two different orders recorded on 23.12.96 and 28.1.97 passed by Mr. Muhammad Mujahid Hussain, the then learned Addl. Sessions Judge, Rawalpindi on the ground that being a blind murder, the witnesses namely Muhammad Hafeez, Muhammad Azhar, Sultan, Mahmood, Muhammad Azeem, Amjad Ali and Sajid Iqbal had submitted affidavits thereby disowning their statements linking the accused/ respondents with the occurrence. In this respect, it may be pointed out that Muhammad Hafeez and Muhammad Azhar had last seen the deceased Shahid Saeed with the accused but they disowned that fact in their affidavits placed on record. The accused/respondents had allegedly ade extra-judicial confession before Sultan Mahmood and Muhammad Azam PWs but they, too, tendered affidavits disowning the prosecution story. The recovery of weapon of offence i.e.; churri was effected from Abdul Malik accused/respondent in the presence of Amjad Ali and Sajid Iqbal but both of them denied such recovery in their affidavits. The other two coaccused namely Kashif Khan and Shakeel were shown empty handed even according to the extra-judicial confession. The learned trial Judge while allowing bails held that in view of the affidavits tendered by the aforesaid witnesses, it has become a case of further enquiry. 3. Learned counsel for the petitioner has challenged the impugned orders on the ground that no reliance could be placed on affidavits of the witnesses at bail stage. Reliance was placed on PLD 1990 SC 83 and PLD 1997 SC 347 in support of the proposition. 4. Learned counsel for the respondents, however, submitted that though the affidavits are not a good evidence Imtprima facie these would call for further enquiry, particularly when there is no eye-witness in the case and the murder was an unseen occurrence. The testimony of last seen evidence, extra-judicial confession and recovery of churri from one of the respondents is of very weak nature and required corroboration from a source of unimpeachable character. However, no such evidence was relied upon to corroborate the aforesaid witnesses. It was, therefore, submitted that the order granting bails to the respondents were not bad in the eye of law nor would require to be reviewed. 5. Learned state counsel also contended that each case has to be seen on its own merits after taking into account the attending circumstances of the occurrence. 6. I have considered the foregoing submissions and find that though the affidavits being a weak evidence should not be readily accepted at bail stage but each case has to be decided on its own facts and circumstances. In the instant case, the unfortunate deceased was last seen by two witnesses namely Muhammad Hafeez and Azhar but both of them did not support the prosecution version as according to them their statements under Section 161 Cr.PC were got recorded by the police of its own. Likewise, the extra-judicial confession being a weak type of evidence had become still weaker after the witnesses before whom such confession was made tendered their affidavits disowning the prosecution version. Likewise the recovery of churri became a matter of further enquiry after the recovery witnesses. resiled from prosecution version through their affidavits. Under such circumstances, the discretion exercised by the learned lower Court does not appear to be arbitrary or fanciful so as to call for interference by this Court to cancel the bails already granted to the respondents which have not been mis-used in any manner. So without entering into the deeper appreciation of the merits of the case, it will be just and proper to say that there is no convincing ground for re-calling the orders, whereby, the respondents in both he petitions were admitted to bails. 7. The petitions are accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 15 [ Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J. HAKIM DAD-Petitioner versus MUHAMMAD AKRAM etc.-Respondents riminal Misc. No. 76-Q of 1997, disposed of on 16.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 561-A-Quashment of Order-Complaint for registration of case- Dismissal of-Revision against-Acceptance of-Quashment petition against-Judicial Magistrate dismissed complaint in a slip shod manner and did not say a word regarding evidence of eye-witnesses who had supported contents of complaint—It was incumbent upon Magistrate to advance reasons to dis-believe those witnesses, qua ipsi dixit of police and opinion of Medical Officer, regarding injuries found on person of injured persons-Revisional court was, within its right to disgrace with view taken by trial court in dismissing complaint and it has not committed any irregularity or patent illegality so as to attract provisions of Section 561-A Cr.P.C.-Petition disposed of. [P. 17] A to B Mr. ShaukatAziz Siddiqui, Advocate for Petitioner. Date of hearing: 16.9.1997. order This petition under Section 561-A, Cr.P.C. is instituted for the quashment of the order dated 1.8.97 passed by Ch. Muhammad Iqbal Naru, Addl. Sessions Judge, Jhelum, whereby, he accepted the criminal revision against the order dated 24.5.97 passed by Mr. Abdur Raheem, learned Judicial Magistrate, Jhelum, whereby, the complaint filed by Muhammad Akram respondent was dismissed under Section 203 Cr.P.C. 2. The order of the learned Addl. Sessions Judge, Jhelum passed in revision petition is challenged on the ground that it was perverse and amounted to the abuse of the process of Court. In this regard, it was contended that the learned Revisional Court did not evaluate the evidence brought on record and also failed to appreciate the law on the point; that the complaint in question was filed with ulterior motive, malafide intention and as a counter blast to the case registered against the respondent namely Muhammad Akram and others; that all Parda observing ladies of the family of the petitioner were named in that complaint in order to humiliate all the members of the family of the petitioner. 3. The brief facts are that the respondent namely Muhammad Akram filed a complaint under Section 337- F( ii) read with Sections 148/149 PPC for an occurrence which took place at 10:00 a.m on 17.2.97 in which he and his wife were injured. A report was lodged at P.S. Dina, District Jhelum for the registration of the case. It was entertained in the daily diary of the police station at serial No. 15 on the same day but no formal FIR was registered by the police although efforts were made upto the level of S.S.P., •iholum but without any effect. The respondent, thereupon, filed the instant j.-.iinplaint and produced the medicolegal report regarding his injuries and also examined three witnesses to support the occurrence, narrated in the complaint. 4. The learned trial Magistrate, however, dismissed the complaint after taking into account the medicolegal report and the opinion given by the Investigating Officer that the injuries on the person of the respondent i.e., the complainant were self suffered. 5. The learned Revisional Court while setting-aside the impugned order observed that the learned Magistrate did not take into account the ' statement !hc eye-witnesses namely Muhammad Akram complainant tPW. 1), Muhammad Afzal (PW. 2) and Muhammad Hayat (PW. 3). Their evidence was least considered or evaluated while dismissing the complaint by putting implicit reliance on the opinion of the police and the Medical Officer that the injuries were self suffered. Since no reasons were given by the learned trial Magistrate to discard the preliminary evidence examined in the complaint, therefore, after setting-aside the impugned order, the complaint was sent back to the learned Judicial Magistrate for passing fresh order after taking into consideration all the relevant facts and law. In this respect, the following observation of the learned Revisional Court would be relevant: - "It may find a mention here that a judicial order must always contain the brief facts, questions in controversy between the parties and the decision thereon alongwith the brief reasons and if some evidence is recorded, the same has o be believed or disbelieved for the reasons to be recorded. The impugned order lacks all such necessary ingredients. It is, therefore, that the revision-petition is allowed, the impugned order is set-aside " There is no denying of the fact that the learned Judicial Magistrate dismissed the complaint in a slip shod manner and did not say a word regarding the evidence of the eye-witnesses who had supported the contents of the complaint. Even the learned Judicial Magistrate had observed in paragraph No. 3 of his order in the following manner: - All the three witnesses namely Muhammad Akram PW. 1, Muhammad Afzal PW. 2 and Muhammad Hayat PW. 3 have supported the contents of the complaint during their statements." 7. In the above situation, it was incumbent upon the learned Magistrate to advance the reasons to dis-believe those witnesses qua ipsedixit of police and the opinion of the Medical Officer regarding the injuries found on the person of the injtired persons. The learned Revisional Court as , therefore, within its right to disagree with the view taken by the learned trial Court is dismissing the complaint. The Revisional Court has, therefore, no committed any irregularity or patent illegality so as to attract the provisions contained in Section 561-A, Cr.P.C. The petition is accordingly dismissed in liminc. C.M. No. 785-M/97. 8. Disposed of with the disposal of the main petition. (MYFK) Petition disposed of.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 18 [Rawalpindi Bench] Present:.0 raja muhammad KHURSHID, J. MUHAMMAD RAFIQUE-Petitioner versus ABDUL QADIR SHAH etc.-Respondents Crl. Misc. 482-CB-1997, dismissed on 15.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- ..._S. 497(5)-Offence U/Ss. 324, 337-F (iv), 337-A (ii), 147, 148 read with S. 109 PPC--Apj)lication for cancellation of Bail-According to FIR. occurrence took place at instance of respondent No. 1-This fact, can only he gone into on its merits during trial-Respondent No. 1 contended in his bail application that, local police was allegedly in league with omplainant party and was out to arrest him—It is thus obvious that question of mala fide, and ulterior motive on part of police was agitated in bail petition-Even otherwise respondent No. I had no other role except hat occurrence took place at bis instigation-He has already joined investigation and there is no allegation on record to show that there is likelihood of his absconsion or to prevail upon investigation-It was a case of further inquiry—Petition dismissed. [P. 19] A Mr. Nazar Muhammad Tahir, Advocate or Petitioner. Sye.d Mazhar Hussain Naqvi, Advocate for State. Date of hearing: 15.10.1997. order A case under Sections 324, 337-F (iv), 337-A (III, 147, 148 PPC was registered against the respondent and others vide FIR No. 260 dated 24.4.97 at Police Station, Civil Lines, Rawalpindi for an occurrence which took place at about 10.30 PM. According to the FIR, the co-accused of the respondent while variously armed with weapons like Dandas and Iron Bars etc. attacked the complainant Muhammad Railq and his two sons namely Wajid Rafiq and Aamer Rafiq. The complainant suffered 9 injxiries and his sons Wajid Rafiq and Aamer Rafiq suffered 7 and 3 injuries respectively, during the transaction. It was added at the close of the FIR that the entire transaction was completed at the instance of Abdul Qadir Shah respondent, who remained present at, the spot and as such allegedly abetted the offences. 2. The respondent aforesaid applied for pre-arrest hail alougwith other 3 persons. His application was allowed and the interim bail granted to him was confirmed on the ground that no injury was attributed to him except that the occurrence had taken place at his instance. The other accused, who were assigned specific role of causing injuries were denied bail before arrest and the petition to their extent was dismissed. 3. This petition for cancellation of bail granted to respondent No. 1 namely Abdul Qadir Shah was moved with the prayer that the provisions of Section 109 PPG were not taken into consideration by the learned trial court while admitting the respondent to pre-arrest bail. In this context it was alleged that he was the main person behind the whole occurrence, which was not only conspired but abetted by him. It was therefore, alleged that the respondent was not entitled to bail before arrest particularly when no malafide action on the part of the police was alleged even in the petition. Investigation in such a situation should have been allowed to take its usual course. 4. The learned counsel for the State contended that respondent was named in the FIR and the occurrence took place at his instance to which he abetted and since there was no malafide regarding the involvement of the petitioner, therefore, the learned trial court should have been slow to accept the pre-arrest bail of the respondent particularly when he had yet to join the investigation. He however, agreed that there was no overt act on the part of respondent No. 1 after earning pre-arrest bail and the respondent joined the investigation and has been challaned by the investigating agency. Hence there was no likelihood that he would influence the course of investigation. 5. After considering the above contentions I find that it was a case of further inquiry because of the fact that even according to the FIR, the occurrence allegedly took place at the instance of respondent No. 1. This fact in only be gone into on its merits during trial. The allegation that there was no averment in the petition under Section 498 Cr.P.C. that proceedings against the respondents were mala fide or with ulterior motive are belied by the averments made in paragraph No. 2 of the petition which clearly makes such allegations. It is also contended in paragraph No. 3 that the local police was allegedly in league with the complainant party and was out to arrest the respondent No. 1 in order to bring humiliation to him. It is thus obvious that question of mala fide and ulterior motive on the part of the police was agitated in the petition itself and therefore, the contention that this allegation was never made stands falsified by record. Even otherwise the respondent. No. 1 had no other role except that the occurrence took place at his instigation. He had already joined the investigation and the challan has been prepared against him. In such a situation, it will serve no purpose to withdraw the bail already granted to respondent No. 1 by the learned Additional Sessions Judge, Rawalpindi particularly when there is no allegation on record to show that there is likelihood of his absconsion or to prevail upon the investigation. 6. The petition for cancellation of bail is dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 20 (DB) Present: khalil-ur-rehman ramday and dr. khalid ranjha, JJ MUHAMMAD ARSHAD-Appellant versup STATE-Respondent Crl. Appeal No. 785 of 1992, decided on 16.10.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/34-Murder-Offence of-Conviction for-Appeal against-Defence never produced any doctor to prove injuries or marks of violence on person of appellant's wife to establish that beating given to her had resulted in mis-carriage of her pregnancy-Nothing had been brought on record to demonstrate that occurrence had not taken place at venue alleged by prosecution-Prosecution case was supported by testimony of complainant and a P.W.—No previous enmity or ill will existed between parties which could have led eye-witnesses to falsely accuse appellant of murder-Eye witnesses of occurrence were independent and natural- However, appellant had not any pre-design or plan to kill deceased- Death of deceased was thus, result of sudden flare up-In such a situation, superior Courts considered it un-safe to uphold maximum penalty of death-Death punishment converted into life imprisonment. [Pp. 22 & 23] A to D Mr. M.A. Zafar, Advocate for Appellant. Mr. Muhammad Islam Rajput, Advocate for State. Date of hearing: 16.10.1997. judgment Khalil-ur-Rehman Ramday, J.--One Muhammad Arshad. his elder brother Abdul Hakeem and their cousin Abdul Rashid were tried by a learned A.S.J. at Faisalabad for the murder of one Shabir Hussain. Through his judgment dated 8.9.1992, the said learned trial Judge acquitted Abdul Hakeem and Abdul Rashid but found Muhammad Arshad guilty of the said charge and upon his conviction U/S 302 P.P.C., punished him with death and a fine of Rs. 1(),000/- or two years R.I. in default of payment of the said fine. The entire amount of fine was directed to be paid to the heirs of the deceased, as compensation. 2. Murder Reference No. 340/92 seeks confirmation of the said sentence of death while Arshad appellant approached this Court through Crl. A. No. 785/92 calling in question the above-noticed conviction and sentences recorded against him. Both these matters are being disposed of together through this single judgment. 3. The occurrence in question had taken place on 17.2.1991 at about 7.20 p.m. near the cattle-shed of Bashir complainant in Chak No. 257/R.B. about 6 k.ms. from Police Station, Dijkot of District Faisalabad and the said occurrence had been reported by Bashir complainant who is the father of Shabir deceased, to Azhar Hussain Shah SI (PW-9) at the Lorry Adda of Dijkot at about 9.00 p.m. 4. Narrating the occurrence and the back-ground leading thereto, Bashir complainant had mentioned that he was a resident of Chak No. 257/R.B.; was a cultivator and that he had also kept some sheep and goats. He had added that on the day of occurrence he was present in his house at bout 7.20 p.m. with other members of his family when Abdul Hakeem accused came to their house and called out Shabir Hussain deceased who consequently went out at which, Abdul Hakeem accused started abusing him. The complainant had added that in the meantime he also came out of his house alongwith his son Shaukat (given-up) at which juncture, Abdul Hakeem accused and Shabir deceased had reached his cattle-shed where the complainant, his son Shaukat and his cousin Sultan (PW-7) also reached. The complainant had further claimed that Abdul Hakeem accused was accusing Shabbir deceased that the sheep of the said deceased spoiled the crop of the accused party and that he would teach a lesson to the deceased for the same. The complainant had further mentioned that the deceased ought forgiveness from Abdul Hakeem accused who flared up and called out his brother Arshad appellant and others and asked him to bring a gun whereafter, Arshad appellant armed with a .12 bore Gun and his cousin Abdul Rashid armed with a Revolver reached there. The complainant had further alleged that Abdul Rashid accused fired three successive shots in the air whereafter Arshad appellant came near Shabir deceased and fired a shot at his front chest who fell injured and died at the spot. 5. The complainant had further disclosed that Abdul Hakeem and others had a suspicion that the sheep of the complainant party used to spoil the fodder brought by the accused party for their cattle and that it was on account of this grievance that the above-mentioned accused persons had done the deceased to death. 6. Azhar Hussain Shah SI/IO (PW-9) visited the place of occurrence and collected blood stained earth vide memo Exh. PG. He had also found one ciime empty of .12 bore P-6 at the place of occurrence which he seized vide memo Exh. PH. During the course of further investigation, Abdul Rashid (acquitted accused) had allegedly led to the recovery of a Pistol P-4 on 26.2.1991 while Arshad appellant was alleged to have led to the recovery of his licensed .12 bore Gun P-5 on 2.3.1991. Both these weapons were taken into possession vide memos Exh. PD and Exh. PE, respectively. 7. According to the report of the Forensic Science Laboratory (Exh. PXi. the above-mentioned crime empty had been found not to have been fired from the .12 bore gun allegedly recovered from Arshad appellant. 8. When confronted with the prosecution case U/S 342 of the Cr.P.C., Arshad apjjellant pleaded that Bashir complainant and his sons were 'high-handed people'; that they had kept goats and sheep which spoiled the crops of the zamindars; that on the day of occurrence Arshad appellant's wife objected to the deceased as to why he was keeping his sheep in their Ihata and an altercation ensued during the course of which, Shabbir deceased gave beating to the wife of the appellant; that as a result of this beating, the pregnancy of the wife of the appellant which she was carrying also aborted; that it was while Shabbir deceased was beating the wife of Arshad appellant that some inmates of the house fired a shot at the deceased and that he and his co-accused had been falsely implicated in the occurrence in question. The other accused persons adopted the statement made by Arshad appellant. 9. Arshad appellant claimed that it was while Shabbir deceased was beating up his wife who had given her a rather severe beating that some-one had fired a shot from inside his house killing the deceased. According to the evidence led at, the trial, the defence never produced any doctor to prove any injuries or marks of violence on the person of the wife of the app llant nor was any doctor examined the establish that the beating so given to the said wife of the appellant had resulted in is-carriage of her pregnancy. This efence plea therefore, was a bald and un-substantiated claim and could thus not be acted upon. It was next pleaded that the omplainant, party were esperados and the complainant had remained involved in a numbe of riminal cases. Copies of some F.I.Rs. had been placed on ecord. Even if it be presumed that the complainant had remained involved in some cases, that did not give any-one the licence to murder his son and this plea is, therefore, not relevant for the purpose of deciding the fate of the present case. 10. Nothing had been brought on record to demonstrate that the occurrence had not taken place at the venue alleged by the prosecution and that the same had in fact taken place near or outside the house of Arshad appellant. The prosecution case was supported by the testimony of Bashir complainant and Sultan P.W. who are both residents of the immediate vicinity of the place of occurrence and thus no serious exception could be taken to these two witnesses having actually witnessed the occurrence. No previous enmity or ill-will existed between the parties which could have led the eye-witnesses to false y accuse Arshad ppellant of the murder in question. The defence did not have the courage even to suggest any animosity between the two parties. The two eye-witnesses were thus independent and natural witnesses of the occurrence and nothing existed on record which could cause any doxibt about the veracity of their testimony vis­ a-vis Arshad appellant. 11. Having thus examined the entire material available on record and having considered all aspects of the present case, we find that no exception could be taken to the finding of guilt recorded by the learned trial Judge against Arshad appellant and we hold accordingly. 12. This brings us to the question of confirmation or otherwise of the sentence of death awarded to Arshad appellant. 13. It was the prosecution's own case that it was Abdul Hakeem accused who had first come to the house of Shabbir deceased; had called him out and had thereafter started abusing him. This Abdul Hakeem accused had not armed himself before coming to the house of the deceased and was empty handed. According to the prosecution, it was while abuses were bring exchanged that Abdul Hakeem accused had got suddenly flared up; had called for his brother Arshad to bring a gun who consequently carne to the place of occurrence after so arming himself and fired a solitary shot, which, however, proved fatal. Therefore, even in the case of Arshad appellant, it could not be said that he had any pre-design or plan to kill the deceased. The death of Shabbir deceased was thus, the result, of a sudden flare-up and in such a situation, the superior Courts had ordinarily considered it un-safe to uphold the maximum penalty of death. Therefore, the sentence of death awarded to Muhammad Arshad appellant is not confirmed. 14. The learned trial Judge appears to have been ignorant and oblivious of the fact that state of law relating to murder and hurt matters had undergone a change as from 2nd of October, 1990 in pursuance of the Amending Ordinance No. VII of 1990 and Section 302 simplicitor had seized tti exist in the earlier form. The punishment of death for Qatl-i-Amd could, alter the above-mentioned date, be either U/S 302 (a) or 302(b) of the P.P.C. and not just U/S 302 of the said Code and further that according to the provisions of Section 302 of the P.P.C. as the same existed on the clay of occurrence i.e.. on 17.2.1991 the punishments which could be awarded for Qatl-i-Aind did not include a punishment of fine. 15. The result is that Muhammad Arshad appellant is found guilty and convicted U/S 302 (b) of the P.P.C. and he shall suffer imprisonment for life on the said charge. He shall be allowed the benefit of the provisions of Section 382-B of the Cr.P.C. 16. As has been mentioned above, the sentence of fine is no longer a punishment authorised by Section 302 of the P.P.C. Therefore, the sentence of fine imposed on Arshad appellant by the learned trial Judge is set-aside which would also mean non-payment of any compensation to the heirs of the deceased because, as per the judgment of the learned trial Court, it was the amount of fine which, if recovered, was to be paid to the heirs of the deceased by way of compensation. In this view of the matter, We issued notice to the appellant to show cause why he should not be directed to pay compensation to the heirs of the deceased in terms of the provisions of Section 544-A of the Cr.P.C. This notice was accepted by the learned counsel for the appellant and having heard the parties, we direct Arhsad appellant to pay an amount of Rs 50,UOO/- to the heirs of the deceased, as compensation, which amount of money shall be recoverable as arrears of land revenue in terms of the said provision and in default of payment of which amount of money, the said Arshad appellant shall suffer a further S.I. for six months. 17. Murder Reference No. 340/92 and Crl. A. No. 785/92 are disposed of in the above terms. Sentence of Death is not confirmed. 18. A copy of this judgment shall be sent to the learned trial Judge wherever he be presently posted for his information and guidance. 19. before we part with this judgment, we would like to notice that while describing relationships between persons, the learned trial Courts and learned trial Judges use expressions such as 'uncle', 'cousin', 'aunt', 'brother-in-law' etc. Needless to mention that these expressions are vague and do not convey the specific relationships. The learned trial Judges/Couits are, therefore, directed that in future, instead of using such-like expressions, they shall state the exact relationship between the individuals such as 'Khalazad', 'Chachazad', 'Mamuzad' etc. for 'cousin' for a 'Chacha' or a 'Taya', 'Khalu or 'Phupha' etc. for the expression 'uncle' and so on. These specific relationships do not necessarily have to be expressed in URDU but can even be specifically stated in english language. The learned trial Judges and Courts are directed accordingly. 20. The Registrar of this Court shall send copies of this judgment to all the learned Sessions Judges in the Province who shall then circulate the same amongst all the learned Judges and trial Courts. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 24 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. SAJIDA etc.—Petitioners versus STATE-Respondent Criminal Misc. 730-B of 1997, dismissed on 2.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail after arrest-Offence U/Ss. 302/147/149 PPC-Prosecution has collected sufficient evidence to link all petitioners with occurrance- Last seen evidence is not only reliable but natural-There is no enmity between parties-Injuries on person of deceased further give a strong impression that he was subjected to carnal intercourse before he was done to death—Mere fact that petitioners are stated to be less than 16 years of age is not established at this stage-Correct date of birth would become clear only when entire evidence is put into juxta position-Last worn clothes of deceased indicate that there were semen stains on them which speaks for a foul play-Petition dismissed. [P. 25 & 26] A Mr. M. Fayyaz Ahmed Khawaja, Advocate for Petitioners. Raja Ghazanfar Ali Khan, Advocate for State. Malik Rob Nawaz Noon, Advocate for Complainant. Date of hearing: 2.10.1997. order A case under Sections 302/147/149 PPG at P.S. Chauntra is registered against the petitioners on the ground that they committed the murder of Asif Hussain after subjecting him to unnatural carnal intercourse. 2. Learned counsel for the petitioners has submitted that petitioners No. 1 to 3 are less than 16 years of age and as such, their case would fall under proviso to section 497 Cr.PC and they would be entitled to bail; that there is no direct evidence against the petitioners that they had actually killed the deceased after committing carnal intercourse with him; that the prosecution has only relied upon the last seen evidence without further collecting the incriminating evidence. A number of authorities were relied upon to show that in such like cases, an offender is entitled to bail being a case of further enquiry. 3. Learned counsel for the state assisted by learned counsel for the complainant has, however, opposed the bail application on the ground that there was no enmity between the parties so as to implicate the petitioners falsely in this case; that the petitioners acted callously and took the life of a young man of about 19/20 years of age to satisfy their beastly sexual lust by subjecting him to unnatural carnal intercourse; that the last seen evidence in this case is reliable because all the witnesses are related to the deceased and eing the family members residing in the same house, were also natural witnesses to see that the deceased had left the house in the company of the accused persons; that the birth certificate produced by Nisar petitioner was not only bogus but false as would be clear from his original birth certificate where his date of birth is recorded as 30.11.1979; and that, lastly, the investigation is already complete and the challan is ready for submission to the Court concerned. 4. I have considered the foregoing submissions and find that the prosecution has collected sufficient evidence to link all the petitioners with the occurrence. The last seen evidence is not only reliable but natural. There is no enmity between the parties. The injuries on the person of the deceased on the parts like knees, elbows and buttocks further gives a strong impression that he was subjected to carnal intercourse before he was done to death. The mere fact that the petitioners are stated to be less than 16 years of age is not established at this stage because another birth certificate is also produced which shows that the date of birth of Nisar Ahmad was 30.11.1979. The correct date of birth would become clear only when the entire evidence is put into juxta position. Though the anal swabs were allegedly negative but the last worn clothes of the deceased indicate that there were semen stains on them, which further speaks for a foul play. 5. In view of my above discussion, I do not find it a fit, case for bail at this stage. The petition is accordingly dismissed. (MFYK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 26 [ Rawalpindi Bench] Present: raja muhammad khurshid. J. MUHAMMAD SAJID alias TONI-Petinoner versus STATE-Respondent Criminal Misc. No. 849-B of 1997, dismissed on l-10-Lr>97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Offence U/S 381-A/411 PPC read with Section 14 of Offences Against Property (Enforcement of Hudood) Ordinance. 1979-- Petltiouer was caxight red-handed after he had opened door of cur by removing canvas cloth with which it was covered-This is second case against him of same nature-Recovery of instruments i.e. keys of different vehicles, fuel tank lockers and registration books would also show that no person would normally keep them until and unless he has an axe to grind—Petition dismissed. [P. 27~ A Raja Abdul Aziz Bhatty, Advocate for Petitioner. Qazi Ahmed Nae.cm Qurr.shi, Advocate for State. Date of hearing: 1.10.1997. order A case under Sections 381-A/411 PPC read with Section 14 of the Offences Against Property (Enforcement of Hudood) ordinance. 1979 is registered against the petitioner on the ground that he was caught redhanded while handling a stolen car bearing registration No. IDH-3018. 2. The brief facts are that the aforesaid car was stolen from the area of F. 7/1, Islamabad on 23.6.97 for which the present FIR was lodged by the complainant. The police traced out, the stolen vehicle aforesaid which was found parked within the premises of PIMS, Islamabad arid was covered with a canvas cloth. A watchful eye was kept on the vehicle secretly by the police. The petitioner came there, removed the canvas cloth and opened the door of the car for taking it. away but was nabbed by the police. On personal search, 12 pieces of keys relating to different vehicles, three pieces of registration books and three fuel tank lockers were recovered from him. The investigation also showed that the petitioner was operating in a gang in \vhich two other persons from Peshawar were also involved because after the theft of cars, those were moved to the Frontier where those were disposed of after tampering with their original engine number, etc. The warrants of arrest of those accused have also allegedly been obtained by the police. Lastly, it is pointed out that the petitioner is involved in another similar case but has been released on bail. 3. Learned counsel for the petitioner has submitted that none of the offences, attributed to the petitioner, falls within the prohibitory clause and as such, the petitioner is entitled to bail as a matter of right; that the mere recovery of registration books, keys and fuel tank lockers from the petitioner would not link him with the stealing of car because he was only removing the canvas cloth when was over-powered by the police, which at the most, would link him for an attempt to steal the car but nothing beyond that. Lastly, it was contended that the police was pestering the petitioner as the latter was running the business of Rent-a-Car and because of frequent demands of the police, he was unable to oblige them, whereupon, they turned against them and flasely implicated him in this case. 4. Learned state counsel opposed the bail on the ground that the car thefts are rampant in the city, therefore, the persons involved in it should be firmly dealt with. The mere fact that the maximum punishment in such an offence is upto seven years would not entitle the petitioner to bail particularly when there is circumstantial evidence which shows that the keys of different vehicles, fuel tank lockers and registration books were recovered from him. These are the circumstances which will link him further with the crime which is yet under investigation as other members of gang are yet to be hauld up under the law. The petitioner having been nabbed red-handed has allegedly no case for bail. 5. I have considered the above submissions and find that the points raised by the learned state counsel are not without substance. This is the second case against the petitioner of the same nature. He was caught redhanded after he had opened the door of the car by removing the canvas cloth with which it was found covered. The recovery of instruments aforementioned would also show that no person would normally keep them until and unless he has an axe to grind. Keeping all these facts in view and without entering into the deeper appreciation of the merits of the case, lest it may prejudice the trial itself, I refrain to release the petitioner on bail at this stage. 6. The petition is accordingly dismissed. (MFYK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 28 Present: MUHAMMAD NASEEM CHAUDHRI, J. AHMED KHAN--Petitioner versus STATE-Respondent Crl . Misc. No. 2730/B of 1996, accepted on 20.8.1996. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 read with S. 496--Offence U/S 322/427 PPC-Bail after arrest-­ There was no previous animosity between petitioner-accused with deceased as well as with complainant-It is a case of alleged rash and negligent driving by a driver which prima facie falls under section 320 PPG which is bailable Section 427 PPC is also bailable --Hence. Petitioner is entitled to be admitted to bail as of right as contemplated under section 496 Cr.P.C -Bail granted. [P. 25. 29] A Mr. Qadeer Ahmed Siddiqui , Advocate for Petitioner. Ch. Muhammad Ismail Sandhu , Advocate for State. Date of hearing: 20.8.1996. judgment Crime case No. 151 dated 4.5.1996 stands registered at Police Station Gawalmandi , Lahore under sections 322/427 PPC at the instance of Muhammad Arshad complainant who got recorded therein that while driving wagon No. PRJ/4661 allegedly rashly and negligently Ahmad Khan driver (petitioner-accused) crushed to death his brother Muhammad Yousaf and injured one person who afterwards expired in the hospital. Ahmad Khan petitioner-accused is said to have hit his wagon with two other vehicles which were damaged. Ahmad Khan petitioner was arrested by the police on the same date whose bail application has been dismissed by the Additional Sessions Judge and he has filed this petition with the same desire. 2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. It is a matter of common knowledge that whenever an offence of alleged rash and negligent driving resulting in death of person(s) by the drivers has been made nonbailable , the same is objected to by the transporters who observe strikes and through amendment the offence is again declared as bailable . It also happened at the time of the initial enforcement of Qisas and Diyat Ordinance, 1990 which position/provision is still holding the field. A perusal lot' the FIR has made out that there was no previous animosity between (Ahmad Khan petitioner-accused on the one side and both the deceased as well as the complainant on the other side. This aspect of the matter has to steal the eminence for the purpose of the disposal of this application. It is a case of alleged rash and negligent driving by a driver which prirna -facie falls under section 320 Pakistan Penal Code which is bailable . Section 427 Pakistan Penal Code is also bailable . Hence this petitioner is entitled to be admitted to bail as of right as contemplated under section 496 Criminal Procedure Code. 3. I, therefore, accept this application and admit Ahmad Khan petitioner-accused to bail in the sum of Rs . 50,000/- (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge/Duty Sessions Judge, Lahore with the direction to appear before the trial Court as and when required failing which the trial Court may cancel the bail allowed to this petitioner and may proceed afresh in accordance with law. (MYFK) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 29 Present: muhammad naseem chaudhri, J. MUHAMMAD SHARIF-Appellant versus STATE-Respondent Criminal Appeal No. 644 of 1996, accepted on 1.10.1997. West Pakistan Arms Ordinance, 1965 (W.P. Ord. XX of 1965)-- —S. 13-Recovery of 222 rifle without valid license-Offence of-Conviction for-Appeal against-Date of recovery of 222 rifle is 17.6.1995, when sun sets in after 7.00 p.m.-According to P.W. 3 alleged recovery was effected at 3.45 P.M. while according to P.W. 4, recovery was effected when sun was about to set in-There is also discrepancy in statement of both PWs regarding place of recovery and place where secret information received-­ Such type of glaring discrepancies falsify prosecution case—There is no explanation on record as to why P.W. 3 failed to associate witnesses of public whereas public was available on road-side and shops-In absence of such explanation, alleged recovery has to be viewed with caution which has not been established by prosecution-Appeal accepted and appellant acquitted. [Pp. 32 & 35] A to D Mr. Muhammad Aslam Khan Buttar, Advocate for Appellant. Pirzada Matnun Rashid, Advocate for State. Date of hearing: 1.10.1997. judgment This appeal is directed against judgment dated 17.6.1996 passed by (Jh. Zahoor Hussain, Judge, Special Court, Gujranwala whereby he convicted and sentenced Muhammad Sharif to undergo R.I. for a period of five years and to pay a fine of Us. 20,000/- or in default of its payment to further undergo R.I. for a period of six months under section 13 of the Arms Ordinance, 1965. 2. The facts of the prosecution case are that Maqbool Ahmad S.I./Incharge Police Post Ferozewala Police Station Saddar Gujranwala (P.W. 3) is said to be on 'gashf of the area in the company of his subordinates when he received the information that one person was standing at Pul Rajbah while armed with .222 rifle. He reached there alongwith the police party and apprehended that person while in possession of .222 rifle P-l for the keeping of which he could not produce the valid licence. That person was none else than the appellant Muhammad Sharif son of Allah Ditta caste Gujjar resident of village Ferozewala District Gujranwala. The appellant was arrested. The rifle P-l alongwith magazine P-3 containing 24 cartridges Ex. P-2/1-24 were taken into possession by Maqool Ahmad S.I. (P.W. 3) vide memo Ex. PB attested by Muhammad Khalid, Head Constable No. 1082 (P.W. 4) and Inayat Baig A.S.I. P.W. (given up). Maqbool Ahmad S.I. sent the complaint Ex. PA to Police Station Saddar Gujranwala and Ayyub Baig Moharrar A.S.I. prepared formal F.I.R., a copy of which is Ex. PA/1. Maqbool Ahmad S.I. prepared site plan Ex. PC of the place of recovery. Muhammad Riaz Head Constable No. 1687 Armour Police Lines Gujranwala (P.W. 1) inspected .222 rifle P-l and gave his report Ex. PA to the effect that the same was semi-automatic riffle of .222 bore. After completing the investigation the challan was submitted. 3. At the trial Muhammad Sharif was charged under section 13 of the Arms Ordinance who pleaded not guilty thereto. The aforesaid four P. Ws stood in the witness box and supported the prosecution case. Maqbool Ahmad S.I. (P.W. 3) denied the suggestion that Muhammad Sharif appellant was passing in front of Police Post Ferozewala alongwith Mahrnood Ahmad licence holder who were stopped when Mahmood Ahmad left for his village Machikay Goriah to fetch the licence of .222 rifle and that in his absence Muhammad Sharif was flasely involved in this case. 4. When examined under section 342 of the Code of Criminal Procedure, Muhammad Sharif appellant refuted the aforesaid recovery of rifle P-l, cartridges P-2/1-24 and Magazine P-3. He took up the plea that Mahrnood Ahmad was the owner aiid the licence holder of rifle P-l with whom he was going and was stopped by the police when Mahmood Ahmad was allowed to go to his house to bring the licence and that in his absence he was falsely involved. Ex. DA is the copy of the licence issued in the name of Mahmood Ahmad son of Inayat Ullah resident of Machikay Goriah, Tehsil and District Gujranwala. Muhammad Sharif did not choose to appear in the witness-box on oath in his defence under section 340(2) of the Code of Criminal Procedure. After hearing the parties and placing the reliance on the statements of the P.Ws, the trial Court, convicted Muhammad Sharif appellant as narrated ahove who has preferred this appeal which has been resisted by the State. 5. We have heard the learned counsel for the appellant as well as the learned counsel for the State and gone through the record before us. Following contradictions in the statement of Maqbool Ahmad S.I. (P.W. 3) who prepared the recoveiy memo Ex. PB about the taking into possession of the un-licensed arms and the statement of Muhammad Khalid H.C (P.W. 4) who attested recovery memo Ex. PB have been pointed out by the learned counsel for Muhammad Sharif appellant: (i) Maqbool Ahmad S.I. (P.W. 3) stated that he alongwith the police party left Police Post Ferozewala at 3.00 p.m., for patrol duty; that they reached the place of recoveiy of rifle P-l at about 3.45 p.m., that the sun used to set in the month of June at about 7.00 p.m. and that at the time of recoveiy three hours still remained for the sun to set in while Muhammad Khalid (P.W. 4) stated that the sun was about to set in when the accused was apprehenced by the police. (ii) That Maqbool Ahmad S.I. (P.W. 3) stated that the place of recovery was at a distance of 2-3 furlongs from Police Post Ferozewala towards west while Muhammad Khalid (P.W. 4) stated that the police party received the secret information at Kotli Michrawan about the presence of Muhammad Sharif at Pul Rajbah and that village Kotli Michrawan was at a distance of one furlong towards west from the place of recoveiy. 6. With respect to the first contradiction learned counsel for the 1 ppellant argued that the difference of three hours regarding time of recoveiy cannot be taken lightly and that the same is enough to make doubtful the recovery of the illicit arms. With reference to the second contradiction he laid the emphasis that according to the statement of Maqbool Ahmad S.I. the place of recoveiy was towards the west from that place the S.I. received the secret information while according to Muhammad Khalid H.C. (P.W. 4) the place where the secret information was received was towards the west of the place of recoveiy. He continued that thus according to Maqbool Ahmad S.I. the secret information was received by him towards the east of the place of recoveiy while according to Muhammad Khalid H.C. (P.W. 4) the information was received towards the west of the place of recovery. He maintained that this contradiction is enough to falsify the recoveiy proceedings. He argued that the prosecution has failed to connect Muhammad Sharif appellant with the alleged recoveiy of the illicit arms. He adopted the reasoning that even though the secret information was received by the police about the presence of Muhammad Sharif appellant alongwith the illicit arms at Pul Rajbah, no effort was made by Maqbool Ahmad S.I. to associate any witness of the public in this case of raid which was planned well in advance and that due to this failure of the police in the matter, the statements of Maqbool Ahmad S.I. (P.W. 3) and Muhammad Khalid H.C (P.W. 4) are not enough to establish the alleged fact of the recovery of the illicit arms vide memo Ex. PB. On the contrary, learned State counsel argued that the aforesaid type of discrepancies occur with the passage of time and that the same are not fatal to the prosecution case. He maintained that no person from the public would have liked to join the recovery proceedings and the police had no alternative but to proceed at his own end in the matter. 7. We are of the view that the contradictions pointed out and projected by the learned counsel for Muhammad Sharif appellant have the legal force and have gone to the root of the prosecution case for the purpose of exoneration of the appellant. The date of recovery is 17.6.1995 when the sun sets in after 7.00 p.m. According to Maqbool Ahmad S.I. (P.W. 3) alleged recovery was effected at 3.45 p.m. while according to Muhammad Khalid .C (P.W. 4) the recovery as effected when the sun was about to set in. Further according to Maqbool Ahmad S.I. the place of recovery of arms was towards the west of Police Post Ferozewala where the secret information was received while according to Muhammad Khalid (P.W. 4) that place the police party received the information was towards west of the place of recovery. It means that according to Maqbool Ahmad S.I (I'.W. 3) the police party was towards the east of the place of recovery when the secret nformation was received while according to Muhammad Khalid H.C (P.W. 4) the police party was towards the west of the place of recovery when the secret information was received. Such type of glaring discrepancies falsify the prosecution case which cannot be taken lightly and in routine as canvassed by the learned counsel for the State. These are held as fatal to the prosecution case especially when it is a case of solitary ingredient of recovery of illicit, arms. Consequently, we hold that the trial Court has not been able to dispose of the controversy in true perspective and that prosecution has failed to establish the case against Muhammad Sharif appellant. 8. At this stage we would be glossing over an important aspect of the matter by expressing that in such types of recovery it is necessary for the police to associate some person from the public and at least some effort must be made thereof. In case of negligence of the police to get the assistance and presence of some person from the pxiblic, no weight can be granted to the statements of the Police Officers who appear as the prosecution witnesses in such matters of recoveiy. We would like to reproduce an important letter issued by the Registrar, Supreme Court of Pakistan, Rawalpindi to meet such a situation, as under:- "J.P. 32-R(S)/88-SCJ Supreme Court of Pakistan Rawalpindi, August 20, 1990. From The Registrar, Supreme Court of Pakistan, Rawalpindi. To (1) The Inspector General of Police, Punjab, Lahore. (2) The Inspector General of Police, Sindh, Karachi. (3) The Inspector General of Police, N.W.F.P., Peshawar. (4) The Inspector General of Police, Baluchista , Quetta. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactoiy explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned. 2. The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the pxiblic; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence. 3. It is requested that the above orders of this Court should be brought to all concerned for strict compliance. Sd/- (M.A. LATIF)." 9. The aforesaid letter was also sent to all the District and Sessions Judges posted in Punjab by the Registrar, Lahore High Court, Lahore through the despatch of following letter:- "LAHORE HIGH COURT, LAHORE No. 17712-Genl/l-G Dated Lahore the 20th December, 1990. From The Registrar, Lahore High Court, Lahore. To All the District and Sessions Judges, in the Province of Punjab. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Sir, I am directed to forward herewith a copy of letter No. J.P. 32-R(S)/88-SCJ, dated 20.8.1990, received from the Registrar, Supreme Court of Pakistan Rawalpindi, on the subject noted above, for information and strict compliance by all concerned. Your Obedient Servant, Sd/- Deputy Registrar (Adnin). For Registrar. Endst. No. 17713 Genl/l-G, dated Lahore the 20th December, 1990. A copy is forwarded for information to:- The Registrar, Supreme Court of Pakistan, Rawalpindi, with reference to his letter No. J.P. 32-R(S)/88-SCJ, dated 20.8.1990. Sd/- Deputy Registrar (Admn) For Registrar." 10. There is no explanation on the record as to why Maqbool Ahmad S.I. (P.W. 3) failed to associate witnesses of the public in this case wherein the secret information was received before the recovery of the illicit arms as the public in the way was available on the road-side and the shops. Obviously, the alleged raid/recovery was planned well in advance due to the secret information received by Mabqool Ahmad S.I. (P.W. 3) especially when, as expressed above, the sole ingredient of alleged recovery of unlicensed arms if being analysed and dissected. We hold the view that the directions contained in the aforesaid letter dated 20.8.1990 issued by the Registrar, Supreme Court of Pakistan, Rawalpindi to the Inspector General of Police, Punjab, Lahore are also binding on this Court. In the absence of any explanation as to why the witnesses of public have not been associated in the recovery proceedings in this case we hold that the alleged recovery has to be viewed with caution which has not been established by the prosecution on this ground. 11. For what has been said above, we hold that there was no justification to convict Muhammad Sharif appellant. We, therefore, accept ~ this appeal, set aside the impugned judgment dated 17.6.1996 and acquit Muhammad Sharif appellant. He shall be set at liberty forthwith, if no required in any other case. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 35 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. PERVEZ HUSSAIN etc.-Petitioners versus Mst. SAFEENA BIBI etc.-Respondents Criminal Misc. No. 67/Q-1997, decided on 24.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A read with S. 7 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979-Quashment of proceedings-Prayed for-Matter out of which alleged Qazf has arisen is pending in court of competent jurisdiction and as such authoritative pronouncement has yet to come on issues-Court seized of matter enjoys exclusive jurisdiction to determine validity or otherwise of Nikah between parties and as such, question of Qazf is deeply linked with its decision—Complaint for Qazf cannot be therefore, readily dismissed nor its proceedings can be totally stopped without endangering loss of essential evidence-Petition disposed of. [P. 36] Muhammad Fazil Butt, Advocate for Petitioner. Ch. Zamurad Hussain, Advocate for Respondent No. 1. Date of hearing: 24.9.97. order A private complaint under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 is filed by Mst. Safeena Bibi i.e.; respondent No. 1 against Parvez Hussain, Mst. Fazal Jan, Mst. Zarda Bibi and Javed Hussain. The petitioners were summoned in that complaint by the leaded Addl. Sessions Judge, Rawalpindi. They applied under Section 265-K, Cr.PC of their acquittal but their application was dismissed by the learned Addi. Sessions Judge, Rawalpindi vide order dated 1.4.97. 2. In this petition under Section 561-A, Cr.PC, the quashment of the aforesaid complaint is prayed on the ground that it was a case of enmity arising out of malicious litigation between the two sides. In this respect, it was contended that Mst. Safeena Bibi i.e.; respondent No. 1 filed a suit for .maintenance against Parvez Hussain petitioner claiming him to be 'her husband. That suit was resisted through a written statement in which the aforesaid Parvez Hussain took the instance that Ms?. Safeena Bibi was not his legally wedded wife nor Nazish Parvez, born from her womb, was his son. In this respect, it was alleged that Mst. Safeena Bibi was the wife of one Muhammad Asif son of Ashiq Hussain who had wrongly claimed him to be her husband for \vhich he filed a suit for jactitation that Mst. Safeena Bibi was wrongly propagating and claiming her Nikah with him on the basis of some forged Nikah deed which may be declared void. 3. In view of the aforesaid averments in the written statement, the complaint under Section 7 of the Offence of Qazf (Enforcement of Hadd) Order, 1979 was instituted resulting into the passing of the impugned order. 4. The facts revealed above clearly indicate that the matter out of which the alleged Qazf has arisen is pending in the Court of competent jurisdiction and as such, authoritative pronouncement has yet to come on hose issues. The Court seized of the matter enjoys exclusive jurisdiction to determine the validity or otherwise of the Nikah between the parties and as such, the question of Qazf is deploy linked with its decision. The complaint for Qazf cannot be, therefore, readily dismissed nor its proceedings can be totally stopped without endangering the loss of essential evidence. It is, therefore, directed that the proceedings in the Qazf complaint shall continue and the essential evidence shall be recorded by the learned trial Judge but the judgment in the Qazf case shall not be delivered till the matter in respect of the Nikah between the parties is finally decided by the Court of competent jurisdiction. 5. The petition is accordingly disposed of with the above observation. CM. No. 679-M/97. 6. Stands disposed of with the disposal of the main petition. (K.A.B.) Petition disposed of.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 37 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. TAHMOOR SULTAN-Petitioner versus STATE etc.-Respondents Crl. Misc. No. 15-T-1997, dismissed on 16.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 526-Transfer of case-Prayer for-Since case has already been fixed for trial and last date in case is stated to have been fixed for 10.10.97, but no progress could be made on account of pendency of this petition—Since main grievance of petitioner/complainant is that case would not be decided quickly by learned trial judge on account of rush of work, therefore, there appears to be no ground for transfer of case-Petition is accordingly dismissed with direction that trial shall be proceeded expeditiously and concluded within three months from receipt of this order by trial court-Petition dismissed. [P. 38] A Syed Zahoor Ahmad Bokhari, Advocate for Petitioner. Date of hearing; 16.10.97. order This petition is moved for the transfer of a case F.I.R. No. 137/96 dated 30.7.1996 registered under section 302 PPC read with section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The case is now pending trial in the Court of Rana Baqir Ali, learned Additional Sessions Judge, Islamabad. 2. It is contended in the petition that the accused namely Qazi Muhammad Khurshid Anjum i.e. respondent No. 2 is propagating that he will earn a favourable decision from the Court concerned. This propagation lias allegedly raised apprehension in the mind of the complainant, whose son was murdered, that, fu woulJ .^ot get fair trial from the Court concerned. 3. he comments were called from the learned trial Judge who denied that he had knowledge of any such propagation and that he had any link with the aforesaid accused/respondent. On the contrary, the aforesaid accused applied for bail but his petition was dismissed which fact is also conceded by the learned counsel for the complainant/petitioner. The learned trial Judge also pointed out that the case was fixed for hearing after its entrustment on 7.5.1997 and was adjourned sine die. The trial however, opened on 30.7.1997 and the accused was summoned for the said date but due to the negligence of the Ahlmad of the Court, notice could not be issued for the aforesaid date for the production of the accused in Court. Thereafter, the matter could not proceed further due to summer vacations and the case was accordingly adjourned to 19.9.1997. 4. It follows from the above that the case is at trial stage and the presence of the accused could not be procured because the Ahlmad concerned did not issue notice for his appearance on the date fixed in the ase. The learned trial Judge has already asked for explanation of the defaulting official which, of course, shall be dealt with in accordance with law. 5. In the end, the learned trial Judge stated that he has no objection if the case is transferred to any other Court and that any order passed by the High Court shall be strictly followed by him. 6. Learned counsel for the petitioner/complainant is, in fact, aggrieved of the delay in the disposal of the case. In this connection, he has contended that there is rush of work in the Court of learned trial Court, herefore, it would be better if the case is withdrawn from that Court and transferred to the ourt of learned Sessions Judge, Islamabad, for quick disposal. However, learned counsel for the petitioner has no grievance against the conduct of the learned trial Judge except that the matter may be decided quickly. 7. I have gone through the foregoing facts and find that since the case has already been fixed for trial and the last date in the case is stated to have been fixed for 10.10.1997, but no progress could be made on account of the pendency of this petition. Since the main grievance of the petitioner/complainant is that the case would not be decided quickly by the learned trial Judge on account of rush of work, therefore, there appears to be no ground for the transfer of the case. The petition is accordingly dismissed ith the direction that the trial shall be proceeded expeditiously and concluded within three months from the receipt of this order by the trial Court. 8. A copy of this order be sent to the learned trial Court and got acknowledged. (K.A.B.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 39 Present: MUHAMMAD ISLAM BHATTI, J. GULZAR etc.--Petitioners versus STATE-Respondent Crl. Misc. No. 986-B/1997, dismissed on 25.9.97. Criminal Proceudre Code, 1898 (V of 1898)-- -—S. 497(l)-Offence U/S 302, 382, 148, 149, 109 PPC-Bail-Grant of- Prayer t'or-Petitioner being a habitual offender whether entitled to bail- Question of-After considering all relevant facts including fact that accused appears to be a habitual offender, court is of convinced opinion that if released on bail he would become fugitive from law as he already made an attempt-He has a long criminal history and obviously lives on what he earns through committing theft or receiving stolen properties- He has therefore, no good case for bail-Petition dismissed. [Pp. 41 & 42] A Mian Sikandar Hay at, Advocate for Petitioners. Ch. Hamayun Imtiaz, Advocate for State. Date of hearing: 25.9.97. order Gulzar son of Malkoo and Muhammad Aslam son of Nawaz are among the nominated accused in case FIR No. 134 registered at Police Station Lalian on 16.6.1992 at 12.20 noon vide Rapat No. 9 under sections 302/382/109/148/149 PPC. 2. This FIR was lodged by one Muhammad Nawaz son of Sultan who claimed therein that on 15.6.1992 at morning time (Fqjr wela) he alongwith his brother Bashir Ahmad, Muhammad Yar son of Sher Muhammad and Saifullah son of Khushi Muhammad had gone to the dfra of Muhammad Ali Shah in village Bhangar Shah Behlol for the settlement of some dispute and Man. After they got free from there they were coming home on mares. The complainant and Saifullah were on the back of one mare while Bashir Ahmad and Muhammad Yar were riding on the other mare. When they reached near the Dhari of Nawaz Dilawari Glotar at about Zuhar Wela there emerged Gulzar son of Malkoo armed with wooden Moongli and his companions Abbas son of Mathela, Muhammad Aslam son of Nawaz and Muhammad Iqbal son of Muhammad all armed with sotas from as sugarcane field and came infront of the complainant party. Muhammad Ranizan caught hold of the reins (Lagam) of the mare on which Muhammad Yar was sitting infront and snatched from him his licenced rifle with 101 live cartridges. He also gave him a blow with the Butt of the rifle hitting him at his left aukle. Muhammad Ramzan fired in the air and exhorted his companions not to spare Bashir Ahmad. He also exclaimed that whosoever came near, would not be spared. Gulzar accused then gave a Moongli blow to Bashir Ahmad, who had since alighted from the mare, hitting in his head. He fell down whereafter he was given sota blows one after the other by Abbas son of Mathela Muhammad Aslam son of Nawaz, hitting him on various parts of the body (described in the FIR). The complainant claims further that Muhammad Ramzan remained firing in the air and they did not go near him out of sheer fear. The accused then s\icceeded in fleeing away after leaving Bashir Ahmad and Muhammad Yar in injured condition and while leaving they also took with them the licenced rifle belonging to Muhammad Yar. 3. Muhammad Aslam accused moved an application for post arrest bail which was dismissed by the learned Additional Sessions Judge, Chiniot on 10.12.1996. Similarly, the bail application moved by Gulzar was also dismissed by the same learned Additional Sessions Judge on 5.1.1997. 4. Both of them jointly moved the present application for their bail claiming inter alia that there was inordinate un-explained delay in lodging the FIR; that the allegations in the FIR were partially found to be incorrect during the investigation in that Abbas and Muhammad Ramzan were found innocent, alongwith certain other persons who were subsequently joined as abetters of the offence while two other persons namely Ghazanfar and Noora ere nominated to have inflicted injuries to the deceased; that the injuries attributed to Muhammad Aslam accused-petitioner were not on vital parts and that Muhammad Aslam had no direct motive to participate in the commission of the offence. 5. On 30.4.1997 after making certain submissions, Mian Sikandar Hayat, Advocate, counsel for the petitioners sought not to press the bail matter so for it related to Muhammad Aslam petitioner No. 2. The same was, therefore, dismissed as withdrawn. 6. It, however, transpired on 27.5.1997 that Gulzar accused, whose bail matter has to be considered, was involved in as many as 29 criminal cases, the list of which is available on record. The learned counsel for the petitioner, however, contended that the number of cases could not help the prosecution in claiming that the petitioner was a previously convicted offender or that he was a hardened, deliberate dangerous criminal. He claimed further that for being a previously convicted offender the provisions of fourth proviso to Section 497 (1) Cr.P.C. had to be taken into consideration according to which the accused must have been convicted for an offence punishable with death or imprisonment for life and that the petitioner Gulzar was not covered under these provisions. A careful consideration of the criminal history /antecedents of Gulzar alias Gulzari accused-petitioner supports the contention of the learned counsel for the petitioner and he cannot be termed as a previously convicted offender. But it appears from the record that he did abscond from police custody on 5.8.1994 and was re-arrested on 7.11.1994. The learned Additional Sessions Judge, therefore, came to the conclusion that he was a dangerous criminal. He also observed that two of the co-accused of the petitioner were still absconders. Keeping in view the circumstances he refused bail to the petitioner. 7. The learned counsel for the petitioner has again asserted before me that the petitioner cannot be termed as a dangerous criminal because the offence with which he was charged on account of his slipping away from the police custody was covered under section 224 PPC which was bailable and the petitioner was in fact allowed bail therein on 23.4.1997 on this submitting bail bonds in the sum of Rs. 5,000/- with one surety and the like amount. According to him the petitioner has been behind the bars ever since his re-arrest on 7.11.1994 and the conclusion of the trial is not yet in sight and, as such, he is entitled to the concession of bail as brought under the third proviso to sub-section (1) of section 497 Cr.P.C. having remained detained for a continuous period exceeding two years. He has sought support from what has been laid down in Iftikhar Ahmad vs. The State. (1983 P.Cr.L.J. 1512 (Karachi), Nazar Muhammad and 2 others us. The State (PLJ 1987 Cr.C. (Quetta) 412) and Abdul Majeed vs. The State (1996 P.Cr.L.J. 298 Karachi). He has laid great stress on the fact that the contention of the learned counsel for the State in 1983 PCr.L.J. 1512 (Karachi) that the p itioner in the said case was a proclaimed offender or was required in other criminal cases was not taken into consideration by the court and the accused was allowed bail because the speedy trial was a well recognized right of an accused person and if there was a delay, specially a statutory delay, then the accused irrespective of the fact whether he was absconder or was required in other cases, would be justified in asking for bail. 8. The learned State counsel has, however, controverted his assertions in this behalf and has urged that this right of the accused is subject to not, being a previous convict or a desperate, hardened or dangerous riminal and that a careful consideration of the list of criminal cases in which Gulzar petitioner has remained involved shows that he mainly lives on committing thefts or on dishonestly receiving the stolen properties and that is why most of the cases pending against him are under section 379 and section 411 PPC read with section 14 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979. He has placed reliance on what has been laid down in Nigah Hussain Shah and another vs. The State (NLR 1990 Criminal 573), Sajjad alias Jaida and another vs. The State (PLJ 1991 Cr.C. (Peshawar) 425) and Zahid Hussain Shah vs. The State (PLD 1995 Supreme Court 49). 9. After considering all the relevant facts including the fact that, the accused appears to be a habitual offender I am of the convinced opinion that if released on bail he would become fugitive from law as he already made an an attempt in this behalf. He has a long criminal history and obviously lives on what he earns through committing theft or receiving stolen properties. He has, therefore, no good case for bail. The bail petition is accordingly dismissed. 10. The learned trial Judge shall, however, make genuine efforts to expedite the conclusion of the trial. (K.A.B.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 42 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD BASHIR-Petitioner versus STATE-Respondent CrI. Misc. No. 878/B-97, accepted on 9.10.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offeiice U/S 10/11 of Offence of Zina (Enforcement of Hadood) Ordinance 1979-Bail-Grant of-Prayer for~It is enough to say that petitioner is not named in FIR, nor there is any allegation of rape against him—Mere fact that some allegations were levelled by abductee in her statement under S. 164 Cr.P.C. against wife of petitioner that latter used to torture her would not dis-entitle petitioner to bail particularly when he is neither a Nikah witness nor prima facie instrumental in forgery of alleged Nikah deed-Petitioner admitted to bail. [P. 43] A Muhammad Ilayas Siddiqui, Advocate for Petitioner. Raja All Akbar, Advocate for Complainant. Khalid Mahmood Mughal, Advocate for State. Date of hearing: 9.10.97. order A case under Section 10/11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against one Muhammad Rafique on the ground that he abducted a young daughter of his landlord namely Mst. Shazia after developing illicit relations with her. The abduction took place at about 2.00 PM on 3.10.1996 whereas the FIR was registered on 11.10.1996 at police station Waris Khan, Rawalpindi on the ground that the complainant had been searching his aforesaid daughter during that period. 2. The abductee was ultimately recovered from aforesaid Muhammad Rafique and made a statement under Section 164 Cr.P.C. in which she also named the present petitioner with the plea that his wife used to beat her and forced her for entering into marriage with aforesaid Muhammad Rafique. According to her statement, under section 164 Cr.P.C. the allegation of zina is levelled against aforesaid Muhammad Rafique accused before the Nikah Deed was allegedly forged. 3. The learned counsel for the petitioner has submitted that the petitioner is not named in the FIR, which was already delayed by about 8 days, though an explanation is given in the FIR itself regarding its delay, but that has no relevance so far as the petitioner is concerned. 4. Secondly it is submitted that only allegation of forced Nikah is levelled against the wife of present petitioner, who allegedly used to beat the abductee when he was confined in a house of the brother-in-law of the main accused. It is, therefore, contended that the petitioners case is that of further inquiry because no allegation is levelled against him for committing zina or for participating in the forging of Nikah Deed, nor he is a witness of Nikah or Nikah Deed claimed to have been forged. 5. The learned counsel for the State assisted by the learned counsel for the complainant has opposed the bail petition on the ground that the petitioner and his wife were instrumental in coercing the abductee to enter into marriage with main accused Muhammad Rafique. It is alleged that the petitioner has no case for bail. 6. I have considered the foregoing contentions and without going into deeper appreciation of the merits of the case, it is enough to say that the petitioner is not named in the FIR, no there is any allegation of rape against him. The mere fact that some allegations were levelled by the abductee in her statement under Section 164 Cr.P.C. against the wife of the petitioner that the latter used to torture her would not dis-entitle the petitioner to bail particularly when he is neither a Nikah witness nor prima facie instrumental in the forgery of alleged Nikah Deed. Accordingly this petition is allowed and the petitioner is admitted to bail in the sum of Rs. 30,000/- vvith one surety in the like amount to the satisfaction of the learned trial court. (K.A.B.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 44 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. MUHAMMAD RAFIQUE-Petitioner versus STATE-Respondent Crl. Misc. No. 914-B/1997, accepted on 15.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence U/S 337A(ii)/337A(i)/337F(i)/148 PPC-Bail-Grant of- Prayer for~Simple injuries are attributed to petitioner and his co-accused having similar role have already been admitted to bail-Rule of consistency woxild require that petitioner should also not; to be denied concession of bail particularly waen offence does not fall within prohibitory clause-Petition allowed. [P. 45] A Malik Rob Nawaz Noon, Advocate for Petitioner. Raja Saeed Akram, AAG and Muhammad Shoaib Abbcisi, Advocate for State. Date of hearing: 15.10.1997. order A case under Sections 337-A(ii)/337-A(i)/337-F(i)/148/149 PPC was registered against the petitioner and 7 others on the ground that after forming unlawful assembly, they attacked the complainant side thereby causing two injuries to Mst. Naseen Akhtar, four injuries to Mst. Muhammad Jan, five injuries to Azam Khan and three injuries to Rab Nawaz. 2. It is submitted that according to the FIR. the petitioner is attributed one simple injury each to Mst. Naseeni Akhtar and Mst. Muhammad Jan which are allegedly simple. The other injuries are attributed to the co-accused of the petitioner out of whom two namely Khani Zaman and Rafaqat, have since been admitted to bail by the learned trial Court. The pre-arrest bail of the remaining accused is still pending as they are on interim bail. 3. It is further contended that the case of the petitioner is not distinguishable from his co-accused who have already been admitted to bail. The injuries attributed to the petitioner being simple, the offence does not fall within the prohibitory clause. The investigation is yet in progress but the petitioner has since been sent to the judicial lock-up and is no more required for the purpose of investigation. He is behind the bars since 12.9.97 after the dismissal of his pre-arrest bail petition. 4. Learned state counsel has opposed t e bail on the ground that a specific role has been attributed to the petitioner for causing injuries to Mst. Naseem Akhtar and Mst. Muhammad Jan. Though the offence does not fall within the prohibitory clause but still the offences are not bailable and as such, he should not be admitted to bail at this stage. 5. I have considered the foregoing submissions and find that simple injuries are attributed to the petitioner and his co-accused having similar role have already been admitted to bail. The rule of consistency would require that the petitioner should also not to be denied the concession of bail particularly when the offence does not fall within the prohibitoiy clause. The petition is accordingly allowed and the petitioner is admitted to bail in the sum of Rs. 15,000/- with a surety in the like amount to the satisfaction of the trial Court. (K.A.B.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 45 Present: KHAN RlAZ UD DIN AHMAD. J INTIZAR ALI-Petitioner versus STATE--Respondent Crl. M. No. 4146-B/1997, dismissed on 8.10.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Grant of-Prayer for-Offence U/Ss. 302/34/324 PPC-There is no contradiction in ocular evidence qua medical evidence-Case of prosecution also stands supported by statements of eye-witnesses including an injured eye-witness during occurrence-Crime weapon (a rifle) was recovered from accused during course of investigation and same was sent to Ballistic Expert, who could not ascertain as to when said rifle was lastly fired-Court do not think that Ballistic Expert report will have the any fatal adverse effects on the case of prosecution as both medical or Expert Report would be entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence-Held : Prima facie there are reasonable grounds to believe that petitioner stands connected with charges alleged against him-Bail declined. [P. 47] A,B & C Muhammad Hussain Chhachhar, Advocate for Petitioner. Ahmad Awais, Advocate for Complainant. Ch. Rahim ud Din, Advocate for State. Date of hearing: 8.10.97. order Intizar All petitioner seeks his bail after arrest in case FIR No. 21/97 of 27.2.1997 under Sections 302/34, 324 PPC registered at PS Shah Bhore at the instance of one Rana Muhammad Safdar. 2. Briefly the facts of the case as granted from the FIR are that on 27.2.1997 at 10 a.m. the complainant alongwith his cousin Zafar Iqbal was going towards his lands, when they reached on the backside of the mosque, Gulzar Ali armed with 12 bore gun, and Intizar Ali armed with 222 rifle turned up at the spot. Gulzar Ali fired at Zafar Iqbal, hitting him at his fore­ head and right arm. He ran towards his house raising alarm which attracted Khizar Hayat who came out of his house. Intizar Ali, then opened fire hitting him on the chest. He fell down and succumbed to his injury on his way to Civil Hospital Okara. The motive for the alleged occurrence was stated to be the previous enmity over litigation between the parties. 3. The petitioner was arrested on 4.3.1997. He had applied for his bail but the same was refused by the learned Additional Sessions Judge Okara on 15.7.1997. Hence this petition. 4. Learned counsel for the petitioner has vehemently argued that the ocular evidence to be led by the prosecution stands belied by the post­ mortem report which reveals that a pellet was recovered from the injury which was alleged to have been caused by a short fired with 222 rifle. According to the learned counsel, this fact alone was sufficient to allow bail to the petitioner. Reliance in this respect was placed on Ali Ahmad vs. The Staff (K.L.R. 1997 Cr. Cases 162) and Jan Muhammad alias Janoo vs. The State (1994 PCr.L.J. 541). , 5. Learned counsel for the complainant as well as learned counsel for the State have strenuously opposed the application by submitting that the only injury found on the person of the deceased was caused by a bullet, because a stray pellet would not have caused the injury of the nature as mentioned in the post-mortem report. It was further submitted that the version of the prosecution was supported by the eye witnesses and the recovery witnesses of 222 rile, recovered at the instance of the petitioner, as such, the medical evidence, which is confirmatory or explanatory of the direct evidence would not effect adversely the case of the prosecution at this stage. Reliance in this regard was placed on Ghulam Mehdi J'.s. The State (1991 S.C.M.R. 60) and Sanatta and another vs. The State (1982 S.C.M.R. 208). 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. To better appreciate the contention of the learned counsel for the petitioner, it would be necessary to have a look at the disputed injury which according to t e prosecution was caused by a short fired by a 222 rifle while the defence alleges the same to have been the result of the shot fired by 12 bore gun. For convenience the description of the injury as it appears in post­ mortem report is reproduced below:- "A lacerated wound % x ^ cm circular in shape going deep with inverted and blackened margins on front and upper part of right side of chest." 8. The dimension of the injury and its nature, if examined critically would reveal that this injury was so serious as the same proved sufficient to cause death of the deceased in the ordinary course of nature. Its dimension also discloses that the metal which had pierced the body of the deceased had lot of force behind it as the same had caused single aperture with maximum damage to the internal organs, which normally would not have been the result of striking of single stray pellet. I, therefore, do not feel pursuaded to believe that there was any contradiction in the ocular evidence qua the medical evidence. 9. Besides this, the case of the prosecution stands supported by the statements of the eye witnesses including one Zafar Iqbal who was injured during the occurrence. All these PWs have stated with one voice that the petitioner was armed with 222 rifle and had fired a shot at the deceased hitting him straight in the chest in consequence of which he succumbed to is injury when he was being shifted to the hospital. Moreover the said rifle was recovered from the petitioner during the course of investigation and the ame was sent to the Ballistic Expert, who could not ascertain as to when the said rifle was lastly fired. I have given my anxious onsideration on this eport but I do not think if the said report, will have any fatal adverse effects n the case of the prosecution as both medical evidence or the Expert report would be entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. This view gets support from the observation made by the learned Supreme Court; of Pakistan in the case if Ghulom Mehdi us. The State, cited supra which is as follows:- "It is well-established that expert evidence, may it be medical or that of a Ballistic Expert is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. But if there is direct evidence as in the instant case which is definite, forthright and at the same time credit worthy, confirmatory evidence is not of much significance. It cannot, at any rate, outweigh the direct evidence unless it is for any reason deficient in quality." 8. I have also gone through the case law cited at the bar by the learned counsel for the petitioner, the same being distinguishable was not; on all fours with the facts and circumstances of this case. 9. Prima-facie. there are reasonable grounds to believe that, the petitioner stands connected with the charges alleged against him, as such he was not entitled to the concession of bail at this stage. 10. 10. Under the above circumstances and without going deep into the merits of the case, lest it may prejudice the cause of either side, I decline to allow bail to the petitioner. Consequently his petition for bail merits dismissal, which is accordingly dismissed. (A.P.) . Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 48 Present: jawaid nawaz khan gandapur, J. MIR ZAKAM alias KHANU and 2 others-Petitioners versus STATE and another-Respondents Bail Application No. 244 of 1996, dismissed on 29.8.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 read with S. 5-A(8) of Suppression of Terrorist Activities Act, 1975-Bail-Grant of-Prayer for-Pakistan Penal Code (XLV of 1860), Ss. 02/324/34-A11 petitioners have been directly charged for having murdered father of corfiplainant with lethal weapons (Kalaslmikovs) not only in F.I.R but also in statements of P.Ws. recorded U/S. 161 Cr.P.C.- On tentative assessment of material/record it is not possible to come to conclusion that reasonable grounds do not exist for believing that petitioners have committed offence with which they have been charged— Held: Discretion exercised by Special Judge in refusing bail has been exercised judiciously and in accordance with well established principle of law—Bail application does not merit consideration and is accordingly dismissed. [Pp. 50, 52] A, B & C 1968 SC M.R 1168(1), P.L.D. 1985 S.C. 182, 1995 S.C. M.R. 1103 and 1995 S.C. M.R. 1765. Nawabzada Saleern Dil, Advocate for Petitioners. Mr. Abdul RaufKhan Gandapur, Advocate for State. Mr. Zinat Khan, Advocate for Complainant. Date of hearing: 27.6.1997. judgment The complainant/respondent No. 2, Ali Jan S/o Noor Wali Jan, has charged the accused/petitioner's namely, Mir Zakam alias Khanu, Bakhtawar Jan alias Khakhankai, brother inter se sons of Balwas and Sherin S/o Awal Din for having killed his father, Vide: F.I.R. No. 52 registered U/Ss. 302/324/34 P.P.C. lodged in Police Station, Ghoriwala, District Bannu on 3.2.1996. 2. In addition to the complainant the occurrence is stated to have been witnesses by P.W. Sadar Nawaz S/o My-Khan. The motive which prompted the petitioners to commit murder is alleged to be 30 years old blood feud between the parties. 3. After their arrest the petitioners filed bail application in the Court of Special Judge, Bannu who by his order dated 10.10.1996 refused to enlarge them on bail. Hence this petition. 4. Nawabzada Salim Dil Khan Advocate learned counsel for the petitioners, Mr. Abdul Rauf Khan Gandapur Advocate, learned counsel for the State and Mr. Zinat Khan Advocate, learned counsel for complainant present and heard. Record of the case perused carefully. 5. It may be stated at the very outset that it would be appropriate to reproduce the relevant portion of the impugned order here, by which the Special Judge had refused to enlarge the petitioners on bail, in order to find out as to whether or not the Special Judge had taken into consideration the conditions laid down, in section 497 Cr.P.C., for refusing bail. The relevant ortion of the said order is as under :- ".... Contentions of either sides heard. I tend to agree with the arguments advanced on behalf of the prosecution. The petitioners are directly charged in the report for causing the murder of Noor Wali Khan in furtherance of their common intention. P.W. Saddar Nawaz has also supported the version of the complainant. The medical evidence is in the tune with the Prosecution's case. Furthermore, the petitioners remained fugitives from law for about 7 months. An absconder loses some of his normal rights granted to him by procedural as well as substantive law as laid down in the case of Awal Gul versus Zawar Khan etc. reported in PLD (SC) 1985 Page 402. As such reasonable grounds exist that the petitioners have committed a non-bailable offence and are adjudged not entitled to the concession of bail. Petition in hand is accordingly rejected." 6. From a plain reading of the order, as well as the perusal of the relevant record, I am convicted in my mind, that the Special Judge has duly taken into consideration all the material facts of the case and after doing so has recorded a speaking order. This is the result of proper/appropriate application of judicial mind. Since the impugned order is neither arbitrary nor perverse, therefore, it is not liable to be set aside. 7. Besides, the submission of the learned counsel for the petitioners that the case of the petitioners is that of further inquiry would require deeper appreciation of evidence which is neither desirable nor permissible at this stage. Needless to mention that a case would fall within the scope of further inquiry, U/S. 497 r.P.C., only if the Court reaches the conclusion that on the material, placed before it, it appears that there are reasonable grounds for believing that the accused is not guilty of an offence punishable with death/imprisonment for life or 10 years. In other words, in the absence of a finding to this effect there would be no accession to hold that the case is that of further inquiry and that therefore, the accused are entitled to be released on bail. In the case in hand all the petitioners have been directly charged for having murdered the father of the complainant with lethal weapons (Kalashinkovs) not only in the F.I.R. but also in the statements of the P.Ws. recorded U/S. 161 Cr.P.C. In the circumstances it would be wholly immaterial as to whose shot proved fatal. 8. On a tentative assessment of the material/record it is not possible for me to come to the conclusion that reasonable grounds do not exist for believing that the petitioners have committed the offence with which they have been charged. I am, therefore, of the view that the discretion exercised by the Special Judge, in refusing the bail, has been exercised judiciously and in accordance with the well established principle of law. The exercise of discretion by the Judge, in the circumstances, is not liable to be interfered with. Besides, the reasons given by him for not releasing the petitioners on bail are quite sufficient/convincing. Reliance is placed on the following cases :- (i) Ijaz Mi Khan us. The State. 1968 Supreme Court (M.R.) 1168 (1) "The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in section 497, Cr.P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." (ii) Muhammad Sadiq vs. Sadiq and others P.L.D. 1985 Supreme Court 182. (b) Criminal Procedure Code (V of 1898) ... S. 497 (2) Phrase "further inquiry" scope and meaning of-Bail under S. 497(2) Cr.P.C. can be granted to accused as of right if Officer Incharge of Police Station or Court taking cognizance of matter comes to a definite conclusion on consideration of entire material that "there are no reasonable grounds for believing that accused has committed a non-bailable offence'. Accused cannot be released on bail on ground of "further inquiry" without such finding of said authorities. (Words and Phrases). (d) Criminal Procedure Code (V of 1898) S. 497(2) and (5) Penal Code (XLV of I860), Ss. 302/148/149-Bail to be allowed only where no reasonable grounds exist for believing that accused has committed a non-bailable offence but there are sufficient grounds for "further inquiry" into his guilt-When sufficient grounds- for "further inquiry" into guilt of accused exist there would then be some justification for putting him 1 on trial for offence for which he is charged but intsuch eventuality law entities accused to bail r d%riSig pendency of trial, subject to cancellation of bail under S. 497(5) Cr.P.C. on availability of evidence or other sufficient cause." (iii) Mian Gul Jan vs. Muhammad All Jan and another, 1995 Supreme Court (M.R.) 1103. "Criminal Procedure Code (V of 1898) S. 497 ... Penal Code (XLV of 1860) S. 302/34 ... Constitution- of Pakistan (1973), Art. 198(3) ... Bail ... Complainant himself before his death had specifically charged the accused in his F.I.R. with the firing .... Courts below had rightly exercised discretion in refusing bail to accused ... Contentions that the manner in which the incident allegedly took place was not possible and that the deceased could not suffer the inquiry from the place where accused were shown to be present, required appreciation of evidence which was not possible at bail stage ... Leave to appeal was refused accordingly." (iv) Hqji Gulu Khan vs. Gul Daraz Khan and another 1995 Supreme Court (M.R.) 1765. (b) Criminal Procedure Code (V of 1898) .... S. 497 (2) ... "Further Inquiry".... Scope explained ... Guidelines. A case would only fall within the scope of further inquiry under section 497, Cr.P.C. if the Court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the absence of a finding to this effect, there will be no occasion for the Court to hold that the case is one of further inquiry. In order to ascertain that no reasonable grounds exists to believe that the accused is guilty of a nonbailable offence or offence punishable with death, imprisonment for life or imprisonment for 10 years, the Court, if the case is still at the stage of investigation will make a tentative assessment of the allegations against the accused persons in the light of the material so far collected by the investigation agency to connect him with the offence. In case the trial has commenced, the Court taking for cognizance of the case, may, in addition to the material collected hy the police, also take into consideration the evidence produced before it." 9. This bail petition does not, merit consideration and is accordingly dismissed. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 52 Present: SHAH JEHAN KHAN YOUSAFZAI, J. RAFIULLAH-Petitioner versus MUHAMMAD ISMAIL and 3 others-Respondents Criminal Quashment Petition No. 27 of 1996, partially allowed on 22.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Pakistan Penal Code (XLV of I860), Ss. 302/324/34-Discharge of accused u/S. 169 Cr.P.C. by Investigating Officer on furnishing personal bond—Challenge to—There is ocular evidence duly corroborated by recoveries from spot and circumstantial evidence—Without going into deep appraisal of prosecution case or plea of alibi set up by accused/respondent No. 1 and evidence in support thereof, Investigating Officer was not competent to exclude accused/respondent No. 1 from challan submitted to Court-Held: Accused/respondent No. 1 should have been placed in column No. 2 of complete challan if he was satisfied from statements in support of alibi-Petition partly accepted for quashment with direction to S.H.O. to re-submit complete challan mentioning accused/respondent No. 1 in column No. 2 therein. [P. 55] A, B & C Mr. Dost Muhammad Khan, Advocate for Petitioner. S. Zafar Abbas Zaidi, Advocate for Respondents. Malik Harnash Gul, Advocate for State. Date of hearing: 22.9.1997. judgment The petitioner/complainant is aggrieved of the complete challan submitted by Investigating Officer wherein the accused/respondent No. 1 was not mentioned in either of the column of challan and discharged him under Section 169 Cr.P.C. 2. The petitioner/complainant vide: FIR No. 202 dated 14.7.1996 lodged a report in Police Station Naurang, District Lakki Marwat disclosing therein that on the same day, he alongwith his brothers Hafizullah (deceased), Kifaitullah, his first cousin Syed Afzal, were on their way to meet one Khan Malook, a Contractor of road construction. On reaching the place of occurrence, the accused/respondent No. 1 in the company of his first ousin Mumtaz raised an alarm that "today they will get the revenge of their brother' and simultaneously opened fire at them with their respective weapons of Mark-IV 303 Bore, hitting Hafizullah who died on the spot. The complainant and his other companion being unarmed escaped from the venue of occurrence. The occurrence was witnessed by the aforesaid companion of the complainant and the motive for the occurrence was disclosed as previous blood feud enmity. 3. The record reveals that the accused/respondent No. 1 got an ad interim bail from the Court of Additional Sessions Judge, Lakki Marwat on the following day of occurrence. The petition for bail before arrest was fixed for 28.7.1996 when the accused/respondent No. 1 absented himself and the ad-interim bail granted to him was recalled. No action was taken against him by the I.O. and in his absence certain statements of the person in support of alibi in favour of accused/respondent No. 1 were recorded and on the basis of those statements the accused/respondent was discharged under Section 169 Cr.P.C. However, a personal bond with surety of one person for appearance in Court was obtained. The Investigating Officer submitted complete challan in the case against Mumtaz Khan an absconding accused and the accused/respondent No. 1 was not mentioned in any of the column of the said challan. 4. The learned counsel for the petitioner contended that the accused/respondent No. 1 is directly charged in the FIR for effective firing at the deceased in board day light occurrence. The version of complainant has got support of ocular evidence as well as the recovery of empties of 303 bore from the place wherefrom the accused/respondent No. 1 had fired at the deceased. The defence witnesses in support of alibi are not trust-worthy and the Investigating Officer was not competent under the law to discharge the accused on the basis of defence evidence. Even if the Investigating Officer had come to the conclusion that the defence evidence was reliable and trust­ worthy vis-a-vis the ocular evidence, he should have placed him in column No. 2 of the challan so that the trial Court could summon him, if need be. In support of his contention be relied upon Dildar vs. Safdar and others (1990 P.Cr.L. 158), wherein it was held was under:- "True, under Section 169 Cr.P.C. the SHO can release an accused on his executing a bond, with or without sureties, if it appears to him that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate. Similarly under Section 173(3), Cr.P.C. a Magistrate is empowered to make such order for the discharge of such bond whenever it appears from the report forwarded under this section that the accused has been released on his bond. Yet, without entering into the controversy as to which of the above-quoted provisions of the Criminal Procedure Code, would cover the questioned act of S.H.O. as also of the Magistrate; the circumstances of this case clearly suggest that the act of releasing the respondent No. 1, before the commencement of his trial and recording of any evidence whatsoever, was not consistent with the weight of evidence clearly brought on the record against him more so in view of the well-settled proposition of law that in hurt cases the statement of victim, dtdy supported by medical evidence, is normally considered sufficient to warrant conviction. Reliance in this regard may be placed on a decision of this Court State vs. Abdur Rashid reported in PLD 1989 Pesh. 19." 5. The learned counsel also referred to "Afsar Khan vs. Nawab Khan & others" (1995 P.Cr.L. J. 549), wherein it was held as follows:- "The idea underlying the provision of section 169 Cr.P.C. is that in case of insufficiency of evidence the police, i.e. the S.H.O. or the Investigating Officer may release a person for the time being ana a bail bond is taken for the reason that an accused may appear before the Magistrate whenever required particularly at the time when a report under Section 173, Cr.P.C. (challan) is submitted before a Magistrate competent to take cognizance. It is only then that the Magistrate shall apply his mind to the merits of the case & would see if cognizance of the offence be taken against such accused who has already been released by the police. This he would come to know only through the fact that such accused would be placed in column No. 2 of form of challan. Taking of cognizance or otherwise is a matter of thorough judicial scrutiny and cannot be done as it has been done by the S.D.M., Lakki in the instant case where not a single word in written to indicate his application of mind." 6. At the strength of provision contained in Section 169 Cr.P.C. and the dictum laid down in the aforementioned judgments, he prayed for that the Investigating Officer be ordered to place accused-respondent No. 1 in column No. 2 of the complete challan and the personal bond obtained by the 1.0. be set aside and the accused-respondent No. 1 be given to judicial custody. 7. The learned counsel for the accused/respondent No. 1 contended that in the cited judgments the discharge order was passed by Magistrate and under the inherent powers of this Court are limited to give effect to an order under this Code or to prevent the abuse of the process of the Court. But in the instant case, the petitioner is seeking the indulgence of this Court against the order passed by Investigating Officer under Section 169 Cr.P.C. The learned counsel is of the view that the moment the Investigating Officer arrives at a conclusion that no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of accused to a court for trial exist, he shall release the accused on executing bond by him, if in custody, for his appearance before the Court empowered to take cognizance of the offence if and when so required. The learned counsel prayed for dismissal of the petition being not maintainable under Section 561-A Cr.P.C. The learned State counsel supported the learned counsel for the petitioner. 8. After hearing the learned counsel for the parties and going through the law on the subject and the judgments cited at the Bar, there is no ambiguity in the wording of Section 561-A Cr.P.C. whereunder this Court could pass any order to secure the ends of justice. In the instant case there is ocular evidence duly orroborated by recoveries from the spot and circumstantial evidence. Without going into deep appraisal of the prosecution case or plea of defence et up by accused/respondent No. 1 and the evidence in support thereof, the Investigating Officer was not competent to exclude accused/respondent No. 1 from the challan submitted to the Court. What he was competent to do was to place the accused/respondent o. 1 in column No. 2 of the complete challan if he was satisfied from the statements in support of alibi. In this view of the matter, I partly accept this B petition for quashment and direct the S.H.O. Police Station Naurang, District Lakki Marwat to re-submit complete challan in the case mentioning the accused/respondent No. 1 in column No. 2 therein. The petitioner would be at liberty to move the trial Court after taking cognizance for cancellation of the surety bond of accused/respondent No. 1 obtained by the Investigating Officer. This petition is partially allowed in the above terms. (B.T.) Petition partially allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 56 (DB) Present: ZAFAR PASHA CHAUDHRY AND MUHAMMAD NAWAZ ABBASI, JJ. Mst. SAKINA BIBI and 2 others-Petitioners versus STATE-Respondent Criminal Misc. No. 502/B of 1997, accepted on 23.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Control of Narcotic Substances Act (1997), S. 9(b)--Recovery of 50 grams heroin--Bail-Grant of-Prayer for~Petitioi\ers are women; they are in custody for last about seven months; their case is not covered by prohibitory clause-Held: Police has erroneously applied section 9(b) because each of petitioner is responsible for quantity of heroin allegedly held by her in possession-Bail allowed. [P. 56] A & B Syed Murtaza AH. Zaidi, Advocate for Petitioner. Mr. Tahir Haider Wasti, A.A.G. for State. Date of hearing: 23.9.1997. order The petitioners are required as accused person in case F.I.R. No. 43/97 registered with Police Station Machiwal District Vehari u/S. 9(b) of the Control of Narcotic Substance Act 1997. It is alleged that Ms?. Khurshid Bibi has disclosed that the petitioners have brought heroin alongwith them and the same will be supplied to the customers. A raid was conducted and it was found that Mst. Zubaida Bibi and Ms. Naseem Bibi (petitioners), daughters of Farzand Ali, Jalal Din son of Allah Rakha, Noor Ahmad and Manzoor Ahmad son of Jalal Din were present in front of the house of petitioner Sakina Bibi who herself was coming out of the house. She was intercepted. The raiding party took into custody the aforesaid persons but Sakina petitioner managed to escape. It is further alleged that polythene bag containing heroin weighing 50 grams each was recovered from each of the petitioner, therefore, the above said case was registered. According to the learned counsel the petitioners are women therefore their case is covered by the proviso to section 497 Cr.P.C. Also that the quantity of heroin allegedly recovered from each of the petitioner is 50 grams therefore the case is covered by section 9(a) of the C.N.S.A. 1997. The same is not covered by the prohibitory clause. The police has erroneously applied section 9(b) because each of the petitioner is responsible for the quantity of heroin allegedly held by her in possession. 2. Without making any comments on the merits of the case and considering that the petitioners are women; they are in custody for the last about seven months; their case is not covered by the prohibitory clause, they are admitted to bail on furnishing bail bonds in the sum of Rs. 50,000/- each with one surely each in the like amount to the satisfaction of the learned trial court. 3. It is however observed that surety should be a close relative of the petitioner and not a stranger. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 57 Present: malik hamid saeed, J. SANGEEN KHAN-Petitioner versus STATE-Respondent Criminal Misc. No. 341 of 1997, accepted on 20.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)-Bail-Cancellation of-Prayer for-Offence u/S. 302/324/34 Pakistan Penal Code (XLV of 1860)-No doubt, under proviso to Section 497(1) Cr.P.C. it is within discretion of court to release accused on bail under age of sixteen years or any woman of any sick or infirm person accused of such offence, but there should be very strong reasons to believe that nature of disease is such, which requires special treatment and care which is not possible in jail and further detention in jail .wpuld endanger life of accused-Held: Case of accused-respondent i.e.- Angina and hypertension are not covered under proviso to Section 497(1) Cr.P.C. in its true perspective-Application for bail cancellation accepted. [P!59]A&B Mr. Saleem Dil Khan, Advocate" for Petitioner. Mr. Khawaja Muhammad Khan, Advocate for Respondent Mr. Arshad Abdullah, Advocate for State. Date of hearing: 20.10.1997. judgment Through this order, Cr. Misc. No. 341/97(BCA), filed by Yar Muhammad for cancellation of bail granted to the accused-respondent, Sangeen Khan, vide order dated 4.4.1997 passed by learned Sessions Judge, Nowshera in case R.I. No. 81 dated 17.3.1994 under Section 302/324/34 PPC, Police Station Noshera Cantt, is being disposed of. 2. As percontents of the F.I.R. this tragic incident occurred on. 17.3.1994 at 17.30 hours on Manki Road as reported by the complainantpetitioner Yar Muhammad in injured condition, wherein it is stated that he alongwith his other relatives had gone to Mardan to attend the marriage ceremony of his relative namely Nawab Ali and after the end of the ceremony were coming back to their houses by a Tractor Trolly. When they reached near Octroi Post on Manki Road , accused-respondent alongwith absconding co-accused emerged there on two motor cars. They alighted from their motor cars, stopped the Tractor Trolly and started indiscriminate firing at them, as a result, complainant-petitioner, Tilla Muhammad, Raj Muhammad, Khalid Muhammad, Zeeshan (minor), Mst. Walayat Bibi, Humayun and Lai Daraz were injured while Mst. Banosha wife of Gul Faraz died on the spot. Accused-respondent and other co-accused made their escape good after the occurrence. 3. Subsequently the accused-respondent surrendered before the court of Sessions Judge, Nowshera and sought his release through an application of bail before arrest dated 12.8.1996. Thereafter he moved a post arrest bail in the court of Sessions Judge Nowshera purely on medical ground, which was accepted and the accused-respondent was admitted to bail by order dated 4.4.1997. 4. Aggrieved by the said order, complainant-petitioner seeks cancellation of bail allowed to the accused-respondent, through this application. 5. Criticising the bail granting order Mr. Salim Dil Khan, learned counsel for the petitioner submitted that accused-respondent alongwith his absconding accused are directly charged in a promptly lodged F.I.R. for spraying bullets on the complainant-petitioner and other occupants of the Tractor Trolly and thereafter remained absconder for about two years and five months. As a result of the firing by the accused-respondent and absconding accused, seven persons named above have sustained injuries while one Mst. Banosha died on the spot. He further submitted that the learned Sessions Judge, Nowshera was influenced by the ailment of the accused-respondent like Angina and Hypertension as opined by the Standing Medical Board he extended the concession of bail to the accused-respondent on this sole ground. He next contended that the disease as alleged by the accused-respondent and opined by the Medical Board is not such which could not be treated in jail and the report of the Medical Board in fact is not in favour of the accused-respondent as Angina and Hypertension is not a disease which could not be treated in jail. 6. On the other hand Mr. Khawaja Muhammad Khan, learned counsel for the accused-respondent submitted that trial of the case has since been commenced and the accused-respondent has not mis-used the concession of bail and there is nothing on record in this regard and as such the bail cancellation petition is not worth consideration. 7. Mr. Arshad Abdullah, learned counsel for the State supported the impugned order and adopted the arguments of the learned counsel for the accused-respondent. 8. I have consciously considered the contentions of the learned counsel for the parties and have perused the report of Standing Medical Board and impugned bail order. 9. The report of Standing Medical Board indicates that accusedrespondent is suffering from Angina with Hypertension (High Blood Pressure) and the patient is advised to continue his treatment. The said sickness is not such a disease which could not be treated in jail. Rather such type of disease is so common now a days and every third person is suffering from Hypertension and Agina, this ailment only requires oral treatment. The nature of sickness as transpires from the report of Medical Board is curable and the sickness can be treated in jail as treatment and care of such a normal type of disease is available injail hospital at any time. 10. No doubt, under the proviso to Section 497 (1) Cr.P.C, it is within the discretion of the court to release an accused on bail under the age of sixteen years or any woman or any sick or infirm person accused of such an offence but there should be very strong reasons to believe that nature of disease is such, which requires a special treatment and care which is not possible in jail and further detention in jail would endanger the life of an accused. The case of the present accused-respondent is thus not covered under proviso to Section 497(1) Cr.P.C. in its true perspective. 11. The learned trial Judge had not properly assessed the nature/gravity of the sickness and had wrongly allowed the concession of bail to the accused-respondent. The contention of the learned counsel for the accused-respondent and State that as trial has been commenced, therefore, it would not be justified to recall the bail order, is having no force as the very impugned bail order was passed during the pendency of the trial. The application for bail cancellation is, therefore, accepted and the bail order dated 4.4.1997 of the learned Sessions Judge, Nowshera is recalled. The accused-respondent is present in court, taken into custody and sent to judicial Lockup. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 59 Present: tariq parvez, J. AZIM KHAN and another-Petitioners versus STATE and another-Respondents Criminal Bail Application No. 157 of 1997, dismissed on 6.8.1997. Criminal Procedure Code, 1898 (V of 1898)- —Ss. 497 & 498-Offence u/S. 302/34 of Pakistan Penal Code (XLV of 1860)~Bail-Grant of~Prayer for-Occurrence took place at 1.30 P.M. and within 30 minutes two accused were charged for effective role, duly supported by medical evidence-Injuries sustained by deceased prima facie appears to be caused by shot gun-Site plan and medical evidence although does not appear to be at variance at this stage if defence have got any point, same can be high-lighted at trial-Arguments that two accused have been placed in column No. 2 will not itself as of right make accused entitled to bail-Placing person in column No. 2 of challan is prerogative of Police but same cannot be treated as final words as to innocence of accused person-Culpability or otherwise of person charged in case is function of court to determine- pplication being without merits is accordingly dismissed. [Pp. 61 to 64] A, B, C & D PLD 1990 SC 959 and 1989 P.Cr.L. J. 2253. Mr. Dost Muhammad, Advocate for Petitioners. Kh. Azam Rashid, Advocate for Respondents. Mr. Zafar Abbas, Advocate for State. Date of hearing: 6.8.1997. judgment Asmat Ullah, deceased was murdered for which petitioner Azeem Khan and Abdus Sattar stand charged. 2. The occurrence was reported by Mir Salam on 3.2.1997 at 1400 hour ill Police Station Norang, Lakki Marwat. 3. Th complainant and his son.Asmatullah deceased had gone to Primary School Nov Sahibzada, Khost Hidayatullah, as it was General Election day, and. they were to cast "vote-in the Primary School Polling Station. It was at 1.30 P.M. that the two accused allegedly came there both, armed with D.B. shot guns and fired one shot each, hitting the deceased, resulting in his death. Motive for the offence, given in the report is to the effect that brother of. Azeem' Khan, petitioner, Gulfaraz was murdered for which Asmatullah deceased was charged but latter acquitted. 4. Learned counsel for the petitioner in support of his arguments submitted that the injuries sustained by the deceased have not been described in the relevant column of the injury sheet and inquest report, also submitted, that the prosecution has improved open their original version by inducation of Point No. A in the site plan, in his view, this deliberate attempt was to bring the occular account in conformity with the medical evidence. He also argued, that as it was election day and the police was on duty on the polling station, and that, one Muhammad Sharif SI and Muhammad Ayaz Foot Constable have been shown at Point No. 6 & 7 in the site plan, not only this but, their statement u/S. 161 Cr.P.C. have also been recorded and that, they are not toeing the line of the prosecution. He also argued that if the complainant was present on the spot he should have reported the matter then and there to Muhammad Sharif SI. 5. After having made the above challenges to the case of the prosecution, the second limb of the arguments of the petitioner counsel was, that the Investigating Officer who went to the spot after the registration of; the case, in his first police diary has opined that the real occurrence has been done by one Aman Ullah (Absconding accused). He further submitted that in support of innocence of the two petitioners, large number of persons namely Muhammad two Ilyas, Gul Saadat, Muhammad Aslam, Mir Peo Jan, Zaitullah, Izzat Khan, Ghazi Mar Jan Bahadur Khan Asmatullah Khan and one Salim Khan have made statement to the police, besides, they have also filed Affidavits. He contended that it was on the basis of this material that in the final report, the Investigating Officer has placed the two petitioners in column No. 2 of the Challan and that this position has been endorsed by DSP, PDSP and finally approved by the S.P. concerned. 6. Learned counsel on the aforestated grounds submitted that the accused/petitioners are entitled to bail. 7. Rebutting the arguments advanced by the learned counsel for the petitioner, learned Asstt. Advocate General for the State and counsel for the complainant submitted that as far the point raised by the petitioner in respect of so-called weakness of the prosecution case, the same are not material, and also that it will be deep appraisal of evidence which is not permissible at bail stage. They contended, what is to be seen at the stage of bail is prima facie case. They submitted that the report has been made with promptness, as the occurrence took place at 1.30 P.M. and the report was made 2.00 P.M. i.e. within 30 minutes of the occurrence that too in the Police Station which is at a distance of 3/4 kilometers from the spot. The accused/petitioners are directly charged in the FIR, the non-reporting by the complaining to Muhammad Sharif is not relevant at this stage as his resence cannot be doubted due to the fact that within shortest possible time the report was made in the Police Station. They further contended that it is a day light occurrence and motive existed for commission of the murder. 8. Meeting the arguments in respect of the plea of defence, innocence of the petitioner, it was submitted that the court can take judicial notice of the fact of the growing tendency on the part of the police indulging in his honest investigation in that, they submitted that although as the very first visit the I.O. has opined about the innocence of the two petitioners but did not record the statement of the persons named above and their Affidavits were challenged on the ground that non of the witnesses voluntarily appeared before the police to depose at the earliest opportunity. It was also argued that the accused/petitioner remained absconder till 20.3.1997 while the occurrence took place on 3.2.1997. 9. After having heard the respective arguments both on behalf of the petitioners and the complainant/State, I would refrain to make any detailed comments on the case of the prosecution. The occurrence took place at 1.30 P.M. and within 30 minutes the two accused were charged for effective role, duly supported by medical evidence. The injures sustained by the deceased prima facie appears to be caused by shot gun. The site plan and the medical evidence although does not appear to be at variance at this stage, if the defence have got any point, the same can be high-lighted at the trial. The non-reporting by the complainant to Muhammad Sharif SI require explanation which can be sought during the trial. The day of occurrence was the date of general election, 1997 and it can be presumed that the police on election duty remained more concerned with affairs inside the polling station while the occurrence took place outside. 10. Coming to the arguments that the two accused have been placed B in column No. 2, will not by itself, as of right ake the accused entitled to bail. 11. In Zaheer-ud-Din and two others vs. State (PLD 1990 SC 959), the August Supreme Court made the following observations:- "Police should not arrogate to themselves the last word in respect of the guilt of innocence of an accused person." Similarly in 1989 P.Cr.L.J. 2253 in case of Shadi Khan vs. Matiullah and another. His Lordship Mr. Justice Muhammad Bashir Khan Jehangiri (now Hon'ble Judge of the Supreme Court) cancelled the bail granted to the accused who has placed in column No. 2 by the police. The learned Judge in para 11 of the Judgment observed as under:- "With utmost respect I would differ with the proposition canvassed at the Bar that if the Investigating Officer has found the accused innocent and placed him in Column No. 2 of the challan then he would be entitled to bail as of right. In support of the plea for bail on behalf of the respondent, the only ground urged is that during the investigation he was found innocent by the police and placed in Column No. 2 because at the time of the alleged occurrence he was found in another village. The oral statements of some witnesses including that of Muhammad Ali Pawinda recorded long after the occurrence, to my mind are not enough to attract the benefit of Badizuzaman's case referred to above. The respondent has been assigned "in the FIR an effective role in the murder of the deceased and the charge is supported by the statements recorded under section 161 Cr.P.C. The belated statements of Muhammad Ali Pawinda P.W. and others referred to above are not prima facie based on sound material as held in Muhammad Afza v. Nazir Ahmad 1984 S.C.M.R. 429. It is not the single case from jurisdiction of Bannu District that such a plea has been advanced. In a number of cases I noticed at tendency that such plea is advanced and reiving on Badiuzzaman's case, the accused are being declared innocent and placed in Column No. 2 of the challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore, even if he has been placed in Column No. 2 of the challan, he would not be entitled to bail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that thee respondent has committed the offence with which he had been charged, (above under lining is done by me). 12. In this case the accused remained fugitive from law, warrant of arrest were issued against them and proceedings u/S 87, 88 Cr.P.C. were also initiated. They were arrested during a raid. It was thereafter that they made an application claiming their innocence Pursuant to which the witnesses named above filed an Affidavits and were examined by the Police. It is important to note that their statements were recorded by the police on 25.5.1997. 13. Learned counsel for the complainant has placed on record Affidavits of Gul Saadat, Zaitullah and Bahadur Khan who have dis-owned the execution of earlier affidavits, in favour of the petitioners. The learned counsel for the petitioners while arguing stated at the bar that these three witnesses have again sworn affidavit i.e. third time stating that their second Affidavit against the petitioners were taken from them on gun point. Where the defence witnesses are taking such sum-sault they have impeached their own character. One cannot say with surety that even the first Affidavits were obtained through coercion or by putting pressure or were voluntarily given. 14. Learned counsel for the petitioners has cited PLD 1995 SC 34, 1992 SCMR 1857 and 198,6 SCMR 1978 in support of this contention, that person having been placed in column No. 2 of the Challan should be released on bail. 15. The above judgments, would not help the petitioners. Because, in this case, in the presence of direct charge made within span of 30 minutes cannot be conveniently oversighted by placing reliance on belated stand set­ up by the defence. That too, in the form of oral statement. It was stated at the bar that some of the witnesses so examined by the police are living for away from the scene of occurrence while others are closely related to the petitioners. 16. Placing a person in column No. 2 of the Challan is the prerogative of the police but the same cannot be treated as the final words as to the innocence of an accused person. The culpability or otherwise of a person charged in a case is a function of the court to determine. 17. What I have observed above, in respect of the plea of accused is for the purpose of tentative comparison of them material placed on file by both the parties, it shall not have any binding/persuasive effective on the mind of the trial Judge when seized of the matter. This application being without merits is dismissed. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 64 Present: shah jehan khan, J. MUHAMMAD ASHRAF-Petitioner versus GHULAM RABANI alias RABANI and another-Respondents Criminal Revision No. 14 of 1994, accepted on 17.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 439 read with Section 561-A--Offence u/S. 302 of Pakistan Penal Code, 1860--Trial of Scheduled Offence by Sessions Judge and acquittal of accused-Wheth'er accused could be tried only by Special Judge empowered under Suppression of Terrorist (Special Courts) (Amendment) Act 1990 and jurisdiction of Sessions Court was ousted- Question of--There is no dispute on point that deceased was done to death by use of Kalashnikov-Held: Sessions Judge was not competent to adjudicate upon matter-Revision petition accepted and case remanded to trial Court of Special Judge for trial denovo under provisions of Special Courts Act, 1975. [Pp. 65 & 66] A, B & C 1992 P.Cr.L.J. 230 and PLD 1960 SC 307. Mr. Sanaullah Khan Gandapur, Advocate for Petitioner. Mr. Muhammad Karim Anjum, Advocate for Respondents. Mr. Muhammad Khan, Advocate for State. Date of hearing: 7.9.1997. judgment Petitioner/complainant had charged the accused/respondent for the murder of his brother Muhammad Arif by use of Kalashnikov rifle vide FIR No. 22 of Police Station University registered on 21.1.1992. After arrest of the accused/respondent, challan was submitted in Court and the file was received in the Sessions Court D.I. Khan on 14.10.1993 which was entered as Sessions Case No. 34/93. On taking cognizance and after observing the legal formalities, the accused was charge-sheeted who denied the charge and claimed trial. The learned Sessions Judge after recording evidence of the prosecution acquitted the accused of the charge vide his impugned judgment dated 14.5.1994. Hence this revision petition. 2. Instant revision petition was admitted to full hearing, inter alia, on the ground that in view of the law laid down in 1994 SCMR 717 only the Special Judge empowered under the Suppression of Terrorist (Special Courts) (Amendment) Act 1990 is competent to adjudicate upon the matter and the Sessions Judge was not ompetent to take cognizance of the matter s the prosecution case was that the deceased was done to death by the accused/respondent by use of Kalashnikov. 3. Learned counsel for the petitioner in support of his legal contention relied upon Allah Din and 18 others vs. State (1994 SCMR 717) and unreported judgments of this Court delivered in Criminal Appeals No. 24/92 (Nasib Khan vs. State) decided on 3.11.1994 and Criminal Appeal No. 52/96 decided on 12.6.1997 titled Muhammad Subhan vs. The State. 4. On the other hand, learned counsel for the accused/respondent contended that the petitioner/complainant never objected to the jurisdiction of the Sessions Judge during trial who was also empowered as a Special Judge under the Act ibid. Mere omission to mention his designation as Special Judge does not vitiate the trial. In support of his contentions reliance was placed on unreported judgments of this Court passed in Cr. Appeal No. 21/92 (Amrud Khan vs. State) decided on 19.2.1995 and Cr. Appeal No. 30/94 (Alam Khan vs. The State) decided on 3.7.1995. 5. Learned counsel for the State adopted the arguments of the learned counsel for the petitioner and submitted that an order passed without jurisdiction is nullity in the eyes of law. Even if the petitioner has not objected to the jurisdiction of the Sessions Judge at the time of trial would not empower him to take cognizance of the matter falling exclusively within the jurisdiction of the Special Judge being a scheduled offence under the aforesaid Act. 6. After hearing learned counsel for the parties and going through the law on the subject and the cited judgment, I have come to the irresistible conclusion that the Sessions Judge was not competent to adjudicate upon the matter, as from the very registration of the case, the prosecution's case was that by use of Kalashnikov the accused/respondent committed the murder of the deceased. In Allah Din's case, their Lordships of the Supreme Court upholding the view expressed by a Full Bench judgment of the Lahore High Court in P.Cr.L.J. 1992 page 2308 observed as follows:- "Question of jurisdiction can be determined on the basis of FIR and other material which is produced by the prosecution at the time presentation of challan. On the basis of that material, the Court is to decide whether cognizance s to be taken or not. In the instant case, the incident is seen by six eye witnesses and on our queiy that whether the eye witnesses have supported the allegations in FIR about use of Kalashnikov like weapon, learned counsel for the petitioner replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation jurisdiction of the Special Court." 7. In the instant case, there is no dispute on the point that the deceased done to death by use of Kalashnikov. The unreported judgments 3 cited by the petitioner's counsel are based on the dictum laid down by the Supreme Court in Allah Din's case. 8. In the unreported judgment cited by the accused/respondent's counsel (Cr. Appeal No. 21/92), it was observed that the amendment in the Suppression of Terrorist Activities (Special Courts) Act 1975 was enacted in 1990 with a retrospective effect from 2.11.1988 but the occurrence of the cited judgment took place on 23.7.1988 prior to the effective date of the amendment. The Sessions Judge took cognizance of the case on 7.6.1989 as the incident in the said judgment was much earlier than the amendment brought in the Special Courts Act 1975, therefore, it was held that the Sessions Judge was competent to take cognizance of the matter and decide the matter under the Cr.P.C. In another unreported judgment of Cr. Appeal No. 30/94 relying on rule laid down in Payo Gul's case (PLD 1960 S.C. 307), it was held that the Sessions Judge has been notified u/S. 3 of the Special Courts Act 1975 and the omission to mention his description as Special Judge does not vitiate the trial. In the cited judgment, the objection was raised by the accused while in the instant case, the objection has been raised by the complainant/petitioner. The facts of the cited judgment are different than those of the case in hand as there the incident had taken place on 12.1.1990 before the enactment of the Suppression of Terrorist Activities (Special Courts (Amendment) Act 1990, while in the instant case, the incident was reported on 21.1.1992, after the enactment in the amendment ibid, 9. For the reasons stated above, and without going into the merits of the case, placing reliance on the dictum laid down in Allah Din's case by the august Supreme Court of Pakistan, I accept this revision petition, set aside the impugned judgment of the Sessions Judge dated 14.5.994 and remand the case back to the trial Court of Special Judge D.I. Khan for trial denovo, under the provisions of Special Courts Act, 1975. The accused/respondent is resent in Court, taken into custody and sent to jail to await his trial as an under trial prisoner. He shall be produced before the Special Judge D.I. Khan on 20th instant and is at liberty o agitate his plea of bail afes there. The trial Court shall conclude the trial within a minimum possible time by holding day-today hearing. The office shall transmit record of the case back to the said Court forthwh . (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 67 Present ch. ijaz ahmad, J. MUHAMMAD RAMZAN-Petitioner versus MUHAMMAD IQBAL, SUB-INSPECTOR POLICE DISTT. KEHARI MITROO and STATE-Respondents W.P. No. 6011 of 1997, dismissed on 15.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A--Constitution of Pakistan (1973), Art. 199--Control of Narcotic Substances Act (1997), Ss. 47 & 21(2) read with Ss. 156(2) and 537 Cr.P.C.-Quashing of FIR--By virtue of S. 21(1) of Control of Narcotic Substances Act, 1997, that officer not below rank of S.I Police or equivalent authorised by Govt. is competent to initiate proceedings against petitioner, but provisions of Act did not provide penal consequences where person not duly authorised initiated proceedings under Act shall be vitiated-In absence of penal consequences, provision of S. 21(2) of Control of Narcotic Substances Act, 1997, are not mandatory in nature, meaning thereby that these provisions are directory in nature--Sub-section (2) of Section 156 Cr.P.C. specially lays down that no proceeding of Police Officer shall be called in question on ground that case was one which such officer was not empowered under this Section to investigate-Held: In view of Section 47 of Control of Narcotic Substances Act read with Section 156(2) and Section 537 Cr.P.C. this Court (H.C.) has seldom exercised jurisdiction to quash F.I.R.--Petition dismissed. [Pp. 68 to 70] A, B, C, D & E PLD 1979 Lahore 416, PLD 1956 Lahore 87,1972 P.Cr.L.J. 400, 1980 P.Cr.L.J. 97, PLD 1958 Dacca 145, PLD 1960 Kar. 204, AIR 1955 SC 196, PLD 1955 Lah. 667. PLD 1961 Dacca 565, 1997 P.Cr.L. J. 124 and PLD 1993 SC 399. Syed Murtaza All Zaidi, Advocate for Petitioner. A.A.G. for State. Date of hearing: 15.10.1997. judgment The brief facts out of which the present writ petition arises are that on 7.5.1997 while Muhammad Iqbal Si/respondent No. 1 was present at Chowk Sargana to check the crimes, he received a spy information that petitioner sells heroin and if a raid is conducted, he would be arrested. He alongwith police party went to the Dhari, where petitioner was sitting on a cot under a Sheesham tree, who on seeing the police party, went away from the spot, however he left a shopper, wherein respondent No. 1 found a little weighing scale and 30 gram heroin alongwith a cash of Rs. 200/-. he recorded the informal FIR on the same day and sent to the police station Mitru and case FIR No. 116/97 was registered, hence the present writ petition. 2. The petitioner's counsel contended that under the provisions o the Control of Narcotic Substances Act, 1997, respondent No. 1 Muhammad Iqbal SI of police was not legally authorized to conduct the said raid, arrest and to initiate proceedings against the petitioner. He further contended that as per Notification No. SRO 318'(l)/95, it has been clearly stated that no police officer below the rank of Sub-Inspector is authorized to exercise the powers and perform the functions U/Ss. 20, 21, 34(2) and 35 of the said Act within the area of their respective jurisdiction. He further argued that respondent No. 1 Miihammad Iqbal at the relevant time was not legally authorized to conduct the alleged raid or to arrest the petitioner and to ipitiate proceedings under the said Act. Even otherwise, respondent No. 1 was Sub-Inspector, therefor he was not eligible to take action. He further argued that the action taken in violation of the mandatory provisions of the said Act, therefore, FIR may be quashed. He relied upon 1997 Pakistan Criminal Law Journal 10, Supreme Court AJK (Muhammad Rafique vs. Ifcrtir Hussain) and the relevant observation is as follows:- "The learned counsel contended that Rules framed by the Shariat Court had the force of law and it was mandatory for the Court to allow it. He relied upon Aziz-ur-Rehman vs. Presiding Officer, Local Council Elections & others (1993 S.C.R. 117), in which this Court stated the settled law that if an Act is required to be performed in a specific matter by law or Rules, it should be performed according to the prescribed manners, alone or not at all." 3. The learned Addl. Advocate General contended that the provisions of said Control of Narcotic Substances Act are directory in nature, therefore, their violation is not material. He further argued that violation of these provisions is illegality or irregularity, which can be cured. He further argued that petitioner can agitiate these points before the competent court and this court has no jurisdiction to quash the FIR. He further argued that the petitioner committed a heinous offence and heroin was taken into possession from him at the spot. 4. I have given my anxious consideration to the contentions of the learned counsel of the parties. It is conditioned precedent by virtue of Section 21(1) of the Act that an officer not below the rank of SI of police or equivalent authorized in this behalf by the Government is competent to initiate the proceedings against the petitioner, therefore, respondent No. 1 being a Sub-Inspector was not competent to initiate the proceedings against the petitioner. The Notification S.R.O.. 3318(l)/95 revealed that the Federal Government authorized the member not below the rank of Inspector, of the Anti-Narcotic Force, the officer not below the rank of Inspector, in the Excise, Police and Custom Departments. Therefore, the only material point to resolve the present controverts is whether the respondent No. 1 being SI of police department was competent to initiate proceedings under the said Act or not? The provisions of the aforesaid Act authorized respondent No. 1 to initiate proceedings subject to the condition that the Government has issued Notification to authorize the Sub-Inspector. The learned Ad'dl. Advocate General failed to bring qn record any notification to authorize the respondent/Si to initiate the proceedings. Section 21(2) provides conditioned precedent that SI must be notified through notification to initiate the proceedings under the said Act but the provisions of the Act did not provide penal consequences where the person not duly authorized initiated proceedings under the Act shall be vitiated. In the absence of the penal consequences, these provisions are not mandatoiy in nature, meaning thereby these provisions are directory in nature. This fact is also supported by reading Section 47 of the Act by virtue of which provisions of Criminal Procedure Code are applicable, therefore, Section 156(2) of Criminal Procedure Code is applicable on the well known principle of legislation by reference or by adoption. I am fortified by the Pakistan International Airlines case (PLD 1979 Lahore page 416). Section 156(2) Cr.P.C. is reproduced hereunder:- "No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case shall one which such officer was not empowered under this Section to investigate." I am also fortified by the judgment reported as PLD 1956 Lahore 87 and the judgment ofShamam's case 1972 Pakistan Cr. Law Journal 400 and the relevant observation is as follows:- "Section 156 Cr.P.C. does not lay down in any mandatory terms that the investigation cannot be carried out by an officer other than the Station House Officer, in fact, the Section expressly authorizes the SHO to depute one of his officers not below the rank of ASI to proceed, to the spot and investigate the facts and circumstances of the case. In this case, the investigation has been verified by a senior officer, namely the District Inspector of Police. We also find that Sub-section (2) of Section 156 Cr.P.C. specially lays down that no proceeding of a police officer hall be called in question on the ground that the case was one which such officer was not empowered under this Section to investigate. Finally, it is well gentled that any illegality or irregularity in the investigation does not vitiate the trial." Section 156 was also interpreted in Muhammad Ashiq's case 1980 Pakistan Criminal Law Journal 97 in the following terms: - "It is well settled that any illegality committed in the course of investigation does not affect the competence and jurisdiction of the court in trial." The Supreme Court of Pakistan in Muhammad Hussain's case has taken note of similar provision of Section 5-A of Prevention of Corruption Act, 1947 and the relevant observation is as follows:- "The trial is not vitiated but the violation of the legal provision by what police officer a case of corruption by a public servant may bee investigated is an irregularity falling to be dealt with U/S 537 of the Criminal Procedure Code." This proposition is further supported by the following judgments:- (1) Abdul Noor's case (PLD 1958 Dhaka 145) (2) Walizar's case (PLD 1960 Karachi 204) (3) Rasheed's case (AIR 1955 S.C. 196) (4) Noor Alam's case (PLD 1955 Lahore 667) and (5) (PLD 1961 Dhaka) case of Jan Ullah. 5. In view of what has been discussed above, the contention of the learned Addl. Advocate General has force, whereas the case cited by the learned counsel for the petitioner is distinguished on facts and law, as the case cited by the petitioner is based on another well known principle. When a thing is to be done in a particular manner, it must be done in that way and not otherwise, so this principle is not attracted in the given circumstances of the case keeping in view Section 47 of Control of Narcotic Substances Act read with Section 156(2) and Section 537 R.P.C. This court has seldom exercised jurisdiction to quash the FIR, as the law laid down by the Privy Council, which was subsequently approved and confirmed by our Hon'ble Supreme Court. This court has no jurisdiction to quash the FIR in view of AIR 945 Privy Council Page 18 (Kh. Nazir's case), PLD 1971 SC 677 (Shehnaz Begums' case) and 1994 S.C.M.R. 2142 (Brig. Imtiaz's case), 1997 P.Cr.L.J. 124, PLD 1993 SC 399 and PLD 1994 SC 281. In view of what has been discussed above, this writ petition is dismissed with no order as to costs. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 71 Present: RAJA FAYYAZ AHMED, J. ABDUL MATEEN-Petitioner versus MUHAMMAD SALEEM and 2 others-Respondents Criminal Revision No. 19 of 1997, dismissed on 12.9.1997. Criminal Procedure Code, 1898 (V of 1898)— —-S. 434/439-Penal Code (XLV of 1860), Ss. 337-A(ii) & 337-F(i)-- Reduction of sentence of imprisonment and payment ofArsh and Daman to extent of Daman only-Challenge to-In reported judgment of Hon'ble Supreme Court in identical case where trial Judge convicted accused u/s 304, Part II, Penal Code but High Court on revision by complainant altered convection from Part II to Part I of S. 304, Penal Code and increased sentence on ground that trial court committed mistake in convicting accused under Part II of S. 304 P.P.C.-Against such sentence passed by High Court petition for leave was preferred in Hon'ble Supreme Court which was converted into appeal and same was accepted and order of High Court was set aside-Held: On account of dictum of Hon'ble Supreme Court, this court is not competent to alter sentence and to convict private respondent for offences for which they have been convicted by trial court-Petition incompetent and is accordingly dismissed. - [P. 74] A & B. 1986 SCMR 1585. Mr. Naseem Akhtar, Advocate for Petitioner. Raja M. Afsar, for Respondent. State by A.A.G. Date of hearing: 29.8.1997. judgment This Criminal Revision Petition U/Ss. 434/439 Cr.P.C. has been preferred against the judgment dated 22.2.1997 passed by the learned Additional Sessions Judge-II, Quetta in Criminal Appeal No. 23/96 filed by the convicts/respondent No. 1 and 2 whereby the sentence of imprisonment and payment ofArsh and Daman awarded to the convict/respondents by the court of learned Judicial Magistrate-IV, Quetta has been altered and reduced to the extent of payment of Daman only with the prayer to set aside the impugned judgment and the sentences awarded to the respondent No. 1 and 2 be enhanced and the sentence passed by the learned Judicial Magistrate- IV, Quetta vide judgment dated 5.11.1996 be upheld. Briefly, the stated facts of the.case are that the respondents No. 1 and 2 besides co-accused Abdul Karim and Abdul Majeed faced trial in the court of Judicial Magistrate-IV, Quetta (Qisas and Diyat Ordinance Case No. 36/97) in Crime No. 16/96 registered with Police Station City, Quetta on the complaint of the petitioner. Finally the learned trial court vide its judgment dated 5.11.1996 convicted the private respondents and acquitted the coaccused Abdul Karim and Abdul Majeed from the charge. Following sentence was passed by the learned trial Court respectively against the private respondents:- (1) Respondent Muhammad Salim was convicted u/S. 337- A(ii) PPC Criminal Law (Amendment) Ordinance and sentenced to suffer RI for one year and to pay Rs. 5,000/- as Arsh or in default, of payment of Arsh to suffer SI till payment of the Arsh amount. (2) Respondent Muhammad Shafi was convicted u/S. 337-F(i) and sentenced to suffer RI for ten months and also to pay Rs. 3,000/- as Daman or in default of payment of Daman further to suffer SI for five months with benefit of section 382-B Cr.P.C. extended to both the accused. The convict/respondents being aggrieved of their conviction recorded by Judicial Magistrate-IV, Quetta vide impugned order dated 5.11.1996 preferred appeal in the Court of Sessions Judge, Quetta Division which was transferred to the file of learned Additional Sessions Judge-II, Quetta and registered as Criminal Appeal No. 23/1996. The learned appellate court vide its judgment dated 22.2.1997 maintained the conviction of the private respondent, however; taking a lenient view convicted them by altering their sentences as under:- (1) Muhammad Salim convicted u/S. 337-A(i) and directed to pay an amount of Rs. 2,500/- as Daman to the victim Abdul Matin (petitioner) and in case of non-payment of Daman to suffer SI for a term of six months. (2) The respondent Muhammad Shafi convicted u/S. 337-F(l) and directed to pay an amount of Rs. 1,500/- as Daman to the victim Rasamuddin and in case of on non-payment of Daman to suffer SI for a term of five months. Record of the case from the appellate court was also called for while writing the judgment to ascertain if the convict/respondents had paid the amount of Daman pursuant to the order of the appellate court. The examination of the record revealed that on the same day the amount of Daman was deposited in court vide receipt No. 1308 and 1309. I have heard the learned counsel for the parties and the learned Assistant Advocate General in support of their respective contentions. The learned counsel for the petitioner contended that:- (1) The private respondents have been found guilty by the appellate court as well for the commission of the alleged offence but taking a lenient view illegally and in the misexercise of the powers vested in the learned appellate court it altered the sentence of convict Muhammad Salim u/S. 337-A (ii) to that u/S. 37-A(i) whereas; the conviction and sentence awarded to the respondent Muhammad Shafi u/S. 337-FG) altered to that u/S. 337-A (i). Both of them were directed to pay Daman to the victim Abdul Matin and to the victim Rasamuddin respectively in the sum of Rs. 2.500/- and Rs. 1,500/-. (2) The appellate court was fully satisfied on the basis of evidence that the private respondents have committed the offence for which they had been rightly convicted by the learned trial court, yet instead of maintaining the sentence awarded by the learned trial court appropriately to the convict/respondents, the appellate court fell into legal error in altering their sentences and exercised the jurisdiction vested in it illegally by convicting them for the offence u/S. 337-A(i) and 337-A (i) respectively with the penalty of Daman only. (3) The medical evidence proved the nature of injuries sustained by the victims at the hands of the convict/respondents fully attracted the offence for which the covnict/respondents were appropriately punished by the trial court and the lenient view taken by the learned appellate court is without any basis and legal sanction. The discretion so exercised by the appellate court did not vest in it. The learned counsel for the convict/respondents submitted that since the petitioner has filed the revision petition seeking for enhancement of the sentence, therefore, the convict/respondents are entitled also to show cause against their conviction. Consequent upon the notice of the revision petition the covnict/respondents submitted an application u/S. 439(6) Cr.P.C. on 9.6.1997 before this court notice whereof was given to the learned counsel for the petitioner who addressed the court at length in support of the conviction of the private respondents. The learned counsel for the convict respondents contended that there is old persisting enmity between the parties and on account of the said motive the petitioner has falsely implicated the convict/respondents. Besides two other innocent persons involved in the case, who have been acquitted by the learned trial court, according to the learned counsel does not rule out the possibility of the false involvement of the convict/respondents in the case. The learned counsel emphatically argued that no appeal against order of acquittal of the two accused was preferred by the petitioner which speaks of the fact that on account of enmity persisting between the parties false case was got registered by the petitioner. The learned counsel submitted that the medical certificate of the injui'ed Abdul Matin (petitioner) is silent about the nature of the injury whereas; in the injury certificate of Hasamuddin the injury has been mentioned to be simple, thus the learned counsel contended that the medical certificate of injured Abdul Matin is at variance to what has been stated by the PWs. According to the learned counsel the PWs are inimical and closely related to the complainant, therefore, their testimony was not beyond doubt in the circumstances of the case specially when the alleged occurrence took place in broad day light and the thickly populated area of Bazar but no independent ocular witness was produced by the prosecution. The learned counsel further submitted that it was a pre­ planned and set up case against the convict/respondents and other coaccused, therefore, the evidence is to be looked into and appraised in the back drop of the parties relations. He submitted that the order passed by the learned appellate court is neither purverse nor illegal, therefore, instead of pressing for acquittal of the convict/respondents the learned counsel prayed that the sentence awarded by the learned appellate court may not be disturbed in the interest of justice. The learned counsel place reliance on reported judgment i.e. Ghulam Sikandar and another vs. Mamaraza Khan and others PLD 1985 SC 11. The learned Assistant Advocate General adopted the arguments put forth on behalf of the petitioner and submitted that the sentence passed by the Judicial Magistrate be maintained and convict/respondents be accordingly convicted. I have considered the respective contentions of the learned counsel for the parties and the learned Assistant Advocate General in the light of the available record and the law. While dealing with the proposition involved in the instant matter I have come across a reported judgment of the Hon'ble Supreme Court in an identical case where the trial Judge convicted the accused u/S. 304, Part II, Penal Code but High Court on revision by complainant altered the conviction from Part II to Part I of S. 304, Penal Code and increased the sentence on the ground that the trial court committed mistake in convicting the accused under Part II of S. 304 PPC. Against such sentence passed by High Court petition for leave was preferred in the Hon'ble Supreme Court which was converted into appeal and the same was accepted and order of High Court was set aside. The dictum of Hon'ble Supreme Court in the case i.e. Mushtaq Ahmed vs. The State 1986 SCMR 1585 relevant to the proposition, it was held:- "Constitution of Pakistan (1973)-- "—-Art. 185(3)-Penal Code (XLV of 1860), Ss. 304-I/304-II-- Criminal Procedure Code (V of 1898), S. 435-Trial Judge convicting accused under S. 304, Part II, Penal Code, but High Court on revision by complainant altering conviction from Part II to Part I of S. 304, Penal Code, and increasing sentence on ground that Trial Court committed a mistake in convicting accused under Part II of S. 304, P.P.C.-High Court, held, was not competent to alter sentence as such under its revisional jurisdiction-Convict already released from Jail on serving out his sentence awarded by trial Court-Rearresting of accused to serve out a further period of imprisonment as a part of sentence awarded by High Court not desirable-Petition converted into appeal and appeal accepted and order of High Court set aside." Being fortified on account of the above dictum of the Hon'ble Supreme Court, this court is not competent to alter the sentence and to convict the private respondents for the offences for which they had been convicted by the learned trial court; in the exercise of its revisional jurisdiction, therefore, the petition being incompetent in the context is dismissed. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 75 Present: sardar muhammad raza, J. NASARULLAH-Petitioner versus STATE-Respondent Criminal Misc. No. 48 of 1995, accepted on 20.10.1996. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss, 169, 439 & 561-A-Penal Code (XLV of 1860), Ss. 302/324/34-Release of accused u/S. 169 Cr.P.C. by Police, but placing him in column No. 2 of challan by trial court-Validity-Case of person released u/S. 169 Cr.P.C. is altogether different from case of persons mentioned in column No. 2 and 3 of report submitted u/S. 173 Cr.P.C.-Such person is not even arrayed by Police as accused-Held: Trial Court cannot of its own array him as accused-Held further: Action taken by trial Court is without jurisdiction-Petition accepted. [P. 77] A & B 1995 P.Cr.LJ. 549. Mr. Saeed Baig, Advocate for Petitioner. Date of hearing: 20.10.1996. judgment This petition filed by Nasrullah son of Shahi Muhammad of Mulla Jan Killi Tehsil and District Takht Bhai, under section 439 Cr.P.C. read with section 561-A Cr.P.C. arises in the circumstances that Nasrullah accused alongwith others was charged under sections 302/324/34 PPC vide FIR # 157 dated 2.4.1994 of Police Station Lund Khawar. He was released by the police after investigation, under section 169 Cr.P.C. When the case came up before the learned Additional Sessions Judge Takht Bhai, he directed vide his order dated 21.3.1995 that Nasrullah be placed in column # 2 of the format of challan. When Nasrullah contested this through an application, the learned Judge, vide his order dated 27.4.1995 maintained his previous order. 2. Nasrullah has come up to this court challenging the impugned orders on the ground that the learned trial court had no jurisdiction to take cognizance against the petitioner whose case was never sent up before him for trial. 3. In a latest judgment by this court in Afsar Khan vs. Nawab Khan (1995 P.Cr.L.J 549) the real import of section 169 Cr.P.C. was discussed. It may be reiterated once again that an accused released under section 169 Cr.P.C. is never included in the report submitted before the Ilaqa Magistrate under section 173 Cr.P.C. so when the same case is sent under section 190(3) Cr.P.C. to the Court of Sessions, the latter takes cognizance under section 193(1) Cr.P.C. which clearly lays down in unambiguous words, that no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the case has been sent to it under section 190<3> Cr.P.C. This leads to the conclusion that the Court of Sessions takes cognizance of only that case which is sent to it for trial by the Ilaqa Magistrate or the Magistrate First Class having taken cognizance under section 190 Cr.P.C. 4. When the name of an accused is not at all mentioned in the report under section 173 Cr.P.C. either in column # 2 or column # 3, the trial court referred to under section 193 Cr.P.C. cannot take cognizance against such person. 5. The situation is somewhat different in a case where the name of an accused appears in column 2 or column # 3 of the report under section 173 Cr.P.C. It is a matter of great legal importance and also alluded to in judgment titled Afsar Khan vs. Nawab Khan (1995 P.Cr.L.J. 549) authored by me, that the factum of taking cognizance of an offence under section 190 or under section 193 Cr.P.C. is a complete judicial act. The court taking cognizance, and before issuing notice to the accused, must go through the file and see as to who should be tried by it. While exercising this discretion, in the light of record, a court is at liberty to form its own independent opinion. While forming such opinion it can ignore holding trial of a person mentioned in column # 2 of the report and vice versa. If it decides to hold the trial, it will issue notice to the person mentioned in column # 2 and would charge him under chapter 19 of the Cr.P.C. If the court holds otherwise, it would simply not issue notice to such person and would not charge him for the offence. 5. The application of mind before taking cognizance of the offence is not at all limited to the accused mentioned in column # 2 alone but it can be done qua the accused mentioned in column 3 of the report. If the court comes to the conclusion that in view of the evidence, there are no reasons to hold trial against a person appearing column # 3 of the report, he can be acquitted even before the framing of charge, under section 265-K Cr.P.C. or 249-A Cr.P.C. 6. The case of a person released under section 169 Cr.P.C. is altogether different from the case of those persons mentioned in columns 2 and 3 of the report submitted under section 173 Cr.P.C. Such person is not . even arrayed by the police as an accused and hence the trial court cannot, of its own, array him as an accused. The action taken by the learned Additional Sessions Judge through the two impugned orders is, therefore, without jurisdiction. When it is so held, it does not mean that the matter has gone without remedy. The remedy is still open for the complainant to initiate proceedings against such accused under section 200 Cr.P.C. 7. On this point we have a judgment of our own High Court in Cr. Misc. # 33 of 1992 filed under section 561-A Cr.P.C. by an accused named Abdur Rehman, the Hon'ble Judge has held that Abdur Rehman having been released under section 169 Cr.P.C., the trial court could not take cognizance against him, for, the name of such person is not at all referred to him for trial. Both the learned counsel have stated at the Bar that the aforesaid findings in case of Abdul Rehman have been upheld by the Supreme Court. 8. In the circumstances, the application is accepted, both the impugned orders dated 21.3.1995 and 27.4.1995 of the learned Additional Sessions Judge, Takht Bhai are set aside and the learned court is directed to B proceed with the trial minus Nasrullah petitioner. The aggrieved party may proceed against him, if advised, under section 200 Cr.P.C. 9. Parties to appear before the trial court on 14.11.1996. (B. T.) Petiti on accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 77 (DB) Present: AMiR-UL-MuLK mengal, C. J. and raja fayyaz ahmed, J. YAHYA BAKHTIAR-Appellant versus MIR SHAKEEL-UR-REHMAN and 2 others-Respondents Criminal Misc. Appeal No. 226 of 1996, accepted on 8.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- .._S. 247-Pakistan Penal Code (XLV of I860), Ss. 500/501/502- Complainant dismissed for non-appearance of appellant/Complainant- Accused acquitted-Challenge to--0ffence u/S. 500 P.P.C. on date of its alleged commission by respondents inclusive of date on which complaint was filed was not only cognizable but was also non-compoundable--Notwithstanding repeal or omission of any particular provision of statute subsequently, omission of provisions to sections 499 and 500 P.P.C. by Act IV of 1986 would not affect validity and applicability of Proviso to Section 499 and 500 PPC inserted by Criminal Law (Amendment) Ordinance, 1979 to pending cases-Second proviso to Section 247 Cr.P.C. was thus fully attracted in case as offence u/S. 500 P.P.C. was cognizable as well as non-compoundable-Held: Order passed by Judicial Magistrate is without any lawful authority and of no legal consequence-Appeal accepted and case remanded for disposal in accordance with law. [P. 83] A 1993 SCMR 1902, NLR (Criminal) 44 and NLR 1994 (Cr.) 437. Mr. Akhtar Zaman, Advocate of Appellant. Mr. Sadullah Siddique, Advocate for Respondents. Advocate General for State. Date of hearing: 2.7.1997. judgment Raja Fayyaz Ahmed, J.-This criminal appeal u/S. 417(2A) Cr.P.C. has been directed against order dated 25.7.1996 passed by the Judicial Magistrate-II, Quetta whereby the complaint filed by the appellant was dismissed and the accused acquitted of the charge. The impugned order for convenience is reproduced below:- "Called. Complainant not present. Counsel for accused Mr. Asadullah, Advocate present. No justification has explained by the counsel for complainant for his non-appearance. The complainant has no interest in the case. He only wants to drag the accused in court. Therefore, the complaint is dismissed, consequently the accused are acquitted." Dated 25.7.1996. Sd/- (RASHID MEHMOOD) Judicial Magistrate-II, Quetta . 2. Briefly stating the facts of the case are that on 27.11.1985 the appellant filed a complaint U/Ss. 500/501/502 PPC against the respondents before the Assistant Commissioner/SDM, Quetta . Cognizance of the offence was taken by the AC/SDM Quetta and in the month of February and March, 1988 the accused were separately indicated for the afore-mentioned offences to which they did not plead guilty and the case was transferred to court of EAC-I/Magistrate First Class, Quetta sometime in January 1989 and ultimately the case was sent to the court of Judicial Magistrate-II, Quetta uring the process of the separation of Executive from Judiciary in the month of September, 1993. For one or the other reason the case remained pending before the courts below (trial courts) without any practical progress. The statement of the appellant was recorded on 4.11.1992 and the case was postponed to 6.12.1992 for cross-examination which could not be completed and ultimately the trial court was constrained to close the, right of cross-examination of the respondents on 1.8.1993. The application moved on behalf of the respondents to recall the order dated 1.8.1993 was also rejected and the appellant however; offered himself to be cross-examined but for two consecutive days i.e. 5.4.1994 and 6.4.1994 it could not be completed and for further cross-examination the case was adjourned to 16.4.1994 on which date the counsel for the respondents submitted an application u/S. 133 Qanoon-e-Shahadat Order, 1984 and the same was fixed for rejoinder and arguments on the application for 16.5.1994 but the learned Magistrate on such date was on leave. The appellant attended the court on the next date and vide order dated 31.5.1994 the personal attendance of the appellant was exempted by the court on his application till end of July, 1994. Against this order Revision Petition was filed by the respondents before the Sessions Judge, Quetta which was transferred to the court of Additional Sessions Judge-Ill, Quetta which court requisitioned the record of the case which was transmitted to the court on 5.9.1994 and was received back by the trial court on 18.12.1994. After the dismissal of the Revision Petition, the respondents filed an application/u/S. 561-A Cr.P.C. before this court which was dismissed because by that time the complaint was dismissed by the trial court on 12.2.1996 in default (on account of non-appearance of the complainant). The appellant thereafter filed application for review of dismissal order of the complaint which was stated to have been passed not on correct grounds and this application was not contested by the respondents counsel and the complaint was restored on 22.5.1996 and thereafter the case was adjourned to 4.6.1996 for arguments on application u/S. 133 Qanoon-e- Shahadat Order, which remained pending with the learned trial court when on 25.7.1996 the impugned order was passed. We have at length heard the learned counsel for the parties in support of their respective contentions. The learned counsel for the appellant contended that:- (i) The offence u/S. 500 PPC for which the respondents were charged and contained in the complaint was a cognizable and not compoundable offence at the relevant time as per criminal law (Amendment) Ordinance, 1979 (Ordinance LXVIII) of 1979, therefore, on account of non-appearance of the complainant, by virtue of second proviso to section 247 Cr.P.C. the impugned order could not have been passed. (ii) Notwithstanding the repeal of (Ordinance LXVIII of 1979) by Criminal Law (Amendment) Act, 1986 (Act IV of 1986) the pending proceedings would be governed under the law prevailing at the time when action was commenced. (iii) The impugned order has thus been passed by the trial court is not only without nay legal sanction but violative of the 2nd proviso to section 247 Cr.P.C. read with the offence being not compoundable and cognizable one. The learned counsel in support of his contentions relied on the reported judgments cited by him i.e. (1) Abdul Wahid vs. Addl. District Judgc-I. Quetta and 5 others PLD 1994 Quetta 89, (2) Muhammad Nawaz Kasuri vs. Mian Abdul Hameed and another 1993 SCMR 1902, (3) Iftikhar Ahmad Chatta vs. Addl. Sessions Judge, etc. NLR 1996 (Cr) 44 and Mukhtar -alias Mokha -s. Varyam, etc. NLR 1994 (Cr.) 437. The learned counsel for the respondents controverting the contentions put forth on behalf of the appellant submined that the offence was neither cognizable nor compoundable on the date of passing of the impugned order, therefore, the 2nd proviso to section 247 Cr.P.C. had no application in the matter. According to the learned counsel the respondents have been rightly acquitted and complaint dismissed by the conn on account of tho nan-prosecution of the case and non-appearance by the complainant. The learned counsel added that despite lapse of sufficient long period since the institution of the complaint, the appellant did not procedure his witness/evidence before the trial court, which amounted to the abuse of the process of court, hence in the given circumstances of the case the learned court was constrained and justified in law to have had passed the order impugned in appeal. The learned counsel to supplement his arguments cited the following case law: (1) 1990 P.Cr.L.J. 1699 (2) 1986 P.Cr.L.J. 744. (3) AIR 1940 (Nagpur) 357. We have considered the respective contentions put forth before us in the light of the relevant provisions of the law and have also gone through the record of the case carefully. In view of the proposition involved in the instant matter it would be appropriate to reproduce below section 247 Cr.P.C. "Non-appearance of complainant. If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason to thinks proper to adjourn the hearing of tMe case to some other day: Provided that, where the complainant is a public servant and his personal attendance is not required the Magistrate may dispense with his attendance, and proceed with the case: Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable." The 2nd proviso to section 247 Cr.P.C. has been inserted by Act XXI of 1976 which is a qualifying clause to the application of the main section i.e. 247 Cr.P.C. which lays down the consequences of non-appearance of the complainant. It is an admitted position that the specified consequence in section 247 Cr.P.C. would not follow where the offence for which the accused is charged, is either congizable or non-compoundable in terms of second proviso to section 247 Cr.P.C. The Hon'ble Supreme Court while dealing with the applicability of section 247 Cr.P.C. in the light of the second proviso to the section reported in 1993 SCMR 1902 at. page 1903 of the judgment has observed: ".... Second proviso to S. 247 Cr.P.C. does not apply where offence of which the accused is charged is either cognizable or non-compouudable—Offence under S. 497, PPC was undoubtedly a cognizable offence—Case was not, therefore, fit for grant, of leave and the same was accordingly refused." In another authority cited by the learned counsel for the appellant reported in NLR 1996 (Cr) 44 of the Hon'ble Single Bench of the Lahore High Court, it has been held:- "Complaint cannot be dismissed for non-prosecution-when offence u/S. 295-A was not compoundable while offence U/Ss. 501, 502 where cognizable. Order for dismissing complaint for non-prosecution in such case would be illegal." On the subject the same view was taken in a case reported in NLR 1994 (Criminal) 437. In the case law cited by the learned counsel for the espondents (1986 P.Cr.L.J. 744) it has been held: "—Ss. 247 & 249-A-Complaint dismissed for nonappearance of appellant-complainant—Accused acquitted— Respondents accused having appeared on eighty dates-Only four witnesses recorded on two dates of hearing-Appellant nor his counsel, nor any witness appearing when case was called on date fixed or recording of evidence-No affidavit of any of his two counsel having been filed in sxipport of his contention-Impugned order having been passed under S. 247, Cr.P.C., held, could also be justified under S. 249-A, Cr.P.C. because continuous non-production of evidence could lead to inference that there was no probability of accused being convicted of any offence-Appeal was, therefore, dismissed." The above quoted case law did not deal with the applicability of S. 247 Cr.P.C. in the light of Second proviso, therefore, is of no assistance in the instant matter, yet, in another authority cited by the respondents counsel reported in (1990 P.Cr.L.J. 1699) it has been held by the Hon'ble Division Bench of the Karachi High Court while hearing acquittal appeal against the order of the dismissal of the complainant that the case did not, involve any substantial question of law and related to petty matters of a non-cognizable and compoundable matter and the trial court had justifiably passed order of acquittal of accused due to non appearance of the complainant which was neither perverse no arbitrary. In the present case one the offence with which the respondents were charged i.e. under section 500 PPC subject to proviso, was made cognizable and non-compoundable vide Criminal Law (Amendment) Ordinance, 1979 (Ordinance LXVIII) of 19?9 and the complaint was filed on 27.11.1985 when the Ordinance above mentioned was in force, thus in our view the cited case law i.e. (1990 P.Cr.L.J. 1699) has no application to the proposition in hand. The 3rd case law i.e. AIR 1940 Nagpur 357 cited by the learned counsel pertains to the period long before the insertion of second proviso to section 247 Cr.P.C. vide Act XXI of 1976, so not helpful to the proposition involved in the case. There is no cavil to the proposition that by virtue of second proviso to S. 247 Cr.P.C. reproduced below: "Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cogniza-ble or non-compoundable." A complaint is not liable to dismissal nor an accused to be acquitted due to non-appearance of the complainant; if the offence of which the accused is charged, is either cognizable or non-compoundable, 1993 SCMR 1902, NLR 1996 (Criminal) 44 and NLR 1994 (Cr) 437 referred. It has been mainly contended by the learned counsel for the respondents that none of the offences for which the accused was charged, was either cognizable or non-compoundable on the date of passing of the ! 1998 yahya bakhtiar v. mir shakeel-ur-rehman Cr.C. 83 (Raja Fayyaz Ahmed, J.) impugned order, therefore, the second proviso to section 247 Cr.P.C. had no application in the case. Apparently the contention seems to be not weightless as on the date when complaint was filed, by virtue of Criminal Law (Amendment) .Ordinance. 1979 (Ordinance LXVII) the offence U/Ss 499 and 500 PPC subject to provisos respectively were made punishable for imprisonment for a term which may extend to five years and the corresponding entries in the relevant columns of the Second Schedule of the Code of Criminal Procedure relating to section 499/500 PPC (the new entries) were accordingly substitu­ ted whereby the offence was shown to be non-compoundable and cognizable but the aforementioned amendments were omitted by' Criminal Law i Amendment) Act, 1986 (Act.IV of 1986). The provisos as above mentioned to section 499 and 500 PPC and the corresponding entries in the relevant columns of second schedule of Cr.P.C. were omitted vide Act IV of 1986. The provisos inserted in section 499 and 500 PPC though Ordinance No'. LXVIII are reproduced below for ready reference. "S. 499-Defamation ' ............................. ' "Provided that exception in this section, other than the fourth exception, shall not apply in cases in which the imputation is published in a "book" "news sheet" or "news­ paper" as defined in the West Pakistan Press and Publication Ordinance, 1963 (Ordinance XXX of 1963)" S. 500, Punishment for dcfamation- "Provided that, where the imputation is published in the manner referred to in the proviso to section 499, this section shall have effect as if for the words "two years" therein the words "five years" were substitxited." and on the date when the impugned order was passed the provisos to section and 500 were omitted by Act IV of 1986 and thus the offence u/S. 499 or PPC on such date was neither cognizable nor non-compoundable. The offence u/S. 500 PPC on the date of its alleged commission by the respondents inclusive of the date on which the complaint was filed was not only cognizable but was also non-compoundable. The rights or liabilities of the parties to the proceedings are governed by the Statute as it prevailed on the date when action was commenced notwithstanding the repeal or omission of any particular provision of such Statute subsequently, thus the omission of the provisos to section 499 and 500 PPC by Act IV of 1986 would tiot affect the validity and the applicability of the provisos to section 499 and 500 inserted by Criminal Law (Amendment) Ordinance, 1979 (Ordinance No. LXVIII) of 1979 to the pending cases. The second proviso to section 247 Cr.P.C. was thus fully attracted in the case and the impugned order thus was not competently passed by the trial court as the offence u/S. 500 PPC was cognizable, as well as non-compoundable. Adverting to the next contention of the counsel for the respondent that the appellant for years together could not complete his side of the case and haldly failed to produce evidence which proceedings against the respondents were sheer abuse of the process of the court hence the dismissal of the complaint was perfectly justified. We have examined this aspect of the case in the light of the record and noticed that since the registration of the complaint, both the parties on account of their contributory acts and omissions appear to be responsible for such an extreme delay in disposal of the case. The learned trial Court as such erred in holding that the appellant simply wanted to drag the respondents into the proceedings of the case. In view of the above discussion we are of the considered opinion that the impugned order dated 25.7.1996 passed by the Judicial Magistrate-II, Quetta is without any lawful authority and of no legal consequence: which ccordingly, is set aside and the case is remanded to the trial conn with the directions to conclude the trial and dispose of the case within a period of four months from the receipt of this judgment, in accordance with law. (B.T.) Appeal accepted

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 84 Present sardar muhammad raza, J. SHEHR YAR-Petitioner versus BACHA and 4 others—Respondents Criminal Misc. No. 89 of 1995, accepted on 20.10.1996. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 200 & 403-Private Complainant-Status-F.I.R. lodged U Ss. 447/34 PPC-During investigation accused/respondent were found innocent and released by Assistant Commissioner u/S. 169 Cr. P.C.- Accused/respondents as result of release taken up proceedings against complainant u/s. 182 Cr. P.C.-Complainant brought a private complainant u/S. 200 Cr.P.C. which was dismissed by Ilaqa Qazi as well as by Additional Sessions Judge with a view that u/'S. 403 Cr. P.C. it amounted to vexing accused twice for same offence-Petitioner/ complainant came up to this (High) Court for quashment of such order being abuse of process of court-It is well known principle of law as well as practice that criminal proceedings are mostly initiated u/S. 200 Cr.P.C. when a case filed under F.I.R. is declared by Investigating Agency to be unfounded-Remedy u/S. 200 Cr. P.C. is totally independent of what has already happened to police case lodged through F.I.R.-Only difference is that in complainant case complainant takes upon himself responsibility of proving case independent of assistance sought from police-Held: Both courts below have failed to exercise jurisdiction vested in them because accused/respondent were released u/S. 169 Cr.P.C. much before taking cognizance of offence by court of competent jurisdiction-Thus principle of juriscliction --Thus principle of-double jeopardy as laid down by .section 408 Or. P.C. never attracted-Petition accepted. [Pp. 85 & 86] A, B & C Mr. Muhammad Khan, Advocate for Petitioner. Mr. Am an Khan, Advocate for Respondent Bacha. Date of hearing: 20.10.1996. judgment Sheryar son of Pehlwan lodged a report at Police Station Munda District Dir under sections 447/34 PPC against Bacha, Saineer, Hidayat Khan and Abdul Ghaffar. It was elite red at Sr. # 94 at the Police Station on 8.3.1994. During investigation the police, in its view, found the respondents innocent and so that respondents were released by the Assistant Commissioner Jandool on 17.7.1994 under section 169 Cr.P.C. As a result of such release , proceedings under section 182 Cr.P.C. taken up against Shehryar, the complainant. On the other hand, the complainant on the same charge brought a private complaint under section 200 Cr.P.C. on 3.8.1994 which, on 9.3.1995 was dismissed by Ilaqa Qazi Samar Bagh on the ground that on that very cause of action case lodged through FIR had failed. Revision against the said order was also ismissed by the learned Additional Sessions Judge Samar Bagh on 13.7.1995 who held the view that under section 403 Cr.P.C. it amounted to vexing the accused twice for the same offence. The petitioner has come up to this court for quashment of such order being abuse of the process of court. It is a known principle of law as well as practice that criminal proceedings are mostly initiated under section 200 Cr.P.C. when a case filed under FIR is declared by the Investigating Agency to be unfounded. Remedy under section 200 Cr.P.C. is totally independent of what has already happened to police case lodged through FIR. The only difference is that in omplaint case the complainant takes upon himself the responsibility of proving the case independent of the assistance sought from the police. The matter raised under section 200 Cr.P.C. being independent of the matter initiated through FIR, both the courts below have failed to exercise the jurisdiction vested in them. Section 403 Cr.P.C. contemplates of a situation where a person having once been tried by a court of competent, jurisdiction and acquitted by such court, cannot be tried again for the same offence nor for any other offence based on similar facts. In the instant case the respondents were never tried under section 447 PPC by any court of competent jurisdiction. Rather, they were released under section 169 Cr.P.C., much before the taking of cognizance of the offence by the court of competent jurisdiction. Thus the circumstances never at all attracted the provisions of double jeopardy as laid down by section 403 Cr.P.C. 6. The petition is accepted and the order dated 9.3.1995 of flaqa Qazi Samar Bagh and 13.7.1995 of the learned Additional Sessions Judge, Samar Bagh are set aside with direction to the Ilaqa Qazi to take cognizance and to proceed with the private complaint filed by the petitioner Shehryar under section 200 Cr.P.C. Parties are directed to appear before Ilaqa Qazi Samar Bagh on 27.11.1996. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 86 (DB) Present: first judges name is no decipherable. malik hamid saeed, J. MUHAMMAD RAFIQ-Appellant versus STATE-Respondent Criminal Appeal No. 60 of 1996, dismissed on 16.9.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/307—Appeal against conviction and sentence-Appreciation of evidence-Both eye witnesses have fully corroborated version of prosecution on all material points of case and there is no material contradictions in their statements-It is also admitted fact that eye witnesses of occurrence were examined at trial after 7 years of occurrence and thus minor discrepancies coining out from evidence of said witnesses would not lead to conclusion that in fact they were not present on spot and they have not seen occurrence with their own eyes—In presence of recovery of 4 empties of 7.62 bore from spot coupled with recovery of blood stained earth being strong circumstantial evidence with regard to occurrence in question, non-recovery of wet 'chaddar'. is not so fatal to prosecution case so as to shatter whole prosecution evidence-No doubt, eye witnesses in this case are related to deceased, but mere relationship of witnesses with victim party is no ground for disbelieving their true assertion with regard to occurrence, unless it is proved otherwise that they were inimical towards accused also-Held: Occurrence has taken place in broad-day light and there is no chance of mistaken identity-Case against appellant is proved to hilt-Held further-. Motive set up by prosecution is obscure and real cause of murder is shrouded in mystery-­ Sentence from death altered to that of imprisonment for life-Appeal dismissed. [Pp. 90 & 91] A, B, C, D, E, F & G Mr. Zahoorul-Haq, Advocate for Appellant. Mr. Riaz Ahmad Khan, A.A.G. for State. Khawaja Muhammad Khan, Advocate for Complainant,. Date of hearing: 16.9.1997. elUDGMENT Muhammad Rafiq son of Muhammad Shafiq, appellant herein, was tried for the murder of Muhammad Sajid, aged 17/18 years, son of Muhammad Iqbal by the learned Sessions Judge/Judge Special Court., Swabi. By his judgment dated 6.2.1996, he convicted him u/s 302 PPC and sentenced him to death and to pay a fine of Rs. 50,000/- in default to undergo 5 years S.I. Fine, if recovered, is to be paid to the legal heirs of the deceased. The appellant was also ordered to pay compensation of Rs. 50,000/- u/S. 511-A Cr.P.C. to the legal heirs of the deceased, in default he has to further undergo 6 months S.I. The appellant has preferred this appeal to call in question the legality of the impugned decision and the Murder Reference has also been put uj) before us for confirmation. This judgment will dispose of both the matters. As per contents of the First Information Report, this tragic, incident occurred on 3.7.1988 at 1700 hours at the bank of a canal known as 'Syphon' Kalabat. as reported by Suhail son of Muhammad Naseer, PW 4, a cousin of deceased and recorded by Naeem Shah, A.S.I. PW-10, in P.S. Topi. The prosecution case is that deceased Muhammad Sajid alongwith the complainant (PW 4), Muhammad Asif (PW 5) and PW Tariq Gohar (abandoned) had gone to the 'Syphon' Kalabat for taking bath and when the deceased and his companions above said were standing there at the bank of the canal, appellant came there armed with a kalashinkove and fired at them, resulting into the death of deceased who was hit with the fire shot on his chest, while his companions escaped unhurt. The deceased, then injured, was rushed to the Police Station in a datsun pick-up to report the matter, but. he succumbed to his injure in the way. Motive of the occurrence was stated to be that two days prior to the occurrence, an altercation had taken place between the accused-appellant and the deceased as well his said companions. PW-10 Naeem Shah Khan, SHO, after recording the FIR (Ex. PA) and preparing the injury-sheet (Ex. PW 10/1) as well as inquest report (Ex. PW 10/2) proceeded to the spot where he prepared the site-plan, Ex. PB, at the instance of the eye-witnesses. On spot inspection, this witness recovered blood-stained earth, 4 empties of 7.62 bore (P2) freshly discharged and took the same into his possession vide recovery memo. Ex. PC/1. He also took into possession vide recovery memo. Ex. PC, blood-stained shirt (PI) bearing corresponding cut marks of the deceased, which was brought by Ihsa.n Akbar, F.C. from the mortuary. He also recorded statements of some of the PWs and placed on file the report of the Chemical Examiner, Ex. PK, received by him during the course of investigation. Appellant was arrested on 11.8.1991 and after his release on bail disappeared but was arrested again on 22.6.1994. After his arrest and completion of investigation, the supplementary challan against, him was submitted to the Court by the then S.H.O. PS Topi. After registration of the case, the dead body of the deceased was removed to the mortuary for post-mortem examination under the escort of Ihsan Akbar, FC No. 158 (PW7), where Doctor Abdul Latif. Medical Officer, Civil Hospital, Topi (PW 6) conducted autopsy on the dead body of deceased and found the following injuries on external examination:- "1. Average body in clothing. Wounds 1. A fire arm entrance wound circular in shape 1 cm in diameter on right side on front of chest in 4 th intercostal space, 3 c.m. medial and 2 c.m. superior to right nipple. No charring was present. 2. A fire arm exit wound 4 c.m. x 5 c.m. on left side of back of chest just lateral to left scapula. Corresponding holes were present on the shirt. The shirt and shalwar were soaked with blood. Internal Examination: Thorax: Walls, ribs, cartilages, pleaurae, both lungs pericardium and heart, blood vessels were found injured. Stomach was found healthy and it contained semi digested food. Remarks. In my opinion the death had occurred due to injury to the heart and lungs caused by fire arm weapon. Probable time between injuries and death within fifteen minutes while time between death and post­ mortem examination was within 2 hours." At the trial, the prosecution produced 11 witnesses and relied on the ocular testimony of Suhail, complainant of the case (PW 1), Muhammad Asif (PW 5), the motive and recoveries of blood-stained earth and 4 empties of Kalashiiikove from the spot. The learned trial Court on relying the said evidence, convicted and sentenced the appellant as described above. Criticising the judgment, Barrister Zahurul Haq, learned counsel for the appellant argued that it was an un-seen occurrence of a single shot and presence of two eye-witnesses Suhail (PW 4) and Muhammad Asif (PW 5) at the spot has not been proved by the prosecution and absence of certain pieces of circumstantial evidence throws doubt on the prosecution case. The learned counsel further submitted that there is no evidence that the deceased and the said two witnesses had gone for taking hath to the syphone Kalabat. He clarified that, it is the case of the prosecution that deceased and his three companions had gone to the said syphon and had'wrapped 'chaddar sheets for bath. But after the occurrence when they straightaway took the deceased to PS, no 'chaddars' should was either produced by the witnesses or taken into possession by the investigating officer. It was stressed that if the alleged eye-witnesses were taking bath akmgwith the deceased, then certainly wet bathing 'chuddar' have been there on the spot. The learned counsel then referred to the site-plan and submitted that even bare perusal of the site-plan would show that, it was no possible that the eye­ witnesses, who were in direct firing range, from the point where the appellant has been shown, would have escaped unhurt, if they had been physically present on the places shown in the site-plan. The learned counsel further submitted that the two eye-witnesses are related to the deceased and, therefore, to rely on their statements in absence of any corroborative circumstantial evidence would not be just and safe and the very presence of the witnesses, above said, on the spot is highly doubtful, the conviction and sentences awarded to the appellant are neither fair nor in accordance with law. Lastly, the learned counsel for the appellant strongly contended that the prosecution has urged about the motive in the FIR as well as in the evidence before the trial Court but motive has not been proved by the prosecution. It was also contended by the learned counsel that once a motive is urged then it b incumbent upon the prosecution to prove it. In the instant case, there is no detail about the altercation as on what date, time and place and before whom it had taken place and. therefore, the prosecution has tailed to establish and prove the motive against the appellant. The learned counsel submitted that keeping in -view the above facts, it, is a case of no evidence and a false charge has been brought against the appellant. On the other hand, Khawaja Muhammad Khan, learned counsel for the complainant submitted that appellant, is directly charged in the FIR by the complainant with whom he had no previous enmity. He further submitted that no doubt, the eye-witnesses were related to the deceased but they have no enmity whatsoever with the appellant." Therefore, their statements could not lie ignored or taken out of consideration. It was argued that it is a common practice that people do go with their friends to river or canal sides in summer season For taking bath and mere non-prosecution of wet bathing sheets should not be taken adverse to the prosecution case. He further submitted that, statements of the eye-witnesses are fnlly supported by the medical evidence and also contended that mere escape from the fire-shot, of the appellant of the eye-witnesses could not, be termed that, the witnesses who were allegedly in the firing range were not present there. Learned counsel was of the view that as the witnesses were examined by the trial Court after about, 7 years of the 'occurrence, therefore, minor discrepancies could occur in their statements, which could not be made a base to brush aside the prosecution case. Muhammad Riaz Khan, learned Assistant Advocate-General adopted the arguments of the learned cotmsel of the complainant. We have considered the arguments of the learned counsel for the defence and prosecution and have also gone through the evidence with the valuable assistance of the learned counsel from both the sides. The argument of the learned counsel for the appellant that it was an un-seen occurrence is not getting any support from the evidence on record. Both the eye-witnesses have fully corroborated the version of the prosecution on all the material aspects of the case and we see no material contradictions in their statements. It is a common practice that people in the Milages do visit the river or canal sides in the summer season for the purpose of swimming. The prosecution has fully established on record thai r-oon after the occurrence both the eye-witnesses took the injured to the Police Station hut he died in the way and on reaching the PS one of the P\V namely Muhammad Suhail lodged the FIR, Ex. PA, wherein he directly chareed the accused-appellant for the commission of the offence. After recording- of the First Information Report, both the eye-witnesses then accompanied the- I.O. 'to the spot and on their pointation the I.O. prepared the site-plan It is also an admitted fact that the eye-witnesses of the occurrence were examined at the trial after about 7 years of the occurrence and thus the minor discrepancies coming out from the evidence of the said witnesses would not lead us to the conclusion that in fact they were not present on the spot and they have not seen the occurrence with their own eyes. Similarly, the argument of the learned counsel for the appellant thai no 'chaddar' was produced to the I.O. so as to show their actual act of bathing at the svphnne at the relevant time is also not an appealable one. It, cannot, be presumed that the eye-witnesses would have accompanied the deceased in a semi-naked condition having only 'chaddars' on their bodies. Naturally, after the unfortunate incident, they would have changed their 'cliaddars' which might have been removed from the spot, after their departure from rhe scene of occurrence to the Police Station. It, is also in (he evidence that the I.O. never asked about the production of the west, 'rliaddcirs' during tin 1 course of his investigation. In presence of the recovery of 4 empties of 7.62 bore from the spot coupled with recovery of blood-stained earth, being a strong circumstantial evidence with regard to the occurrence in question, the nonrecovery of wet 'chaddars', to our minds, is not. so fatal to the prosecution case so as to shatter the whole prosecution evidence and we, therefore 1' decline to draw an adverse inference against the prosecution on this case. Perusal of the site-plan, Ex. PB, shows that at the relevant time the t deceased was present at Point No. 1 whereas the two eye-witnesses were J present, at Points No. 2 and 4 behind him. He presence of accused-appellant u at Point No. 5 clearly suggest that a person present at Point No. I (in this case the deceased) would have been first targetted in case of firing from Point Xo. 5 and same is the case of the prosecution. Hence, the possibility of luckily escaping unhurt of the eye-witnesses at Points No. 2 and 4 would also not lead us to the conclusion of their physical disappearance at the spot- No doubt, the eye-witnesses in this case are related to the deceased, but mere relationship of the witnesses with a victim-party is no ground for disbelieving their true assertions with regard to the occurrence, unless it is proved otherwise that they were inimical towards the accused also. This aspect of the case goes against the appellant so far as the available evidence on record is concerned. Rather, it fully establishes that the occurrence has taken place in a broad-day light; that the appellant and the deceased party are co-villagers and there is no chance of mistaken identity; that the accusedappellant has been directly charged in the FIR; and that the direct evidence of the eye-witnesses is fully supported by the medical as well as other circumstantial evidence. Coming to the side of motive, we are, however, in agreement with the learned counsel for the appellant that the prosecution in the present case has alleged a motive but failed to properly substantiate it. The alleged motive was of general nature as it is in the evidence that an altercation had taken place two days prior to the occurrence in between deceased, his companions and the appellant. Details of the altercation and its base is missing in the prosecution case. So, the real motive for the crime remains shrouded in mystery and the prosecution has not come forward with the true store leading to the murder of Muhammad Sajid, deceased. We also agree with the learned counsel for the complainant that minor discrepancies do occur in the evidence of the witnesses particularly when examined after a sufficient long time as in the present case and thus the overall conclusion from the prosecution evidence is that the case against the appellant is prove to the hilt. Since the motive set up by the prosecution is obscure and the real cause of the murder is shrouded in mystery, we think that the end of justice would be properly served if the appellant is awarded the lessor penalty provided for the offence of murder. We, therefore, order accordingly and while maintaining the conviction of the appellant u/s 302 PPC, alter his sentence form death to that of imprisonment for life. The sentence of fine and compensation would, however, remain intact. With the above modification in the sentence, the appeal in hand is otherwise dismissed. The Murder Reference, as such, is not confirmed. (B.T.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 92 Present: RAJA FAYYAZ AHMAD, J. BAHADUR KHAN-Petitioner versiis STATE and another-Respondents Quashment Petition No. 24 of 1997, accepted on 26.8.1997. Criminal Procedure Code, 1898 {V of 1898)-- —-S. 561-A, Pakistan Penal Code (XLV of I860. Ss 427. 447 & 448- Conversion of acquittal into that of conviction in exercise of revisional jurisdiction u/S. 439-A Cr.P.C.-Quashment of judgment-Prayer for-In instant matter acquittal order was passed hy competent court in favour of petitioner which could have been assailed only by filing appeal u S. 417(2-A) Cr.P.C. by complainant and not otherwise-Acquittal order being appealable u/S. 417 Cr.P.C. cannot, be assailed directly in revision u/S. 435, 439 or 439-A Cr.P.C. without availing remedy of appeal as envisaged under Sub-Section (5) of Section 439 Cr.P.C.--Held : Finding of acquittal and converting same into conviction being in violation of provisions of Sub-section 4(a) and (5) of section 439 Cr.P.C. is not sustainable-Petition accepted. [Pp. 93 & 94] A & B Mr. Rozi Khan, Advocate for Petitioner. Mr. Abdul Karirn Yousufzai, Advocate for State. Date of hearing; 22.8.1997. judgment In the instant petition u/S. 561- A Cr.P.C . the quashment of judgment dated 25.6.1997 passed by the Additional Sessions Judge-I. Quetta has been sought for whereby the learned court in exercise of revisional jurisdiction u /S. 439-A Cr.P.C. converted the acquittal order passed in | favour of the petitioner into that; of conviction. 2. The petitioner was acquitted of the charge U/Ss. 427/447/448 b PPC in crime No. 162/95 registered on the report of the respondent. No. 2 vide order dated 21.10:1996 passed by the learned Judicial Magistrate-II, Qu'etta. 3. The respondent No. 2 filed revision petition on 20.11.1996 against . ' the order of acquittal in the court of Sessions Judge Quetta which was sent to the file of the learned Additional Sessions Judge-I, Quetta (registered as Cr. Revision No. 14/96). The learned transferee court vide, order dated 25.6.1997 impugned before this court converted the acquittal of the petitioner into that of his conviction in the exercise of its revisional jurisdiction u/S. 439-A Cr.P.C. accordingly the petitioner was sentenced to 15 clays RI under section 447 PPC and the penalty of Rs. 50,000/- was also imposed against the petitioner by way of damages u/S. 427 PPC payable to the respondent No. 2 and in default of such payment the petitioner was ordered to be kept in custody till realization of the penalty amount. 3. The learned counsel for the petitioner contended that the acquittal order was appealable u/s 417 (2A) Cr.P.C. and instead of resorting to the available remedy; revision petition was filed. According to the learned counsel the acquittal earned by the petitioner could not have been converted into that of conviction in the exercise of Revisional jurisdiction u/S. 439-A Cr.P.C ,, hence the impugned order needs to be quashed. The learned counsel for the state conceded to" the legal proposition that in the exercise of revisional jurisdiction the learned court was not competent to have passed the impugned order. • 4. In the instant matter acquittal order was passed by the competent court, in favour of the petitioner which could have been assailed only by filing appeal u/S. 417 (2A) Cr.P.C. by the complainant and not otherwise. An acquittal order being appealable u/s 417 Cr.P.C. cannot be assailed directly in revision under sections 435, 439 or 439-A Cr.P.C. without availing the remedy of appeal as envisaged under sub-sections (5) of section 439 Cr.P.C. Under Section 439-A (F> and (2) respectively a Sessions Judge and an Additional Sessions Judge to whom any case which may-be transferred by a Sessions Judge under any general or special order enjoy the ame owers as are conferred and exercisable by a High Court u/s 439 Cr.P.C. and therefore such powers available to a Sessions Judge or an Additional Sessions Judge are controlled by Section 439 Cr.P.C/. and cannot be exercised to an extent to. which a High Court is not competent to do so. Complete and absolute bar operates under sub-section 4(a) of Section 439 Cr.P.C. on the powers of a High Court to convert a finding of acquittal into one of conviction; which provision including those contained in section 439 Cr.P.C. have full application to powers exercisable by a Sessions Judge oi 1 an Additional Sessions Judge within the purview of sub-section (1) and (2) of Section 439-A Cr.P.C. respectively. Without exhausting the remedy of appeal available to the complainant against the acquittal order. The revision petition was not competent, consequently the revisional court had no jurisdiction vested in it to have entertained the petition in view of the provisions of sub-section (5) of Section 439 Cr.P.C. The revision petition was not converted into appeal though the court; was competent to do so not such a request, was made by the respondent No. 2. 5. Apart from the impugned judgment being void and without jurisdiction, it is glaringly noticable that the learned Judge was totally ignorant about the provisions of law applicable for awarding to term of imprisonment to an offender for non payment of fine, which in no case u/s 65 PPC exceeds one-fourth of the term of imprisonment provided for the offence to which an offender is convicted. It is astonishing and shocking to note that the petitioner has not been convicted u/s 427 PPC yet the liability of damages payable to the complainant has been determined against the petitioner and in default of payment of such amount of damages, it has been directed that the petitioner to be kept in custody till realization of the awarded amount. The impugned order passed by the learned Additional Sessions Judge-I, on entertaining the revision against the finding of acquittal and converting the same into conviction, being in violation of the provisions of sub-sections 4(a) and (5) of Section 439 Cr.P.C. is not sustainable, which accordingly is set aside consequently the petition is accepted and the impugned order is quashed. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 94 [DB | Present: amirul Mil lk manc-al, C.J. amanullah khan yasinzai, J. STATE-Petitioneiversus SHAH BAKHSH-Respondent Criminal acquittal Appeal No. 167/1997 and Suo Molo reference No. 7/97, accepted on 28.7.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 265-K-Pakistan Penal Code (XLV of 1860), S. 302-Acquittal of accused at any stage-Requirements-Tnal court mainly relied on ocular testimony and after when eye witnesses resiled from their previous statements, trial court, promptly acquitted accused without recording statements of material witnesses like investigating officer who could conveniently produce ballistic expert report-Medical evidence lias also not come on record and ballistic expert could be examined by prosecution—There must he reasons which should be logical and convincing for acquitting accused-Those if not in detail must be mentioned concisely-Mere in acquittal order learned Trial Court lias not referred to gist of evidence of remaining witnesses I order to see that testimony would be of no avail to prosecntion-In powers u/S. 265-K, Cr.P.C. trial court may acquit accused in order to avoid undue delay which fact would be in consonance with intention and object of this Section but such exercise is always conditional and can be invoked only if court considers that, there was no probability of accused being convicted of any offence—In peculiar circumstance of present; case certain facts are very conspicuous, like two dead bodies which were found by witnesses in house of accused in early hours and producing gun by accused, empties recovered from spot etc.-Appeal accepted and case remanded to trial court for completing evidence of remaining witnesses and pass order in accordance with law after taking into consideration entire evidence on record. [Pp. 97 & 98] A, B, C & D Petition in person. Mr. Ahmad Khan Lashori, A.G. for State. Date of hearing: 28.7.1997. judgment Amirul Mulk Mengal, CJ.--By this judgment we intend to dispose of Criminal Acquittal Appeal No. 167 of 1997 as well as Sun Mo to Reference No. 07 of 1997. 2. Facts briefly stated are that on 19.10.1996 one Pir Bakhsh lodged a report with Dera Allahyar Police Station which was registered as F.I.R. No. 159 of 1996 in which he informed that, after taking his meals at night he went to bed. However, he woke up on hearing gunshot reports at about 1.30 a.m.. He came out of his room and saw his nephew Shah Bakhsh having a single barrel shotgun. He informed the first informant that he'bad killed hiswife Mst. Izzat and Rahim Khoso on seeing them in a compromising position. In the meanwhile one Masoo and Nawab who were neighbours reached the spot. They went and saw dead body of Mst. Izzat and Rahim Khoso which were lying in the pool of blood. They informed the relatives of deceased persons and then lodged the report. On such information the police registered the case and proceeded to the spot. Accused was'arrested and according to prosecution he produced the shotgun which was taken into possession by the police. Police also recovered 4 empty cartridges of shotgun from the place of incident,. The police prepared the sketch of vvardat showing the dead bodies lying in the house of accused. After usual investigation ehallan was put up and accused was tried by Additional Sessions Judge Dera Allahyar. The trial court examined P.W. 1 Pir Bakhsh who, however, resiled from his previous statement and was declared hostile by the court on the request, of the District Attorney. He was subjected to cross-examination and F.I.R. was confronted which had been signed by him. Similarly P.W. 2 Masoo's statement was recorded. He also resiled from his previous statement. P.W. 3 Nawab was examined by the trial court;. He stated that he as sleeping in the house when he heard gunshot reports at about 1.00 or 1.30 a.m. towards the house of accused Shah Bakhsh. He woke up and proceeded to the place of wardal. He saw dead bodies of Mst. Izzat and Rahiin Khoso lying there. He saw Pir Bakhsh and Masoo who were standing at the spot. P.W. 4 Ali Dost deposed that he was posted at Police Station Dera Allahyar when the incident took place. He is recovery witness to the articles which he has mentioned in his statement. P.W. f> Muhammad Boota stated that he was on general duty and after receiving the report he alongwith other police officials namely Essa Jan S.I. and Jan Muhammad ASI went, to the village of Pir Bakhsli Jhakrani. He saw the dead bodies of Rahim Khoso and Izzat Khatoon on the spot which were despatched for post-mortem examination to Civil Hospital Dera Allahyar. On the pointation of Pir Bakhsh the scene of incident was inspected and memo of site inspection was prepared. The empties were taken into possession and sent to Ballistic Expert for his opinion. The gun was also recovered from the accused person. In the meanwhile an application has been moved under section 265- K Or.P.C. by the accused mainly on the ground that all the important eye witnesses have since been examined and there is no likelihood of his being convicted on the basis of remaining evidence, therefore, a request was made to the court for his acquittal. A notice was given to the State and then ndc impugned order dated 25.3.1997 the trial court acquitted the accused mainly on the ground that there was nothing on record to connect the accused with the charge of murder. It was observed that all the three material eye witnesses have not, supported the case and have exonerated the accused. Only two police officials who were formal witnesses were left to be examined. Therefore, there was no likelihood that, the prosecxition case could be improved resulting in the conviction of accused. In the circumstances the application was granted and accused was ordered to be acquitted. When this order was examined by the Inspection Judge Suo Moto action was taken for calling of the record of the case for perusal. It was _ thought a tit case in which the High Court should exercise its revisional jurisdiction. The matter was taken on judicial side and fixed before Division Bench. Notice was issued to accused Shah Bakhsh. During tins period learned Advocate General also filed an appeal against acquittal which was taken up today alongwith Suo Moto reference. Heard Advocate General Balochistan and Shah Bakhsh in person. Accused Shah Bakhsh was given an opportunity to engage a counsel of his choice but, he stated that he bring a poor person cannot afford to engage a counsel. It may be pointed out that, he had already engaged a counsel during trial and that he was then heard in person. We have heard learned Advocate General and accused Shah Bakhsh. We have also perused the record. The main challenge to the acquittal order is that, (.here were still important and material witnesses which could connect, the accused with the commission of the offence. However, without recording their statements, learned trial court in fact acted in a hasty manner by acquitting the accused. The Advocate General urged that. circumstantial evidence in this case was as important as the ocular version. If the witness is turned hostile, the trial court was under legal obligation to have recorded the remaining evidence which was not only material but otherwise prima-facie admissible in evidence and relevant to prove the charge. In this respect learned A.G. submitted that dead bodies were found in the house of accused at mid night. The postmortem report was still awaited. The investigating officer could produce the ballistic expert report which was important piece of evidence on record. According to A.G. said report otherwise is positive but could be produced either by the ballistic expert or the investigating officer. We have perused the impugned order and we found that learned trial court mainly relied on the ocular testimony and after-when the eye witnesses resiled from their previous statements, the trial court promptly acquitted the accused without recording statements of material witnesses like investigating officer who could conveniently produce ballistic expert report. The medical evidence has also not come on record ballistic expert could be examined by the prosecution. It may be observed that it is not always the eye witnesses whose statements could be made sole basis for conviction. These may be cases where circumstantial evidence is regarded as sufficient basis for conviction. The discretion exercised by the trial court in acquitting the accused at a stage of trial when important witnesses were yet to be examined was not legal. The only reason assigned by the trial court was that the remaining witnesses were totally un-important and could not bring home the charge. We are afraid that we cannot concur with such conclusion. However, we abstain from making any observation as regards circumstantial evidence so that none of the parties should be prejudiced. Any how we have seen the statement of investigating officer, the report of ballistic expert etc. which are otherwise relevant and which might form basis for coming to a just decision. Another ground for interference according to our calculated view is that there must be reasons which should be logical and convincing for acquitting the accused at any stage of the case if after hearing the prosecution and the accused it is considered that there is no probability of the accused being convicted of any offence. Those reasons if not in detail must be mentioned concisely. Here in the acquittal order the learned trial court lias not referred to the gist of evidence of the remaining witnesses in order to see that their testimony would be of no avail to the prosecution. We are conscious of the fact that in powers under section 265-K Cr.P.C. the trial court may acquit an accused in order to avoid undue delay which fact would be in consonance with the intention and object of this section but such exercise is always conditional and can be invoked only if the court considers that there was no probability of the accused being convicted of any offence. Here we have already out-lined the remaining evidence. In the peculiar circumstances of the present case certain facts are veiy conspicuous, like the two dead bodies which were found by the witnesses in the house of accused in the early hours and producing the gun by the accused, the empties recovered from the spot etc. For all such reasons we are inclined to accept the appeal and remand the case to the trial court for completing evidence of the remaining witnesses. The trial court is directed to exneditiously examine the remaining eviat^e and pass order in accordance with law after taking into consideration the entire evidence on record. Resultantly the impugned order dated 25.3.1997 is set aside. Shah Bakhsh accused is present. He shall produce security in the sum of Rs. 50,000/- (Rupees fifty thousand) with two solvent sureties of Rs. 25,000/- (Rupees twenty five thousand) each and P.R. of like amount to the satisfaction of the trial court. The security can he given before the trial court at Dera Allahyar. However, in the meanwhile, the accused will be taken into custody to be produced before the trial court on 4th of August 1997. He shall be released by the trial coiirt if he produces security as mentioned herein above. The trial court shall conclude the remaining evidence as soon as possible. The fiuo moto reference and appeal are accordingly of in the above terms. The record be returned forthwith to the trial court. The above are the reasons for our short under of even date. (B.T) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 98 Present: raja muhammad khttrshid, J. SULTAN MAHMOOD-Petitioner versus ASSISTANT COMMISSIONER, GUJAR KHAN and anothers-Respondents Criminal Misc. No. 12-Q of 1996, dismissed on 23.4.1997. Criminal Procedure Code, 1898 (V of 1898)— —-S. 561-A-Powers of Magistrate U/S 249-A-Illaqa Magistrate after hearing both the parties found no mens rea and considered charge as ground less—Ordered for cancellation of case—Whether it is illegal or is it passed in derogation of canon of justice—Held: There is no illegality in order of Magistrate regarding cancellation of case nor it is passed in derogation of ..jnon of justice-Such r^t order would fall within ambit of Section 249-A Cr.P.C. which gives power to Magistrate to do so and does not call for interfere by High Court under its inherent powers. [P. 100] A Syed Zia Hussain Shah, Advocate for Petitioners. Malik Atnjad Salcc.rn, Advocate AAG for State. Date of hearing: 23.4.1997. judgment This petition is moved under section 561-A of the Criminal Procedure Code for the quashment. of an order dated 15.11.1996 passed by the Assistant Commissioner/Ilaqa Magistrate, Gujjar Khan, District Rawalpindi, whereby the case registered against respondent No. 2 vide F.I.R. No. 219/95 at, Police Station Jatli, was directed to be cancelled. 2. The brief leading to the institution of this petition are that the petitioner made an application before the Collector/Deputy Commissioner, Rawalpindi , on 22.6.1995 against respondent No. 2 alleging therein that the latter was never appointed as Lambardar of Village Punjgran, but had been acting as without any lawful authority. It was further alleged that the aforesaid respondent had attested certain documents as Lambardar of the village which were later on found to be false and forged, and that due to the impersonation practiced by respondent No. 2, public at large had suffered. 3. The Deputy Commissioner ordered an inquiry which resulted into the registration of the aforesaid case against respondent No. 2. However, the aforesaid respondent, later on, moved an application (Annexure-B) before the Assistant Commissioner, Gujjar Khan, wherein he contended that he had committed no offence because he had been working as 'Sirbrah' Lambardar after the demise of his father and his elder brother. He also contended that he was condemned unheard and that the case was totally false. The Assistant Commissioner after hearing both the parties made the impugned order in which he came to the conclusion that the case against respondent No. 2 under section 419 PP was not sustainable in the eyes of law because there was no mala fide on his part nor mens rea was proved against him that he acted dishonestly or fraudulently as Sirbrah Lambardar. In this respect, it was observed by the Assistant Commissioner that the respondent was the son of a deceased Lamabardar and after the demise of his elder brother, he started acting as Sirbrah Lamabardar and in that capacity, he had been collecting the land revenue which he deposited in the Government Treasury. Some entries were relied upon regarding such deposits. In that way, the Assistant Commissioner/Ilaqa Magistrate came to the conclusion that no offence was made out as respondent No. 2 had acted with bona fide. Consequently, the impugned order was passed whereby the cancellation of the case was directed. 4. In pursuance of the order passed by the Assistant Commissioner, the police, which was investigating the case, made an entry in the case-diary on 22.11.1995 whereby the impugned order was taken into consideration and a report for the cancellation of the case was prepared. 5. Learned counsel for the petitioner has submitted that since a case was registered against respondent No. 2, therefore, the learned Magistrate had no jurisdiction to interfere with the investigation of such case nor he could direct cancellation of the case on the basis that no offence was made oxit against the respondent aforesaid. It was, therefore, urged that the impinged order amounted to mis-use of the process of law and as such was liable to be quashed. 6. Learned counsel for the respondent, however, stated that the Assistant Commissioner had made the impugned order after hearing both the parties and as such the same would fall within the ambit of section 249-A Cr.P.C. A"? such, there will be no mis-use of the legal process as claimed in the quashment petition. 7. I have considered the foregoing sxibmissions and find that the provisions contained in section 561-A Cr.P.C. deal with the inherent power of the High Court to make such orders as may be necessary to give effect to any order passed under the Criminal Procedure Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is to be seen, whether in the instant case any ground has been made out to use the inherent powers of this Court. The facts stated above will show that a case was directed to be registered against respondent No. 2, but on his application before the Assistant Commissioner, who was also on Ilaqa Magistrate, it was decided after hearing both the parties that since there was no metis rea, therefore, the case was liable to be cancelled. Although, the order passed by the Assistant Commissioner is not happily worded, but in fact such an order would fall within the ambit of section 249-A Cr.P.C. which gives ample powers to a Magistrate to acquit any accused at any stage of the case if it is considered that the charge against him was groundless. In the instant case, the Magistrate had, in fact, invoked the powers contained in section 249-A Cr.P.C. as he was led to the conclusion after hearing the parties that the case against, respondent No. 2 was not sustainable in the eyes of law. As such, instead of recording an acquittal order, he made an order regarding cancellation of the case. However, it is to be scene, whether the order passed by the Magistrate amounted to the abuse of process of Court or otherwise it was against the ends of justice. Needless to say that, it is the duty of any Coxirt to see that the justice is done. In the instant case, the Magistrate came to the conclusion that since there was no mc.ns rea for the commission of the crime and that respondent No. 2 had acted in a bona fide manner, therefore, his prosecution would be uncalled for under the given circumstances. The decision given by the Magistrate does not suffer from any patent illegality nor it, is passed in derogation of the canons of justice. As such, the impugned order does not call for interference by this Court under its inherent jurisdiction. Needless to say that any party aggrieved due to the commission or omission made by respondent No. 2 may have a separate legal remedy against him. 8. The petition being meritless is dismissed with the above observations. <B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 101 Present: dr. ghous muhammad, J. HABIB KHAN--Appellant/Accused versus STATE--Respondents Cr. Bail Application No. 692 of 1997, accepted on 24.6.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 Cr.P.C.--Bail--Grant of-Prayer for-Statutory delay-Ground of~ Applicant has been granted bail in all other cases except present one-­There is nothing on record to show that appellant/accused is a hardened, desperate or dangerous criminal or that he is a previous convict-Merely because Provincial Government has ordered for holding his trial with in Jail premises is no ground to deny him to benefit of statutory delay to which he is entitled as a matter of right-Bail granted. [Pp. 102 & 103] A Mr. Miskeen Ellahi Shahzada, Advocate for Applicant. Mr. Ch. Muhammad Rafique, learned A.A.G. for State. Date of hearing: 24.6.1997. order Bail is sought on behalf of applicant Habib Khan who is facing trial in Crime No. 15/1994 for an offence u/S. 302 Qisas & Diyat Ordinance, registered at P.S. Mehmoodabad Karachi. According to FIR Dr. Khalil Ahmed MLO Jinnah Hospital Karachi informed SHO P.S. Mehmoodabad on 25.1.1994 at 0155 hours that dead body of one Mst. Bushra Tabassum w/o Muhammad Haleem was brought by Mst. Fouzia Tabassum who was shot dead by some unknown persons at her home. On receipt of this information SI Muhammad Sharif went to Jinnah Hospital and recorded statement of Mst. Fouzia u/S. 154 Cr.P.C. in which she stated that she was residing with her mother in House No. 151, Azam Bastil. On the night of 25.1.94 she alongwith her deceased mother and sisters were sleeping when suddenly at about 0010 hours (midnight) some one knocked at the door and her deceased mother opened the door. Some one fired at her and she sustained injuries. Her cries attracted the other inmates of the house and they saw that the injured was lying in the door. Therefore, she took her mother to hospital but she succumbed to her injuries on the way. Bail is now sought mainly on the ground of statutory delay in conclusion of the trial. This point was taken up in the bail application before the learned trial Court and was dealt with in the following manner. While rejecting the bail application : ".... but in this case the record shows that there is other sufficient evidence against the applicant/accused. The reports of the police and jail authorities show that the applicant/accused is involved in many heinous criminal cases. The Government of Sindh vide Notification No. PR. S/8-18/94 dt. 3.11.1996 ordered to conduct the trial of the applicant/accused in jail. The offence alleged against the accused is punishable with death imprisonment for life or more then ten years. The accused is involved in an offence punishable with death who has been detained for such offence for a contentious period exceeding two years and whose trial for such offences has not concluded but the nature of the offence alleged against him and in the above circumstances it appears that he is a hardened desperate or dangerous criminal hence this application is barred by the fourth proviso to section 497(1) Cr.P.C. I therefore do not consider it proper to grant this application at this stage." I have heard Mr. Miskeen Ellahi Shahzada learned counsel for the applicant, Mr. Ch. Muhammad Rafique Asstt. A.G. perusal of the record, shows that the alleged incident took place on 25.1.94 and the accused was arrested on 22.8.94. No adjournment was sought by him therefore the period of two years expired on 21.8.96. Charge was framed on 28.11.94 but so far not a single witness has been examined out of total eight witnesses although, three witnesses have been given up by the prosecution. The learned Asstt. A.G. while opposing the bail application submitted that it is a case of jail trial and the applicant is involved in a heinous offence, therefore his case is covered by the fourth proviso to section 497(1) Cr.P.C. There is no force in this submissions. He is involved in seven cases but according to learned counsel for the applicant he has been granted bail in all these cases by the learned trial courts and he has also produced certified copies of the bail orders. In other words this is the only case in which he is in custody. There is nothing on record to show that the applicant/accused is a hardened, desperate or dangerous criminal or that he is a previous convict. Learned A.A.G. while supporting the impugned order submitted that the fact that the applicant is being tried in jail as per Government of Sindh Notification No. PR. S/8-18/94 dated 3.11.1996 is sufficient to indicate that he is a dangerous, desperate and hardened criminal. This submission is misconceived. There could be many reasons for holding trial in jail premises. Therefore mere issuance of the above Notification is not sufficient. In such cases the prosecution must produce sufficient and convincing material to show that the case of the accused is hit by fourth proviso to Section 491(1) Cr.P.C. Merely because the Provincial Government has ordered for holding his trial within jail premises is no ground to deny him the benefit, of statutory delay to which he is entitled as a matter of right. In my humble view the learned trial court has passed the impugned order without application of judicial mind and the principles laid down by the Superior Courts. Therefore, following the case law laid down in Jaggat Ram v. State (1997 SCMR 361), Zahid Hussain v. State (PLD 1995 SC 49) and Nazir Hussain Shah v. Ziaul Hague and others (1983 SCMR 72) the applicant is admitted to bail on his furnishing one surety in the sum of Rs. 3,00,000/- (Rs. three lacs only) and PR bond in the like amount to the satisfaction of the learned trial court. Cr. Bail Application No. 692/97 stands disposed of. (AAJS) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 103 Present: ALI MUHAMMAD BALUCH, J. STATE through ADVOCATE GENERAL, GOVT OF SINDH-Applicant versus ASIF ALI ZARDARI and others-Repsondents Criminal Rev. Appeal No. 36 of 1997, dismissed on 12.5.1997. <i) Criminal Procedure Code, 1R98 (V of 1898)-- —- S. 439-Accused facing trial in a murder case-Prayer for to constitute a medical board consisting most senior Neurologist and Neuro Surgeon-- Prayer granted-Board constituted by Secretary health-Report prepared but was not sent to court—Contempt notice to Secretary health, who constituted another Board b\it not in accordance with direction of court-Order passed for contempt—Revision Application against—Contention that trial court, cannot call for such report-Held: There is no provision in law which has been violated by trial court, in calling for report of medical board constituted as per its direction nor any prejudice appears to have been caused to prosecution which in fact had conceded for calling such report-Revision application dismissed in liminc. [Pp. 104, 105 & 106] A, C & D (ii) Pakistan Penal Code, 1860 (XLV of I860)-- —- S. 299-C-Medical Board-Constitution of-Contention that Medical Board was formed under orders of trial court, was un-authorised, and hence its report was invalid and, therefore, it could not be produced in court- Held : Provisions of Section 299 (C) in no way curtailed persons of courts directing examination of prisoners, through specialist doctors, looking to nature of ailment of prisoners. [P. 105] B Mr. Raja Qureshi, Advocate General Sindh for Appellant, Mr, Farooq H. Nabi, Advocate for Respondent No. 2. Date of hearing: 12.5.1997. order The respondent No. 2 Asif Ali Zardari is facing trial in a murder case in the Court of Sessions Judge, Karachi-South. An application was moved on behalf of the accused on 16.2.1997 in which it was prayed that medical board consisting of senior most Neurologist and Neuro Surgeon of Civil Hospital be constituted, who should undertake the medical examination of the accused. Another application dated 24.2.1997 was moved in which it was requested that an Orthopedic Surgeon and a Physiotheropist may also be included in the said Board. It was contended that the accused was suffering from some ailment which threatened his lower limbs. Mr. Muhammad Saleh Panhwar, the learned District Attorney on behalf of the prosecution had conceded to the grant of that application. The learned trial Court observed in its order dated 18.3.1997 while granting the prayer of the accused as under:- "I am of the view that a Board be constituted which should consist of the Neurologist, Neuro-Surgeon and Orthopaedic Surgeon, who should be the senior most doctors of Civil Hospital, Karachi, and the board be headed by the Medical Superintendent Civil Hospital Karachi for examining the U.T.P. for the purpose at the cost, of the accused." After passing such an order, the trial Court ordered that a copy of the order be sent to the Health Secretary, Government of Sindh for expediting the constitution of the Medical Board under intimation to the court. It appears from the facts that the Health Secretary Mr. Shafiq Qureshi in compliance to the order of the Court constituted a medical board and that Board (hereinafter referred to as the First Board) actually meet on 25.3.1997 when it examined the U.T.P. and prepared a report. However, the report of the Board did not reach the Court and, therefore, the Court issued a notice for contempt to the Secretary Health, who instead of submitting the report of the First Board before the Court, constituted another medical board, which was not in accordance with the directions of the Court. In response to the notice of contempt, the Secretary Health appeared in person before the Court and on 24.4.1997 and order was passed by the trial Court. The relevant portion of that order is reproduced as under:- "Contemner Dr. Shafiq Qureshi, Health Secretary, present in person and has filed reply to the notice. Order thereon. For arguments with a specific direction that he would produce the medical report of the first medical board constituted under the orders of this Court." It appears that the State is aggrieved by this part of the order and has filed this Revision with the prayer that the order dated 24.4.1997 be revised, and it be held that the report of the First Board was invalid and cannot be used for any purpose. I have heard the learned Advocate General, who referred to the povisions of Section 299(C) and argued that it contains the definition of authorised medical officer", which includes a medical board authorised by the Provincial Government. The learned A.G. meant by this argument that the First Board in this case which was formed under orders of the trial Court, was un-authorised, and hence its report was invalid and, therefore, it could not be produced in Court. I do not agree with the arguments of the learned Advocate General as it is not correct on factual side that the First Medical Board was constituted by the trial Court. In fact the Court had suggested designations of experts looking to the prayer of the accused and had ordered that the senior most doctors in those designated fields serving in the Civil Hospital should be the members of the Board. Secondly, it was the Secretary Health who had actually constituted the First Medical Board and given the names of doctors looking to the order of Court and the positions of the doctors in the related field. Therefore, the argument of the learned counsel was of no avail. Even otherwise, Section 299(C) gave the definitions of the words used in Chapter XVI of P.P.C. and it did not come in the way of the trial Court in directing the constitution of a medical board comprising of designated specialists. Provisions of Section 299(C) in no way curtailed the powers of Courts in directing the examination of the prisoners, through the specialist doctors, looking to the nature of the ailment of the prisoners. Second argument of the learned A.G. was that under Section 94 of Cr.P.C. the Court was not authorised to call for the medical report from the Secretary Health, in respect of the First Medical Board, as the Court had not specified "necessary or desirable" reasons for calling such report. This argument of the learned A.G. also does not appear to be correct as the Court had already applied its mind and come to the conclusion that for the examination of the accused formation of a Board was necessary and the prosecution had also conceded to it. After such formation of the Board it is but natural that the report be sent to the Court for examination, otherwise it. will be treated as if the Court had to undertake another exercise to find out the necessity and reasons for calling such report in Court. Not only this, but provisions of Section 94 do not apply in the present case. The next ground of the learned A.G. was that since a second Board was constituted by the Health Secretary, there was no necessity of calling for the report of the First Board. It was also argued by the learned A.G. that since one of the members of the First Board had reported to the Health Secretary that he was influenced by the accused directly or indirectly, therefore, the report of the First Board was not valid. However, the learned counsel for the respondent No. 2 pointed out that the so called member of the first Board was "Dr. Bashir Ahmed Shaikh" who was only a convenor of the Board, and was not one of the experts and had nothing to do with the opinion of the experts and could not be called a member of the Board. Besides, such allegation by him was for mala fide reasons, as he has personal grudge against the accused. Be that as it may, the question, whether the report of the First Board is valid or invalid, should be relied on or not, will be seen by the trial Court itself, which had ordered for such report. If such report is kept back from the trial Court, I am afraid it will amount to interference in the proceedings of the Court. Formation of the Second Board for the examination of U.T.P. should also have been with the permission of the trial Court if the government wanted to keep back the report of the First Board, which infact they could not do. There is nothing on the record, whether the trial Court was approached with the request for formation of the Second Board. It is therefore, open to the trial Court, whether it requires the report of the Second Board or not. Under these circumstances, I do not find if any provision of law has been violated by the trial Court in calling for the report of the First Board to come on its record, for consideration nor any prejudice appears to have been caused to the prosecution, which in fact had conceded for calling such report. The order of calling for the report, passed by trial Court, to me, does not entitle the prosecution to come in Revision against it, as it will be only fair to allow the report to reach the Court which was called for by the Court and it may be open to both the parties to support or object to the said report on valid grounds. Under these circumstances, I find no merit in this Revision, which is dismissed in liminc, M.A. No. 699/97 is also dismissed. (A.P.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 106 Present: RASHEED A. RAZVI, J. IRFAN ASLAM-Applicant versus THE STATE-Respoudent Cr. Bail Application No. 1638 of 1996, accepted on 30.10.1996. (i) Jurisdiction-- —It is settled Law that for purpose of determining jurisdiction of a trial court F.I.R. is to be looked at. [P. 110] B (ii) Offences in Respect of Banks ( Special Court ) Ordinance, 1984 (IX of 1984)-- —-S. 10--A Division Bench of High Court, being appellate court is fully competent to grant bail, pre-arrest or after arrest, irrespective of bar contained in Section 10 of Ordinance, IX of 1984-Such bar limits jurisdiction of a single judge to exercise powers of an appellate court. [P. 109] A Mr. IzharAlam Farooqui, Advocate for Appellant/accused. Date of hearing: 30.10.1996. order This is second application for bail before arrest filed on behalf of present applicant/accused who is allegedly involved in F.I.R. No. 10/96 of F.I.A. State Bank Circle, Karachi, arising out of offences under section 409/420/34, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. The previous bail application No. 1499/96 was dismissed in default due to the absence of applicant/accused. 2. Briefly, the facts, alleged in the above F.I.R. are that on 15.7.1998 one Rashid Qamar Siddiqui lodged complaint with Federal Investigation Agency, State Bank Circle, Karachi (hereinafter referred as FIA SBC) that co-accused Nazim Ali came to the complainant, who is a money changer by profession, and produced Foreign Exchange Bearer Certificates (hereinafter referred as F.E.B.Cs) worth US $10,000/- for encashment. It is alleged in the F.I.R. that since the complainant company was not dealing in the encashment of FEBCs, therefore, said Nazim Ali was asked to get it encashed from Citi Bank, Karachi . It is further alleged that the said coaccused Nazim Ali was arrested in the Citi Bank Karachi by the F.I.A as the said F.E.B.Cs were found to be stolen from the Locker at United Bank Ltd., Industrial Branch, F.B. Area, Karachi. In view of the fact that the question of jurisdiction of this Court is under challenge, it would be petinent, to reproduce the exact allegations of the complainant as narrated in the F.I.R. " ... I confirmed these contents from Citi Bank from where the actual owner namely Iqbal who was present at that time with Citi Bank authorities also confirmed about stolen of two F.E.B.Cs from his lockers exist at U.B.L. Industrial Branch F.B. Area Karachi . On spot enquiry from Nazim Ali admitted that two F.E.B.Cs have been provided by his son in law namely Irfan s/o Nasir Farooqui, Assistant Manager ofU.B.L. Industrial Branch F.B. Area Karachi some time ago for encashment one of which in question has been deposited in Citi Bank while the other has been kept in his own locker of A.B.L. Rahsid Minhas Road Branch, Gulshan-e-Iqbal Karachi. As F.E.B.Cs in question are stolen from the Bank locker and reportedly mis-used with the connivance of Bank Official by said Nazim Ah, hence the matter is reported to you alongwith person (Nazim Ali) for initiating legal action under the law " 3. On 25.9.1996, when this bail application came up for Katcha Peshi, following order was passed:- "From the contents of the F.I.R., I am of the tentative view that the alleged offence is schedule offence as mentioned in the Ordinance IX of 1984 namely "Offences in respect of Banks (Special Courts) Ordinance, 1984" and that a single Judge has no jurisdiction to grant anticipatory bail. I have also asked the learned counsel for the applicant to go through the case of A Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 S.C. 353) and to satisfy whether the present case falls within the qualification laid down by the Hon'ble Supreme Court of Pakistan. Be that as it may, since the prosecution has filed interim challan before the Special Judge Central (1) Karachi, I admit the applicant/accused on interim bail upon furnishing one solvent surety of Rs. 100,000/- (Rupees one lac only) with P.R. bond in the like amount to the satisfaction of the Nazir of this Court. Accused/applicant is admitted to interim bail in the above terms. Issue notice to the Deputy Attorney General as well as to the Deputy Director, FIA Commercial Bank Circle and State Bank of Pakistan for 30.10.1996." 4. I have heard Mr. Izhar Alam Farooqui, Advocate for the accused, Mr. Syed Israr AM, Assistant Director, Legal, F.I.A. and have also perused police papers. Mr. Farooqui has attempted to argue this pre-arrest bail on merits but he was asked to confine his submissions on the point of jurisdiction. He was further asked to show whether a single Judge of this Goiirt can grant bail, pre-arrest or after arrest, to an accused person, who is alleged to have committed a schedule offence as provided in the Ordinance IX of 1984. Reference was made by Mr. Farooqui to the case of Javed Akhtar Junejo v. The State (1996 P.Cr.L.J. 1563) where a bail application pertaining to the case of Special Court (Offences in Banks) was considered and rejected by a single Judge of this Court. I am of the view that this case does not lend any support to the accused as in the reported case neither any question of the jurisdiction was raised nor subsection (2) to section 10 of the Offences in Respect of Banks (Special Court) Ordinance, (IX of 1984) was pointed out to the learned Judge. According to the said provision of Law, the appellate Court of the said Special Court is defined to be a Division Bench of a High Court and, therefore, in my humble view, a single Judge is not competent to hear and decide bail applications since the appellate authority vests in the division bench of a High Court. Following is Section 10 of the Ordinance IX of 1984:- "10. Appeals from sentences passed by Special Court, etc.~ (1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court. (2) An appeal under subsection (1) shall be referred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court. (3) ...................................................................... 5. It is needless to add that the Division Bench of High Court, being appellate Court is fully competent to grant bail, pre-arrest or after arrest, irrespective of the bar contained in Section 10 of the Ordinance IX of 1984. Such bar limits the jurisdiction of a single Judge to exercise powers of an appellate Court. I am fortified in my view by the rule laid down by the Hon'ble Supreme Court of Pakistan in the case of The State v. Syed Qaim Alt Shah (1992 S.C.M.R. 2192). For further reference see also Muhammad Yaqub All v. The State (PLD 1985 Lahore 45) and Abdul Majeed v. Judge, Special Court (1985 P.Cr.L.J. 890). 6. It is argued by Mr. Syed Israr Ali that the present, case is fully covered by the case of A Habib Ahmed v. M.K.G. Scott Christian (PLD 1992 S.C. 353) where a Full Bench of Hon'ble Supreme Court of Pakistan while interpreting several provisions of the Ordinance XI of 1984 namely: Offences in Respect of Banks (Special Court) Ordinance has held as follows:- "In the light of what has been stated about the definition, in this case the allegations made against the accused undoubtedly involved the business of the bank more directly than by invoking aid from the expression "in respect of or "in connection with". With respect, the approach of the High Court to find loss, compensation and other similar elements connected with the complainant, accused or the bank, would amount to reading much more in the definition itself than is justified either by the language used therein or ever by the intendment underlying the same. The intention being that all conceivable situations, linked with the business of the bank, would make the offences mentioned in the Schedule as scheduled offences. Thus to take away all such cases from the ordinary Courts, for purpose of their trial before the Special Court (Banks). That being so, there is no alternative but to hold that the offences alleged in this case against the accused were scheduled offences." It, is further contended by Mr. Izhar Farooqui that no offence specified either in Sections 409, 420 and 380, P.P.C. was made om\He has further stated that in the present case the complainant is neither a bank officer nor its customer and, therefore, the Special Court constituted under the Ordinanc IX of 1984 has no jurisdiction in this case. He has also contended that neither the Bank nor it customer has suffered any financial loss. I am afraid that these arguments are not tenable. Mr. Syed Israr AH has rightly pointed out that the case of A Habib Ahmed (supra) which has answered all the / grounds raised by the learned counsel appearing for the applicant/accused. It is settled Law that for the purpose of determining the jurisdiction of a trial Court the F.I.R is to be looked at. (See Allah Din and 18 others v. The State 1994 S.C.M.R. 717 and Azhar Hussain v. Govt. of Punjab 1993 P.Cr.L.J. 2308). 7. At this stage, it is requested by the I.O. Rafique Mughal, Inspector FLA that he wants time to submit challan before the Special Court (Offences in Banks) Sindh, at Karachi . In my view there is no need to grant time or permission to the prosecution for such purpose. It is the duty of the prosecution to submit challan in the Courts having competent jurisdiction. Presently, the charge sheet/challan has been filed before the Special Judge (Central-I) Karachi . In the circumstances, I am inclined to follow the rule laid down in the case ofBago and 2 others v. The State (1996 P.Cr.L.J. 1818) where a Division Bench of this Court granted bail to three accused on the ground, inter alia, that no challan was filed before the Court of Special Judge (STA). At present the challan has been submitted before the Court of Special Judge (Central-I) at Karachi and so far the Special Court (Offences in Banks) Sindh, at Karachi has not taken cognizance of the case, therefore, in order to do justice, I confirm the interim bail granted to the applicant/accused by this Court but, subject to all just exceptions. I would like to observe that this order of bail would remain operative till, as stated by the by the F.I.A. official, challan is filed before the Special Court (Offences in Banks i Sindh, at Karachi whereafter this order will cease to exist. (AAJS) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 110 Present: raja muhammad khjjrshid, J. MUHAMMAD HAYAT and other-Petitioners versus STATE-Respondent Cr. Misc. No. 3833/B of 1997, accepted on 27.8.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence U/S 337-F (i)-F (ii) 337A P-l, 337A-(v) read with S. 147/148 PPC-Bail-Grant of-Prayer for--A cross version by petitioner regarding same occurrence is pending in a court of competent jurisdiction-Matter is yet Sub Judice may likely influence course of trial-Deeper appreciation of merits of case cannot be undertaken at this stage lest it may prejudice trial itself--None of offences is punishable with death or imprisonment for life-Bail granted. [P. 112] A Ch. Muhammad Zahoor Nasir, Advocate for Petitioner. Mr. Niaz Ahmad Khan, AAG with Mr. Noweed Sheharyar, Advocate for the Complainant. Date of hearing: 27.8.1997. order A case under Sections 337-F(i)/337-F(ii)/337-A(i)/337-A(v) PPC read with Sections 147/148 PPC is registered against the petitioners and others vide FIR No. 272/96 dated 26.12.96 at P.S. Pahrianwali, District Mandi Baha-ud-Din on the ground that while armed with 'Sotas' they attacked the complainant party and caused injuries to six persons. They were admitted to post-arrest bail by the learned trial Court. An application for cancellation of bail was moved the learned Addl. Sessions Judge, Mandi Baha-ud-Din who accepted the application and cancelled the bails of the petitioners. Hence this petition. 2. According to the FIR, general role is attributed to the petitioners for caiising injuries to the aforesaid six persons on different parts of bodies. The most serious injury is on the body of Lai Khan which has been held as a fracture of right ulna and has been declared Jurh Ghyr Jaifa Munaqqilah. The injuries to the rest of the victims are alleged to be Khafif (simple). 3. Learned counsel for the petitioners has submitted that the complainant side was the aggressor as they had opened the attack thereby ausing injuries to three persons from the accused side whose name have been given as Sardar Khan, Muhammad Hayat and Sumera Bibi. The petitioners i.e.; the accused side allegedly approached the police but their case was discharged on the ground that injuries to Sardar Khan Muhammad Hayat, and Sumera Bibi were allegedly self inflicted. It, was alleged that the police came to the wrong conclusion which necessitated the filing of a complaint which is still pending. The motive for the occurrence was a long standing enmity between the parties. As such, it is submitted that there are two version about the same occurrence and it is yet to be determined as to which one of the parties was aggressor. Hence, it was alleged to be a case of further enquiry, lastly, it was contended that none of the offences falls within the prohibitory clause. 4. The bail petition is resisted on the ground that six persons were injured clue to the violent attack opened by the petitioners and their coaccused. Further, it was submitted that the police investigation led to a conclusion that the counter version of the petitioners was false and as such, all the accused were challaned. Since the petitioners acted in a cruel manner to cause injuries to six persons including a woman, therefore, they were allegedly not entitled to bail particularly when one of the accused is an absconder. 5. I have considered the above submissions and find that according to the medicolegal reports, placed on record, three persons from the petitioners' side namely Sardar Khan, Muhammad Hayat and Sumera Bibi were also injured. As such, there is a cross-version regarding the same occurrence. A complaint to that effect is pending in a Court of competen jurisdiction. Though the police has come to the conclusion that the complainant side was not the aggressor but the matter is yet wide open as the cross-version put up by the petitioners/accused is yet subjudice on account of a complaint pending before a Court of competent jurisdiction. Any bservation on the merits of the cross-version at this stage is likely to influence the course of trial in the complaint case. Even otherwise, deeper appreciation of the merits of the case cannot be undertaken at this stage lest it may prejudice the trial itself. Since none of the offences is stated to be punishable with death or imprisonment for life, therefore, under the circumstances, the petitioners are entitled to bail. The order cancelling their bails passed by the learned Addl. Sessions Judge, Mandi Baha-ud-Din is set aside. The petition is accordingly accepted and the petitioners are admitted to bail in the sum of Rs. 200,000/- each with two sureties each in the like amount as initially directed by the trial Court. The bail bonds and the sureties will be given by the petitioners to the satisfaction of the trial Court. 6. Disposed of. (AAJS) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 112 Present: jawaid nawaz khan gandapur, J. SAID MULLAH SHAH-Petitioner versus STATE-Respondent Criminal Misc. No. 9 of 1997, dismissed on 15.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A, 514, offence U/S 302/324 PPC-Bail Bond-Forefeit of- Challenge to-Whether order of cancellation/Forefeiting and enhancing amount of bail bond of an accused involved in a murder case and who has absconded on summoning by Addl. Sessions Judge regarding application for cancellation of his bail bond is arbitrary or perverse-Held: As per nilings and law laid down by Supreme Court, Addl. Sessions Judge has duly taken into his consideration all material facts of case and has recorded a speaking order which shows proper application of judicial mind, since order impugned is neither arbitraiy nor perverse, same is not liable to be interfered-Petition dismissed. [P. 118] A £ B Mr. Maazullah Barkandi, Advocate for Petitioner. Mr. Zia-ur-Rehman, Asstt. A.G. for Respondent. Date of hearing: 25.8.1997. judgment Vide F.I.R. No. 908 lodged in Police Station, Takht Bhai, on 29.12.1995, one Abdul Shah, Constable (No. FRP-2567), Platoon No. 10, S/O Sikandar Shah, R/0 Muhammad Shah Kili, was charged for having committed an offence punishable U/Ss. 302/34 P.P.C. After his arrest Abdul Shah accused applied for bail. The Sub. Divisional Magistrate, Takht Bhai (name not mentioned in the order), by his order dated 4.3.1996, released him on bail on furnishing bail bonds in the sum of Rs. 2,00,000/- (two lacs) with two sureties, each in the like amount, to his (S.D.H.) satisfaction. The requisite bail bonds were submitted by the accused duly executed by him as well as his two sureties including the petitioner. However, a bail cancellation application was filed in the Court of the Add]. Sessions Judge wherein it was prayed that the concession of bail granted by the Sub : Divisional Magistrate be recalled. Abdul Shah was accordingly summoned. Since Abdul Shah did not appear before the Court of Addl. Sessions Judge, 'his bail was recalled with the direction that the sureties be proceeded against IJ/S 514 Cr.P.C. 2. Proceedings U/S 514 Cr.P.C. were according initiated by the Civil Judge/M.I.C., Takht Bhai, who by his order dated 14.9.1996, confiscated/ forfeited the bail bonds, submitted by the sureties including the petitioner, and the sureties were directed to deposit an amount of Rs. 20,000/- each, in the Court failing which the same was to be recovered as arrears of the land revenue. 3. Mst. Dilraz, the wife of the deceased, challenged the verdict of the Civil Judge/M.I.C. on the grounds that the order of the Civil Judge was improper/illegal in the circumstances of the case. The Addl. Sessions Judge accepted the revision petition, set aside the order of the Civil Judge, forfeited the bail bonds and ordered that the sureties shall deposit Rs. 2,30,000/- (two lacs thirty thousands) in equal share. 4. Not contented with the decision impugned, Said Mullah Shah, petitioner herein, has challenged its validity/legality by filing this petition U/S 561-A Cr.P.C. 5. Mr. Mazullah Khan Barkandi Advocate learned counsel for the petitioner and Mr. Ziaur Rehman Khan, Assistant Advocate General for the State present and heard. Record of the case perused. 6. It is not denied that the petitioner had stood as a surety for Abdul Shah accused who was released on bail by the Sub : Divisional Magistrate on 4.3.1996. However, when the said accused was summoned regarding the application for cancellation of his bail by the Addl. Sessions Judge, he absconded. esultantly, the bail granted to the accused was recalled and in accordance with the directions of Addl. Sessions Judge, the Civil Judge proceeded against the sureties and forfeited their bail bonds and directed the petitioner to deposit Rs. 20,000-. Later, the said amount was enhanced to Rs. 1. 15,000/- by the Addl. Sessions Judge. 7. The learned counsel for the petitioner has vehemently contended that .since the surety/petitioner, is a poor person, therefore, the Add]. Sessions Judge was not justified to forfeit the bail bonds to the extent of Rs. 1,15,0()0/- which was not warranted in the circumstances. In support of his contention he placed reliance on case Dildar and another v. The State, reported in P.L.D. 1963 Supreme Court 47, wherein it was held as under- "Where, however, we find defect in the proceedings taken against the appellants is in this, namely, that no effort appears to have been made by theCourts below to enquire into the relevant matters affecting the decree of their responsibility. Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain bystanding surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It voids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing over-crowding in the available spaces of imprisonment. Therefore, in dealing with the cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number i >f cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give hail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court has regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have"aecordingry thought fit to question the two sureties ourselves on these points." 8. Before proceedings further in the matter it would be appropriate to refer to some of the other judgments of the Supreme Court with regard to the confiscation of bail bonds. These are:- (1) 1990 Supreme Court (M.R.) 1092. Malik Nazar Ellahi and another v. The State. In this case registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, the accused was released on bail in the sum of Rs. 10,000/-. He absconded. The Addl. Sessions Judge concerned forfeited the bond to the extent of full amount. The High Court upon revision reduced the forfeited amount from Rs. 10,000/- to Rs. 8,000/-. The Supreme Court declined petition for leave to appeal against the judgment of the Lahore High Court. (ii) 1990 Supreme Court (M.R.) 227. Muhammad Rashid and 2 others v. The State, and others. This case related to an offence pertaining to narcotics. The trial Court forfeited the full amount of surety bond, namely, Rs. 50,000/- in respect of each of the accused. The High Court upon revision reduced the same to Rs. 40,000/-. The Supreme Court declined to interfere with the above order of the High Court. (hi) 1990 Supreme Court (M.R.) 1313. Jarnroz Khan i>. The State. A murder case. The Additional Sessions Judge forfeited the full amount of surety bond, namely, 50,000/-. A learned Single Judge of the Lahore High Court declined to interfere with the above order in exercise of its revisional jurisdiction. The Supreme Court declined to leave to appeal and maintained the original order. It was observed:- "After hearing the learned counsel, we are of the opinion that Mushtaq Ahmad is admittdly charged for the offence of murder and it was the duty of the surety to have procured the attendance of Mushtaq accused and thus no ground appears for us to show any leniency in the reduction of the forfeiture of bail bond of the full amount furnished by the petitioner. Thus finding no force in this petition it is accordingly dismissed." (iv) 1994 Supreme Court (M.R.) 690. Muhammad Sharif and another v. The State. In this case, the trial Court forfeited the entire surety bond amount of Rs. 50,000/-. The High Court reduced the same to Rs. 20,000/- as the accused remained absconder for about eight months and thereafter he was arrested. The Supreme Court declined to interfere with the order. (v) P.L.D. 1995 Supreme Court 348. Muhammad Hussain and another v. The State. This case involved two petitions for leave to appeal, which were disposed of by a common order. In criminal petition No. 262-L of 1994, the trial Court forfeited the surety bond amount of Rs. 10,000/-. The High Court reduced the same to Rs. 7,000/- in a case under section 13/20/65 of the Arms Ordinance, 1965. Whereas in Criminal Petition, No. 263-L of 1994, which related to an offence under section 324/337 P.P.C. the trial Court forfeited the surety bond amount of Rs. 50,000/-. The High Court reduced the same to Rs. 25,000/-, The Supreme Court declined to interfere with the above judgment of the High Court. (vi) 1996 Supreme Court (M.R.) 244. Malik Sher Ahmad Khan v. The State. In this case surety amount of Rs. 50,000/- was forfeited by the Magistrate concerned in a case under section 302 P.P.C. The High Court reduced the same to Rs. 25,000^: The Supreme Court declined to inte.ri»re, with the above order. (vii) 1996 Supreme Court (M.R.) 995. Zafar AH and another v. The State. The trial Court in a case under section 302 PPC forfeited Rs. 75,000/- out of Rs. 1,00,000/- of the surety bond amount, upon ahscondence of the accused. The High Court reduced the above amount to Rs. 60,000/-. The Supreme Court declined to interfere with the above order of the High Court. 9. Additionally it may by mentioned here, that in a recent case reported as P.L.D. 1997 Supreme Court 267 (Zeeshan Kazmi v. The State), a Full Bench of the Hon'ble apex Court has held:- "(a) Criminal Procedure Code (V of 1898). ... S. 514 ..... Bail Bond, forfeiture of. Once an accused person jumps bail bond, the entire surety amount becomes liable to be forfeited in the absence f any mitigating circumstances Courts in view of bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedent continuous steeps inflationary tendency resulting in the loss of money value, should not show any leniency while forfeiting bail bond amount. Approach of Courts should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bond. There has been overall deterioration in all spheres of life. The Crime rate has increased manifolds. The criminal instinct/propensity has penetrated in all walks of life. Some of the personnel of the State functionries/agencies which are entrusted with the duty to protect the life, property and honour of citizens, either themselves actively participate in the commission of the heinous crime or they provide protective umbrella to the criminals. Their credibility has been denuded to the extent that the victims of the crimes do not approach them for their help or protection which they are otherwise entitled to as a matter of right under the Constitution. It has no become common that the accused persons involved in heinous offence, if succeed, in obtaining bail, jump the bail bonds. To check such tendency and to provide dterrent, special provisions has been enacted and/or are being enacted in the special statutes prescribing the minimum amount of bail bond. Keeping in view the bleak scenario which has emerged, with the passage of time on account of the lack of respect of the rule of law, and because of the unprecedented continuous steep inflationary tendency resulting in the loss of money vlaue, the Courts should not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps bail bonds, the entire surety amount becomes liable to be forfeited in the absence of any mitigating circumstances." (b) Criminal Procedure Code (V of 1898). .. S. 514. Penal Code (XLV of 180), S. 302/34. Bail Bond, forfeiture of. Jumping bail bond by accused person Effect Accused was allegedly involved in a case in which eight persons were murdered and a number of persons were injured Accused, at the relevant time was Station House Officer of a Police Station, and he was expected to behave more in civilized manner than an ordinary criminal person. Surety was father-in-law of the accused and therefore he was in a better position to produce the accused than a stranger Surety was provided opportunities to secure attendance of accused but he failed Supreme Court, in view, of such legal and factual position, ordered the forfei­ ture of the full amount of the bail bond (Rs. 2,00,000/-)." 10. In the light of the above decisions of the Supreme Court and on a tentative assessment of the record, which is before me, I am of the considered view that the Addl. Sessions Judge has duly taken into his consideration/account all the material facts of the case and has recorded a speaking order which shows proper application of judicial mind. Since the order impugned is neither arbitrary nor perverse, therefore, the same is not liable to be interfered with/set aside. I 11. This petition filed U/S 561-A Cr.P.C., has no substance and is dismissed. (A.P.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 119 Present: FAQIR MUHAMMAD khokhar, J. UMAR FAROOQ ASLAM-Petitioner versus Mst. MANZOOR BEGUM--Respondent Cr. Misc. No. 585-H of 1997, dismissed on 19.6.1997. Criminal Procedure Code, 1898, (V of 1898)-- —Sec. 491--Petition for direction of nature of a habeas corwps-Where there is a family dispute, petition for habeas corpus is not an appropriate remedy-It is also very much doubtfulthat alleged detenu had ever reside with petitioner within jurisdiction of this (High) court-No exceptional circumstances have been shown to exist for interference-Petition dismissed. [P. 121] A Mr. Talib H. Rizvi, Advocate for Petitioner. Mr. Sher Zaman, A.A.G. and other the Pakistan . Date of hearing: 19.6.1997. order This petition under section 491-A^of the Criminal Procedure Code, 1898 is directed for the recovery of Mst. Fajhat SShaheen, detenue, alleged wife of the petitioner from the custody of .her mother Mst. .Manzoor Begum wife of Tasaddaq Hussain from Mir Pur District of Azad Jammu and Kashmir. 2. Learned counsel for the petitioner has submitted that the petitioner was born and brought up in London , It is further submitted that the petitioner and the aforesaid Mst. Farhat Shaheen were duly married on 4.7.1996 in U.K. The petitioner came to Pakistan on 7.5.1997. He further stated that the alleged detenue left her own house on 11.51997 and came to the petitioner to live with him. However, on 18.5.1997, Mst. Manzoor Begum, the mother of the alleged detenu, Jook her away to Azad Jammu & Kashmir for making arrangement of her formal rukhsati. However, the detenu was not allowed to live with the petitioner. Learned counsel has relied on the judgments in the cases of Muhammad Javed Umrao vs. Miss Uzma Waheed (1988 SCMR 1891), Abdur Rahim vs. Home. Secy. Govt. of West Pakistan and another's (PLD1975 SC 109) and Nabi Bakhsh and another vs. The State (PLD 1991 Peshawar 10). 3 Mr; Sher Zaman Khan, learned D.A.G. for Pakistan and Khawaja Muhammad Sharif, learned Advocate General Punjab as well as Mr. Naveed Rasool Mirza learned Add. A.G. Punjab have appeared on court's call. 4. The learned Deputy Attorney General for Pakistan has submitted that the alleged detenu is residing in Mirpur district of Azad Jammu & Kashmir which dues not fall within the limits of the appellate criminal jurisdiction of this court,. Therefore, this court has no jurisdiction to issue any process for habeas cuipua under section 491 Or,P.O. He relied on the cases or Nazir Ahmad vs. Muhammad Fayyaz (PLD 1984 Lah. 149) and, S. Bismiilah Shah vs. NWFP, Govt. (PLD 1950 Peshawar 43). He further argued that the matter in dispute is basically relatable to a matrimonial dispute for the resolution of which the issuance of a direction under section 491-A Cr.P.C. is not appropriate as held in the cases afMst. Farhat Fatimah Shah vs. Nadeem Aslarn Shah and 2 others (1973 P.O.L.J. 61) and Ghulam Muhammad vs. Fakir Muhammad etc. (PLD 1975 Karachi 118). 5. Learned Advocate General Punjab as also the learned Additional .G. Punjab have supported the arguments advanced by the learned D.A.G. for Pakistan . 6. I have heard the learned counsel for the petitioner as well as the learned Law Officer. The present petition has been made under the provisions of section 491-A Cr.P.C. The said provision was inserted by Act XII of the \933 but the same was omitted by Act II of 1950. As such the powers of the High Court outside the limits of its appellate criminal jurisdiction were no longer available. The application under section 491 Cr.P.C. is, therefore, misconceived. In the case of "Muhammad Javed Umrao" referred to by the learned counsel for the petitioner, the facts were quite different, as the minor had been removed from the appellate jurisdiction of the High Court after the matter had already become sub-judice. Similarly, the reference made by the learned counsel to the cases of "Abdur Rahim" and "Navee'l Bakhsh" (supra) is also not apt inasmuch as the land in dispute had been leased out in the settled area over which the jurisdiction of the Peshawar High Court was exercisahle despite the fact that one of the parties belonged to the tribal area. 7. In the present case, the alleged detenue has been living with her parents in the State of Azad Jammu & Kashmir since before the making of he present application which place falls beyond the territorial jurisdiction of this court. The provisions of Section 491 Cr.P.C. before this court are, therefore, not attracted. Same is the position of the "extra-ordinary jurisdiction of this court -under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In the case of Mian Manzir Rashir Advocate vs. Federation of Pakistan through Secy. Govt. of Pakistan Islamabad (PLD 1974 Lahore 319), a Full Bench of this court declined to issue a direction in the nature of habeas corpus for the production of late General Agha Muhammad Yahya Khan, on the ground that the detenu was detained at Abbottabad which place was outside the territorial jurisdiction of the Lahore High Court. Similarly, in the case of Malik Muhammad Qasim vs. Province of the Punjab, through Secy., Home Deptt. Civil Secretariat, Lahore (PLD 1973 Lahore 473), it was found that the detenu Nawab Muzaffar Hussain, MPA, was arrested under the Defence of Pakistan Rules at Multan Air Port and was taken Sukkar for detention before a petition for habeas corpus co\ild be filed before this court. It was held that the writ of habeas corpus could not be issued in these circumstances. In the case of Aasia vs. Mashhud Ahmad (1990 P.Cr.L.J. 847), the Siridh High Court expressed the view that a direction in the nature of habeas corpus could be issued in regard to a detenu found within the limits of its appellate criminal jurisdiction only. In the Law of Extraordinary Legal Remedies by Forrest G. Ferris, the author expressed his opinion in section 38 of Chapter IV of the book as follows:- "38. Venue, --Application for the writ should, unless otherwise provided by statute, be made to the court or judge exercising jurisdiction over the place or territory where or within which the party in custody is held, the place of detention fixes the jurisdiction, without reference to the residence of the person detaining." In the case of Leo Zepantis vs. Emperor (AIR 1944 Calcutta 76), the detenu was removed from Calcutta to Egypt before the filing of an application for habeas corpus which was dismissed. Similar view was expressed in cases of V.M. Sarangapani vs. Emperor (AIR 1946 Nagpur 20), Vishambhar Dayal Tripathi us. U.P. Government (AIR 1945 Oudh 117) and the cases ufNazir Ahmad and 8. Bismillah Shah (supra). 8. Even otherwise, this seems to be a family dispute for which ordinarily a petition for habeas corpus is not an appropriate remedy. See the cases of Mst. Farhat Fatimah Shah and Ghulam Muhammad (supra). In the case of Mukhtar Ahmad vs. Ghafoor Ahmad (PLD 1990 Lahore 486), issuance of writ of habeas corpus was declined for the purpose of effecting a Rukhsati' of the detenu. It is also veiy much doubtful that the alleged detenue had ever resided with the petitioner within the jurisdiction of this Court. No exceptional circumstances have been shown to exist for the interference by this Court in the present case. 9. For the foregoing reasons, I do not find any merit in this petition which is dismissed. (AAJS) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 122 Present: raja MUHAMMAD KHURSHID, J. MUHAMMAD IDREES-Petitioner versus KHAN MUHAMMAD and another-Respondents Cr. Rev. No. 75 of 1997, dismissed on 12.8.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 439--Offence U/S. 324/34, 336/337(ii) PPC-Revision application- Petitioner unheard--Aggrieved--Whether addl. session adopted illegal and irregular procedure by lying Private complaint alongwith murder case- Held: It is a common practice having mutured into a rule that if there are two versions about the same occurrence then both version are to be tried and decided by one and same court-Trial of private complaint alongwith murder case is in pursuance of that rule there is therefore no irregularity or illegality in procedure adopted by Addl. Sessions Judge-­ Petition dismissed. [P. 124] A Ch. Muhammad Ashraf Bajwa, and Malik Abdul Majeed, Advocates for Petitioner. Khan Mohd. AsifButt, and Muhammad Aslarn Malik, Advocates for State. judgment This revision petition is directed against the order dated 12.3.97 passed by Mr. Afzaal Hussain Kazmi, learned Addl. Sessions Judge, Narowal, whereby, the petitioner and two others were summoned in a private complaint filed by respondent No. 1 under Sections 336/337- A(ii)/324/34 PPC. 2. Brief facts are that a case under Sections 302/324/34 PPC was registered at Police Station Qila Sobha Singh vide FIR No. 94 dated 9.12.93 at the instance of one Muhammad Sharif against Irshad and two others. A private complaint under Sections 336/337-A(ii)/324/34 PPC was filed by Khan Muhammad i.e.; present respondent No. 1 against the present petitioner and others regarding the same occurrence. In the court of Magistrate 1st Class, Narowal who forwarded the same to the Sessions Judge, Narowal for entrusting it to a Court of competent, Jurisdiction. The same was entrusted to the Magistrate Section 30, Narowal by the learned Sessions Judge, Narowal. The transferee Court dismissed the complaint after holding preliminaiy enquiry, whereupon, a revision petition was filed which was accepted by Mr. Muhammad Haneef Khan, learned Addl. Sessions Judge, Narowal vide his judgment dated 17.1.1996. The order dated 3.11.94 passed by learned Magistrate Section 30, Narowal was set-aside and a direction was made that the complaint be forwarded to the learned Sessions Judge, Narowal because the same was triable in the Court of Session, assumably because the case under Section 302/324/34 PPC as referred to above regarding the same occurrence was also pending there, The learned Sessions Judge, thereupon entrusted the complaint to the learned Addl. Sessions Judge who forwarded the same to the Magistrate for enquiry under Section 202 Cr.PC and to submit a report accordingly. The learned Magistrate vide his order dated 2.1.97 came to the conclusion that the complainant had miserably failed to make out, a prima facie good case warranting the summoning of the accused to face trial under Sections 324/336/337-A(ii)/34 PPC and as such submitted the report accordingly. The learned Addl. Sessions Judge after considering the aforesaid report and taking into account the evidence brought on record during the preliminary enquiry came to the conclusion vide his observations made in paragraph No. 3 of the impugned order that there was a prima-facie good case worth of judicial test against the petitioner and his accomplices. Accordingly, they were directed to be summoned as accused through bailable warrants in the sum of Rs. 25,000/- each with one surety each in the like amount to the satisfaction of the trial Court. 3. Feeling aggrieved of the foregoing order of the learned Addl. Sessions Judge, the present revision petition was filed on the grounds that since the petitioner and his accomplices were not heard before making the impugned order, therefore, the order was bad in the eye of law; that the offences mentioned in the private complaint were triable by a Court of Magistrate Section 30 and not by a Court of Session till the complaint was sent up by the Magistrate in view of the rovisions contained in Section 193 Cr.PC, and since the same was not sent up, therefore, the learned Addl. Sessions Judge fell in error to make the impugned order. Reliance is placed on 1996 PCr.LJ 1818 Karachi . Lastly, it was contended that the enquiry under Section 202 Cr.PC clearly revealed that there was no evidence justifying the summoning of the petitioner of his accomplices. As such, it was urged that the impugned order be set-aside. 4. Learned counsel for the respondent and the state contended that it was not necessary to associate or to hear the accused in any enquiry under Section 202 Cr.PC and as such, there was no irregularity if the accused were not heard before the impugned order was passed. Reliance was placed on 1995 PCrLJ 14 Lahore and 1995 PCrLJ 530 Lahore . Secondly, it was contended that there was no bar if the connected case contained in the private complaint was sent up to the Court of Session for trial by the learned Sessions Judge as the occurrence ensued from the same occurrence which resulted into murder for which a case under Section 302 PPC was registered. In this regard, it was contended that such connected cases according to the established practice have to be heard and disposed of simultaneously by the same Court. Reliance was placed on PLD 1962 Dacca 576 and 1973 SCMR 134. Lastly, it was contended that the learned Addl. Sessions Judge had rightly differed from the learned enquiry Magistrate to come to the conclusion that there was a. prima-facie good case worth of trial. This being a question of fact cannot be interfered in the revision petition. 5. I have considered the contentions raised at the Bar from both the sides. First of all, it is to be pointed out that the order dated 17.1.1996 passed by the then learned Addl. Sessions Judge, Narowal whereby, the revision was accepted and the order of the Magistrate was set-aside and the direction that the complaint be forwarded to the Court of Session, was never challenged till today by the petitioner. It was on the basis of the aforesaid order that the rest of the proceedings had taken place culminating in the impugned order dated 12.3.97. Apart from that, it cannot be successfully urged that since the case was not sent up to the Court of Session, therefore, cognizance of the private complaint could not be taken up. It was in pursuance of the order dated 17.1.96 that the matter was required to be sent up to the Court of Session for trial with the connected case. In that situation, the cognizance taken by the learned Addl. Sessions Judge, whereby, he had directed an enquiry under Section 202 PPC to the conducted by the learned Senior Civil Judge/MS-30, Narowal did not suffer from any illegality. Even otherwise, it is a common practice having matured into a rule that if there are two versions about the same occurrence then both the versions are to be tried and decided by one and the same Court. In pursuance of that rule, the cognizance was taken for trial of the private complaint alongwith the murder case and as such, there was no irregularity or illegality in the procedure adopted as aforesaid. The learned Addl. Sessions Judge, Narowal has given sound reasons in the impugned judgment to come to the conclusion that there was sufficient evidence to justify the existence of a prima-facie case worth of judicial test against the petitioner and his accomplices and as such, they were rightly summoned through bailable warrants. Hence, there is no illegality nor there is any legal flaw regarding the exercise of authority or jurisdiction by the learned Addl. Sessions Judge, Narowal so as to call for interference with the impugned order on the revision side of this Court. 6. The revision petition being merit-less is dismissed accordingly. (AAJS) Revision Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 124 Present: munir ahmad mughal, J. ABBAS ALI-Appellant versus THE STATE-Respondent Cr. Appeal No. 515 of 1993, accepted on 08.07.1997. Pakistan Penal Code, 1860 (Act XLV of 1860)- —S. 302/34/109--Mrder-Offence of-Conviction for—-Challenge to-Ocular evidence is contradicted by medical evidence—Not a single independent person has been joined as regards recoveiy of weapons of offences, - Recovered was effected after 29 days and after such a long period, blood­ stains could not be preserved particularly when recoveiy was made from under-earth-Motive is shrouded in mystry and is not prov-An independent witness of recoveiy was given up as being unnecessary-Case is full of doubts. [Pp. 128 & 129] A, B, C & D Syed Zahid Hussain Bokhari, Advocate for Appellant. Mr. Shahbaz Saeed, Advocate for Respondent. Date of hearing: 8.7.1997. judgment Abbas Ali, Muhammad Anwar and Sakhawat, Ali were tried under sections 302/34 and 109 PPG by the learned Additional Sessions Judge, Sheikhupura for the murder of Sarwar son of Khuda Bakhsh. The learned trial Judge vide his judgment dated 30.5.1993 acquitted Muhammad Anwar and Sakhawat Ali of the charge but convicted Abbas Ali under section 302 PPG and sentenced him to imprisonment for life and a fine of Rs. 10,000/-. In case of default in payment of fine, the accused was to undergo further RI for six months. Under section 544-A, Cr.P.C., Abbas Ali was directed to pay Rs. 10,000/- to the legal heirs of the deceased as compensation and in case of default in the payment of compensation or in case the amount is not recovered, to undergo further RI for six months; hence this appeal by Abbas Ali, appellant. 2. The prosecution case as disclosed in the statement Ex. PB of Manzoor Hussain, PW. 5, which was recorded by Muhammad Iqbal ASI, PW. 3, on 21.5.1990 at 4.10 PM is that on the day of occurrence, he alongwith Muhammad Sadiq son of Bashir and Mahmood son of Siraj Din were working as labourers in connection with boring of the tubewell of Khushi Muhammad son of Haji Ghulam Nabi. His younger brother Muhammad Sarwar (deceased) who was unmarried and was lying with his parents went to the orchard of Haji Mahmood to procure fodder for his cow. A little later, Sakhawat Ali, accused, armed with a Takwa Anwar, accused, armed with a carbine and Abbas, accused, armed with a dagger reached there. Sakhawat, accused, raised a lalkara exhorting the co-accused not to allow Sarwar to escape and to teach a lesson to him. Sarwar, deceased, raised alarm and tried to run away. On hearing the noise, the complainant alongwith his companions ran towards the orchard aforesaid and saw that Anwar accused, stopped Sarwar from the front side and Sakhawat, accused, gave him Takwa blow hitting him on his left shoulder and he fell down after getting injured. While he was lying down, Abbas gave several blows with the dagger. Sarwar tried to save himself. He received two blows on his right elbow and also one blow on the wrist of his left hand. Then Abbas, accused, gave a elbow with the dagger hitting Sarwar in his chest. Then the complainant, ,,id the eye-witnesses moved forward, whereupon Anwar, accused raisHI a lalkara threatening that anybody who will try to move forward, will be killed. Frightened as they were, they stopped there. The accused fled away towards the village raising lalkaras. Muhammad Sarwar died at the spot. 3. The motive, as stated in the FIR, was that about 4/5 months ago, the son of Sakhawat, accused" namely, Sarwar alias Lahori had been killed and a case concerning the same had been registered against Yousaf etc. residents of Imamia Colony but Sakhawat, accused, suspected that his son Sarwar had been killed by Khalid, the brother of the complainant. On account of the said grievance, the accused in consultation with each there and also at the instance of Khushi Muhammad son of Noor Muhammad had launched the murderous attack on Sarwar, deceased. The occurrence was witnessed besides the complainant by Mahmood Ahmad and Sadiq, PWs. 4. After recording the FIR, Inspector Muhammad Ashraf, PW. 7, proceeded to the spot and inspected the place of occurrence, collected the blood stained earth from the spot and by forming the same into a sealed parcel took the same into possession vide memo Ex. PG. He prepared the rough site plan of the place of occurrence as Ex. PI, inquest report Ex. PE and the injury statement Ex. PJ of the deceased. The police officer recorded the statements of the PWs under section 161 Cr.P.C. He searched for the accused but they were not available. The last worn clothes of the deceased, that is, shalwar, Ex. P. 1, shirt, Ex. P. 2 and bunyan, Ex. P. 3 were taken into possession vide recovery memo Ex. PF, after the post mortem examination. All the three accused, namely, Abbas, Sakhawat and Anwar were arrested by him on 5.6.90 and 19.6.1990, Abbas accused, while in custody made a disclosure and then led to the recovery of dagger Ex. P. 4 from under-neath a bridge on G.T. Road known as Dau-moria pul from car No. 5. The dagger was blood stained which was taken into possession by the PW vide memo Ex. PH and prepared the site plan of place of recovery as Ex. PH/1. He also got prepared the- site plans Exhs. PA and PA/1 from the revenue Patwari. The said Inspector partly investigate this case and thereafter, the investigation was completed and all the three accused were hallaned. However, Shah Muhammad Khushi Muhammad were declared innocent. Sakhawat Ali, accused, though was found innocent, but his name was placed in column No. 2 of the challan. 5. Dr. Mubashar Ahmad Medical Officer, District Headquarters Hospital, Sheikhupura medically examined Muhammad Sarwar and found seven injuries on his person. Injury No. 2 was a stab wound, injuries 1, 3. 4 and 5 were incised wounds and injuries 6 and 7 were abrasions. The doctor opined that all the injuries were ante-partern; injuries 1 to 5 were with sharp edged weapon; rest, were with blunt weapon; the death occurred due to sever shock, haemorrhage and cardiorespiratory failure; all the injuries collectively and injury No. 2 individually were sufficient to cause death of a person in ordinary course of nature; the probable time between the injuries and death was immediate and that between death and post mortem was within 24 hours. 6. The prosecution in support of its case had produced seven witnesses in all. PW. 1 Muhammad Younis, Constable, had taken the blood­ stained earth to the office of the Chemical Examiner, PW. 2 Muhammad Iqbal is the revenue Patwari who prepared the site plans, Ex. PA and Ex. PA/1. ASI Muhammad Iqbal, PW. 3, on the receipt of the complainant's statement (Ex. PB) recorded the formal FIR (Ex. PB/A). PW. 4 is the Medical Officer who conducted the post mortem examination on the dead body of Muhammad Sarwar. PW. 5 Manzoor Hussain is the complainant while Muhammad Sadiq, PW. 6, is an eye--witneses. Inspector Muhammad Ashraf, PW. 7, conducted the investigation. Mahmood Ahmed, eye-witnesses was given up by the prosecution being un-necessaiy. 7. The appellant when examined under section 342 Cr.P.C. denied the prosecution allegations and professed innocence. In answer to question that why this case against him and why the PWs have deposed against, the appellant replied that he had been falsely understanding. 8. The learned trial Judge believing the prosecution evidence convicted and sentenced the appellant as indicated above. 9. Learned counsel for the appellant contended that the presence of the complainant as well as the eye-witnesses at the place of occurrence is doubtful; the prosecution story is not supported by the ocular account furnished by the eye-witnesses as well as the medical evidence; the recoveiy of the weapon of offence is not proved and that the motive as alleged is riot proved. Next submitted that Sakhawat, co-accused, to whom the main role was attributed has since been acquitted, as such, on the same set of evidence, the conviction of the appellant is not legally justified. 0. In so far as first contention of the appellant is concerned, Manzoor Hussain, complainant, while appearing as PW. 5 stated that he alongwith Muhammad Sadiq, an eye-witnesses, (PW. 6) and Mahmood were working as labourers and digging a ditch after which the work of the boring of the tubewell was to be started. The said tubewell was being got installed by Khushi Muhammad who has not been produced to prove whether the work of digging was being carried out near the place of occurrence. In crossexamination, Manzoor Hussain (PW. 5} stated that they were digging the earth with Kassis and after hearing the noise, he alongwith others ran towards the place of occurrence empty handed when they had recognised the voice to be of their deceased brother. It is not believable that after the noise of real brother saying Bachao Bachao, the other brother who was admitted armed with a Kassi would run to the place of occurrence to save his brother empty handed. Similarly, Muhammad Sadiq, (PW. 6) an eye-witness stated in his cross-examination that he and the complainant apprehended after hearing the lalkara that the accused were going to attack Sarwar, but they ran towards him empty handed. The witnesses do not own any land near the lace of occurrence. 11. The next ground is that the ocular evidence is contradicted by the medical evidence. Admittedly, there were seven injuries according to the post mortem report. The co-accused Sakhawat, was attributed having caused an injury on the left shoulder of the deceased with Takwa. That injury existed which has not been accepted by the learned tria 1 Court. Sakhawat coaccused has been acquitted to whom the said injury was attributed. There was no state appeal or revision against the order of acquittal qua Sakhawat. Still, further the doctor has stated that injuries No. 1 to 5 were caused with blunt weapon whereas the witnesses alleged that the injuries have been caused by two weapons. In these circumstances, the ocular account qua Sakhawat, co-accused having not been believed by the learned trial Judge though the injury existed, it makes the matter further doubtful regarding the appellant. 12. As regards recovery of the weapon of offence, not a single independent person has been joined when admittedly, the place of recovery was a bridge at G.T. Road having easy access. Further, the incident took place on 21.5.1990 while the appellant was arrested on 5.6.1990 and the recoveiy of the weapon of offence was effected on 19.6.1990. There were 29 clear days in between and the weapon could have been destroyed and after a period of 29 days, blood-stains could not be preserved. The recovery of the weapon on the last day of physical remand of 14 days is also not without a dint of suspicion. Further, PW. 6 is the recoveiy witness. In cross- examination he stated that he affixed his thumb impression on Ex. PH (dagger) in the Police Station when according to the statement of PW. 8 Investigating Officer the recoveiy was made from under-neath. a bridge at i G.T. Road. 13. So far as motive in this case is concerned, firstly it is not against the deceased and secondly it is shrouded in mystry and thirdly the learned trial Court has comVssed that it is not proved. To prove the motive, only Manzoor Hussain complainant (PW. 5) in his cross-examination stated that his elder brother, namely, Khalid was involved in the case of murder of son of Sakhawat. The question arises why Sarwar (deceased) was selected to be murdered being brother of Khalid when Manzoor Hussain, complainant was admittedly doing the work of boring the tubewell in the adjacent field. The argument of learned counsel for the State that even if it is agreed that motive is not fully proved, the only benefit that can go to the accused is that capital punishment cannot be awarded but he cannot be acquitted. Had the prosecution not put the .motive, the argument would have some force. The rule is that where the prosecution puts a motive and the same is not proved, it must adversely affect the prosecution story. In other words, story of the prosecution in such a case is to lapse and the prosecution has to sxiffer. Sufference is not by lesser punishment but the prosecution story has to fall on the ground. 14. Over and above all this, Muhammad Din son of Labhoo who was an independent witness and was also cited as a witness to the recoveiy of dagger, Ex. PH, was given up as being unnecessary. 5. The contention of learned counsel for the State that in our country false involvement is common but the substitution is veiy rare and that no such enmity has come on the record for which the appellant would have been substituted and that the accused having died at the spot, there was no need of any bandate is of no avail, as the case in hand is otherwise full of doubts coupled with the fact of conduct of the eye-witnesses inasmuch as they were so bold to tell lies that even on being Bahnoi, the other being real brother while the third being the relative, denied this relationship unless there was a word of warning from the learned trial Court. 16. For all these reasons, the conviction and sentence awarded to the appellant cannot be maintained. (K.K.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 129 Present: muhammad nawaz abbasi, J. MUKHTIAR AHMAD-Petitioner versus STATE-Respondent Criminal Misc. No. 1/97 in Criminal Appeal No. 269 of 1995, accepted on 30.9.1997. Criminal Procedure Code, 1898 (V of 1898)— —S. 426(l-A)-Suspension of sentence on statutory ground-Decision of appeal within period provided u/s 426 (1-A) Cr.P.C . is statutory right of petitioner—If appeal is not disposed of within specified period, statutory right of suspension of sentence is not withheld—Sentence of period is suspended. [P. 130 ]A Mr. Muhammad Zawar Shah, Advocate for Petitioner/Appellant. Mr. Muhammad Anwar-ul-Haq , Advocate for State. Date of hearing: 30.9.1997. orber The petitioner upon conviction for the charge under Section 302 PPG by the learned Additional Sessions Judge, Khanewal vide judgment dated 16.7.1995 was sentenced to imprisonment, for life. He has challenged the same through the criminal appeal No. 269/95 before this Court. 2. Learned counsel contends that the injury was received by the deceased accidently during the marriage ceremony, and that petitioner having been rongly convicted deserves acquittal. He sought suspension of sentence on statutory ground as his appeal is pending for decision for a period more than two years . 3. The office has reported that the criminal appeals pertaining to the year 1986 are being fixed and the present appeal relating to the year 1995 cannot be fixed in near future. 4. Without commenting upon the merits of the case, the decision of the appeal within the period provided under Section 426 (1-A) Cr.P.C . is the statutory right of the petitioner. There is no cavil to the proposition that the Court can in its discretion refuse the suspension of sentence if circumstances so exist but ordinarily if the appeal is not disposed of within the specified period, the statutory right of suspension of sentence is not withheld. Consequently, the sentence of the petitioner is suspended, subject to his furnishing bail bonds in the sum of Rs . 50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the trial Court ,. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 130 Present: zafar pasha chauuhry, J. ABDUL QADIR etc.-Petitioners. versus SHER MUHAMMAD etc —Respondents. Criminal Misc. No. 54/Q of 1991. accepted on 29.5.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S, 145-Object and scope of S. 145 Cr.P.C.--Invariably proceedings u/S. 145 Cr.P.C. are meant to prevent breach of peace and with view to avert any dispute as precautionary measure-In case of any dispute relating to property proceedings u/s 107 or 151 Cr.P.C. may be taken but right of ownership and possession has to be protected by court and law enforcing agencies-Disputed property can be attached only if it cannot be determined as to which of parties is entitled to its possession, the interim measure and that too only to save parties from breach of peace, property is attached. [Pp. 132 & 133] A, B & C Mian Muhammad Ashraf, Advocate for Petitioners. Mr. Kanwar Intizar Muhammad, Advocate for Respondents. Date of-bearing: 29.5.1997. judgment Through this petition, Abdul Qadir etc., petitioners herein, seek quashment of the order dated 14.11,1989 passed by learned Civil Judge/Magistrate Section 30, Khanewal whereby he initiated proceedings under section 145 Cr.P.C. and ordered attachment of Ahata No. 2 situated in Chak No. 2/10-R Pirowal, Tehsil Mian Channu was ordered to be attached till the question of its ownership or possession is determined by a competent court or authority. 2. This case has a long history of litigation between the parties. The brief facts culminating into initiating proceedings under section 145 Cr.P.C. are that Sher Muhammad lodged a report on 29.10.1987 with the police stating that he was residing in Ahata No. 2 in Chak No. 80/10-R Pirowal. The petitioner Abdul Qadir alongwith other persons committed assault and caused injuries to him. A case was registered under section 506/542/448/ 148/149 PPC at P.S. Sadar Khanewal. During the course of investigation it was found by the police that both the parties i.e. Abdul Qadir petitioner and Sher Muhammad respondent are claiming the possession and ownership of the Ahata. Since breach of public peace was barehanded, therefore, a complaint (Kalandra) was submitted in the court of Mian Khalid Saeetl Akhtar, Civil Judge/Magistrate Section 30, Khanewal. Sher Muhammad and 5 others were cited as one party and Abdul Qadir alongwith 13 of is partyen, petitioners herein, were cited as second party to the dispute. The learned Magistrate initiated the proceedings. He referred to the history of the case wherein various events regarding change of possession of the Ahata were enumerated. The report of the police and other relevant material was taken into account alongwith the statements made by the witnesses. The learned Magistrate after passing a detailed order came to the conclusion that the Ahata in dispute was owned by the Provincial Government and according to him it could not be determined as to which of the parties was entitled to keep its possession. Therefore, the Ahata was attached till any order is passed with regard to the possession and ownership of the Ahata by any competent court of authority, vide order dated 14.11.1989. An appeal was preferred against that order before the learned Additional Sessions Judge, Khanewal which was dismissed on 4.2.1991, as such the order dated 14.11.1989 was upheld and maintained. It is however not clear whether any appeal against the order was available or not. Since the same has not been isputed, no elaboration in that behalf is called for. 3. Learned counsel has assailed the impugned order on various grounds e.g. according to him the learned Magistrate has not given the grounds of his satisfaction nor any formal notice was issued to the parties, therefore, the whole proceedings stood vitiated. Reliance has been placed on 1973 P.Cr.L.J. 94 and PLD 1974 Quetta 21. Another argument has been advanced stating that to attach a property, dispute simpliciter is riot sufficient but the dispute must be of a nature which is likely to cause breach f peace. In support of his contention reliance is placed on 1968 P.Cr.L.J. 1882 wherein it was observed that there was marked difference between a dispute and a dispute likely to cause breach of peace. There may be a number of disputes between the parties claiming possession or ownership of certain property but every dispute does not give rise to proceedings under section 145 Cr.P.C. unless it is genuinely and reasonably apprehended that the dispute is likely to give rise to breach of peace. Only then to prevent, and avert the breach of peace the property in dispute is attached or receiver is appointed whatever the case may be. The order has been assailed on other grounds as well that the learned Magistrate has not correctly appreciated th evidence produced by the parties although there was over-whelming documentary and oral evidence in favour of the present petitioners i.e. Abdul Qadir and others yet their possession was not maintained or safe-guarded but the property was erroneously attached to the detriment of the petitioners. 4. I have considered the above-said arguments and have gone through the various citations quoted by the learned counsel. Since the impugned order was passed in the year 1989, the discussion on the above points would be merely an academic discussion. The question to be determined is whether the impugned order should be maintained as has been passed. Invariably the proceedings under section 146 Cr.P.C. are meant j3 to prevent a breach of peace and with a view to avert any dispute as a precautionary measure. When the property in dispute is attached, such order is always subject to order passed by the competent court or forum determining the rights of the parties, as has been observed by the learned Magistrate himself. Learned counsel has annexed with this petition various documents to establish that Abdxil Qadir s/o Allah Bakhsh etc. are the person who are entitled to be given the Ahata in dispute. In support of his claim, he has referred to the report of the Local Commissioner dated 7.11.1989 indicating that at the time of attachment of the Ahata, Abdul Qadir was in possession of the same. He has also annexed some documents from the revenue record to show that the petitioners were in possession of the Ahata and they are legally entitled to retain the same. Most important of the documents is the order dated 16.2.1978 passed by learned Member Board of Revenue Punjab, Lahore. Although the learned Magistrate during the course of his discussion has referred to the report of Local Commission as well as the order of learned Member Board of Revenue but he did not appreciate the significance and importance of the order passed by the Board of Revenue. The Ahata in dispute is owned by the Provincial Government, therefore, Board of Revenue is the authority to allot or pass any order with respect to its ownership or possession. The order of attachment is invariably a conditional order as has been expressed in the present case as well. This order of course is subject to final order to be passed by the authority. In fact the order in favour of Abdul Qadir petitioner and others is present on the file. According to para 3 of the order dated 16.2.1978, it has been observed that- "The respondents are non-proprietors and have been in possession of the ahata long before 20.12.73 and have built houses on it where they are permanently residing. They are therefore entitled to retain the ahata in term of section 3 of the Housing Facilities for non-proporietors in Rural Area Act, 1975." Section 3 of the Punjab Housing Facilities for non-Proprietors in Rural Areas Act, 1975 is reproduced: "3. Government may grant land free of cost not exceeding five marlas in area on such terms and conditions as it may deem fit, to ever/ non-proprietor family living in rural areas at the time of the commencement of this Act in the revenue estate in which such family is living for the time being for the purpose of residence: Provided that village shamlat land, or land in abadi deh whereupon a non-proprietor family has built a house on or before 20th December, 1973, with a view to taking up permanent residence, maxafter acquisition be granted free of cost to the said family irrespective of the limit of five marlas. Explanation.-For the purpose of this section "family" shall mean husband and wife or either of them and their un-married children, if any." The order passed by the Board of Revenue as such has sanctity of the law behind it. Since Abdul Qadir and others have been held to be entitled to retain possession of the Ahata by the Board of Revenue which is the highest court in the revenue hierarchy. They are as such entitled to retain possession of the Ahata. If a party is held to be rightful owner or is entitled to have possession of some property by the competent authority then its possession has to be protected and safeguarded. In case of any dispute relating to that property the proceedings under sections 107 or 151 Cr.P.C. may be taken but right of ownership and possession has to be protected by the court and the law enforcing agencies. The disputed property can be attached only if it cannot be determined as to which of the parties is entitled to its possession, then as an interim measure and that too only to save the parties from breach of peace, the property is attached. The same cannot acquire or attain permanence. Learned counsel has in this behalf relied on PLD 1985 S.C. 495 and PLD 1970 Lahore 205. 5. The upshot of the above discussion is that this petition is ,, accepted, the impugned order dated 14.11.1989 passed by the learned Civil Judge/Magistrate Sec. 30 is set aside and the case is remanded back to the learned Magistrate to deseal the Ahata and induct Abdul Qadir etc, petitioners in its possession as has been held by the learned Member, Board of Revenue in his order dated 16.2.1978 passed in ROR No. 986/71-72 titled Kanwar Muhammad Khan vs. The State and 11 others (Annexure 'F' to this petition). (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 134 Present: RlAZ hussain, J. MUHAMMAD ABDULLAH and 2 others-Petitioners versus STATE-Respondent Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for—Pakistan Penal Code (LXV of 1860), Ss. 395 & 412--Petitioners are not named in FIR—Occurrence took place on 5.2.1993 whereas identification parade was held on 22.8.1994- Although statutory period of two years has elapsed but trial has not heen concluded- Held : Role against petitioners is not i; -inguishable from role attributed to co-accused who has already been granted bail- Petitioners admitted to bail in circumstances. [P. 134] A Mr. Abdul Aziz Khan Niaz, Advocate for Petitioners. Mehr Muhammad Saleem, Advocate for State. Date of hearing: 22.1.1996. order This is an application for bail after arrest in a case F.I.R No. 331/ 93 dated 5.12.1993 for the offences under Sections 395 and 412 P.P.C. registered at Police Station Gaggo, District Vehari. 2. Precise allegation against the petitioners is that they alongwith their co-accused forcibly snatched some cash amount and wrist watches from the complainant and the passengers and successfully took away the vehicle. 3. Arguments heard. Record perused. 4. The petitioners are not named in the F.I.R. The occurrence took place on 5.2.1993 whereas the identification parade was held on 22.8.1994. Although a statutory period of two years has elapsed but the trial has not been concluded. The role against the petitioners is not distinguishable from the role attributed to the co-accused Mushtaq Ahmad T vho has already been granted bail vide order dated 31.7.1995. 5. In view of above the petitioners Muhammad Abdullah, Siafullah and Muhammad Tufail are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 30,000/- (Rupees thirty thousand) each with one surety each in the like amount to the satisfaction of AC/Ilaqa Magistrate Multan. (B.T.) Petition accepted

PLJ 1098 Cr PLJ 1098 Cr.C. ( Lahore ) 135 Present: ahmad nawaz malik, J. KABEER" Petitioner versus STATE-Respondent Criminal Misc. no. 1200/B of 1997, accepted on 7.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Grant of--Prayer for--Further inquiry-Case of-Pakistan Penal Code (XLV of 1860), Ss. 302/364/201/109--Extra judicial confession made by petitioner is weak kind of evidence-Besides that, it is established on record that petitioner indulged only in conspiracy and abetting offence of murder done by his co-accused-Held: Law laid down in Federation of Pakistan vs. Gul Hasan Khan and Maratab Mi vs. State, case becomes of further inquiry-Petition accepted. [P. 136] A, B, C & D PLD 1989 SC 633 and 1997 P.Cr.LJ 1183. Mian Arshad Latif, Advocate for Petitioner. Mr. Jamil Ahmad, Advocate for Petitioner. Date of hearing: 7.10.1997. judgment Kabeer petitioner has moved this application for bail after arrest in case FIR No. 300/96 registered on 11.11.1996 under section 364/302/201/ 109 PPC at Police Station, Tulama District Khanewal. 2. The prosecution case is that on 11.11.1996 Muhammad Amir complainant made a statement at Police Station Talumba that they were five brothers including Sher Muhammad deceased and were living in the same house. On 8.11.1996 at about 9.00 p.m. in order to ask his sister-in-law for plucking cotton he went to the house of his brothers, where all three of them had been talking with each other. In the meantime Sher Muhammad his brother left the house saying that he was going to Noor Muhammad Sial to enquire about the welfare of his ailing wife. He and his brother went to sleep at their respective houses. In the morning his brother Kabir told him that Sher Muhammad had not returned in the night. Whereupon both of them visited the Bhani of Noor Muhammad Sial and on their enquiry they told them that Sher Muhammad had not come to him. In the meanwhile, Ghulam Hussain son of Ghulam Farid came there and told them that at about 9.30 p.m. last night, Sher Muhammad alongwith another person whom he could not identify, were going towards Mailsi Link Canal . Thereupon, he alongwith his brother Kabir and Ghulam Hussain aforesaid and Bahaar proceeded towards Mailsi Link. There they saw on the bank of canal a shoe of the left foot of Sher Muhammad lying. The signs of dragging a person were also existing at the spot. They hectically searched for Sher Muhammad, their brother, but could not find his out and they were sure that he had been abducted or murdered. 3. During the investigation it was found that the deceased had been murdered by Muhammad Ramzan co-accused who had inflicted sota blows to Sher Muhammad deceased and thrown him down in the canal and he did this all at the behest of Kabir petitioner. 4. I have heard the learned counsel for the parties and perused the record. 5. There is the evidence of extra judicial confession made by the petitioner before Khuda Bukhsh, Bahadar Ali, Amir and Aslam and such kind of evidence is weak. Besides that, it is established on record that the petitioner indulged only in conspiracy and abetting iU - offence of murder done by his co-accused Muhammad Ramzan. In view of the law laid down in Federation of Pakistan through Secretary, Ministry of Law and another vs. Gul Hasan Khan (PLD 1989 S.C. 633), and Maratab Ali vs. The State (1997 P.Cr.L.J. 1183) the accused alleged to have indulged only in abetment of ffence of murder, is held entitled to bail and the case being rendered as that of further enquiry. In view of the law laid down as above and the discussion thereof the instant case is held to be that of further enquiry. Consequentially, the petitioner is held entitled to bail. 6. Kabir petitioner is admitted to bail subject to his furnish bail bond in the sum of Rs. 1 ,00,000 /- with one surety in the like amount to the satisfaction of Trial Court concerned. (B.T.)

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 136 Present: AMJAD ALI, J. GHULAM HUSSAIN-Petitioner versus THE STATE-Respondent Criminal Misc No, 2255/B/1997, accepted on 18.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail--Grant of-Prayer for -Offence U/S. 13A West Pakistan Arms Ordinance (XX of 1965)-Refusal of bail by court below on ground, that case falls within prohibitory clause as punishment of offence was imprisonment for life-Contention, where an alternate punishment is less than 10 years imprisonment, offence shall not fall within prohibitory clause, petitioner who is in judicial lock up for last over five months has committed offence for keeping unlicensed arm, punishment of which is 7 years, as there is no likelyhood of early trial-It therefore not be expedient to keep the petitioner in jail for an indefinite period he is admitted to bail. [P. 138] A Mr. Samiullah, Advocate for Petitioner. Ch. Nazir Ahmed, Advocate for State. Date of hearing; 18.9.1997. order Ghulam Hussain has applied to be released on bail in a case registered under section 13A of the Pakistan Arms Ordinance 1965 (XX of 1965), vide FIR No. 261/97, dated 30.3.1997, at Police Station Civil Lines, Gujrat, for possessing an un-licensed .30 bore pistol with two live cartridges. 2. The facts as transpired from the afore-said FIR are that in the early hours of 30.3.1997 while on patrol duty Muhammad Afzal ASI, Police Post Shaheen, Gujrat, accompanied by constables Muhammad Aslam Arif Baig and Muhammad Anwar at Sargodha Road in front of New Prince Vide. Centre, they found the present petitioner, a resident of Basti Fazalabad Jaslani More, Warbarton, District Sheikhupura, who tried to skp away suspiciously therefrom. On search, he was found to be in possession of. A loaded .30 bore pistol numbering F 10103 with two live cartridges. The petitioner could not produce any license for possession of the said pistol. The aforesaid case was, therefore, registered against the petitioner who was consequently apprehended. 3. The petitioner initially applied for bail to the Court of Sessions and the learned Additional Sessions Judge, Gujrat, who was entrusted the said application rejected the same by his order, dated 15.4.1997 on the ground that the case fell within the prohibitory clause as the punishment of the offence was imprisonment for life. The petitioner has, therefore, moved this Court for the same relief. 4. Mr. Sami Ullah Khan, Advocate, representing the petitioner contended that section 13A of the Pakistan Arms Ordinance, 1965, which was added by virtue of the Pakistan Arms (Amendment) Ordinance, 1997 (XLII of 1997), stands repealed as he same was not repromulgated, hence the charge under section 13A ibid had lost its efficacy. Similarly the offence under section 13 of the said Ordinance was a bailable offence which entitles the petitioner to be released on bail forthwith. 5. It is true that the aforesaid amending Ordinance which was promulgated on the 2nd March, 1997, stood repealed by afflux of time with effect from the 1st July, 1997, as the same was not re-promulgated although under the provisions of Article 89(2) of the Constitution it has already been laid before the National Assembly for consideration as a bill. The attention of the learned counsel for the petitioner was, however, drawn to the orovisions of Article 264 of the Constitution which, inter alia, provide that where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, such repeal shall not, except as otherwise provided in the Constitution, affect any investigation, legal proceedings, remedy penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. In view of this provision, notwithstanding that the repealed section 13-A as added by the Pakistan Arms (Amendment) Ordinance, 1997 (XLJI of 1997), the petitioner can be proceeded thereunder as he was apprehended on the date when the said provision was still in force. In this respect, reliance is also been placed on Mubarik Shah vs. The State (1990 PCr.LJ 1796) wherein the same principle was upheld. 6. The case of the petitioner falls under sub-section (2) of section 13A ibid whereunder the punishment for keeping any fire-arm without any license in contravention of sections 8 and 9 of the Pakistan Arms Ordinance, 1965, is imprisonment for life or rigorous imprisonment for a Iterm which is not less than seven years. In this regard, there is quite a force in the contentions of the learned counsel for the petitioner that where an alternate punishment is less than 10 years imprisonment the offence shall not fall within the prohibitory clause. Similarly, under section 13 of the said Ordinance, the punishment for keeping un-licensed arms or ammunition is also seven years. The petitioner is in judicial lockup for the last over five months and he is not required for any further investigation. Admittedly there is no likelihood of early trial. It would, therefore, not be expedient to keep the petitioner in jail for an indefinite period. In Azeem etc. vs. The State (1997 PCrLJ 658), it was laid down that it is a settled principle that the law is not to be stretched in favour of the prosecution nor the bail should be denied as a punishment. In view thereof the petitioner is admitted to bail subject to his furnishing bail bond to the tune of Rs. 20,000/- with two local sureties in the like amount to the satisfaction of the trial Court. The bail application is disposed of accordingly. (K.K.F.) Bail application disposed of.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 138 Present: zafar hadi shah, J, HAQ NAWAZ-Applicant versus STATE-Respondent Cr. Bail Application No. 766 of 1997, accepted on 26.6.1997. riminal Procedure Code, 1898 (V of 1898)— —_S. 497-Offence U/S. 302, 337-H(ii) Q & D Ordinance r/w Ss. 148, .149, 34 & 13D West Pakistan Arms Ordinance -Bail-Grant of-Prayer for- Prayer for grant of--Contradictions/discrepancies-The case of the accused is not free from doubt and the guilt of the accused requires further enquiry-Bail ranted. [P. 141] A & B Ch. Muhammad Iqbal, Advocate for Appellant. Mr. Saeeda Zaidi, A.A.G. for State. order This Bail Application has been filed on behalf of the Applicant/Accused who is facing charge under Sections 302, 337-H(II) Q & D Ordinance r/w sections 148, 149, 34 & 13-D Arms Ordinance under FIR No. 152/96 of police station Moro, District Naushehro Feroze. According to the FIR lodged on 11.12.1996 at 2230 hours, the complainant Muhammad ^ukman stated that his sister Mst. Farzana aged about 30/32 years was married to Haq Nawaz s/o Allah Bux, resident of Laloo Kot about 8 months back. Haq Nawaz had promised to give hand of his niece (D/o the brother) in exchange. About 4 months back, he alongwith his brothers Muhammad Usman and Hamza Khan went to the village of Haq Nawaz and demanded the hand of the girl but they avoided then they took their sister Farzana with them for the purpose of meeting. Thereafter, people from Haq Nawaz side started coming to take Mst. Farzana back. They were told that they will not let Farzana go with them unless niece of Haq Nawaz is married to his brother. Thereafter father of Haq Nawaz came to take back his daughter in law and on refusal, he said that he will see how long Farzana is kept with them. On 11.12.1996 after taking dinner, he, his brothers Hamza and Muhammad Usman went to sleep in their rooms after closing the gate of Hawailee and his brother Sattar Dino and Ali Muhammad were sleeping in Otaq outside the Hawailee, at about 2230 hours they heard screams of their sister Farzana who was sleeping in he Varandah. He tried to open the chain of the door but be found the door closed. After about 10 minutes, he saw after opening the door that his brothers Muhammad Usman and Hamza had also come out from their rooms. They saw in the light that Haq Nawaz s/o Allah Bux Mubejo, who was holding a Rifle in his hand was taking Farzana towards the gate of Hawailee by dragging her. On our challenge, 4 other persons came inside, 2 out of them were carrying Guns and 2 were armed with Kalashinkovs, they challenged them that do not come near and because of fear they did not come near, in the meantime they went out of the Hawialee and the complainant and his brothers followed them up to the gate of the Hawailee. His sister was crying by saying that she will not go. On seeing them, Haq Nawaz made a straight fire on his sister who fell down on the ground. After fire of Haq Nawaz, his 4 companions started firing and ran away towards Otaq leaving Farzana. His brothers Usman and Hamza also fired with their licensed guns in counter. The accused ran away while firing. When they reached at. Otaq, his brothers Sattar Dino and Ali Muhammad told that 4 accused persons were standing besides them and when they tried to stand up they made them to sit by beating with butts of Guns to whom they had seen clearly in the light and can identify them on seeing. Then they all went to their sister and found fire injuries on chest, left and right shoulders and she had also bleeded from the nose and mouth. They brought a cot and body of Farzana was laid on the cot. He (the complainant) after leaving his brothers Usman, Hamza, Sattar and Ali Muhammad with the dead body of Farzana, went to the village of his Nek Mard Moula Bux Mubejo on motorcycle and after taking his Nek Mard with him he went to report that accused Haq Nawaz s/o Allah Bux who was holding rifle in his hand alongwith other 8 armed persons came to his house and murdered his sister Farzana by firing. I have heard the learned counsel. The appellant's counsel argued that Mst. Farzana had ma'rried Haq Nawaz against the wishes of ' complainant and other brothers. He relied upon the copy of Affidavit of free will filed by Ms?. Farzana dated 12.6.1996 before the Magistrate and the copy of her Nikahnama dated 1st July 1996. He further argued that there was enmity as such the applicant has been involved in this false case. His further argument was that there was no recovery of the incriminating article from the accused and that no empties were recovered. The State counsel conceded and submitted that it was a case of further inquiry. I have gone through the record of the case. According to the FIR, the accused made one fire, whereas the deceased, according to the FIR, had to other fire arm wounds each on the right and left shoulder. It is not borne out as to who fired the other two shots. Further, according to the FIR, the accused fired with his rifle and his companions had also started firing and the complainant's brothers also fired, but no other person received any injury and no empties of Rifle and Kalashnikovs were recovered. Further the allegations of the complainant in the FIR is that his two brothers namely, witnesses Sattar Dino and Ali Muhammad were given beating by the other accused with the Butt of the Gun, but no such injuries were found on their body and they were not examined by the Doctor. Further looking at the Memo of Arrest, I noticed that the date of the Memo of arrest written as 13.12.96 has been changed to 12.12.96 by cutting and over writing. The other discrepancy occurring in the Medical report is that time of arrival of the dead body has been mentioned as 1.30 a.m. on 12.12.96 but the time of examination has been mentioned as 12:20 a.m. to 13:20 a.m. From the above, this fact cannot be ruled out that the accused who had married the sister of the complainant party against their wishes might have been involved in the case due to enmity. In the case reported in 1994 P.Cr.L.J. 2392 (Hafiz Moulvi Muhammad Fazal Haque and another v. The State) the accused were enlarged on bail as no incriminating recoveries had been made from the accused and investigation had been concluded and that they were no longer required by the police. It was further observed in this case that the crime empties were not picked up from the spot for scrutiny by the Ballistic Expert, Reasonable grounds thus existed to believe that involvement of accused in the case was not free from doubt. In the case reported in 1984 P.Cr.L.J. page 3086 (Muhammad Saleem v. The State) Bail was granted to the accused who was facing trial under Sections 302/34 PPC, on the ground amongst others that the accused remained in police custody for several days but weapon of offence had not been recovered. The accused was granted bail in another case reported in 1993 MLD page 2357 (Fateh Khan v. The State) wherein it has been held that reasonable doubt was raised regarding the correctness of the prosecution version in view of the specific plea of the accused supported by sufficient material available on record. In the present case, the version of the accused supported by the copy of the Free Will Affidavit of the deceased Farzana and Nikahnama goes to show that Mst. Farzana got married to the accused against the wishes of her brothers. The plea on behalf of the accused that the Nek Mard and others had brought back Mst. Farzana assuring the accused that formal Rukhsati will be held, but they handed over Mst. Farzana to her brothers who did not allow her to go to the accused, cannot be burshed aside at this stage. In view of the contradictions/discrepancies pointed earlier and in view of the case law discussed above, I am of the view that involvement of the accused in this case was not free from doubt and the guilt of the accused requires further inquiry. The Bail Application is thus allowed and the accused is granted bail in this case on his furnishing one solvent surety in the sum of Rs. 200,000/- (Rupees two lac) and PR bond in the like amount to the satisfaction of the trial court. (AAJS) Application allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 141 Present: AMJAD All, J. MUHAMMAD ASHRAF-Petitioner versus -Respondent Criminal Misc. No. 2256/B/1997, accepted on 18.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence u/S. 13 A West Pakistan Arms Ordinance (XX of 1965)-- Bail-Grant of-Prayer for-Refusal of bail by lower court on ground, that case falls within prohibitory clause as punishment of offence was punishment for life-Contention where an alternate punishment is less than 10 years imprisonment, offence shall not, fall within prohibitory clause, petitioner who is in judicial lock up for last over five months has committed offence for keeping unlicensed arm, punishment of which is 7 years, as there is no likelihood of early trial-It therefore not be expedient to keep the petitioner in jail for an indefinite period, he is admitted to bail. [P. 143] A & B Mr. SamiullahKhan, Advocate for Petitioner. Mr, Nizam-ud-Din Arif, Advocate for the State. Date of hearing: 18.9.1997. order Muhammad Ashraf has applied to be released on bail in a case registered under section 18 of the Pakistan Arms Ordinance, 1965, (XXhjf 1965) vide FIR No. 260/97 dated 30.7.1997 at Police Post Shaheen Gujrat, Police Station Civil Lines, Gujrat, for possessing an unlicensed .32 bore pistol with 4 live cartridges, 2. The facts as transpired from the aforesaid FIR are that in the early hours of 30.3.1997, while on patrol duty Akbar Ali SI, Incharge Police Post Shaheen, Police Station Civil Lines, accompanied by constables Muhammad Riaz, Talib Hussain, Atta Elahi and Muhammad Nawaz Sargodha Road in front of a Hotel of Muhammad Nawaz, they found the present petitioner who tried to skip away suspiciously therefrom. On search, he was found to be in possession of .32 bore pistol with four live cartridges. The petitioner could not produce any license for possession of the said pistol. The aforesaid case was, therefore, registered against the petitioner who was consequently apprehended. 3. The petitioner initially applied for bail to the Court of Additional Sessions Judge, Gujrat. who was entrusted the said application rejected the same by his order, dated 15.4.1997 on the ground that the case fell within the prohibitory clause as the punishment of the offence was imprisonment for life. The petitioner has, therefore, moved this Court for the same relief. 4. Mr. Sami Ullah Khan, Advocate representing the petitioner contended that section 13A of the Pakistan Arms Ordinance, 1965, which as added by virtue of the Pakistan Arms (Amendment) Ordinance, 1997 (XIII of 1997), stands repealed as the same was not re-promulgated, hence the charge under section 13A ibid had lost its efficiency. Similarly, the offence under section 13 of the said Ordinance was a bailable offence which entitles the petitioner to be released on bail forthwith. 5. It is true that the aforesaid amending Ordinance which was promulgated on the 2nd March, 1997, stood repealed by afflux of time with effect from the 1st July 1997, as the same was not re-promulgated although under the provisions of Article 89(2) of the Constitution it has already been laid before the National Assembly for consideration as a bill. The attention of the learned counsel for the petitioner was, however, drawn to the provisions of Article 264 of the Constitution which, inter alia, provide that were a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, such repeal shall not, except as otherwise provided in the Constitution, affect any investigation, legal proceeding, remedy, penalty, forfeiture or punishment and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. In view of this provision, notwithstanding that the repealed section 13A as added by the Pakistan Arms (Amendment) Ordinance, 1997 (XLII of 1997), the petitioner can be proceeded thereunder as he was apprehended on the date when the said provision was still in force. In this respect, reliance is also been placed on Mubarik Shah vs. The State (P.Cr.L.J. 1796) wherein the same principle was upheld. 6. The case of the petitioners falls under sub-section (2) of section 13A ibid whereunder the punishment for keeping any fire-arm without any license in contravention of sections 8 and 9 of the Pakistan Arms Ordinance, 1965, is imprisonment for like of rigorous imprisonment for a term which is not less than seven years. In this regard, there is quite a force in the contentions of the learned counsel for the petitioner that where an alternate punishment is less than 10 years imprisonment the offence shall not fall within the prohibitory clause. Similarly, under section 13 of the said Ordinance, the punishment for keeping un-licensed arms or ammunition is also seven years. The petitioner is in judicial lock up for the last over five months and he is not required for any further investigation. Admittedly there is no likelihood of early trial. It would, therefore, not be expedient to keep the petitioner in jail for an indefinite period. In Azeem etc. vs. The State (1997 PCrLJ 688), it was laid down that it is a settled principle that the law is not to be stretched in favour of the prosecution nor the bail should be denied as a punishment. In view thereof, the petitioner is admitted two bail subject to his furnishing bail bond to the tune of Rs. 20,000/- with to local sureties in the like amount to the satisfaction of the trial Court. The bail application is disposed of accordingly. (K.K.F.)

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 143 Present: mian NAZIR AKHTAR, J. AMIR ALI and another-Petitioners versus THE STATE-Respondent Criminal Revision No. 5 of 1994, accepted on 26.2.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 439-Offence U/Ss. 302/324/148/149 PPC-Co-accused found to be innocent during course of investigation—Discharged from case by competent court--Summoning of to stand their trial by trial court on a miscellaneous application-Discharge order, never assailed by complainant in higher legal forums, attained finality-Petitioner's name did not figure under column No. 2 of charge sheet-Once case against an accused/person was cancelled then there was no jurisdiction left with trial court to summon a person as an accused without there being any material on record against him-Revision petition accepted. .[ Pp. 145 & 146] A & B Mr. A.G. Tariq Chaudhry, Advocate for Petitioners. Mr. Salah-ud-Din Zafar, Advocate for Respondent. Ch. Shabir Ahmed, Advocate for Complainant. Date of hearing: 26.2.1997. judgment Through this revision petition the petitioners have challenged order dated 13.12.1993 whereby the learned Addl. Sessions Judge has also summoned the petitioners to stand their trial and the criminal case registered vide FIR No. 88 dated 21.9.1992 for offences U/Ss. 302/324/148/149 of the PPC at P.S. Shorkot Cantt. District Jhang. 2. Briefly stated the facts of the case are that on a report lodged by Muhammad Siddique, the above-referred case was registered against the petitioners and 5 others in respect of murder of Hafiz Khalil deceased and injuries caused to Muhammad Siddique, complainant and Abdul Ghaffar PW. After investigation of the case, the local police found the petitioners to be innocent. On a move made by the complainant, the investigation was transferred to the S.P. Crimes Branch who also came to the conclusion that the petitioner were innocent and directed the SHO to get them discharged from a Court of competent jurisdiction. Accordingly, a report was submitted before the learned Ulaqa Magistrate who accepted the same and discharged the petitioners vide his order dated 17.2.1993. The complainant did not seek any other legal remedy against the said order and opted to file a private complaint in the court of learned Sessions Judge , Jhang which was entrusted to the learned Addl. Sessions Judge for disposal. The court recorded the statement of the complainant and sent the case to the Illaqa Magistrate for an inquiry u/S. 202 of the PPC. The Magistrate submitted his report stating therein that the petitioners were innocent and that the discharge order in their favour was rightly passed. 3. The police submitted challan against 5 co -accused of the petitioners. The complainant filed a miscellaneous application on 4.11.1993 before the learned Additional Sessions Judge, Jhang for summoning the petitioners to stand their trial alongwith their co-accused. This application was allowed vide order dated 13.12.1993. The complainant's object was achieved and he withdrew his private complaint on the same day i.e . 13.12.1993. 4. The petitioners' learned counsel contends that the trial court had acted illegally in summoning the petitioners because their names did not figure under column No. 2 of the challan; that the trial court had not recorded any evidence to justify the order for summoning the petitioners; that in presence of the discharge order passed by the competent court and withdrawal of the private complaint, the impugned order cannot be sustained. In support of his contentions he relies n the following judgments: 1 Syed Hamid Muqeem Bokhary us The State <PLD 1985 Lahore 71) 2. Awal Khan us The Superintendent of Police, Attack and 13 others (1989 P.Cr.L.J. 909). 3. ArifAli Khan and another vs. The State and 6 others (1998 SCMR 187) He further submits that there were two criminal cases between the parties one registered on the statement of Amir Ali petitioner No I vide FIR No. 10/91 for an offence u/s. 324 of the PPC and the other, on the statement of Muhammad Siddique vide FIR No. 88/92; that both the parties arrived at a compromise in pursuance of which they filed a miscellaneous application (( t M.No. 571-M/95) in this Court which was disposed of on 29.5.1995 wtth the order that the parties may approach the trial court for deciding the case on the basis of compromise between the parties; that accordingly Amir Ali, petitioner No. 1 and Azmat Ali, the injured PW made statements before the trial court and the accused persons were acquitted vide judgment dated 30.8.1995; however, in the case against the petitioners, Muhammad Siddique complainant resiled from the compromise despite receipt of the amount of Diyat and that now they have to face the trial alongwith their co-accused. 5. On the other hand, learned counsel for the State and the complainant urged that at the time when the impugned order was passed the private complainant was still pending and was subsequently withdrawn and that the petitioners were rightly summoned because their names had figured in the FIR and definite roles were attributed to them in commission or the offence. In support of their contentions, they relied on the following judgments:- 1. Raja Khushbakhtur Rehman and another vs The State (1985 SCMR 1314). 2. Waqarul Haq alias Mithoo and others vs. The State (KLR 1988 Cr C. 518). 3. Muhammad Siddiq vs. The State (1993 P Cr.L.J 75). 6. Admittedly, the petitioners were found to be innocent during the course of investigation by two investigating agencies and they were discharged from the case vide order dated 17.2.1993 passed by the learned Illaqa Magistrate. This was an administrative order arid never assailed by the complainant in the higher legal forums. It attained finality. It was given effect to by the police when it submitted challan against fivo co-accused of the petitioners and did not incorporate the petitioners names under column No. 2 of the challan. Therefore, there was no legal justification to summon the petitioners without commencing the trial of the co-accused and recording some evidence which could, prima facie, provide basis for summoning them as accused in the case. I am fortified in my view by the judgment in the case of Syed Hamid Muqeem Bokhari, relied upon by the petitioner's learned counsel, in which it was held that once the case against an accused person (was cancelled then there was •«) jurisdiction left with the trial court to ra summon a person as an accused without there being any material on the I record against him. In the sai.'i case also the accused's name aid aot figure under column No. 2 of the charge sheet but they were summoned by the court on a miscellaneous application filed by the complainant. The judgments relied upon by the learned counsel for the State and tne complainant in the cases of Raja Khushbakhtur Rehman and another, Waqarul Haq alias Mithoo and other and Muhammad Siddiq are distinguishable as the names of the accused persons who were summoned to face their trial, had been placed under column No. 2 of the charge sheet. 7. For the foregoing reasons, the revision petition is accepted, the impugned order is set aside leaving it open to the trial court to pass a fresh order tosummon the petitioners as accused persons if sufficient evidence was brought on the record against them during the course of trial of their coaccused. (A.P.)

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 151 Present: tassadaq hussain jillani, J. ARSHAD ZUBAIR-Petitioner versus THE STATE-Respondent Cr. Misc No. 128/Q of 1995, dismissed on 01.07.1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 561-A--Inherent. pov^r-:->"ovt->--!T?e of para mefna-Inherent powers have been enshrined in law n; mwt! He Uu una in the Criminal Procedure Code in extra judicial civcxnnsi-ane.es and are not. intended for vesting this power to make any order "which it considers to be in the interest of justice-Paramount consideration to justify exercise of power under this provision is to prevent abuse of process of any court, or to secure ends of justice where no other remedy is insight—Power to quash criminal proceedings pending before a court are available to High Court but before such action is taken, court has to examine complaint to determine as to whether any offence is made out or not and in such an exercise, this (High) court shall attend to factors which are germane to point in issue-­ Court can also look into cogent material brought on record to see as to whether proceedings have been initiated for malafide reasons merely to harass accused or that continuation of those proceedings would not be an abuse of process of court, the court may annul proceedings if after going through complaint or report u/S. 173 Cr.P.C. and material on record it comes to conclusion that accusation does not disclose commission of any offences. [Pp. 156 & 157] A (if) Criminal Procedure Code, 1898 (V of 1808)-- —-S. 561-A-Petitioner involved in dealing contraband items-Criminal proceedings initiated against him--Absconder--Prayer for quashment of proceedings-Petitioner had moved an application u/S. 265 K Cr.P.C. for his acquittal, same was dismissed whereafter he filed Crl. Misc no. 150-Q of 1991 seeking the same relief which too was dismissed by this court- Contents of FIRs statements u/S. 161 Cr.P.C. and reports prepared u/S. 173 Cr.P C shows that &prima facie case is made out against petitioner— A fugitive to law is not entitled to any relief through court-Petitions are dismissed with direction to trial court to conclude case within six months and to petitioner to appear before trial court. [Pp 157, 158 & 160] B, C, D & E Mr. AsifSaeed Khan Khosa, Advocate for Petitioner. Kh. Muhammad Sharif, Advocate General Punjab assisted by Mr. Hussain. Aziz Bhatti, Special Public Prosecutor for State. Date of hearing 1.7.1997 judgment This judgment shall dispose of Crl. Misc. No. 128-Q of 1995; Crl. Misc. No. 129-Q of 1995; Crl. Misc. No. 130-Q of 1995; Crl. Misc. No. 131-Q of 1995; Crl. Misc. No. 132-Q of 1995; Crl. Misc. No. 133-Q of 1995; Crl. Misc. No. 134-Q of 1995; Crl. Misc. No. 135-Q of 1995 and Crl. Misc. No. 136-Q of 1995 as the question involved is common in all. 2. Brief facts giving rise to the filing of the afore-referred petitions are that on 28.8.1990, a raiding party headed by a Magistrate consisting of police officials from various police stations, namely, Malik Abdul Aziz DSP; Zulfiqar Ali SI; Muhammad Latif ASI; Waqar Javed ASI; Tariq Nadeem Constable; Muhammad Azam Constable; Bashir Ahmad SI, Khalid Mehmood SI; Abdul Razzaq Head Constable; Sohail Ahmad SI: Tariq Mehmood SI; Muhammad Hussain Constable; Sarfraz Constable; Tasneem Ghani SI; Malik Nadeem ASI; Muhammad Sharif Mushtaq Constable; Ansar Ali Constable; Mirza Azfar Alam Inspector; Yousuf ASI, Muzaffar Ahmad Constable; Shaukat Javed SI; Fiaz Ali ASI; Nathay Khan Constable; Amanat Ali Head Constable; Pervazi Ahmad Constable; Muhammad Yasin and Sultan All Constables was constituted which conducted raid on the house of the petitioners and in terms of the different contraband items recovered and transaction involved, the following FIRs were registered: (i) FIR No. 230 dated 27.8.1990 Police Station Nekapura offence u/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979 (Crl. Misc. No. 128-Q of 1995) In this case, Arshad Zubair petitioner tried to run away alongwith a small packet and on being apprehended the said packet contained four packets of heroin; a kalashnikov alongwith magazine. (ii) FIR No. 229 dated 27.8.1990 Police Station Nekapura offence u/S. 3/4 Prohibition (Enforcement of Hadd) Order, 1979 Crl. Misc. No. 129-Q of 1995) In this case, it was alleged that a raiding party consisting of the police officials mentioned in the FIR, Abdul Razzaq was sent in plain clothes, to the house of the petitioner Arshad Zubair as a fake customer with tainted currency notes of Rs. 500/- and Rs. 100/- respectively; who purchased 40 grams of heroin and produced it before Ijaz Akbar MIC whereafter the raiding party was despatched to conduct the raid at the house in question. At the time of the raid, the petitioner Arshad Zubair, Mst. Sakina and Muhammad Sharif tried to run away with small packets but they apprehended the packets containing heroin. (iii) FIR No. 201 dated 27.8.1990 Police Station Civil Lines offence u/S. 3/4 Prohibition (Enforcement of Hadd) Order, 1979 Crl. Misc. No. 130 Q of 1995) This case was registered at the report of Ijaz Akbar, MIC. It was alleged that. Arshad Zubair petitioner on being apprehended during investigation, disclosed and led to the recovery of six kilo heroin; six maunds of charas and a .12 bore gun He further disclosed that in the said house, the tenants of the petitioner namely Nazim-ud-Din and Riafaqat wore preparing small packets of heroin arid on pointation of petitioner, they were arrested red handed and small packets of heroin were recovered from then.! which were sent to the Chemical Examiner. (iv) FIR No. 202 dated 27 8.1990 Police Station Civil Lines offence u/S- 13 Arms Ordinance, 1965 (Crl. Misc. No. 131-Q of 1995) The petitioner Arshad Zubair, the same day led to the recovery of .12 bore gun for which he had no licence. Hence the afore-referred case under section 13 of the Arms Ordinance was registered. (v) FIR No. 203 dated 27.8.1990 Police Station Civil Lines Sialkot offence u/S. 3/4 Prohibition (Enforcement of Hadd) Order, 1979 (Crl. Misc. No. 132-Q of 1995) The same evening, Arshad Zubair petitioner during investigation disclosed that he and his father were involved in drug trafficking; that his brother in law Mushtaq and his sister Shahida had kept opium in their house. On his pointation, a raiding party was sent which recovered opium weighing 40 kilograms. (vi) FIR No. 280 dated 27.8.1990 Police Station Rangpura offence u/S. 3/4 Prohibition (Enforcement of Hadd) Order, 1979 (Crl. Misc. No. 133-Q of 1995) Arshad Zubair petitioner son of Akhtar Adil petitioner disclosed that heroin was lying in his car LOB 9856 and on his pointation, heroin weighing 2 kilograms was recovered. (vii) FIR No. 240 dated 27.8.1990 Police Station Nekapura offence u/S. 13 Arms Ordinance, 1965 (Crl. Misc. No. 134-Q of 1995) In this case, it is alleged that petitioner Arshad Zubair led to the recovery of a pistol for which he had no licence. (viii) FIR No. 194 dated 27.8.1990 Police Station Nekapura offence u/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979 Crl. Misc. No. 135-Q of 1995) In this case, the allegation in that on a source report that Akhtar Adil petitioner was selling heroin, a raiding party was constituted who kept a watch outside the house of the petitioner and at about 6.00 a.m. petitioner was seen selling heroin. He was apprehended alongwith heroin. (ix) FIR No. 195 dated 27.8.1990 Police Station Nekapura offence u/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979 Crl. Misc. No. 136-Q of 1995) On 16.9.1992, on a source report sent by one Sarfrazul Haq Inspector, Excise Sialkot that petitioner Arshad Zubair who was a notorious drug smuggler and that on the said date, he was bringing heroin in a car bearing No. LOB 9856, a raiding party was constituted headed by Khyzer Hayat Bhatti A. ETO Sialkot. The Taxation Officer at the pointed time, intercepted the said vehicle, which was being driven by Arshad Zubair the petitioner. 100 grams of heroin was recovered from the said car. (x) FIR No. 231 dated 27.8.1990 P. S. Nekapura offence u/s 13 Arms Ordinance 1965 (Acquitted by the IJon'ble Supreme Court and the judgment is reported as 1992 SCMR 2059). Challan with regard to recovery of kalashnikov and live cartridges was submitted in which ultimately conviction was recorded; appeal was dismissed but Hon'ble Supreme Court set aside the conviction and the judgment is reported SCMR 1993 page 2059. (xi) FIR No. 232 dated 27.9.1990 P.S. Nekapura offence u/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979. (Acquitted by the learned trial court u/S. 249-A Cr.P.C.). The petitioner was acquitted by the learned trial court under section 249-A Cr.P.C. It was a case in which one kilograms of heroin was recovered from the accused Mst. Sakina Bibi. 3. In support of his prayer for quashment, learned counsel for the petitioners had made following submissions:- (i) that enmity existed between the petitioner and the police and no reliance can be placed on their testimony in absence of public witness. (ii) that the evidentiary value of the prosecution witnesses has been commented upon by the Hon'ble Supreme Court in case FIR No. 231 of 1995 dated 27.8.1990 Police Station Nekapura in which the conviction of the petitioner Arshad Zubair was set aside and the case is reported in Arshad Zubair vs. The State (1993 SCMR 2059). There is no probability of conviction on the same set of evidence in the remaining cases and therefore, the pendency of the that on the said date, he was bringing heroin in a car bearing No. LOB 9856, a raiding party was constituted headed by Khyzer Hayat Bhatti A. ETO Sialkot. The Taxation Officer at the pointed time, intercepted the said vehicle, which was being driven by Arshad Zubair the petitioner. 100 grams of heroin was recovered from the said car. (x) FIR No. 231 dated 27.8.1990 P. S. Nekapura offence u/s 13 Arms Ordinance 1965 (Acquitted by the fjon'ble Supreme Court and the judgment is reported as 1992 SCMR 2059). Challan with regard to recovery of kalashnikov and live cartridges was submitted in which ultimately conviction was recorded; appeal was dismissed but Hon'ble Supreme Court set aside the conviction and the judgment is reported SCMR 1993 page 2059. (xi) FIR No. 232 dated 27.9.1990 P.S. Nekapura offence u/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979. (Acquitted by the learned trial court u/S. 249-A Cr.P.C.). The petitioner was acquitted by the learned trial court under section 249-A Cr.P.C. It was a case in which one kilograms of heroin was recovered from the accused Mst. Sakina Bibi. 3. In support of his prayer for quashment, learned counsel for the petitioners had made following sub missions:- (i) that enmity existed between the petitioner and the police and no reliance can be placed on their testimony in absence of public witness. (ii) that the evidentiary value of the prosecution witnesses has been commented upon by the Hon'ble Supreme Court in case FIR No. 231 of 1995 dated 27,8.1990 Police Station' Nekapura in which the conviction of the petitioner Arshad Zubair was set aside and the case is reported in Arshad Zubair vs. The State (1993 SCMR 2059). There is no probability of conviction on the same set of evidence in the remaining cases and therefore, the pendency of the proceedings would tantamount to an abuse of the process of the Court; (iii) that the learned trial court has already acquitted the petitioner in case FIR No. 232 dated 27.8.1990 under section 249-A Cr.P.C. and there is no probability of conviction in the remaining cases either as the evidence was the same. 4 Learned Advocate General, Punjab assisted by Special Public Prosecutor have opposed the prayer for quashment by submitting as follows :- (i) that the judgment in case FIR No. 231 dated 27.8.1990 reported in Arshad Zubair v. The State (1993 SCMR 2059) was passed in appeal after proper appreciation of evidence and the said judgment cannot form basis for acquittal in those cases in which prosecution witnesses have not been recorded so far; (ii) that the veracity of the conflicting reports of the Chemical Examiners quas the heroin recovered shall be gone into by the trial court and cannot form basis for quahsment of proceedings; (iii) that petitioner filed Crl. Misc. No. 159-Q of 1991 seeking quashment of the afore-referred cases which was dismissed by this Court vide judgment dated 18.6.1991, he has therefore, estopped to file the instant petitions as the said judgment attained finality; (iv) that petitioners are not appearing before the trial court; they are absconders; petitioner Arshad Zubair is also involved in two murder cases, namely, FIR No. 41 dated 1.2.1989 PS Lalamusa and case FIR No. 149 dated 31.5.1994. He is a proclaimed offender in the latter case. 5. I have heard learned counsel for the petitioner, learned Advocate General Punjab, assisted by Special Public Prosecutor and have given anxious thoughts to the arguments addressed at the bar. 6. Section 561-A Cr.P.C. provides an exceptional remedy which can be resorted to, to secure the ends of justice for which no procedure is available under the Code. The inherent powers have been enshrined in law to meet the lacuna in the Criminal Procedure Code in extra ordinary circumstances and are not intended for vesting this Court with power to make any order which it considers to be in the interest of justice. The paramount consideration to justify exercise of the power under this provision is to prevent the cause of the process of any Court or to secure the ends of justice where no other remedy is insight. The power to quash criminal proceedings pending before a Court are available to this Court but before such action is taken, this Court has to examine the complaint to determine as to whether any offence is made out or not and in such an exercise this Court shall attend to the factors which are germane to the point in issue This Court can also look into the cogent material brought on record to see as to whether the proceedings have been initiated for mala fide reasons merely to harass the accused or that the continuation of those proceedings would not be an abuse of the process of the Court. This Court may annual the proceedings if after going through the complaint or the report under section 173 Cr.P.C and the material on record, it comes to the conclusion that the accusation does not disclose commission of any offence. The criterion to be followed by the Court in this context would be that the allegations in the complainant taken at their face value and accepted in their entirety, no offence is made out or where the prosecution on the face of it is illegal. 7, Analysing these petitions in the light of the afore-referred parameter of Section 561-A Cr.P C. I find that all the FIRs except FIR No. 194 dated 16.9.1992 (Crl. Misc. No. 135-Q/95) and FIR No. 195 dated 16.9.1992 (Crl. Misc. NO 136-Q of 1995) were registered on 27.8.1990 at Police Station Nekapura wherein the allegation is that the District Magistrate, Sialkot had been receiving complaints about the drug trafficking of petitioner and his family. On a source report, a raiding party was constituted consisting of Magistrate Liaqat Ali and other police officials from various police stations. One Abdul Razzaq Constable was sent in plain clothes to the house of the petitioner as a fake customer with tainted currency notes of Rs. 500/- and Rs. 100/- respectively who purchased 40 grams of heroin, returned and produced the same before the Magistrate who was heading the party whereafter the raid as conducted at the house in question. The petitioner Arshad Zubair, Mst. Sakina and Muhammad Sharif accused tried to run away with small packets; they were apprehended various articles were recovered and on the basis of the transactions involved different FIRs were registered. A bare reading of the contents of the FIRs; statements recorded under section 161 Cr.P.C. and the reports prepared in these cases under section 173 Cr.P.C. would show that aprima facie case is made out against the petitioner and the other accused named therein. The proceedings therefore, either disclose any illegality nor an abuse of the process to warrant interference. 8. Mr. Muhammad Asif Saeed Khan Khosa, Advocate, with his characteristic eloquence has referred to Arshad Zubair v. The State (1993 SCMR 2059) to bring home the point that recovery of Klashnikov and live cartridges in one of the cases registered on 27.8.1990 was proved; conviction was recorded by the trial court, the same was upheld by the High Court but the Hon'ble Supreme Court allowed the appeal set aside the conviction with the observation that, "Not oply.the legal requirements remain unsatisfied for making the recovery redible, all the witnesses in spite of being Magistrate and being Police Officers were highly inimical and biased on account of their previous involvement in the proceedings and their testimony would not independently satisfy and judicial forum for recording the conviction. It was necessary that; Mr. Aamir Ijaz Akbar and Tasneem Ghani should not have been participated in the proceedings and should have inform the Deputy Commissioner of their involvement against the appellant to get themselves substituted by more unconcerned officers." The afore-referred observations of the Hon'ble Supreme Court according to Mr. Khosa, have given a fatal blow to the prosecution case and continuation of proceedings in the remaining cases quashment of which is sought would tentamount to an abuse of the process of the Court. I am afraid, the argument of the learned counsel is not tenable for following reasons:- (i) The afore-referred judgment of the Hon'ble Supreme Court was given in appeal where evidence had already been recorded. Taking note of the complaint and the petitions filed by the petitioner against certain officials who appeared as prosecution witnesses in that case and after considering the discrepancies in their statements, the Court gave credence to the allegations of mala fides against those prosecution witnesses who were examined in Court. In para 21 of the Judgment while commenting on the quality of the evidence, the Court observed as under:- "The discrepancy between the two statements is obvious and it cannot be said that the recovery had not taken place during the course of the search of the house so as to make section 103 inapplicable to the proceedings." The discrepancy with regard to the recovery of one item (klashnikov) would not necessarily mean that the evidence which is yet to be recorded would be discrepant qua other recoveries. (ii) The Hon'ble Court has expressed opinion about Aamir Ijaz Akbar Magistrate and Tasneem Ghani a Police Officer but there are other material witnesses who were not examined and other incriminating evidence was not produced during the trial in the said case. The evidence yet to be recorded is; witnesses llaqat Ali Magistrate; Abdul Aziz DSP and one Razzaq Constable who was sent as a fake customer; recovery of tainted notes from the person of Arshad Zubair; recovery of car bearing No. LOB 9856 on the pointation of the petitioner and arrest of Nazim-ud-Din and Pvifaqat Ali, the tenants of the petitioner (while they were taking heroin) and the reports of the Chemical Examiner. The afore-referred pieces of prosecution evidence were not produced during trial in the case in which the Hon'ble Supreme Court had allowed petitioner's appeal and acquitted him and thus have not been commented upon so far. (iii) The principles for appreciation of evidence during trial and appeal and distinguishable from the principles which weigh with Court while exercising powers under section 561-A Cr.P.C. (iv) Learned counsel for the petitioner mainly relied upon the observation of the Hon'ble Supreme Court on the factual plane. The fact in issue in the said case was recovery of Klashnikov and live bullets, which is not a fact in issue in the pending cases quashment of which is sought. Any finding on a fact in iss,ue in the said case cannot be used to prove an issue in other cases. That being so, the judgment of the Hon'ble Supreme Court is not relevant. I am fortified by a judgment of the Hon'ble Supreme Court in Muhammad Khurshid v. The State (PLD 1963 Supreme Court 157) wherein at page 162, it was observed as under:- "For the reasons given above we are in agreement with the High Court that the judgments were inadmissible either to prove the opinion of the learned Sessions Judge concerning the conduct of the Border Police or for impeaching their credit. The Evidence Act does not make findings arrived at on the evidence before the Court in one case evidence of that feet in another case. Each case is to be judged upon its own facts established by the evidence led therein " 9 Coming to FIR No 194 of 1995 dated 16.9.1992 (Crl. Misc. No. 135-Q of 1995) and F.I.R. No. 195 dated 16.9.1992 (Crl. Misc. No. 136-Q/95) I find that in these cases as well, the report under section 173 Cr.P.C does disclose commission of a cognizable offence; the raiding party consisted of officials from various police stations who participated in the raid conducted on 27.8.1990 and in fact these cases were registered on the report of Sarfrazul-Haq grounds of mala fides and enmity against the witnesses in these cases is not available to the petitioner 10. The record of the learned trial court, indicates that the petitioner Arshad Zubair absented himself from appearance before the said court since 23.6.1994; he was proceeded under section 87 CrPC. And declared a proclaimed offender vide order of the learned trial court dated 19 2 1996 So far his absconsion in the murder cases to which reference has been made by the learned Advocate ^en^ra] is concerned, in absence of any material on record, I wo ale not iikt to comment lest it may prejudice the case to law. This conduct also disentitles im to the relief sought. 11. There is yet another reason for which the instant petitions are not maintainable The petitioner had moved an application under section 265-K Cr P.C. for his acquittal, the same was dismissed whereafter he filed Crl Misc. No. 150-Q of 1991 seeking the same relief which too was dismissed by this Court and it was observed that, Serious allegations have been levelled against the petitioner in as much as six Kilos and 40 grams of heroin, charas and opium was recovered from his possession in presence of the witnesses Statements of witnesses under section 161 Cr P C were also recorded. There is also a report having been obtained by the Investigating Officer showing the result of the Chemical Examiner as positive as already said above." 11. For afore referred reasons, I see no merit in these petitions which are dismissed However, in view of the peculiar facts and circumstances of these cases, I am persuaded to direct the trial court to conclude the trial within a period of six months from the next date before it. The petitioner shall appear before the trial court on the said date. Office shall send a copy of this judgment to the trial court forthwith. (K.K.F.)

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 161 [ Rawalpindi Bench] Present: CH. IJAZ AHMED, J. KHALID MAHMOOD etc.-Appellants versus STATE-Respondent ' Criminal Appeal No. 65 of 1994, decided on 4.9.1997. (i) Dying declaration- —Principal ingredients of dying declaration are as under:- (i) There is no specified forum before whom such declaration is required to be made. (ii) There is no bar that it cannot be made before a private person. (iii) There is no legal requirement that declaration must be read over or it must be signed by its maker. (iv) It should be influence free (v) In order to prove such declaration, the person by whom it was recorded should be examined. (vi) Such declaration becomes substantive evidence when it is proved that it was made by deceased. (vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence. (viii) Such declaration when proved by cogent evidence can be made a base for conviction. [P. 169] B 1996 P.Cr.L. J. 1689 ref. Pakistan Penal Code, 1860 (XLV of I860)- —S. 302/34-Murder-Offence of-Conviction for-Appeal against-It is an admitted fact that P.W. 4 was injured during occurrence, therefore her presence at spot was natural and satisfactorily accounted for-She was cross examined by defence counsel at length, but he failed to bring out any contradictions in her statement-She also narrated motive-No doubt, that deceased was her maternal uncle and also real brother of her husband but she categorically stated in her cross-examination that none of accused had any enmity with her-Therefore, mere relationship with deceased is not sufficient to disbelieve her statement—She inspires full confidence and it is sufficient to believe her statement and to connect guilt of present appellants-Dying declaration of deceased corroborates statement of PW-4~There is consistent and persistent evidence on record that it was appellants who launched an attack and inflicted successive injuries to deceased-Eye witnesses have given a clear and fair account of occurrence-Mere fact that all of them had not suffered injuries does not show that they were not present at spot-It was a broad day light occurrence and committed in a manner with clear cut intention to kill deceased-Appellants had achieved object of killing deceased by firing at him at vital parts of his body with fire-arms-Mere relationship is no ground to discard prosecution evidence-FIR was lodged with promptitude-Nothing has been brought on record to suggest that PW-4 had been motivated so as to falsely involve apellants-Appellants as well as eye witnesses belong to same vicinity therefore, they were well known to each other, hence, there is no doubt about identity of appellants by prosecution witnesses during occurrence-Prosecution has proved its case beyond any reasonable doubt-Appellants have rightly been convicted by trial court, and sentence awarded to them is appropriate, hence, maintained, except appellant M. who was attributed only Lalkara and his appeal was accepted and was acquitted. [Pp. 168, 169, 170, 172, 173 & 174] A, D, C to M PLD 1987 SC 467, PLD 1975 SC 227 ref. Sardar Muhammad Ishaq Khan, Advocate for Appellants. Qazi Ahmed Naeem Qureshi, Advocate for State. Kh. Fayyaz Ahmed with Raja Shafqat Abbas, Advocates for Complainant. Dates of hearing: 27.8.1997 and 29.8.1997. judgment The learned Additional Sessions Judge, Rawalpindi vide judgment dated 4.5.1994 has convicted and sentenced the appellants for the murder of Muhammad Nawaz and launched murderous assault on Mst. Razia Sultana P.W. 4 as follows: 1. Khalid Mahmood s/o Muhammad Akhtar, aged 40 years, u/S. 302/34 P.P.C.; 2. Muhammad Akhtar s/o Jalal Khan, aged 60 years; u/Ss. 302/34 P.P.C.; 3. Muhammad Sharif s/o Tikka Khan, aged 25 years; u/Ss. 302/34 P.P.C.f 4. Muhammad Riaz s/o Banaras Khan, aged 50 years, u/Ss. 302/34 P.P.C; Imprisonment for life each; with fine of Rs.15,000/- each, or in default six months R. I. each; Compensaion if fine realise shall be paid to the legal heirs of the deceased u/S. 324/34 PPC four years R.I. each. It is pertinent to mention here that both the sentences shall run concurrently and the convicts were also granted benefit of Section 382-B Cr.P.C. 2. The convicts have filed Criminal Appeal No. 65/1994 against their conviction and sentence while the complainant has also filed Criminal Revision No. 72/1994 for enhancement of sentence and compensation. This judgment shall dispose of both the appeal and revision. 3. The occurrence took place on 21.10.1990 at 8 A.M. in the house of Muhammad Maroof situated in village Dhoke Khena Dakhli Maira Tehsil Kehuta, District Rawalpindi at a distance of 10 miles from Police Station Kehuta. Muhammad Taj/PW. 3, brother of the deceased reported to Muhammad Razzaq S.I./PW. 10, who recorded the statement of P.W. 3, Exh. PC on the same day at 10.55 A.M. at Hospital Road opposite Police Station Kehuta and sent the report to the Police Station for formal registration of the F.I.R. which was recorded by Muhammad Zamir-A.S.I. /PW. 8, Ex. PC/1. In the F.I.R. the occurrence to have been taken place allegedly as follows: Prosecution story according to the statement Ex. PC made to the Investigating Officer by Muhammad Taj, the complainant (PW. 3) is that on 21.10.1990 his brother Muhammad Nawaz (deceased) alongwith his brother's wife (Bhabhi) Mst. Razia Sultana wife of Muhammad Riaz went to the house of Muhammad Maroof resident of Dhoke Kehna Dakhli Maira to inquire about the health of his ailing son. On seeing them there Akhtar son of Jilal (accused) shouted a lalkara that Muhammad Nawaz has come and he be done to death, in the meantime, Khalid, Riaz and Muhammad Sharif (accused) came there armed with 12 bore guns. Soon after coming there Muhammad Sharif accused fired a shot hitting Muhammad Nawaz in front of the abdomen. Then Muhammad Riaz fired with his gun and the pellets hit Muhammad Nawaz on the left arm and the left thigh. Mst Razia Sultana stepped forward for weaning Muhammad Nawaz while making entreaties, when Khalid accused fired at her hitting on her left hand and the left thigh. The hure and cry attracted Ghazanfar Khan (PW. 5) and Muhammad Riaz son of Bagh Ali (given up PW), who witnessed the occurrence. 4. Dr. Ehtasham-ul-Qamar PW. 11 examined Muhammad Nawaz, injured aged 55 years on 21.10.1990 and found the following injuries: (1) Lacerated wound over left index finger, ^ x 1 inch. (2) Lacerated wound over left fore-arm anteriorly near elbow, 0.2 x 0.5 inches. (3) Lacerated round wound, 1 inch below umbilicus, 0.3jc 0.5 inches. (4) Lacerated round wound, 3 inches below umbilicus, left laterally, 0.3 x 0.4 inches. (5) Lacerated round wound left laterally on the head of penus 0.2 x 0.5 inches. (6) Lacerated round wound on the left scrotum. (7) Lacerated wound 0.2 x 0.4 inches over right thigh near scrotum. (8) Lacerated wound over left thigh interiorly, 2 inches above the knee joint, 0.2 x 0.5 inches. (9) Cloatted blood around the left ear. The injured Muhammad Nawaz subsequently died on 7.11.1990 at 1. p.m., PW. 7 conducted the post-mortem examination of the dead body of deceased and found the following injuries:- (1) A fire arm lacerated wound half and one inch on left index finger. (2) A lacerated wound 2x5 inch on left fore-arm anteriorly close to the left elbow joint. (3) A lacerated wound 5x4 inches, about one inch below the umbilicus about two inches from mid line plane on right side. (.4) A lacerated fire arm wound about 4x5 inches, about three inches below the umbilicus on left side of abdomen. (5) A kid line incision operation from epigastarum upto hypogastrium, about six inches long. The wound of lapratomy is gaping with dehiscence (6) There are tow oval opening in right and left elliace fossa. (7) A fire arm wound 2x5 inches on head of penis on left side. (8) A fire arm lacerated wound 2x1 inches on left scrotum. (9) A fire arm wound 3x5 inches on right thigh. (10) A lacerated fire arm wound about 3x5 inches on left thigh about two inches above the knee joint. OPINION. In his opinion cause of death is injuries No. 3 & 4. By these injuries there were multiple perforations in the jejunum and ileum and sighmoid colon with perforations causing permit on it is and cardiorespiratory arrest and death. Time between injuries and death first MLR on 211st of October, 1990 and post-mortem on 7th of November, 1990. Time between death and post-mortem is 3 to 4 hours. Injuries No. 3 and 4 are fire arms injuries. Dr. Ehtasham-ul-Qamar PW. 11 also medically examined Mst. Razia Sultana aged 30 years on 21.10.1990 at 10 a.m. and found the following injuries: (1) Lacerated round wound on the middle of left hand both anteriorly and posteriorly. (2) Lacerated round wound over left thigh laterally and 4 inches from anterior-superior eliac spine. (3) Lacerated round wound over left thigh anteriorly two inches from anterior-superior eliac spine. 5. The prosecution's alleged motive of occurrence behind the incident is that on the same morning the complainant and Muhammad Arif etc. had a quarrel over the grazing of cattle in the crop but the people intervened and set them apart. The complainant was returning home from the fields and was near Dhoke Kehna and was attracted to the place of occurrence by the noise and witnessed the occurrence. That the accused persons has launched a murderous assault on his brother Muhammad Nawaz and brother's wife (Bhabhi-Bharjai) for the said grievance. 6. The blood stained earth was taken into possession from the spot Exh. PD which was attested by Ghazanfar Khan PW. 5, Muhammad Razzaq S.I./PW. 10 and Muhammad Raza was given up. It is pertinent to mention here that the report of the Chemical Examiner and Srologist were found positive. All the four appellants/convicts were arrested by Raja Muhammad Banaris, Inspector/PW. 15. Gun P.I was taken into possession on the pointation of Muhammad Sharif/convict from his residential house on 14.11.1990 which was attested by Muhammad Iftikhar/PW. 1, Raja Muhammad Banaris, Inspector/PW. 15 and Muhammad Ayub was given up as unnecessary. 7. The prosecution produced four witnesses Muhammad Taj/PW. 3, brother of the deceased, Razia Sultana/PW. 4 (Bhabhi) brother's wife, Ghazanfar Khan/PW. 5 brother-in-law 1st cousin and Muhammad Riaz rother of the deceased was given up. While the appellants under Section 342 Cr.P.C. controverted the allegations and pleaded themselves absolutely innocent in the matter and also produced two witnesses, Ghufran Ahmed/DW. 1 and Ikram Ullah Niazi/DW. 2 to prove that Khalid Mahmood-convict was admitted in the Hospital w.e.f. 1.1.1988 upto 28.6.1993. 8. The senior learned counsel appearing on behalf of appellants argued as follows: (i) The prosecution only produced four eye-witnesses who were interested and inimical witnesses and their statement need independent corroboration. There is no independent corroboratiqn in the present case, therefore, sentence awarded to the appellants is not sustainable in the eyes of law. (ii) The presence of the eye-witnesses at the spot is not natural as all the eye-witnesses belong to Dhoke Khawia whereas the incident took place in Dhoke lya. (iii) The F.I.R. was recorded after preliminary investigation and this fact is fully established vide Memo. Exh. PC, statement of PW. 3, which was recorded on Hospital Road opposite to the Police Station Kehuta. (iv) Medical evidence qua the eye-witnesses contradicts each other, therefore, sentence awarded to the appellants is not sustainable in the eyes of law. (v) Believing the story of prosecution in totality for sake of arguments then incident took place on account of grave and sudden provocation. (vi) The motive as alleged by the prosecution was not proved on the record. (vii) Khalid Mahmood convict/appellant had taken the plea of alibi that on the day and at the time of occurrence, he was admitted in Civil Hospital, Taxila, and it was duly proved by the findings of Sub Inspector Muhammad Razzaq PW-10 and Raja Muhammad Banaras Inspector PW-15 who declared him as innocent. As no injury sustained by the deceased during the occurrence had been attributed to Khalid Mahmood appellant. (viii) Dr. Sajid Hassan Raja PW-7 admitted in his crossexamination that the injuries on the person of the deceased was possible by a single 12-bore shot containing several pellets. (ix) The place of Muhammad Akhtar appellant was not shown in the site-plan which created a doubt on the story of the prosecution. .(x) The motive alleged against Muhammad Taj PW who insulted the wife of Muhammad Sharif convict/appellant and admittedly there was no enmity existed between the deceased Muhammad Nawaz and the convicts/ appellants. Therefore, they could have inflicted injuries or murdered Muhammad Taj. This fact alone is sufficient to creat a doubt in the story of the prosecution. (xi) The convicts/appellants were granted bail by the learned Sessions Judge, but the learned trial Court considered their absconcion as a corroborative piece of evidence which could not be considered as absconcion as there was no proceedings initiated against them under sections 87 and 88 Cr.P.C. (xii) The deceased as well as Mst. Razia Sultana PW-4 were examined first in the Hospital and after obtaining the medico-legal reports, Muhammad Taj PW-3 gave his statement to Muhammad Razzaq S.I. PW-10, therefore, the medical evidence could not provide corroboration in these circumstances. (xiii) That the dying declaration of the deceased was not recorded in accordance with law laid down by the superior Courts and it was not properly proved on the record and the photostat copy was provided to the convicts/appellants at the time of recording the evidence of Muhammad Razzaq, S.I. PW-10, therefore, no reliance can be placed on dying declaration. (xiv) The dying declaration was recorded without obtaining a certificate from the Doctor, as to whether the deceased was fit to make a statement or not and even otherwise the dying declaration was recorded in presence of other interested witnesses. (xv) The recovery of guns from the convicts/appellants have no relevancy as the empty cartridges were not recovered from the spot. The convicts/appellants set up a defence version which was plausible keeping in view all the circumstances in juxta-position Le. the prosecution version and the defence version then it is crystal clear that the defence version is valid and based on commonsense. 9. Kh. Muhammad Fayyaz Ahmad, learned counsel for the complainant supported the judgment of the learned trial Court on each and every point and argued as follows:- (i) The presence of eye-witnesses at the spot is natural and their statements are consistent and corroborated with each other. (ii) The F.I.R. was promptly lodged with specific roles of the convicts/appellants. » (iii) The defence version is not believable as Mst. Razia Sultana PW-4 and the deceased have no enmity against the appellants. (iv) The presence of Mst. Razia Sultana PW-4 and the deceased being injured in the occurrence provided sufficient cause regarding their presence at the spot. (v) The dying declaration was recorded in accordance with law which is corroborated on each and every material point with the first information report and the statement of Mst. Razia Sultana PW 4. (vi) Four eye-witnesses were produced. Mst. Shakira was the nearest relation of the deceased, therefore, it was not necessary for the prosecution to produce all the witnesses, as such no adverse presumption could be taken against the prosecution. (vii) The occurrence took place in a braod day light, therefore, the prosecution sufficiently est: 11: ~hed the guilt of the appellants, as such, capital punishment should be awarded to them. 10. Learned counsel for the State also adopted the arguments of the learned counsel for the complainant and supported the impugned judgment of the learned trial Court. 11. I have given my anxious consideration to the contentions raised by the learned counsel for the parties and perusedtherecordwittheir assistance. It i an admitted fact that Mst. Sultana PW-4 was injured during he occurrence, therefore, his presence at the spot was natural and satisfactorily accounted for. She was cross-examined by the learned defence counsel at length, but he failed to bring out any contradictions in her statement. She also narrated the motive. No doubt, that Muhammad Nawaz deceased was her maternal-uncle and also the real brother of her husband. But she categorically stated in her cross-examination that it is correct that . none of the accused had any enmity with her. Therefore, mere relationship with the deceased is not sufficient to disbelieve the statement of Mst. Razia Sultana PW-4. She narrated the incident in a very straight forward manner and inspires full confidence, therefore, it is sufficient to believe her statement and to connect or prove the guilt of the present appellants. The principle of corroboration qua such type of witness is not required because she has no enmity against the convict/appellants. The statement of PW-4 was duly corroborated by other two witnesses namely Muhammad Taj PW-3 and Ghazanffar Khan PW-5 on each and every point in spite of lengthy cross-examination by the learned defence counsel, but their statements are consistent. There was no contradictions qua their statements. Muhammad Taj PW-3 admitted in his cross-examination that he had enmity with the accused even prior to the day of occurrence, therefore, his statement needs independent corroboration. Even if for the sake of argument, his statement is not considered even then the statements of PW-4 and PW-5 are sufficient to establish the case of the prosecution beyond any shadow of doubt. Learned defence counsel emphasized much that the dying declaration was not recorded properly and in fact it is verbatim copy of statement of Muhammad Taj PW-3 before Muhammad Razzaq PW-10. It was not properly brought on record during the re-examination of PW-10, therefore, it could not be considered as corroborative piece of evidence. On the basis of law, Quetta High Court laid down the principle regarding recording of dying declaration in a case reported as Kashif-ur-Rehman and others versus The State (1996 P.Cr.L.J. 1689). The relevant observation from the judgment is re-produced hereunder:- "The above-mentioned ingredients were discussed by various higher Courts in different cases which resulted into formulation of acknowledged and time tested principles which are mentioned hereinbelow:- (i) There is no specified forum before whom such declaration is required to be made. (ii) There is no bar that it cannot be made before a private person. (iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker. (iv) It should be influenced free. (v) In order to prove such declaration the person by whom it was recorded should be examined. (vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased. (vii) Corroboration of a dying declaration is not a rule of law, but requirement of prudence. (viii) Such declaration when proved by cogent evidence can be made a base for conviction." 12. Keeping in view the above principle, it is established on the record that the dying declaration was recorded and even if it was not considered as dying declaration then it is a statement under section 161 Cr.P.C. which corroborates the statement of PW-4. As mentioned above, the statement of PW-4 independently sufficient to establish the guilt against the appellants. Learned defence counsel has laboured much that the motive set up by the prosecution was not established on the record and in fact introduced an additional motive to involve the present appellants. There is consistent and persistent evidence available on record that it was the appellants who launched an attack and inflicted successive injuries to the deceased. The evidence qua their part in the occurrence is flawless and believable, as such, it was not essential in this case that a direct motive should have been available to them also. It is true that there is clear evidence as to what was the immediate cause for the appellants for firing upon the deceased, but the law is that if ocular evidence of such quality existed which was sufficient by itself to establish the guilt of the offender, the liability to punishment for the offence committed by him is not effected by uncertainty with regard to the motive. I am fortified by the principle laid down by the Hon'ble Supreme Court in a case reported as Safdar Abbas and 2 others vs. The State (PLD 1987 Supreme Court 467). Tne eye-witnesses have given a clear and fair account of the occurrence. The mere fact that all of them had not suffered injuries does not show that they were not present at the spot. The objection has no force and is hereby rejected. 13. According to Dr. Sajid Hussain Raja PW-7, the death was caused due to injuries No. 3 and 4 which were caused by fire-arm. It, therefore, follows that the medical evidence was consistent with the statements of the eye-witnesses that the deceased was done to death by the fie-arm injuries. The appellants had used the fire-arms to cause those injuries, therefore, their intention to killed the deceased was very clear. Though the death had occurred after some days, but it was the direct result of those injuries. It was a broad day light occurrence and committed in a manner with the clear-cut intention to kill the deceased. The appellants had achieved the object of killing the deceased by firing at him at the vial parts of his body with fire-arms. Learned counsel for the appellants in the first instance argued that the eye-witnesses in this case cannot be relied upon as they are not only chance witnesses but were also interested ones. It was also contended that since Mst. Razia Sultana PW-4 was related to the deceased, therefore, her testimony should not be relied upon. After careful consideration of the facts available on the record and having perused her statement, I am of the opinion that the contentions raised by the learned counsel for the appellants have no force, hence the same are repelled. No doubt, Muhammad Nawaz was her maternal uncle and also the real brother of her husband, but mere relationship is no ground to discard the prosecution evidence. The FIR in this case was lodged with promptitude and the length cross-examination clearly shows that she withstood the test and her credibility could not be shaken by the defence. In view of these circumstances, I am of the view that her statement cannot easily be brushed aside and I have further noticed that she has no enmity against the appellants. According to the principle laid down by the Hon'ble Supreme Court in Niaz's case reported in PLD 1960 Supreme Court 387 is the one who has a motive to falsely implicate the accused. In this case, nothing has been brought on record to suggest that Mst. Razia Sultana had been motivated so as to falsely involve the appellants in the present case. I have further noted that even an interested witness can also be relied upon provided the same gets corroboration from an independent evidence. As far as the testimony of Ghazanfar Khan PW-5 and other eye-witnesses is concerned, I may state here that he has also no direct enmity with the appellants, therefore, he has also withstood the test of cross-examination and further more like PW-4, he has no enmity with the the sake of argument and without conceding that the eye-witnesses are interested and chance witnesses, but still their testimony stands corroborated through the medical evidence. These two witnesses have successfully explained their presence at the relevant time at the place of occurrence. It was not uncommon that when some nearest relation was admitted in the Hospital, the near relatives must have to come early in the morning to find out the health of the ailing member of the family. Therefore, I am of the view that the contention raised by the learned counsel for the appellants has no force in it. I am fortified by the observations made by the Hon'ble Supreme Court in Riasat All's case reported in PLD 1991 Supreme Court 397. Their Lordships observed as follows:- "It would suffice to say that even if a chance witness, his explanation regarding what he wanted to do at Railway Office being acceptable the so called stigma of being a chance witness loses significance. The argument of the learned counsel that the Railway Office was closed, therefore, the witness should have been declared as having perjured himself is also without much force. The witness had gone to the Railway Station to get a seat reserved for Karachi. There is nothing to show that this was impossible to achieve." 14. The evidence of eye-witnesses in such circumstances could not be brushed aside merely for the reasons that they were closely related to the deceased particularly when Mst. Razia Sultana PW-4 had no personal enmity against the appellants. The Hon'ble Supreme Court has laid down a principle in Abdul Rashid's case (PLD 1975 Supreme Court 227). It observed that "the next important point which realy form the crux of the matter is the question regarding character of three eye-witnesses namely Abdul Rashid (PW-8), Aurangzeb (PW-9) and Muhammad Nazar (PW-10). PW-8 and PW- 10 were the brothers of Babu Faqir Muhammad while PW-9 was the Kamdar of Doctor Tahir Hussain Siddiqi and as such they certainly had close interest in the deceased. In view of the estabh'shed rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inf exible rule to be rigidly and unexceptionally applied". Learned counsel for the appellants was at pain to point out that the possibility that the injuries on the deceased could be the result of one shot could not be ruled out. In this regard, suggestion owned by Dr. Sajid Hussain Raja PW-7 in his cross-examination to the effect that the injuries on the person of the deceased were possible by a single 12 bore shot containing several pellets was pointedly referred to. The concession of Dr. Sajid Hussain PW-7 qua the possibility of one shot is not much consequence because possibility cannot take place the firm opinion. Assuming for the sake of argument that it was possible as per medical evidence, it is in clear contradiction to the eye-witnesses account which has been found truthful. In such an eventuality, medical opinion resting on the brink of possibility shall give away to the eye-witness account. It is pertinent to mention here that after perusing the record, there is no reason at all for bringing a false charge by the prosecution against the appellants as PW-4 Mst. Razia Sultana has no enmity against them. It is further substantiated by the fact that in a broad daylight occurrence, the one brought about was a single charge with no possible attempt at substitution. It is against the common-sense that the prosecution failed to bring the real culprits and falsely involve the appellants. This fact sufficiently established that the appellants were the real culprits and the question regarding substitution does not arise at all in the present case. 15. The appellants as well as the eye-witnesses belong to the same vicinity, therefore, they were well known to each other, hence obviously there is no possibility of any kind of doubt about the identity of the appellants by the prosecution witnesses during the occurrence. Learned counsel for the appellants argued that the learned trial Court wrongly rejected the plea of alibi taken by Khalid Mahmood appellant especially in the circumstances when he took the came at the initial stages of the proceedings and the Investigating officer gave findings in his favour duly supported by the statements of DW-1 and DW-2. It is admitted on the record that the distance between Kahuta and Taxila is not far of. Khalid Mahmood appellant was admitted in the Hospital on 20.10.1990 whereas the occurrence took place on 21.10.1990. This makes the plea of alibi highly doubtful and appears to be an arranged affair with Dr. Ikram Ullah Khan Niazi DW-2. It is of no avail to the appellants nor it is likely to affect the evidentiary value of any of the eye-witnesses because they would not tefl lie to scree the original offenders qua the present appellants particularly when the eye-witnesses are the close relatives of the deceased. Conversely, it becomes evident that the prosecution version was supported by the eye­ witnesses in a natural manner. Similarly, it was hardly realized that the site-plan itself is not a substantive piece of evidence which could be used to contradict or discredit the unchallenged evidence of the eye-witnesses. It is well known principle of criminal Jurisprudence that 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 conclusion drawn from their evidence. , 16. Defence version is as fallows:- 17. Let me see, whether the defence version fits in the circumstances and negates the prosecution version. Muhammad Nawaz deceased armed with a hatchet and many others armed with Soft's came at the spot, but strangely enough that none of the persons received any injury from their hands. The appellants stated that it was a natural occurrence and some one inflicted injuries through the window and killed the deceased. Since they were already inimical towards Muhammad Taj PW-3, so the complainant falsely roped them in this case. The occurrence as alleged and proved by the prosecution had taken place during the sun-light, therefore, there was no question of mistaken identity. This defence plea appears to be merely hallo. The prosecution has proved its case beyond any reasonable doubt. 18. According to the prosecution the roles attributed to the appellants are as follows :- Muhammad Akhtar s/o Jalal Khan shouted a Lalkara that Muhammad Nawaz had come and he be done to death. In the meantime, halid Mahmood, Muhammad Riaz and Muhammad Sharif accused came there armed with 12. bore gun each. Soon after coming there, Muhammad Sharif fired a short hitting Muhammad Nawaz in front of his abdomen, then Riaz fired with his gun and the pellets hit Muhammad Nawaz on the left arm and the left thigh. Khalid appellant fired at PW-4 Mst. Razia Sultana which hit on his left hand and the left thigh. 19. It is pertinent to mention here that Muhammad Riaz appellant has already been died as stated at the bar by the learned defence counsel. Therefore, the appeal stands abated to his extent. 20. It is an admitted fact that some incident had taken place on the same very day coupled with the enmity of the appellants and Muhammad Taj PW-3. Khalid Mahmood and Muhammad Sharif appellants were attributed specific rule who fired from their respective weapons which hit the deceased, therefore, they are responsible for causing the death of the deceased. They have rightly been convicted by the learned trial Court and the sentence awarded to them is also appropriate. As such, the sentence awarded to them by the learned trial Court is maintained. I, therefore, dismiss the appeal filed by Khalid Mahmood and Muhammad Sharif appellants. They were released on bail. They may be taken into custody and sent to Jail to serve their remaining term of sentence. 21. So far as Muhammad Akhtar appellant is concerned, he was attributed on Lalkara. There, keeping in view the circumstances and the rule attributed to him, the appeal to his extent is accepted and acquit him rom the charge. He was released on bail. He shall stand discharge of his bail bounds. 22. The criminal revision has no merit and I dismiss the same. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 174 Present: GHULAM SARWAR SHEIKH, J. SALEEM alias LODHI-Appellant versus STATE-Respondent Criminal Appeal No. 580/92, dismissed on 14.7.97. Pakistan Penal Code, 1860 XLV of 1860)-- —-S. 302—-Murder-Offence of-Conviction for--Challenge to~ Substitutation-Ground of--There is no dis-agreement regarding weapon of offence, number of injuries, place of injuries and even venue-Hence defence cannot be allowed to make capital out of it because negligible errors in site plan, which, cannot be treated to be main stay of prosecution case are of little significance impact and bearing-It is single accused case, occurrence had taken place in broad day-light, ocular account is natural arid in line with medical evidence, motive stands established-Weapons of offence was also recovered and its use has not been questioned and plea of substitution is too weak to ring true from any angle-Appeal dismissed. [P. 177] A Sardar Shaukat All, Advocate for Appellant. S.D. Qureshi, Advocate for State. Date of hearing: 14.7.1997. judgment About a month prior to occurrence, Mst. Sudi wife of appellant namely, Muhammad Salim alias Lodhi was enticed away/elpoed, when he was working as labourer in Karachi . He returned to village four days before the incident and suspected Mubasher Iqbal for having a hand in elopment. 2. In this back ground and with such motive, he, is alleged to have caused intentional murder of aforesaid Mubashar Iqbal by firing at him with a Carbine at about 4.00 p.m. on 9.1.1992 in the lane passing in front of house of Ilays Khan in Abadi of Village Dhala Khan within area of Police Station Khudian in District Kasur as it gleans out from the statement of Nayyar Iqbal, first informant, embodied in F.I.R. Ex. PE and re-iterated by him at the trial as PW. 7. At the relevant time, deceased was going to Chah Meo Wala for bringing wood in the company of his brother Nayyar Iqbal, Haider Ali (PW.8) and joined by Imran Ali Shah, given up PW, in the way near the shop of Master Mehnga. He was fired at, while, ahead of Nayyar Iqbal and Imran Ali Shah, who, were following him and Haider Ali PW. 3. After registration of case, Muhammad Hayat Sub-Inspector (P,W. 9) came to the spot, where, he prepared injury statement Ex. PG and inquest report Ex. PH and despatched deadbody to mortuary for post mortem examination. He seized blood stained earth vide memo. Ex. PF, made it into sealed parcel, prepared rough site plan Ex. PJ and recorded statements nder Section 161 Cr.P.C. of witnesses. Next day, last worn clothes PI to P5 of deceased were secured by means of memo. Ex. PB, Site Plan Ex. PD and Ex. PD 1 were also got prepared from Draftsman. Accused-appellant was arrested on 13.1.1992 and while in custody, he led to the recovery of Carbine P6, which, was sealed into a parcel. Rough Site plan of place of recovery Ex. PC/1 was also prepared by the Investigating Officer. 4. On commencement of the trial before learned Sessions Judge, Kasur, appellant was charged under Section 302 of Qisas and Diyat Ordinance for causing death of Mubashar Iqbal. On his pleading not guilty, rosecution led evidence against him by producing as many as nine witnesses. Prominent amongst them are Dr. Munir Ahmad Gohar (PW. 1), who, conducted autopsy on dead body of Mubashar Iqbal, Abdul Wahid (PW. 4) in whose presence Carbine P6 was recovered vide memo. Ex. PC at the instance of accused-appellant in custody, Nayyar Iqbal (PW. 7), Haider Ali (PW. 8), who, furnished occular account of occurrence, and Muhammad Hayat (PW. 9) Investigating Officer. 5. When examined under Section 342 Cr.P.C., accused-appellant, denied all the incriminating circumstances figuring against him in prosecution evidence, professed innocence and alleged false implication due to enmity with the plea that deceased had several foes. 6. On conclusion of trial, accused-appellant was found and adjudged guilty of the offence with which he was charged and consequently convicted and sentenced to imprisonment for life with fine of Rs. 2.000/- or in default to undergo one year S.I. in wake of involvement of family honour. Compensation to the tune of Rs. 30,000/- was also awarded to legal heirs of deceased on realization from the accused-appellant, how, in default thereof was directed to suffer S.I. for further term of six months. Aggrieved by these findings, he has come up in this appeal. , 7. Learned counsel for the appellant has lambasted the verdict dated 30.5.1992 delivered by learned Sessions Judge, Kasur by pointing out that the same is rife and replete with legal and technical snags, which, unfortunately escaped notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. His maiun attack is 19011 alleged contradictions of oral evidence regarding direction and range of shot by Medical evidence. With reference thereof, it has been asserted that in such eventuality, medical evidence is to prevail and preferred. Reliance has been placed upon Bashir Ahmad and another vs. The State (1974 P.CrJjJ. 385), Anwar versus The State (PLJ 1974 Criminal Cases (Lahore) 90), and Mangio versus The State (1976 P.Cr.L.J. 243 (Karachi)) in support of die contentions. In order to borrow fortification, certain portions of Ex. PA and Ex. PA/1 have been compared to site plan Ex. PD and Ex. PD/1 showing that victim was fired from a distance of 10 feet and not from front and dose range as indicated in Ex. PA and deposed by Dr. Munir Ahmad PW. 1, about recoveiy of four pellets alongwith a card and wad from the site of injury. 8. Be that as it, may, other circumstances of the present case are to be dived into for exploring truth in wake of law'cited above. In 1971 P.CrX.J. 385 real motive appeared to be quite different and was probably not known to the PWs, and, therefore, same was kept out of consideration being false or at least incorrect. In the instant case, however, motive was unveiled from very out set. No doubt, it is not necessary to set up a motive, but, if, attributed motive, is not established, it is the prosecution, that suffers. Conversely, the motive was mentioned with clarity while lodging FIR and it was got registered with promptitude and agility, no matter, the place of occurrence is statedly at a distance of 12 k.m. from Police Station. Accusedappellant suspected illicit relations of the deceased with his wife and also dopntent with the victim. Both eye-witnesses PW. 7 and PW. 8 have affirmed it. 9. Relationship of Nayyar Iqbal PW with the deceased cannot be lost sight of, but, it is trite law that mere relationship is no^ound to dis-credit veracity of a witness. No rancour or malice stands scribed to him. Similarly PW. 8 did not harbour any grudge and looks a natural witness. Question of substitution does not raise. This defence plea was never taken during investigation at very inception. To establish above plea, very strong and cogent evidence is required which is lacking and missing. By maligning Aziz Dogar etc. in Ex. DB onus cannot be taken to have been discharged and the plea of substitution looks to have been tailored at a belated stage and that too in crude and clumsy fashion. Not an iota or scintilla of ill will is visible from testimony of PW7 and PW. 8. Both are natural, witnesses and they are on consensus regarding motive as observed above. Hence any lapse reflected/ translated on site plan cannot impair the case beyond repair. If distance between the victim and accused have been shown to be ten feet therein, it would not dismantle whole prosecution based on depositions of PW. 7 and PW. 8. Site Plan was never confronted to any one of PWs, in 1076 P.Cr.L,J. 243, occular witnesses and disclosed that the victim received only two hatchet blows/ whereas, according to Medical Evidence, he, the deceased, Was subjected tq five blows. Similarly, in PLJ 1974 Cr.C. Lahore 90, the maker of FlR stated that deceased was fired thrice and that shots hit him on his chest. Medical Evidence revealed only a single injury, therein and such conflict between the account of maker of FIR and Medical Evidence gave rise to inference that maker was not present at scene of occurrence. No such glaring discrepancy is discernible in this case. There is no dis-agreement regarding weapon of offence, number of injuries, place of injuries and even venue. Hence the defence cannot be allowed to make capital out of it because negligible errors in the site plan, which, cannot be treated to be main stay of prosecution case are of little significance impact and bearing. , 1.0. It is single accused case, occurrence had taken place in broad day-light, occular account is natural and in line with Medical Evidence, motive stands established, weapons of offence was also recovered and its use has not, been questioned and plea of substitution is too weak to ring true from any angle. 11. In these circumstances, judgment, sought to be impeached and set at naught is perfect, unexceptionable and free from any serious infirmity. Conviction and sentence in mitigating circumstances spelled therein, are according up-held and maintained. Appeal, as a sequel, fails and is hereby dismissed. (K.A.B.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 178 (DB) Present: MUHAMMAD NASEEM CHAUDHRI AND SB. ABDULRAZZA<&<JJ. ANAMULLAH RASHID-Petitioner versus STATE~-Respondent Cr. Misc. No. 6714-B/97, decided on i5.ll.1997. (I) Criminal Procedure Code, 1898 (V of 1898)- — S. 497--Bail--Offence U/S 353/186/324/34 PPC-Bail dismissed by ( Anti Terrorist Court-Appeal against-Allegations against petitioner are not covered under section" 6 of Anti Terrorism Act—No doubt victim is a member of police force but Sections 324/353/186 PPC are not offences mentioned in Schedule of ATA, 1997-Heldt Judge appointed under Anti Terrorism Act, 1975 has no jurisdiction to hear case in view of section 4 of said Act-Petitioner was advised to move application before Baqa Magistrate. [Pp. 179 & 180] A to C (ii) High Court Rules and Orders-- — Volume III, Rule 14 Chapter X Note (ii)-A ball application has to be first moved before and disposed of by Court, of original jurisdiction. [P. 1803 D Khan Khizar Abbak Khan, Advocate for Petitioner. Rana LiaqatAli, Advocate for State. Mr. Nawaz Bhatti, A.A.G. Date of hearing: 25.11.1997. order Muhammad Naseem Chaudhrl, J.-Crime case No. 103 dated 18.8.1997 stands registered at P.S. Shah Nikdar District Sargodha under Sections 3.53/18,6/324/34 Pakistan Penal Code at the instance of Muhammad Iqbal constable posted in police station Shah Nikdar with 'the allegation that alongwith Manzpor Hussain ASI and Safdar Iqbat constable both posted in P.S. Shah Nikdar, he was going in official car No. &TKA/1213 being driven by Abdul Shakoor. One Muhammad Ramzan accused of case FIR No. 102/97 registered at the same police station was also with them who was being taken for his medical examination. At 9.00 A.M. they reached Rajbah Naurang within the area of Chak no. 152. Two motprcyclas : arrived there. On one" motorcycle being driven by Tariq co-accused,, Rashid petitioner was sitting on his back while armed with a rifle in violation of ban about pillion riding. The other motorcycle was being driven by Faisal Hayat co-accused. The accused persons were stopped and effort was made to apprehend them. Faisal Hayat co-accused left the motorcycle and went towards the High School situated at a near distance who fired at Manzoor Hussain ASI with his pistol which hit his left flank and the abdomen. Thereafter Rashid petitioner fixed which hit the back side of the car. All the accused persons are said to have made good their escape on one motorcycle. Manzoor Hussain ASI was removed to the hospital who fortunately has survived. 2. In the case the investigation has beeri conducted. The motorcycle and the damaged car have been taken into possession. Manzoor Hussain ASI has been got medically examined. Even though Rashid petitioner was arrested and his physical remand was obtained, the recovery of any weapon has not been effected. 3. After completing the investigation the police has submitted the challan in the Court of the learned Judge for Anti-Terrorism, Sargodha Division Sargodha. 4. The bail application of Rashid petitioner-accused has been dismissed by the said Court who has entered the portal of this Court to try his luck to be admitted to bail. 5. We have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before us. 6. At the very outset we would express that the full name of the petitioner is Inamullah Rashid. 7. This is the proper stage to hold as to whether or not the learned Judge appointed under the Anti-Terrorism Act, 1997 has the jurisdiction to hold the trial and it is also proper to take into account as to whether the trial has to be held by the learned judge appointed under the Suppression of Terrorists Activities (Special Courts) Act, 1975 or by the learned Area Magistrate. A perusal of the Anti-Terrorism Act, 1997 has made out that the allegations against the petitioner and his co-accused and the aforesaid alleged offences are not covered by the definition dfTerrorist Act" narrated under Section 6. It is a matter wherein the accused persons are alleged to have taken the law in their hands when challenged by the police party about the violation of ban regarding pillion riding. A perusal of the Schedule to the Anti-Terrorism Act, 1997 has made out that the alleged offences do not fall therein. Fortunately Manzoor Hussain ASI has survived by the grace of God. No doubt he is a member of the police force but Sections 324/353/186 Pakistan Penal Code are not the offences mentioned in the aforesaid " Schedule so as to confer jurisdiction on the learned Judge appointed under the Anti-Terrorism Act, 1997. This aspect is determined in this manner. 8. About the jurisdiction of the learned Judge under the Suppression of Terrorists Activities (Special Courts) Act, 1975, we have to refer to its Schedule. Section 307 Pakistan Penal Code was applicable at the time of the enforcement of the aforesaid Act of 1975 which stands substituted by Section 324 Pakistan Penal Code. Clause (ii) to the Schedule to the Suppression- jjf Terrorists Activities (Special Courts) Act, 1975 is attracted in case any offence is committed under clause (b) and clause (c) of the said Schedule. Clause (b) deals with the offences punishable under the Explosive Substances Act, 1908 while clause (c) deals with the offences committed with the light or heavy automatic or semi-automatic weapons. In the instant case allegation against the accused persons is that they used the rifle and pistol and even in the FIR it is not narrated that the said weapons were automatic or semi-automatic. Hence it can safely be expressed that the aforesaid offences are not triable by the learned Judge appointed^under the Suppressibn of Terrorists Activities (Special Courts) Act, 1975. It shall not be out of place to express that Sections 353 and 186 Pakistan Penal Code are also not the scheduled offences under the aforesaid Act of 1975. We hold that the learned Judge appointed under the aforesaid Act of 1975 has no jurisdiction to hear the case in view of Section 4 of the said Act of 1975. 9. In the light of what has been held above, the Court before whom the challan has to be submitted by the SHO is none else than the learned Area Magistrate and obviously the bail application shall have to be first disposed of by him. 10. According to Note (ii) rule 14 Chapter X of the High Court Rules and Orders Volume III, a bail application has to be first moved before and disposed of by the Court of original jurisdiction. As such we refrain from disposing of this bail application on merits, The petitioner may move the learned Ilaqa Magistrate argodha to obtain the required and desired relief. With our aforesaid findings, this bail application is disposed of in the aforesaid terms: 12. If the challan has been submitted before the learned Judge appointed under the Anti-Terrorism Act, 1997, he shall immediately send the file to the learned Sessions Judge Sargodha who shall entrust the same to the learned flaqa Magistrate P.S. Shah Nikdar District Sargodha for "proceeding further in accordance with law. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 180 Present: muahmmad naseem chaudhri, J. SAIF UR REHMAN KHAN-Petitioner versus STATE-Respondent Crl. Misc. 4437-B of 1997, dismissed on ail <i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497"Bail--Offence U/S. 302/324/148/149 PPC--Injury attributed to petitioner on right arm-There is no distinction of place of injury as vital or non-vital part in a murder case-Legally presence of accused is to be taken into account if he is attributed any role as well as injury on person of deceased-Prima facie presence of petitioner at place of occurrence stands established-Reasoning of injury attributed to petitioner on non vital part is of no avail to him for purpose of admission to bail. [P. 181] A (ii) Criminal Procedure Code, 1898 <V of 1898)- —S. 497-Bail-Statutory delay-Ground of-Offence U/S. 302/324/148/149 PPC--Petitioner remained admitted in jafl Hospital and on many dates was not produced-As such delay in conclusion of trial cannot be attx\v\xted to prosecutlon-Petition dismissed. [P. 182] B (iii) Punjab Police Rules, 1934-- —Chapter XXVH and Rule 9 read with High Court Rules and Orders-^For disposal of important cases/Sessions cases, investigating officer shall, whenever possible, attend and personally instruct prosecuting Inspector who shall prepare "Police Brief-He should himself or any responsible subordinate attend court so that presence of prosecution witnesses is , procured—Session trials should be given seriousness which they deserve- •Trial Court should fix these cases on specified davs in a week and shall not crowd their cause list for those days. fP . 182] C & D Mr. S.N. Khowar Khan, Advocate for Petitioner. Mr. Maqsood Ahmed Khan, Advocate for State. Date of hearing: 27.11.1997 .. judgment Crime Case No. 370 dated 26.5.1995 stands registered at Police Station Saddar Sheikhupura under section 302/3324/148/149 P.P.C. at the instance of Mushtaq Ahmad complainant about the murder of his son Ishaq Muhammad Khan at the hands of Saif-ur-Rehman petitioner and his coaccused who were armed with lethal weapons at the alleged time of occurrence. Saif-ur-Rehman petitioner is said to be armed with double barrel 12-bore gun and the injury attributed to him is that he hit the right am of the deceased. Saif-ur-Rehman petitioner was arrested on 19.6.1995. He moved the trial Court for the admission to bail but could not succeed. Hence he has filed this petition on merits as well as on statutory ground. 2. I have heard the learned counsel for the parties as well as the learned State counsel and gone through the record before me. The main contention of the learned counsel for Saif-ur-Rehman petitioner is that the injury attributed to him is on the right arm of the deceased which is not a vital part. As rightly expressed by the learned counsel for the State, there is no distinction of the place of injury as vital or .non-vital part in a murder case. Legally the presence of the accused is to he takeninto account if he is attributed any role as well as injury on the person of the deceased. In view of the aforesaid aspect of the matter, I express the view that prima facie of occurrence at the alleged time of occurrence stands established and the aforesaid reasoning is of no avail to him for the purpose of admission to bail. 3. With respect to statutory ground it was canvassed by the learned counsel for the petitioner that he was arrested on 19.6.1995 and a period of two years has elapsed since his arrest who is not responsible for the delay in the matter. A perusal of the inte-locutory orders as well as the order passed by the learned Additional Sessions Judge on 24.6.1997 dismissing the bail plea of Saif-ur-Rehman petitioner has made out that he remained admitted in the Jail Hospital and on many dates was not produced. As such the delay in the conclusion of the trial .cannot be attributed to the prosecution. Consequently, I hold that on statutory ground as well Saif-ur-Rehman petitioner is not entitled to be admitted to bail. 4. However, at this stage it can safely be expressed that the trial is being conducted in a perfunctory manner. In recent past a Sessions Trial was concluded within a period of 4 to 6 days. In the instant matter the charge was framed on 23.5.1997. The trial Court is directed to hold and conclude the trial with all the seriousness. In this regard I would express that for the disposal of important cases of the instant nature i.e. Sessions Cases the following type of provision can be put in the motion to secure the positive results:- (i) It is provided in rule 9 of Chapter XXVE of the Punjab Police Rules, 1934 that "in all important cases sent for trial, the investigating officer shall, whenever possible, attend and personally instruct the prosecuting inspector who shall prepare the "Police Brief. On the basis of the aforesaid rule which has to be followed by the police the Investigating Officer himself has or he may depute any responsible subordinate to attend the Court so that the presence of the prosecution witnesses is procured. (ii) For the guidance of the subordinate courts the rules have been incorporated in Chapter XXIV Part-B of the High Court Rules and Orders Volume-Hi for holding the Sessions Trials. I would express that Sessions Trials should be given the seriousness which they deserve. The trial Court should fix these cases on specified days in a week and shall not crowd their cause-list for those days, it is simply surprising that the charge was framed on 23.5.1997 and till today only one witness has been examined. 5. For what has been said above, it dismiss this petition. However, I direct the trial Court to finally dispose of the case till 30.1.1998 under intimation to the Registrar of this Court. I must express that I have given a sufficient time to the learned trial Court even though in the past, as z xpressed above, tfife Sessions Trials were concluded within 4,to 6 days and it is hoped that the matter shall be dealt with all the seriousness, ., (MYFJD Petition "dismissed. •

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 183 Present: malik hamid saeed, J. NADEEM, FARMAN ALI and DR. APTAB-Appellant versus STATE-Respondent Cr r AppealKo. 130,134 & 160 of 199 1 ?, Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-Ss. 420/161/1^5 read with Prevention of Corruption Act, 1947 (II of 1947) S. 5(2)~niegal gratification-Acceptance 6f--Gffence of--Conviction forhallenge to-Prosecution miserably failed to establish through any cogent evidence of presence of all accused/Appellants) in room in vicinity in hostel at time of raid-Prosecution has also failed to establish any link ~~ between appellants-No:doubt things goes against one accused and the evidence available on record fully connect him with commission of offence-Presence of two co-accused was after-thought hence doubtful- Appeal upto extent to two Co-accused accepted-Conviction of ccused/appellant N maintained. [Pp. 186,188 & 189] A, B, C & D Mr. Zahoor ulHaq, Barat Law Advocate for Appellant. Mr, Abdur RaufKhan Gandapur, Advocate for State. Dates of hearing: 10.10.97 and 13.10.97. judgment Through this, single judgment in Cr. Appeal No. 130 of 1997, I propose to dispose of Cr. Appeal No. 134 of 1997 and Cr. Appeal No. 160 of 1997 filed by Nadeem, Farman Ali and Dr. Aftab, accused-appellants respectively, against the same judgment dated 8.5.1997 of the learned Special, sludge, Anti-corruption, NWPP, Peshawar whereby he after having found fthe accused-appellants guilty of the offence under sections 420/161/165 PPC read with Section 5(2) Prevention of Corruption Act, convicted and, sentenced accused Nadeem to three years R4 on both the counts w4th a, fine of Rs. 5,000/- or in default six months S1I, accused Fapian Ali to twp years R.I. and a fine of Rs 5,000/- or in default six months S.I. and accused Dr. Aftab to one year R.I. with a fine of Rs. 5,000/- , , or in default six months S.I. All the sentences pn all counts were ordered to run concurrently. 2. Facts of the case according to the F.I.R are that Dr. Professor Muhammad Ali Khattak, the Dean of the Physics Department University of Peshawar Was sent for checking of B.Sc Part-I (Physics jJjaper), for the year. 1991. Siraj Muhammad lodger of the F.I.R., received secret information that the said Muhammad Ali Khattak through his son Dr. Aftab Khattak and an ex-student, accused Nadeem, are earning money i.e. illegal gratifications through replacements of domestically solved papers (on blank Answer Books) with the actual one from the candidates. Blank Answer Books are so filled in 'and these are exchanged in the lot with the actual solved papers through such payments. The case was accordingly registered and investigation initiated. 3. The SHO desired for raid and in this connection the services of Mufti Iqhal Ahmad EAC (Rtd) were obtained. On 30.9.1991 further steps for aid were taken and accordingly a raiding party was arranged. The raiding party went to the office of Dr. Muhammad Haroon controller and disclosed their programme to him. The controller provided them with the list of apers (24 in all) to the Magistrate. The list transpired tha,t it included RoH No. 728 which they picked up at random for their raid. 4. The paper bearing Roll No. 728 was in the name of candidate Fozia Noreen (PW6). Therefore, the magistrate was provided the services, of a lady FC namely, Farkhanda (PW2) with a trap agent Fayyaz (PWlJk to settle bargain with accused Nadeem and Dr. Aftab Khattak. This bargain was struck for Rs. 4,000/- whereafter both the trap agents were provided with a blank Answer Book. This answer book was roughly filled in by F.C. Farkhanda. Fayyaz PW was functioning as her proxy. The place where these two accused were to receive the amount and exchange the papers was Room No. 4 of the New Doctors' Hostel at Hayat Shaheed Teaching Hospital. Peshawar. This room was meant for guests of Dr. Aftab Khattak (as latter confirmed in report Ex. PW 5/14 of Dr. Imran on behalf of Professor Ziaul Islam). The raiding party went there and the two trap agents were also then deputed there. Fayyaz was given an amount of Rs. 4,000/- in four notes of Rs. 1,000/- each bearing No. $-896274 (Ex. PI), F-2093351 (Ex. P-2) P- 0346616 (Ex. P3) and D-7953763 (Ex. P-4) as shown in tide recovery memo Ex. PW 4/1. Their statement before raid was recorded by the Magistrate. Thereafter they entered room No. 4 of the New Doctor's Hostel and other stood outside. The paper and the notes were exchanged. On receiving the required signals the Magistrate and other members of the raiding pally also entered the room. The amount (tained notes) were recovered by the SHO in the supervision of MIC from the possession of accused Nadeem. Dr. Aftab Khattka somehow taking the keys from PW Fayyaz and escaped on his Motorcycle. The fake answer papers as well as the real one was recovered on the spot vide memos Ex. PW 4/5. All the PWs named above, were examined after the raid. Accused Nadeem was also examined vide his statement Ex. PW 4/6. The party then came to the residence of Dr. Muhammad Ali Khattak. He produced before them the list as well as the actual Answer Books available there. The paper of Roll no. 728 was missing. He was also examined. As such the raid proceedings were accomplished and the said PW4/11 was scribed and all the recdrd s^made handed over to I Muhammad for further investigation. . 5. Subsequent investigations were held during which it was further transpired that the blank Answer books were being provided by accused- Farman AM a stationary clerk of the University. He had received 422 extra unused blank Books from centre at Tangi. He did not transport it to the stock as was required by the University Rules and instructions but instead he shared the obnoxious business of his co-accused and used to provided blank Books. Earlier Dr. Haroon too was approached by a student, namely, Shah Zaman regarding the same business in the same year and the same paper in this very room No. 4 of the Doctors Hostel at Hayat Shaheed Teach­ ing Hospital, Peshawar. The Controller providechaBva^eunt of Rs. 8,OOQ/- to the above student-complainant. He brought two solved papers under Roll No. 515 and 644 to the controller from Nadeem accused of this case. This was so deposed by Dr. Haroon in the court when appeared as PW. 7. 6. After the investigation, the I.O got Verified the signature of Farman Ali with his acknowledgment Ex. PW 5/11 of the blank papers. He received a positive report from Supdt. Tangi Centre. He also got examined through the same expert the handwriting of the candidate Fozia Naureen and received positive report. Accordingly Dr. Aftab Khattak and Farman Ali were arrested in the case. On completion of investigation and obtaining the sanctions of the prosecution, the case was put in court for trial. 7. The prosecution in order to prove its case examined IS'witnesses in all and statements of the accused-appellants were also recorded under Section 342, Cr.P.C. wherein they denied all the allegations and claimed trial. The accused-appellants were tried and accordingly they were convicted and sentenced, as stated earlier. 8. I have heard the learned counsel for the accused-appellants as well as learned counsel for the State at length and have also perused the record with their valuable assistance. , 9. In this case the role of all the three accused-appellants are distinguished from each other, for, .Farman, appellant, provided blank answer sheets to the other accused, Dr. Aftab Khattak, appellant, brought the solved answer sheet of Roll No. 728, and Nadeem, appellant, received the tained amount from the Trap Party. All the three appellants were arrested from different places. 10. So far as the role attributed to Dr. AftaW Khattak, appellant, is concerned, it may be stated that he is the son of Professor Dr. Muhammad All Khattak, to whom the papers of Physics of B.Sc Examination 1991 were sent for checking. The record indicates that the information, of replacing the answer-sheets with another answer-sheets from outside was given by one Shah Zaman, student of B.Sc., to Haroon Khan, Controller of examinations, University of Peshawar. Tie in his report Ex. PW 7/1, has Sl&ted as under: - From the above statement there' is nd mention sabput any other^person except Nadeem. Even when the answer-sheets were produced before him, there is no specification about the fact as to how Nadeem managed to replace the answer-sheets by the connivance of whom. As the answer-sheets of the said paper sent to Dr. Muhaminad All Khattak for checking, therefore, they apprehended his involvement in tne case. Later on, it was reveale'd that Dr. Aftab Khattak, appellant, who is son of Dr. Muhammad Ali Khattak, brings the required paper from ithe house and the bargain takes place .through Nadeem, appellant, in a room in ,the Doctor's Hostel of Hayat Shaheed Teaching Hospital. Accordingly, Farkhanda, Lady Constable, PW 2, and Fayyaz PW, were deputed as Trap Agents. They went to Room No. 4 of the Hospital and the relevant portion from the examination-in-chief of this witness is also worth reliance, which runs as under:- "I was asked to pose myself as sister of Fayyaz PW and we both had to go to Hayat Teaching Hospital, Pehsawar. On,, our going to room No. 4 of the hospital a boy opened the door of the room. Where upon I and Fayyaz PW entered the room. One boy was present in the room handed over the answer paper of Physics to me. I am educated upto Matric. The ACE authority had given to me a book and I was asked to write something in the answer sheet in the light of that book. In the meanwhile the ACE party came inside the room. I was busy in writing but I think the ACE party might have recovered the money from that boy present in the room, when I was allowed to leave the room." This statement clearly suggests that at the time of the raid, only one person was present there in the room and no doubt, the record of the case clear|y suggests that the said person was Nadeem. Similarly, PW-14 Mir A-sghar Shah, Assistant Director Crime ACE is also silent about the use! of motor cycle by the Trap agents in the occurrence. This witness has denied to have identified Dr. Aftab while leaving the premises prior to the entry of raid party into the room No. 4. Room No. 4 of New Doctors Hostel, Peshawar has also not been proved to be in exclusive use of Dr. Aftab. Rather the record indicates that it was used as Guest Room by all the doctors residing in the Hostel. The prosecution has, therefore, miserably failed to establish through any cogent evidence the presence of Dr. Aftab in the room or even in the vicinity of the Hostel at the time of raid on 30.9.1991. It also gets support from the fact that no belonging of Dr. Aftab had been recovered from the room. This witness in the his cross-examination has also stated that before the raid the trap agents PW Fayyaz and lady constable Farkhanda were received by accused Nadeem on the gate of Hostel and then taken along to room No. 4. To a further question of the defence, this witness denied the suggestion that the blank sheets were lying under the mate. He stated that in fact these were recovered from the hand of accused Nadeem. PW 4 Mufti Iqbal Ahmad, Extra Assistant Commissioner in his statement has also stated the same facts as under:- "On my knock the door was opened and I with the trap party entered the room. Inside the room we found trap agent Fayyaz, lady constable Farkhanda and one other young mati. f an the pointation of the trap agent the said young man was interrogated who disclosed himself to be Nadeem son of Fazal Darim r/o Shaheeh town. From his personal searcli the C.O recovered the trap amount from the left pocket of the shirt." Here too,/the presence of Dr. Aftab Khattak in room No. 4 is missing, a Therefore, the story of decamping of the Dr. Aftab Khattak from the scene on a motor-bike is an after thought and only on such a presumption, he cannot be held liable for commission of the offence charged with. The case of Farman also stands on the same footings, because he Was also not present in the room at the time of raid and his role was only for the supply of blank answer-sheets but at the same time the prosecution has totally failed to establish any link between Farman, appellant, and the other accused. The ingredients of Section 409 PPC would, therefore, not attract in his case as the prosecution has also failed to establish any motive on his part. So far as the case against Nadeem, accused, is concerned, no doubt the things goes against him and the evidence available on record fully connect him with the commission of the offence. It was he, who made bargain with Mohd. Fayyaz (PW1), it was also he, who received the tained amount form the Trap Agents, it was he who was present in room No. 4 at the time of raid, and it was also he, from whose possession the blank and solved answer sheet/papers were recovered "by the raiding party. Hence the prbseeution has fully established its case against Nadeem, appellant, beyond any shadow of reasonable doubt and he has been rightly convicted and sentenced by the learned trial Judge. The learned counsel for this appellant laid great stress on the point that the raiding party was unable to hear any conversation between Nadeem and the Trap Agents inside the room. But in view of the above mentioned facts, the arguments has got no force and reliance can be placed on a judgment reported as Naseer Ahrtied vs. The Stote (PLD 1960 Lahore 290) wherein it has been held:-' "Evidence corroboration of Members of raiding party not over-hearing conversation between accused and complainant. Evidence of complainant uncocfobcHialed. Circumstances of accused' concern with mutation proceedings started by complainant, lodging of report with police regarding demand of bribe for same purpose! recovery of tainted money from accused, coupled with true defence of prosecution witnesses without an allegation of enmity or hostility. Held: sufficient corroboration. ConvietioS and sentence maintained in circumstances of case." ; , The upshot of the above discussion is that the prosecution has failed to fully connect Dr. Aftab Khattak and Farman Ah', appellants, with th commission of the offence and the benefit of doubt, therefore, must go iw' their favour. Their appeals are, therefore, accepted, the conviction an4 sentences of the above two appellants are set aside and they are acquitted ,«£ the charges. They are present in the Court on bail and are hereby discharged from the obligation of their bail bonds and are allowed to go. The conviction and sentences recorded by the learned trial Judge against Nadeem, appcBant, are upheld and his appeal is hereby dismissed. He is also present in Court on bail, taken into custody and sent to judicial lock-up for undergoing the remaining term of the sentence. (KK.F.)

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 189 [Multan Bench] Present: M.A. QAZI, J. QADIR BAKHSH etc.--Appellants versus STATE-Respondent Criminal Appeal No. 19 of 1996, accepted on 3.11.1997. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. ir 302«Murder--Offenee of--Convictioli for-Appeal against-Evidence against appellant, consists only of extra-judicial confession-These three accused were arrested almost at year after occurrence-Nothing incriminating has heen recovered from them and no evidence of any motive has been brought on file which could attribute any reason for their commission of offence-Their statement under section 342 Cr.P.C. cannot be read against them—It is apparently a case of no evidence against them-Appeal accepted. [P. 193] A (11) Pakistan Penal Code, 1860 (XLV of I860)-- —S. 302-Murder-Offerice of-Conviction for-Appeal against-Evidence of last seen-There is no evidence of eixtra-judicial confession—Any how evidence of last seen is corroborated by evidence of recoveries effected from appellant-As per evidence, deceased was taken from his house tin 30.8.1992 at 6.00 A.M, by appellant and dead body was discovered at 9.00 A.M. on same day-Only thing which is irritating is that if M".H. was truthful witness then he should have on same day come forward before . police and made a statement-It is very surpising that statements of PWs were not recorded soon but were recorded after lapse of a considerable time-Recovery of cycle has not been positively connected as that belonging to deceased and recovery of currency notes is also not indentifiable as to whom they belonged-To strengthen prosecution case, police,has planted photograph of deceased which accused had no reason to keep as a Jove sake-Recovery of Toka is not a circumstance which could warrant conviction without any other substance evidence on record-Statement of accused recorded under section 342 Cr.P.C. is an exculpatory statement-Prosecution cannot benefit from this statement and it has to stand on its own legs-Case against appellant is not strongly proved beyond any doubt—Appeal accepted. [Pp. 193 & 194] B Ch. Faqir Muhammad and Mian Bashir Ahmed, Advocates for Appellant. MianKamran bin Latif, Advocate for State. Date of hearing: 3.11.1997. judgment Qadir Bakhsh aged 38, Muhammad All aged 35, Muhammad Ramzan alias Siyan aged 35, and Muhammad Afzal alias Kala aged 35 years accused were challaned and sent up for trial in the instant case. Malik Muhammad Siddique Sikandar, Additional Sessions Judge, Multan through judgment dated 9.4.1996 convicted all the four accused under Section 302 PPG as Tazir and under Section 201 PPC. All the accused were sehtenced'to imprisonment for life each and with a fine of Rs. 25,000/- each, in default of payment of fine one year S.I. each. It was ordered that if the fine was realised half of it should be paid to the legal heirs of the deceased. All the accused were also convicted under Section 201 PPC and sentenced to three.years R.I. each and fine of Rs. 10,000/- each, in default of payment of fine six months S.I. each. Both the sentences were ordered to run concurrently. However, none of the convicts was extended the benefit of section 382-B Cr.P.C. 2. Feeling aggrieved by their conviction and sentence Qadir Bakhsh, Muhammad All and Muhammad, Ramzan preferred criminal appeal No. 119/96 while Muhammad Afzal alias Kala after lapse of considerable time preferred his appeal through the Superintendent New Central Jail Multan which was received on 27.10.1997 in the office of the Deputy Registrar, Multan Bench, and was admitted for regular hearing ignoring the delay and condoning the same being one where question of his liberty was involved. 3. On 30,8.1992 at 9.00 A.M. Bashir Ahmad complainant informed the police that a dead body of male, whose name and residence was not known, was lying in the well of the tubewell at Chan Boharwala located in the area of Kotla Abu'al Fateh at a distance of 12 KM from police station Muzaffarabad. On receipt of this information, the messa e was conveyed by Abdul Razzaq Sub Inspector to the Police Station Muzaffarabad and he in pursuance of this information reached Chah oharwala and recorded statement Ex. P-L at the instance of Bashir Ahmad (PW 15). It was reduced into writing at 12.30 P.M. and sent to the police station. He prepared injury statement Ex. P-B/C and inquest report Ex. P-B/B regarding this dead body and despatched the same for postmortem examination? On 1.9.1992 after receipt of the postmortem report the formal FIR'was lodged at the police station and lit was itecorded by Abdul Razzaq Spb Inspector (PW 13). On 25.9.1992 Abdul Razzaq SI. (PW 13) arrested Muhammad Afeal alias Kala accused and on 29.9.1992 the accused while in police Custody led and got recovered cycle (Ex. P-4). It was taken into possession by the investigating officer (PW 13) vide recovery memo Ex. PD in the presence of Abdul Latif (PW 6) and Khadim Hussajn. (not produced). On Z.i^I99.2 in the presence of the above said witnesses Muhammad Afeal accused led the police and got recovery blood stained? Taka (Ex. PiSfcand also 4wo currency note of the denomination of one thousand each (Ex. P6/1-2) and one currency note of .the denomination of Rs. SOO/- (Ex.<P6/3), and a colcJtired photograph of the deceased (Ex. P. 7). All these Articles were taken into possession vide recovery memo Ex. P-E. The blood stained Toka was isent to the Chemical Examiner who reported vide Ex. P-H that % it«was stained with blood while the serologist vide report Ex. P-K opined that it was stained with human blood. 4. The postmortem examination was conducted by Dr. Muhammad Alfaf Hussaih (PW 4) who found the following injuries on the person of the deceased:- 1. An incised wound 3$£ x cm half cm ,on the left side of frontal part of heard, 5 cam from eye brow in vertical direction. 2. Five incised wounds 2^ CM x' 1 cm, 3 cm x 1/2 cm, 2 cm x 1/2 cm, 1^ cm xl.cm, 3 cm x 1/2 em on the left tempo prital region in different directions in area 8 cm x 5 cm. ,3. Two incised wound 2% x 1/2 cm, 1 cm x 1/4 cm on the , back of head occipatil region in different directions. 4. An incised wound that death in this case occurred due to shock and haemorrhage caused by injury No. 4 which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon and time between the injuries and death was few minutes while between death and the postmortem was 24 to 32 hottrs. On querry of the police he also opined vide report Ex. j:C/l that the injuries on the person of the deceased were caused by two different kinds of sharp-edged weapons. 5. After completion of the investigation the accused were challaned and sent up for trial before the Court of Session at Multan. 6. To prove the charge, the prosecution has produced fifteen witnesses in all and elosed the case for the prosecution. The accused when examined under Section 342 Cr.P.C. Muhammad Ali accused, in answer to question No. 7 stated as under:- "I am innocent and the case against me is abeolutely faltt. In fact I was involved in this case after about open year of tke . occurrence only on the behest of the complainant because We had rented a land on which we were running a Soap Factory and the land was owned by complainant party and they wanted to get the same vacated and when I and my coaccused Qadir Bakhsh were got arrested they forcibly took the possession of our Factory." Almost similar statement has been made by Qadir Bukhsh accused. Muhammad Ramzan accused has just stated that he was innocent while Muhammad Afzal alias Kala in reply to question No. 9 has made a detailed statement which is reproduced below:- "Deceased took me from my house to purchase a Karaha. When we reached near the corner of the garden of Nawab Sadiq Hussain Qureshi Muhammad Ali, Qadir Bukhsh and Muhammad Ramzan were already standing there. After seeing Muhammad Ali, Ramzan and Qadir Bukhsh accused Fiyaz deceased stated that they are my enemies. They encircled Fiyaz deceased and caught hold of him. The accused also caught hold of me from my back side and tied me with a tree. Ramzan' accused was armed with Tokka whereas Qadir Bukhsh was having a Chhuri and .Muhammad Ali caught hold .of deceased. They inflicted injuries to Fiyaz and threw him into the well. After that they ' untied me and asked to run away. The accused had forcibly got the possession of the land of deceased and in this regard there was some litigation. The accused murdered Fiyaz deceased on account of this motive. I am innocent. The Thanedar demanded from me 15/20000/- as bribe which I would riot provide due to this reason he challaned me in this " case." '" " 7. Ch. Faqeer Muhammad learned counsel for Qadir Bukhsh Muhammad Ali and Muhammad Ramzan appellants and Mr. Muhammad Akhtar Khan learned counsel for Muhammad Afzal alias Kla appellant have been heard at length and with their assistance record and the evidence have been perused in minute detail and each aspect of the case has been thoroughly examined. 8. Learned counsel appearing on behalf of the State has however, supported the judgment of the trial court and prayed that conviction and sentence be maintained. 9. Qadir Bukhsh and Muhammad Ali are partners in business while Muhammad Ramzan appellant is an employee in the Soap Factory installed by Qadir Bakhsh and Muhammad Ali appellants. Muhammad Afzal alias Kala is not related to either of the accused. The prosecution evidence consists of last seen evidence which is only directed against Muhammad Afzal appellant and to support this last-seen evidence the prosecution has produced Khalil Ahmad (PW 7) and Muhammad Hussain (PW 12). Khalil Ahmad was declared hostile and has been cross-examined by the learned prosecutor. The other piece of evidence against Mtmammad Afzal consists of recovery of cycle (Ex. P. 4), blood-stained Toka (Ex. P-5), currency notes (Ex. P. 6/1.2) and (Ex. P.6/3) and photograph (Ex. P. 7) of the deceased. He was arrested on 25.9.1992 and on 29.9.1992 the cycle (Ex. P. 4) was recovered while other recoveries were effected on 2.10.1992. Muhammad Latif (PW 6) and Abdul Razzaq Sub Inspector (PW 13) have supported the factum of recoveries while Khadim Hussain was not produced. 10. The evidence against Qadir Bakhsh, Muhammad Ali and Muhammad Ramzan consists only of extra-judicial confession. Muhammad Ramzan appeared as PW8 and has not supported the prosecution case. Jan Muhammad uncle of the deceased was examined as PW 10. He also did not support the prosecution case. Allah Ditta and Ghulam Farid PWs W re given p and not produced. These three accused were arrested on 30.7.1993 almost a year after the-occurrence by Malik Dildar Ahmad Sub Inspector (PW 11). Nothing incriminating has been recovered from them and no evidence of any motive has been brought on the file which could attribute any reason for their commission of the offence. However, in their statements under Section 342 Cr.P.C. they have given a reason as to why they have been falsely involved but that cannot be read against them. As far as these three appellants are concerned, it is apparently a case of no evidence against them. Hence there is no alternative but to accept the appeal filed by them and to extend them the benefit of doubt. 11. The case of Muhammad Afzal alias Kala appellant is slightly on a different footing. Though there is no evidence of extra-judicial confession against him yet Muhammad Hussain (PW 12) has supported the prosecution by saying that it was in his presence that the deceased left the house of his father on 30.8.1992 at 6.00 A.M. This evidence is corroborated by the evidence of recoveries effected from Muhammad Afzal alias Kala appellant and the recovery of Toka is also further stenghened by the positive reports of the Chemical Examiner and the Serologist. The precise question would be. that whether the statement of Muhammad Hussain (PW 12) the solitary witness of last seen evidence could be relied and believed. It is not established from any evidence on the file that Muhammad Hussain (PW 12) has any enmity with the accused or reason to falsely implicate him in this case. The deceased was taken from his house on 30.8.1992 at 6.00 A.M. and the dead body was discovered from Chah Boharwala, Mauza Abu'al Fateh at 9.00 A.M. the same day. The only thing which is irritating is that if Muhammad Hussain was a truthful witness then he should have on the same clay come forward before the police and made a statement that it was in his presence that Muhammad Afzal alias Kala appellant took the deceased from the house of Muhammad Nawaz father of the deceased and that Muhammad Nawaz could have also appeared before the police and made that statement before the police in this context. It is very surprising that their statements were not, recorded soon but were recorded after lapse of a considerable time. The recovery of cycle (Ex. P-4} has not been positively connected as that belonging'to the deceased and the recovery of currency notes is also not identifiable as to whom they belonged. To strengthen the prosecution ; case the police has planted photograph (Ex. P-7) of the deceased which the accused had no reason to keep was a love sake. Thus the recovery.. of Tpka even if established, is not, a circumstances which could warrant conviction without any other substantive evidence on record. Therefore, I find that the case against Muhammad Afzal alias Kala appellant is also not very strongly proved against him. The Statement of the accused recorded under section 342 Cr.P.C. is an exculpatory statement. If the other coaccused could have done to death Fiyaz deceased then there was nothing to stop them from doing away with the accused and there was no fun to leave jehind a witness against them. The prosecution cannot benefit from this statement and it has to stand on its own legs. It is the duty of the prosecution to prove its case beyond reasonable doubt, to earn a conviction but in the u-esent case I find that the prosecution has not been able to prove its case leyond reasonable doubt. Hence appeal of this appellant is also accepted and as a result all the four convicts are acquitted of the charge against them and they shall be set, at liberty if not required in any other case. MYFKj Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C ( Lahore ) 195 [ Rawalpindi Bench] Present: raja MUHAMMAD KHURSHID, J. GHULAM MUHAMMAD-Petitioner versus ALLAH DITTA etc. --Respondents Criminal Misc. No. 926-B-C-1997, dismissed on 11-11-1997 . Criminal Procedure Code, 1898 (V of 1898)-- —S. 497 (5)-Bail-Cancellation of-Offence u/S. 324/148/149 PPC~Weapon used during occurrence is conventional such as hatchet-Possibility that injuries att rib uted to respondents could be self-suffered, cannot be ruled out in view of report of Medical Board-It is a case of further inquiry-Bail was rightly granted and there is no convincing ground to cancel the same- Petition dismissed. [P. 196] A Mr. ZafarAwan, Advocate for Petitioner. Ch. Mushtaq Ahmed Gondal, Advocate for Respondent No. 1. Mr. Ahmed Naeem Qureshi, Advocate for State. Date of hearing: 11-11-1997. order This petition is moved for the cancellation of bail granted to the respondents by the learned Additional Sessions Judge, Chakwal, in a case registered against them and others under sections 324, 148 and 149 PPC vide FIR No. 66 dated 16-7-1997 registered at Police Station Tammon, District Chakwal. 2. According to the F.I.R. the respondent Allah Ditta had given a hatchet blow on the head of Ghulam Muhammad complainant which caused injury No. 1 shown in the medico-legal report. It was kept under observation and later on it aws found to be 'Shajjah-i-Mudiha'. A Medical Board was constituted for re-examination of the victim i.e. the complainant Ghulam uhammad which submitted its report (Annexure-G) showing seven injuries on the person of the victim. Injuries No. 1 to 3 were stated to be inflicted with sharp edged weapon whereas the rest were caused with blunt weapon. The Board was of the opinion that nothing could be said about the nature of weapon in respect of injuries No. 1 to 3. It was also observed that, "if circumstantial evidence favour, possibility of self-suffering cannot be/ excluded". 3. Learned Court below taking into consideration the medical evidence and the nature of the injuries came to the conclusion that it is a case of further inquiry and admitted the respondents to bail. The cancellation is sought on the ground that the injury was caused on the head which is a vital part of the body and as such, the bail should have not been granted without any extenuating circumstance. Since there was no - c extenuating circumstance in this case, therefore, the respondents afore­ named were not entitled to the concession of bail. 4. I have considered the foregoing submissions and have gone through the record with the help of the learned counsel for the parties. The respondents are already on bail, the weapon used during the occurrence is conventional such as hatchet, the possibility that the injuries attributed to the respondents could be self-suffered cannot be ruled out in view of the report of the Medical Board. Therefore, without entering into the deeper . appreciation about the merits of the case, it is enough to say that it is a case of further inquiry. The bail was rightly granted and there is no convincing ground to cancel the same. The petition is accordingly dismissed. (K.K.F.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr. C ( Lahore ) 196 (DB) [ Rawalpindi Bench] Present: RASHID AZIZ KHAN AND MUHAMMAD NAWAZ ABBASI, JJ. ' — - - PERVEZ AKHTAR and another-Appellants versus STATE-Respondent Criminal Appeal No. 55 of 1994, accepted on 154-1997. Pakistan Penal Code, I860- -—S. 302(b)~Murder~Offence of-Conviction for~Challenge to-Motive given in FIR by prosecution for commission of offence by appellant having not specifically proved through any reliable evidence and recoveries of weapon of offence with other articles having no evidenciary value are not considered as evidence to be used against appellants-Witnesses making improvement and changing story suitable to prosecution being not worthy of credence, no implicit reliance can be placed on their statements-Co-accused has been attributed injury to Mst. Z but he having been acquitted-His case is not distinguishable so far as evidence s concerned, therefore, conviction of appellants without independent corroboration to evidence of Ms£ Z was not safe-Evidence of Mst. Z of shaky character containing major contradictions and discrepancies with doubtful identification of appellants cannot be made basis for conviction- Medical evidence doe's not furnish corroboration to evidence of eye witnesses-There being no other direct or circumstantial evidence available on record to orroborate evidence of Mst. Z as independent source to prove the identity of appellants and role played by each of them, conviction and sentence of appellants is not sustainable-Appeal accepted. [Pp. 199, 200 & 201] A to D Kh, Sultan Ahmed, Advocate for Appellants. Ch. Muhammad Iqbal, Advocate for Complainant. Any ad Naeem Ghauri, Advocate for .the State . Date of hearing: 15-4-1997. judgment Muhammad Nawaz Abbasi, J.--This judgment will dispose of Murder Reference No. 97/94 sent by the Sessions Court, Rawalpindi under Section 374 Cr.P.C. in a session case and Crl. Appeal No. 55/94 filed by Arshad Mehmood and Pervaiz Akhtar, appellants against their conviction and sentence of death under Section 302(b) PPC, awarded to them vide Judgment dated 17-4-1994 passed by the learned Additional Sessions Judge, Rawalpindi. Crl. Revision bearing No. 73/94 filed by Akbar Hussain complainant against the acquittal of Tariq Mehmood and for awarding the fine and compensation, has been earlier dismissed in limine through a separate order. • • "' 2. The appellants alongwith Tariq Mehmood acquitted accused were charged for committing murder of Aftab Ahmed in an occurrence which taken place at about 6.3G Jt>M on 16-1-1993. The report of which was lodged on the same day at 7.25 PM on the statement (Ex. PA) of Akbar Hussain recorded by Ahmad Ali, ASI at Police Station Jatli, District Rawalpindi. 3. The brief facts in the background as narrated in the FIR are that the complainant alongwith Aftab Ahmad, and Mst. Zulekhan Bibi PW6 was going towards the village Tkakra Mohra and passing through the house of the appellants, at 6.30 PM on the day of occurrence, when the appellants armed with 7 mm rifle and Tariq Mehmood acquitted accused armed with 12 bore gun attacked on the deceased. Tariq Mehmood fired at the deceased, who taking shelter under the wall escaped when the appellant namely Arshad Mehmood and Pervaiz Akhtar caused one injury each to the deceased on his head. Mst. Zulekhan Bibi when made an attempt to rescue the deceased, she was hit on back of her left hand by Tariq Mehmood with the Butt of this gun. The occurrence was witnessed by Munir Ahmad (given up PW) and Muhammad AshrafPW4. 4. It is stated that 5/6 days earlier there was an exchange of hot words between the parties over the demarcation of land and for the said reason the appellants and the acquitted accused caused death of Aftab Ahmad, deceased. 5. The prosecution case mainly rests on the ocular account furnished by Muhammad Ashraf PW4, Akbar Hussain PW6 and Mst. Zulekhan PW6. Dr. bssf Mehmood PW10, Medical Officer, Rural Health Centre, Tehsil Gojjar Khan, conducted the autopsy on the dead body of deceased and also medically examined Mst. Zulekhan Bibi, whereas Ali Ahmad ASI and Muhammad Afzal, Inspector/SHQ conducted the investigation. 6. The appellants and the acquitted accused having denied the accusation levelled against them, made the following statements at the trial:- "The PWs are related to the deceased and inter se. The PWs are inimical towards us and for that motive they implicatedus in this case falsely. It was un-seen occurrence because according to FIR the time of occurrence is at dark night and it was not possible for any PW to witness the occurrence. It is also false that the occurrence took place at the alleged place of occurrence because nothing incriminating was taken into possession or observed by the I.O. during investigation. The alleged weapon of offences had been planted against us. There is serious conflict between ocular evidence and injuries shown by the doctor on the person of the deceased and Mst. Zulekhan Bibi. I and my co-accused are innocent who have been made victim because there is a long standing party friction and enmity between us and the PWs." 7. The appellants however did not produce any evidence in their defence and prepare not to make a statement under Section 40(2) CrJ.C. The learned trial Court placing reliance on the evidence of the eye-witnesses, the motive and medical evidence convicted and sentenced the appellants under Section 302/34 PPC. 8. The learned counsel for the appellants taking us to the statement made by Muhammad Ashraf, Akbar Hussain and Mst. Zulekhan Bibi, the eye-witnesses of the occurrence, contended that the material contradictions in their statements have made their presence at the spot doubtful and that due to litigation, the relations inter se parties were strained. It is contended that the witnesses having grudge against the appellants were not independent and they being related with the deceased were interested in the conviction of the appellants, therefore, their evidence aving not believed qua Tariq Mehmood, was not believable against the appellants without independent corroboration which having not available, the conviction of the appellants was bad. He argued that the PWs having made improvements in their statements at the trial lost their credibility as truthful witnesses of the occurrence. According to him injuries of Ms?. Zulekhan Bibi is not a proof of her presence at the spot and telling truth. 9. The learned counsel appearing on behalf of the complainant argued that presence of Mst. Zulekhan an injured witness at the spot is beyond doubt and that Muhammad Ashraf is entirely an independent witness who had no reason to depose falsely against the appellants. He further argued that the ocular account of Muhammad Ashraf and Mst. Zulekhan Bibi being fully corroborated with the medical evidence sufficiently proved the charge against the appellants. 10. The learned State counsel adopting the arguments of j the learned counsel for the complainant added that the report of the Occurre'lice having lodged without loss of time, any possibility of withholding truth stood excluded. 11. We have heard the learned counsel for the parties and examined the evidence in detailed through their assistance. 12. The motive given in the FIR by the prosecution for the commission of offence by the appellant having not specifically proved through any reliable evidence and the recoveries of the weapon of offenc with other articles taken into possession by the police during the investigation having no evidentiary value are not considered as evidence to be used against the appellants. Therefore, only the medical evidence and the evidence of the eye-witnesses needs appraisal for Judging the guilt of the appellants. The occurrence had taken place at 6.30 PM iii the month of January, 1998 when it as complete dark. The PWs being; resident of the ocality, their presence in their houses nearby the place of occurrence at the relevant time was natural but the pivotal question for determination would be whether they were with the deceased when he was attacked by the appellants and witnessed the occurrence as they claimed. According to the FIR, the deceased was caused one injury each by the two appellants within the sight of witnesses. 13. Doctor who examined the deceased in .an injured condition found a lacerated wound on scalp 4" in length extending from middle of the scalp to the upper part of the occipital bone and Dr/Muhammad Ashraf PW 13, who conducted autopsy on the dead body found 10 injuries on the person of the deceased. Injury No. 5 was a stitched wound 9 cm in length on the left side of head 13 cm above the left ear, which according to the doctor was sufficient to cause death in the ordinary course of nature. It is in the evidence of Muhammad Ashraf that Mst. Zulekhan Bibi having caught by the appellants from picktail and legs was thrown away and that she was inflicted blows on chest with butt of the guns. According to this witness the deceased was caused three blows with butt by each appellant. The witness has categorically stated that the deceased and Mst. Zulekhan Bibi sustained more injuries to the actual number disclosed by the complainant in the FIR and the witnesses at the trial. Akbar Hussain, complainant admitted the criminal and civil litigation of Muhammad Ashraf PW with the appellants and their relatives. He making addition in the story of FIR stated that Mst. Zulekhan Bibi having caught by the appellants from picktail and legs was thrown on the ground and that all the three appellants gave kick and fist blows to Mst. Zulekhan Bibi in addition to the butt blows on her chest. He admittedly was not aware of the injuries of the deceased except one injury on his head at the dmt of lodging the report. The complainant was a defence withers in & cage against Muhammad Ashraf and his brother in which the accused party was complainant. As per statement of Mst Zulekhan Bibi, real sister of the deceased, she received injuries on left hand and left leg on the back of thighs. As per her version, she was caused injuries on different part of her body but she did not disclose the same to the Doctor. The injury on the back of hand received by this witness could not possibly be caused with butt of the gun and further suppression of the remaining injuries on her person is not understandable. Consequently the inference shall be drawn that Mst. Zulekhan Bibi was either not present at the spot and if attracted to the spot could not witness the occurrence in the dark. Except one injury on the back of hand of deceased, the complainant did not disclose the other injuries in the FIR and the witnesses in their statements under Section 161 Cr.P.C. Similarly the injuries of the deceased except those mentioned in the FIR were not disclosed and willingly narrated by the PWs at the trial. The scrutiny of the evidence reveals that the deceased and Mst. Zulekhan Bibi PW were caused injuries in the dark and the complainant and Muhammad Ashraf reaching later at the spot lodged report of the occurrence. 14. Taking into consideration the improvements made by the eye­ witnesses to remove the conflict with medical evidence, the presence of Muhammad Ashraf and Akbar Hussain at the place of occurrence and witnessing the incident is doubtful. The complainant did not make mention of raising lalkara by any of the appellants in the FIR, whereas the PWs in their statements at the trial having littered lalkara to the appellants before opening the fire, made material change in the story to establish the doubtful identity of the appellant; undoubtedly the occurrence having taken place in complete dark, the identification of accused in the normal course was not possible. Therefore, the prosecution to fill this lacuna through making improvement in the evidence at the trial introduced electric bulb in the garage. 15 . Without disputing the claim of persenee of Mst. Zulekhan Bibi injured witness, it was difficult for her to recognize the appellants as assailant and notice that who caused which injury to the deceased and taher in dark. The PWs attributed one injury each to each appellant on the head of the deceased but doctor has found only one large scale injury No. 5 located on the head. The suspicion whether it was a single injury or compound caused by more than one person and the manner in which the deceased and Mst. Zulekhan sustained injuries made the story cloudy. The witnesses making improvement and changing the story suitable to the prosecution being not worthy of credence, no implicit reliance can be placed on their statements. The eye-witnesses in the presence case, deliberately improved the version regarding the injuries of the deceased and Mst. Zulekhan Bibi and the identification of the appellants and modifying the story set up in the FIR tender discovery of truth difficult and consequently created a serious I doubt in their veracity. Tariq Mehmood accused has been attributed injury j to Ms;?. Zulekhan but he having been acquitted, the evidence of Mst. Zulekhan was not believed qua him. The case against the acquitted accused except the role of causing injury to PW is not distinguishable so far as the evidence is concerned, therefore, the conviction of the appellants without idependent corroboration to the evidence of Mst. Zulekhan was not safe. Excluding the evidence of Muhammad Ashraf and Akbar Hussain for the reasons given hereinafter, the sole evidence of Mst. Zulekhan of shaky character containing major contradictions and discrepancies with doubtful indentification of the appellants cannot be made basis for conviction. 16. The motive set up being not supported through any evidence oral or documentary except, the statement of Muhammad Ashraf, who is not an independent witness and admittedly was an opponent of the accused is ot proved. The medical evidence does not furnish corroboration as the eye­ witnesses improved their evidence at trial in the light of medical evidence, which by itself cannot be a source of identity of assailants. There being no other direct or circumstantial evidence available on record to corroborate the evidence of Mst. Zulekhan as independent source to prove the identity of the appellants and the role played by each of them, the conviction and sentence of the appellants is not sustainable. 17. Having made a detailed scrutiny of the evidence and taking into consideration the attending circumstances, the testimony of the eye­ witnesses receiving no credibility, the conviction and sentence of the appellants is not well founded, consequently giving the benefit of doubt to the appellants, we accept this appeal, set aside the conviction and sentence awarded to them by the learned trial Court. Murder reference is answered in the NEGATIVE. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C ( Lahore ) 201 (DB) Present : RAJA MUHAMMAD KHURSHID AND ABDUL RAZZAQ, JJ. MUHAMMAD ASHRAF-Appellant versus STATE-Respondent Criminal Appeal No. 505 of 1996, accepted on 11-8-1997. Arms Ordinance, 1965 (W.P. XX of 1965)-- —-S. 13-Appeal against judgment of Judge Special Court Suppression of Terrorist Activities-Appellant was accompanied by his two companions and 8 mm Rifle belonged to Muhammad Akram one of the said companion who/was let off by police after he had produced license-There were Havelis on both sides of road and Abadi Deh was near about where recovery was effected-Time of occurrence was 4.00 P.M. and it was not difficult for I.O. to associate some independent persons of locality to see recovery-Held : Recovery is not creditable nor evidence to prove it is trustworthy, so as to come to a conclusion that case of prosecution was beyond any reasonable doubt-Though challan was submitted under section 13-B of Ordinance, 1965, but charge was framed under section 13 of said ordinance-This too creates an anomaly vis-a-vis jiirisdiction of Special Judge to try case under Act, 1975-Benefit of doubt extended to appellant and appeal accepted. [P. 204] A to C Mr. Naseer Ahmed Bhutto and Naveed Shehryar, Advocates .for Appellant. Nazir Ahmed Chaudhry, Advocate for Respondent. Date of hearing: 11-8-1997. judgment Raja Muhammad Khurshid, J.--The appellant was convicted under Section 13 of the Arms Ordinance, 1965 by Mian Muhammad Sikamlar Hayat, Judge Special Court No. Ill Suppression of Terrorist Activities, Lahore Division, Lahore , vide his judgment dated 2.5.1996 and sentenced to four years R.I. and a fine of Rs. 20,000/- or in default to undergo further R.I, for six months. 2. Brief facts area that on 1.11.1995, the appellant was occupying a pillion-seat of a motor-cycle driven by one Muhammad Sarwar at about 4.00 P.M. The aforesaid motor-cycle was stopped by a police party headed by Munir Ahmad ASI, who found the appellant in possession of 8 mm rifle alongwith a khaki bag containing 30 live bullets and three chargers. Since the appellant could not produce licence for the aforesaid rifle and ammunition, therefore, he was booked under Section 13 of the Arms Ordinance, 1965 vide FIR Ex. PB/1 drafted on the basis of a complaint Ex. PB made by the aforesaid ASI. The offence was later on converted from Sections 13 to 13-B vide daily diaiy dated 31.12.1995. 3. The appellant, was sent up for trial to the Special Court where he was charged under Section 13 of the Arms Ordinance, 1965. 4. The prosecution examined five witnesses, out of which Munir Ahmad ASI (PW2) and Muhammad Arif Head Constable (PW3) were the most material witnesses having seen the recovery of the illicit arm and ammunition. The remaining three witnesses were of formal nature as they had dealt with the case property while it was placed in Malkhana and was sent to the Fire-arms Expert for its examination. 5. After conclusion of the prosecution evidence, the appellant/accused was examined under Section 342 Cr.P.C. in which he claimed to be innocent and put up a version that although he alongwith Muhammad Sarwar and Akram was riding a motor-cycle but the alleged illicit rifle belonged to Muhammad Akram who was its licence holder and had produced the same before the police whereupon Muhammad Akram and Muhammad Sarwar aforesaid were left off by the police having received bribe from them but he was falsely challenged to face trial. 6. The learned trial Judge after considering the prosecution evidence, discarded the defence version and recorded the conviction and sentence against the appellant, as aforesaid. 7. Learned counsel for the appellant has assailed the impugned judgment on the ground that the rifle and the ammunition were licensed weapons, as would be clear from the licence Ex. DA produced before the police and as such, no offence was committed; that the evidence of Munir Ahmad ASI was worthless, as he had drafted the complaint and had also started the investigation which was against all the fair canons of justice and equity. In this respect, it was contended that since the aforesaid ASI had become a complainant in the case, therefore, he should have refrained to investigate the same, so as to make way for disinterested and independent, investigation. Since it was not done, therefore, the investigation conducted by the aforesaid ASI was highly prejudicial qua the appellant; that even if the evidence of the prosecution was taken on its face value, it would be clear that the Investigating Officer while appearing as PW2, had admitted that Muhammad Ashraf appellant was accompanied by his companions, which would lend support to the defence version; that Muhammad Akram and Muhammad Sarwar were with the appellant at the relevant time and as such, the prosecution story was concocted; and finally that there was a legal flaw, as the charge was framed under Section 13 of the Arms Ordinance, 1965, whereas the jurisdiction of the Special Court could only be invoked if the offence fell within Section 13-B of the Arms Ordinance, 1965. In view of the above submission, it was contended that the conviction and sentence passed upon the appellant were bad in the eye of law. 8. However, the learned counsel for the State supported the impugned judgment on the ground that there was no motive with the police to implicate the appellant/accused falsely in this case; that though the rifle was licensed in the name of Muhammad Akram but since it was recovered from the appellant, therefore, his possession would be considered as illegal qua that arm and that the conviction and sentence passed by the learned trial Judge did not suffer from any material irregularity calling for an interference. 9. We have considered the foregoing points raised at the Bar from both the sides. First of all it is clear from Ex. DA that the rifle allegedly recovered from the appellant was a licensed weapon in the name of Muhammad Akram, who according to the appellant, accompanied him alongwith one Muhammad Sarwar. Both the aforesaid persons have appeared in defence to state that they were accompanying the appellant at the relevant time and that three of them were taken to police station where two of them, namely, Muhammad Akram and Muhammad Sarwar, were let off after the licence of the rifle was shown to the police. However, Muhammad Ashraf appellant was arrested by the police on the ground that he was carrying the unlicensed weapon i.e. the rifle. The appellant has taken a plea in his defence that he was falsely implicated as he had refused to oblige the AST to supply chickens to him without any payment. This allegedly annoyed the ASI who falsely implicated him in the case. 10. In the light of the foregoing facts and the evidence brought on record, it becomes clear that the appellant was not alone but was accompanied by his companions, as deposed by the Investigating Officer while appearing as PW2. In that situation, it is not easy to discard the defence version, because in fact the rifle belonged to Muhammad Akram who was later on left off by the police after he had produced the licence. The recovery was effected from a place which was located on a road side and according to the recovery memo Ex. PD, there were Havelis on both sides of the road and Abadi Deh was also near about. The time of occurrence was 4.00 P.M. and as such, it was not difficult for the Investigating Officer to associate some independent and respectable persons ofthe locality to see the recovery. In the circumstances, absence of respectables of the locality to witness the recovery has made the case reasonably doubtful, particularly when the appellant was not alone according to the statement of the Investigating Officer when he was confronted by the police party. Under such situation, the recovery in the instant case is not creditable nor evidence to prove it is trustworthy, so as to come to a conclusion that the case of the prosecution was beyond any reasonable doubt. Though the challan was submitted under Section 13-B of the Arms Ordinance, 1965 but the charge B was framed under Section 13 of the said Ordinance followed by the impugned conviction. This too creates an anomaly vis-a-vis the jurisdiction of the Special Judge to try such case under the Suppression of Terrorist Activities Act, 1975. In view of our above discussion, we come to an irresistible conclusion that the prosecution has not. been successful to prove its case beyond any reasonable doubt. We accordingly extend benefit of doubt to the appellant and while accepting his appeal, set aside the conviction and sentence passed upon him by the learned trial Judge. He shall be set at liberty forthwith if no more required in any other case. (MYFK) Appeal accepted

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 205 (DB) Present: abdul HAFEEZ CHEEMA and raja muhammad khurshid, JJ. BARKAT ALI-Appellant versus STATE-Respondent Criminal Appeal No. 1035 of 1992, decided on 28-8-1997. Pakistan Penal Code, 1860 (XLV of 1860)- -—S. 302--Douhle murder-Offence of-Conviction for-Appeal against-Eye Witnesses are closely related to deceased Ziaullah, but it is no ground to discard their testimony as same has been corroborated by recovery of weapon of offence at the instance of appellant; hence, it cannot be said that either eye witnesses were chance witnesses or had implicated accused falsely—However, motive alleged seems to be too weak, nor it would provide a convincing cause that appellant will kill his own sister alongwith deceased Ziaullah-Assailant had lost control over himself by witnessing paramour of his sister without shalwar, at a lonely place during odd hours of night and, therefore, heedlessly assaulted both flagrant delicto-Both deceased had assembled for love making-It does not seem to be a case of Qatl-i-amd falling within purview of clauses (a) and (b) of section 302 PPC-It would fall under clause (c) of said section- Conviction of appellant altered from clause (b) to clause (c) of section 302 PPC and he was sentenced to imprisonment of 10 years Rl-Death sentence not confirmed-Compensation to be paid to heirs of deceased . was enhanced from Rs. 20,000/- to Rs. 50,OOO/-Appeal partly accepted. [Pp. 207, 208 & 209] A to E PLD 1996 SC 274 ref. Sardar Muhammad LatifKhan Khosa, Advocate for Appellant. Pirzada Mamoon-ur-Rashid, Advocate for State. Dates of hearing: 26-8-1997 and 28-8-1997. judgment Raja Muhammad Khurshid, J.--The appellant was convicted under Section 302 PPC and sentenced to death on two counts for committing the murder of Zia Ullah and Mst. Perveen on the night of 29.3.1992 at about Sehri Wela within the area of village Behdian Khanpur District Kasur vide judgment dated 26.11.1992 passed by Sardar Ghulam Farid, the then learned Sessions Judge, Kasur. The appellant was also sentenced to fine of Rs. 2,000/- on two counts or in default to further undergo one year's S.I on each count. He was further directed to deposit Rs. 20,000/- on each count which if deposited was to be paid to the legal heirs of the deceased persons as compensation failing which he wpuld suffer further S.I. of six months each. 2. The learned Sessions Judge also made reference under Section 374 Cr.P.C. for the confirmation of aforesaid death sentences passed upon the appellant. 3. Briefly stated a brother of the deceased made a report to the police that his brother Zia Ullah was done to death at about Sehri Wela when he had gone to the tubewell for irrigating the land. On reaching the pot the complainant and his brother-in-law Asghar Ali-PW heard noise of and saw in the light of an electric bulb that the appellant alongwith one other who remained un-identified were giving churri blows to the deceased. They tried to intervene but were threatened. The accused allegedly escaped after brandishing churri. Zia Ullah deceased and Mst. Perveen a sister of the appellant were found fatally injured at the spot and both of them succumbed to the injuries. The motive as alleged in the FIR was that Zia Ullah and the appellant had some quarrel on the preceding "«— fjUi^a^. in which the appellant had threatened the deceased that if the latter came to the side of Sanda Phatak he will have to lose his life. 4. The prosecution examined 13 witnesses to prove its case against the appellant. It included the medical evidence, witnesses relating to ocular account and the recovery witnesses of the weapon of offence i.e. churri recovered from the appellant. It may be pointed out that the other assailant mentioned in the FIR was never caught or brought to book. The appellant was examined under Section 342 Cr.P.C. in which he denied that he had committed the offence. On the contrary he alleged that he was falsely implicated in this case and was substituted for the real culprits namely Hasan and his son who had in fact developed enmity with Zia Ullah deceased who had contracted Nikah with Mst. Shakila a daughter of aforesaid Hasan but was not willing to consummate marriage with her by bringing her to his home as his wife. The deceased had also numerous enemies because of his immoral habits and any one of such enemies killed him during darkness of night. The occurrence remained un-seen but he was made a scape-goat. 5. The learned counsel for the appellant contended that it was an un-seen occurrence as the eye witnesses were allegedly not present nor they had actually seen the orders; that it has not been made clear by the prosecution as to how Mst. Perveen had come to the place of occurrence at he dead of night putting on nice clothes and ornaments; that how she was present with the deceased being a stranger to her. It was, therefore, contended that the prosecution had suppressed the true facts regarding the occurrence. 6. According to the learned defence counsel, the appellant surprised the deceased when they were flagrant delicto. As such it was alleged to be a case of grave and sudden provocation which compelled the appellant to commit the unfortunate occurrence. In this respect it was alleged that deceased Zia Ullah was found without Shalwar and any body seeing one's woman-folk, such as sister, with a stranger at a deserted place during dead of night would lose his self control and blood will come to his eyes depriving him of the normal and logical faculty of his mind. For a moment the faculty of one mind would be totally paralysed on seeing such shameful scene. Such a provocation is the gravest of provocations which a mortal man can receive, is universally acknowledged, and the courts are, therefore, specifically lenient with an offender who avenges such insult by slaying the adulterer or fornicator of his female relative. Even in Islam such situation would not be permissible nor one's honour will allow such a shameless affair to be seen by an ehl-e-eman without losing normal faculty of mind for a moment. It was, therefore, argued that although the appellant had not taken a specific plea that he had caused killing of his sister and her paramour on seeing them in a situation explained above, but, the court had to analyse the whole facts and to deduce a conclusion therefrom irrespective of the fact whether such plea was taken or not. It was, therefore, contended that it was not Qatl-i-amd so as to warrant the maximum penalty and would squarely fall within the parameter of Section 302(c) PPC. In this respect reliance was placed on 1993 P.Cr.L.J 557 Lahore, the principle of which was later approved in PLD 1996 SC 274 by establishing that the right to act as " f'> " must receive a construction most beneficial to the widest possible amplitude of that right, thereby departing from the principle enunciated in 1992 P.Cr.L.J 1596 (Supreme Appellate Court) whereby it was held that the plea of grave and sudden provocation could not have been given effect, so as to make the case of the accused to fall within the ambit of clause (c) of Section 302 PPC. The pronouncement of the principle laid in PLD 1996 SC 274 was evolved after discussing the wide range of case-law including the law revealed in the Holy Quran, and different books of Islamic Jurisprudence. 7. The learned counsel for the State however, contended that the life having priority over the honour would not give a right to an offender to take the life of a fornicator even under grave and sudden provocation; that the appellant in this case never took a special plea that he had acted under grave and sudden provocation and as such he cannot take the advantage of the aforesaid plea nor the same can be pressed during arguments to be raised in appeal; that the defence taken in the trial court was totally different than the plea of sudden provocation raised during the hearing of this appeal and as such cannot be given any credence and that the eye witnesses have proved that the murders committed by the appellant were not only cruel, but gruesome and had a motive behind them. The recovery of weapon of offence i.e. blood stained churn further linked the accused with the occurrence, which provided corroboration to the ocular account of occurrence. Hence it was alleged that there was no escape for the appellant from the above situation. The conviction and sentences passed upon him therefore were requested to be maintained under the situation. •S. We .have heard the learned counsel for the parties and have also gone through the record carefully. Eye witnesses are closely related to the A deceased Zia Ullah, but it is no ground to discard their testimony as the same has been corroborated by the recovery of weapon of offence at the instance of the appellant; hence it cannot be said that either the eye witnesses were chance witnesses or had implicated the accused falsely in this case on account of some enmity. However, the motive alleged by the prosecution seems to be took weak under the given circumstances, nor it would provide a convincing cause that the appellant would kill his own sister along with the deceased Zia Ullah. It is particularly so because the other accused, who remained un-ideiitified was never brought to book. In such a situation any normal mind of an average person would be put on inquiry as to how and under what circumstances Mst. Perveen had reached the tubewell of the deceased Zia Ullah at the dead of the night. One of the Investigating Officer had admitted that in the report under Section 173 Cr.P.C. it was mentioned that there was illicit liaison between the two deceased. In the back-drop of this situation it can be easily understood that the presence of Mst. Perveen with a stranger at a lonely place at the dead of the night would show that there was some foul play which brought them together out of home. It is particularly so when it is in evidence that the deceased was found without Shalwar at the place of occurrence after he was fatally wounded. The number of injuries on the persons of both the deceased would show that the assailant had lost control over himself by witnessing the paramour of his sister without Shalwar, at a lonely place during odd hours of the night and therefore, headlessly assaulted both the flagrant delicto. Even the observation made the learned trial Judge would show that Mst. Perveen had come to the spot after preparing herself to meet her paramour by putting attractive clothes and ornaments in order to add to her charm and attraction. The observation made by the learned trial Judge is as follows :— "It is conceded by all that Mst. Perveen deceased is the sister of Barkat accused and she had no legal relationship with Zia deceased. The perusal of the dead body of Mst. Perveen, and thereafter the production of her last worn blood stained clothes including the ornaments and wrist watch in her right hand, before the police show that she had come to the tubewell of Ziaullah after having made preparation for any foul play like fleeing away with him. The last worn blood stained clothes of the dead body of Zia Ullah also suggest the same. The presence of the two at odd time of the night at the tubewell concerned, situated nearly in a jungle also inferred an abnormality so also showing some liaison between them". 9. After taking into account the above observation of the learned trial Judge and the evidence brought on record, it becomes crystle clear that in fact both the deceased had assembled for love making and were surprised by the appellant who lost self control to finish them with a traditional weapon of churri. It therefore, does not seem to be a case of Qatl-i-amd falling within the purview of clauses (a) & (b) of Section 302 PPC. It would rather fall under clause (c) of Section 302 PPC, as held in PLD 1996 SC 274. The conviction of appellant is therefore, altered from clause (b) of Section 302 PPC to clause <ci of Section 302 PPC. The death sentence on both the counts is accordingly not confirmed. 9. The sentence in this case is not difficult. We have already made observation that keeping in view the attending circumstances of the case and the norms prevalent in our society any reasonable person in a situation like this would lose his self control and the present case is no exception to the aforesaid universally acknowledged phenomenon. We therefore, sentence the appellant under clause (c) of Section 302 PPC to the imprisonment of 10 years RI on two counts for the murder of deceased namely Zia Ullah and Mst. Perveen each. The sentences shall run concurrently. The sentence of fine passed by the learned trial Judge not being maintainable under Section 302 PPC is set aside. We however, feel that the amount of compensation of Rs. 20,000, - fixed by the learned trial court is inadequate. A notice for its enhancement is accordingly given to the appellant, who has accepted it. After hearing on this point we have come to the conclusion that it will be just and proper that proportionately adequate compensation be awarded in this case. We accordingly enhance the compensation from Rs. 20,000/- on two counts to Rs. 50.000/- on two counts, which shall be paid to the heirs of the deceased as required by the provisions contained in Section 544-A Cr.P.C. The appeal is dismissed with the above modification in the conviction, sentence and compensation. The appellant shall be entitled to the benefit of Section 382-B Cr.P.C. 10 Death sentence of the appellant is NOT CONFIRMED. The Murder Reference No. 443/92 is accordingly decided. (MYFK) Sentence modified.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 209 Present : SAJJAD AHMED SlPRA, J. HAQ NAWAZ-Appellaut versus STATE-Respondent Crl. Appeal No. 371 of 1993, decided on 5-6-1997. Pakistan Penal Code, I860-- —-S. 302 read with S. 303-Murder--Offence of-Conviction for-Appeal against-Prosecution evidence brought on record through two eye witnesses produced, failed to prove charge against appellant-Statement of appellant is both inculpatory and exclupatory, therefore, such a statement has to be taken in consideration in tnto-He has confessed in unequivocal terms to have caused death of deceased, but in an attempt to save honour of his daughter-in-law-His statement, confirms time/place and type of weapon used and nature of injuries caused to deceased- How ever, a complete right of self-defence in committing admitted qatl of deceased by appellant, is not made out. as the best, witness to that effect, his daughter in law, who is alleged to have been target of an unsuccessful attempt of Zina-bil-Jabar, was not produced to support said defence version-Section 303(a) PPC covers nature of offence committed by appellant-Conviction of appellant converted to provisions of section 303<a) PPC and sentence of life imprisonment reduced to ten years R.I.- Appeal partly accepted. [P. 214, 215 & 216] A to C Mr. Masood Mirza, Advocate for Appellant. M'\ Shahbaz -Sam/ Sajid. Advocate for State. Date of hearing: 5-6-1997. judgment The present criminal appeal has been directed against the judgment dated 27.4.1993 whereby the learned Additional Sessions Judge-II, Bhakkar. while acquitting Nazir Ahmed co-accused, had convicted the appellant under section 302(b) P.P.O. and sentenced him to imprisonment for life for having committed the murder of Ghulam Abbas. 2. Brief facts leading to the present criminal appeal are that the complainant PW. 6 Shah Jahan on 27.1.1992 at about, 12.30 A.M. lodged the complaint Ex. PD alleging that after evening his elder brother Ghulam Abbas went to his uncle Haq Nawaz son of Bakhtawar's house on account, of baitai of prod vice of land but when he did not come back till 11.00 P.M. in the night, the complainant and his mother Mst. Taj Bibi with Allah Nawaz son of Rab Nawaz and Wazir son of Sadda. residents of the same village, reached the house of said Haq Nawaz and found the gate of the house opened and lamp was burning there. They witnessed that, the appellant Haq Nawaz and his son Nazir Ahmed, accfnitted co-accused, were quarrelling with Ghulam Abbas in the residential room of Ms?. Haseena Bibi wife of Wazir Ahmed and Ghulam Abbas (deceased) was given repeated knife blows on his chest & neck by the appellant Haq Nawaz while he was caught hold from his arms by the co-accused Nazir Ahmed and resultantly he fell down. On intervention of the complainant and PWs. they were threatened with the same fate by the accused. They made hue and cry and seeing the inhabitants of the locality rushing towards the spot, the accused decamped therefrom. Ghulam Abbas succumbed to his injuries at the spot. 3. Ghulam Muhammad. S.I., (PW8), after recording the statement of the complainant Shah Jahan, proceeded the place of occurrence. He inspected the spot and prepared its rough sketch Ex. PH, injury statement, Ex. PI. inquest report Ex. PJ of the dead body of Ghulam Abbas and after taking into possession blood-stained earth from the place of murder video memo Ex. PE, Chuppal of deceased P-5/1-2 and dhoti P-fi vide memo Ex. ?F He sent the dead body of Ghulam Abbas to mortuary for post mortem examination, through Hameedullah Constable, who, after the post mortem examination, produced before him the last worn clothes of the deceased i.e. stint P-l. shab.var P-2. vest P-3 and sweater P-4 which were taken into possession vide memo Ex. PB. P-l to P-3 were blood-stained. On 31.1.1992 lie arrested both the accused and on 5.2.1992 on pointing out. by the appellant took into possession blood-stained knife P-7 from near the eastern wall of his house, vide recovery memo Ex. PG. He also prepared site plan of place of recovery knife P-7 as Ex. PG/1 and recorded the statements of PWs at the spot. He also got prepared site plans Ex. PC and Ex. PC/1 from the patwari halqa and after completion of investigation, he challaned both the accused. 4. At the trial the prosecution examined as many as eight witnesses to prove its case. PW. 2 Hanieed Ullah had escorted the dead body of Ghulam Abbas to the mortuary and after the post mortem examination, he ad received last worn clothes of the deceased from the Medical Officer and delivered the same to the Investigating Officer. He had also transmitted the sealed parcels containing blood-stained earth and knife to the office of the Chemical Examiner. PW. 3 Ghulam Siddique, Draftsman, on 6.2.1992 had prepared site plans Ex. PC and EX. PC/1 at. the behest of the police and on pointing out of the witnesses. The site plan was prepared in the scale of 1 inch is equal to 20 feet. PW-4 Falak Sher, Constable, who was handed over sealed parcels containing blood-stained earth, 1st worn clothes of the deceased and knife for the safe custody in malkhana, had handed over the sealed parcels containing blood-stained earth and knife to Hameedullah, Constable, for onward transmission to the office of Chemical Examiner. PW. 5 Muhammad Yousuf, Head Constable, being Moharrar, on receiving the complaint Ex. PD, had registered the FIR Ex. PD/1. 5. PW. 6 Shah Jahan complainant in his statement had reiterated the stance taken in his complaint Ex. PD. He had also identified the dead body of Ghulam Abbas at the time of post mortem examination and attested the recovery memos in respect of blood-stained earth, knife and last worn clothes of the deceased. 6. PW. 7 Wazir, who was an eye witness of the occurrence in question, had supported the prosecution case by stating that he was present at the spot when the appellant, alongwit.h his acquitted co-accused Nazir Ahmed, had committed the murder of Ghulam Abbas (deceased). PW. 8 Ghulam Muhammad, S.I., had investigated the instant case and finding the accused guilty had challaned them. Brief contents of his statement have been given in the earlier parts of the judgment. 7. PW. ] Dr.'Muhammad Ramzan had conducted the post mortem examination on the dead body of Ghulam Abbas, brought to him by Hameedullah, Constable No. 2886/C and identified by Falak Sher and Shah Jehan and had found the following injuries on it :-- 1. An incised wound 2 cm x 1 cm on left side of neck. 2. A stab wound 3 cm x 1 cm on front of left chest, 7 cm above the left nipple. 3. An abrasion 1 cm x cm on left side of chest 7 cm outer to left nipple. 4. A stab wound 3 cm x 1.5 cm on front of right side of chest 3 cm below the right nipple. 5. An abrasion 3 cm x 1 cm on front of right leg 10 cm below the right knee. On dissection he found injury No. 2 intercostal muscle cut between the second and third rib. There was cut on left plura and left lung. Left plural cavity was full of blood. Injury No. 4 intercostal muscle was exit between 5th and 6th rib. There was cut on right plura and right lung. Right plural cavity was full of blood. There was corresponding cuts on the sweater, shirt and vest. In his opinion death and occurred due to injuries No. 2 and 4 which caused damage to the both lungs and respiratory system. Both the injtmes were sufficient, to cause death in the ordinary course of nature. All the injuries were anti mortem type. Probable time between injuries and death was within 20 minutes while between death and post mortem was 21 hours. 8. The prosecution while giving up Ms}. Taj Bihi, Allah Nawaz and Falak Sher PWs as unnecessary, had tendered in evidence report of chemical examiner Ex. PK and that of Serologist Ex. PL and closed its case. 9. The appellant in his statement under the provisions of section 342 Or.P.O. had denied all the allegations levelled against him and claimed to be innocent by deposing that despite having been forbidden many times, under the suspicion of having an evil eye upon bis daughter-in-law Ms?. Haseena Mai, Ghulam Abbas deceased, on the fateful night, entered her oom, and on her line and cry. the appellant, rushed to her and saw Ghulam Abbas deceased grappling with her while having knife in his hand, in order to commit zina bil jabcr. Thereupon under sudden provocation, after snatching knife from the deceased, the appellant, caused injuries to the deceased who full down. Then, after closing the door from outside, the appellant proceeded to Police Post Dajal to apprise the police about the incident. Ghulam Muhammad. SI. accompanied him and removed the dead body and took into possession knife lying near dead body. According to him, neither the PWs nor his co-accused Nazir Ahmed were present at the time and place of occurrence and he had murdered the deceased under grave and sudden provocation. The acquitted co-accused Nazir Ahmed had also taken p the same plea in Ins statement recorded under the provisions of section 42 Cr.P.C Both the accused, however, did not record their statements \mder the provisions of section 340(21 Cr.P.C. nor did they produce any evidence in their defence. 10. The learned trial Court, taking into consideration the facts and circumstances of the case, had convicted and sentenced the appellant while acquitting his co-accused Nazir Ahmed, as stated above. 11. The learned counsel for the appellant and the State were heard at length and the record of the case perused with their assistance. The learned counsel for the appellant argued for his acqtuttal and submitted that the ocular evidence cannot he relied upon as PW7 Wazir has claimed to be a chance witness, Imt he has further admitted that he was involved in a theft case in addition to being an accused alongwith the deceased Ghulam Abbas in an abduction case and that, therefore, his testimony is of doubtful vahie and a vocation cannot be based thereon without corroboration by unimpeachable source which is, in any case, lacking. Further argued that the complainant Shah Jahan PW6, the brother of the deceased and the other eye witness, failed to strengthen the case against the appellant as the story narrated by them is highly improbable. In this respect, pointed out, that the eye witness PW6 has claimed that he had appeared at the scene of occurrence, that happened to be a room in a residential house, alongwith PW7 Wazir and given up PWs Allah Nawaz and Mst. Taj Bibi, his own mother, and has further claimed that he and other witnesses had observed the inflicting of knife blows on the chest and neck of Ghulam Abbas (deceased) while standing in the door of the said room, yet further claiming that the appellant and his acquitted co-acctised had been able to run away despite he and his other companions being laagering number and being in a position to block the passage from the door of the room. To impeach t,he testimony of the said PW6, the learned counsel further emphasised that at. the dead of a winter night, the PW failed to explain as to how he had made entry into the house of the accused, further failing to prove that he or other PWs had raised any hue and cry at the fateful moment which is very unnatural. Further submitted that the learned trial Court, being in a best, position to observe the demeanour etc., of the witnesses, had itself come to the conclusion, as stated in the impugned judgment, that both the parties had failed to establish their respective versions and had further observed to the effect that he Court was of the view that something had happened between accused Haq Nawaz and the deceased Ghulam Abbas in the room of Mst. Haseena which had resulted in a quarrel that ultimately led to the death of the deceased at, the hands of the appellant Haq Nawaz; and as the said conclusion, arrived at by the learned trial Court,, was in line with the statement made by the appellant Haq Nawaz under the provisions of Section 342 Cr.P.C.. therefore, the learned counsel further argued that, conviction of the appellant is liable to be set aside as the contents of his statement fully justified his right of self-defence, that extended to the right to save the honour of his daughter-in-law Mst. Haseena. To support his case, the learned counsel referred to the right of self defence stated as "thirdly" in Section 100 of PPC that deals with the right of private defence of the body that extends to causing death. The exception relied upon being in respect of an assault with the intention of committing rape, argued in the alternative that, in any case, the conviction and sentence imposed under section (b) of Section 302 PPC is uncalled for. 12. On the other hand, the learned counsel for the State argued for the maintenance of the conviction and sentence awarded to the appellant and pointed out that the punishment of imprisonment for life had been awarded to the appellant as tazccr taking into consideration the facts and circumstances of the case. 13. The Court has carefully scrutinized the testimony of the two eye witnesses. As argued, PW7 Wazir was not only a chance witness but is a witness of doubtful antecedents. He has admitted to be an accused in a case of abduction alongwith the deceased Ghulam Abbas, in addition to being involved in a theft case. Neither he nor the other eye witness, the complainant PW6, had explained the circumstances that led to their being present in the lane at past 11.00 P.M. on a winter night to establish their bonafidc.s in having become chance witnesses to the alleged occurrence in question by ccompanying the complainant PW6 and other persons to the site of occurrence, and it cannot be ignored that the prosecution, for reasons best known to it, had given up Mst. Taj Bibi, the mother of the deceased and the complainant and Allah Nawaz PWs as unnecessaiy that had further weak ned the case of the prosecution. In addition thereto the testimony of the complainant PW6 Shah Jahan by itself cannot be relied upon, without, corroboration by an independent and reliable testimony, to hold that the case against the appellant is proved beyond reasonable doubt. 14. The upshot of the above discussion is that the prosecution evidence, brought on the record through the two eye witnesses produced, namely, Shah Jahan PW6, the complainant, and Wazir PW7, failed to prove the charge against the appellant that leads only the statement of the appellant Haq Nawaz to deal with. The said statement of the appellant is both, inculpatory and exculpatory. Therefore, as repeatedly held by the superior Courts, such a statement has to be taken into consideration in toto. It shall be pertinent to reproduce the entire statement of the accused ppellant made under the provisions of section 342 Cr.P.C., in reply to question No. 88, which is as follows :-- "PWs are nearer relative to deceased having enmity with me. As a matter of fact, Ghulam Abbas deceased was a bad character having an evil eye upon my daughter-in-law Mst. Haseena Mai. He used to flirt with her and used to force her for sexual intercourse. When I came to know about it, I restrained the deceased from visiting my house and desist from testing my daughter-in-law Mst. Haseena Mai. On the fateful night, after the mid night I heard the alarm of Mat. Haseena Mai wife of my son Wazir Hussain. I rushed to her and saw Ghulam Abbas deceased grappling with her while having knife with his hand to force Mst. Haseena Mai,to surrender herself for the sexual lust, I snatched knife from Ghulam Abbas deceased and under the influence of sudden provocation to safe the modesty of my daughter-in-law I inflicted knife blow to Ghulam Abbas who sustained injuries and fell down. I closed the room from outside and went, to inform police at Dajal Police Pst. None of the witnesses were present, at the time of occurrence. Ghulam Muhammad. S.I., accompanied me and removed the dead body and picked up knife lying near dead body. Later on, with the connivance of complainant party, the I.O. cooked up a false story of present case. Nazir Ahmed my co-accused was not present at the spot. At the time of occurrence he was present at D.I. Khan who had gone there to see his brother Wazir an employee of Cotton Mills at D.I. Khan.' 15. As is evident from the perusal of the above recorded statement of the appellant, he has confessed in unequivocal terms to have caused the death of the deceased Ghulam Abbas, hut, in an attempt to save the honour of his daughter-in-law Mst. Haseena Mai who was within the prohibited degree of marriage to him. His statement, confirms the time/place and the type of weapon used and the nature of injuries caused to the deceased. However, under the facts and circumstances of the instant case, a complete right of self-defence in committing the admitted qatl of the deceased by the appellant, is not made out. In this respect it is emphasized that the appellant, had failed to establish the said plea of self-defence as the best witness to that effect, his daughter-in-law Mst. Haseena Mai. who is alleged to have been the target of an unsuccessful attempt of zina-biJ-jabr, was not produced to support the said defence version; and that it is only the statement of appellant under section 342 Cr.P.C. that is the sole basis for determining asa to whether or not a case of any nature is made out against him. It is further emphasized in that respect that now the Pakistan Penal ("ode has a specified provision i.e. section 303(a) that covers the nature of the offence admittedly committed by the appellant. 16. Therefore, it, is hereby held that qatl, committed by the appellant, is covered under the provision of subsection (a) of section 303 that deals with the'qatl under ikrah-i-tam. The said provision of ikrah-i-tam is defined as follows :— "ikrah-i-tam means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or zina-bil-jabr." The punishment for an offence ikrah-i-tam under the provisions of subsection (a) of section 303 PPC is as follows :-- "under ikrah-i-tam shall he punished with imprisonment for a term which may extend to twenty-five years but shall not be less than ten years and the person causing 'ikrah-i-tam' shall be punished for the kind of qatl committed as a consequence of his ikrah-i-tam. 17. Pursuant to the above discussion. The conviction of the appellant Haq Nawaz is hereby converted to one under the provision of subsection (a) of section 303 i.e. qatl under ikrah-i-tam. Consequently, the sentence awarded to the appellant is hereby reduced to ten years R.I. in accordance with the said provision of section 303(a) PPC. The benefit of the provisions of Section 382-B Cr.P.C. is hereby extended to the appellant 18. As the deceased had lost his life at the hands of the appellant while he had put Ms?. Haseena Mai, the daughter-in-law of the appellant, in fear of zina-bil-jabr, therefore, no compensation is awarded in the instant case under the provisions of section 544-A Cr.P.C. (K.K.F.) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 216 Present: dr. KHALID RANJHA, J. MUHAMMAD ASHIQ-Appellant versus STATE-Respondent Crl, Appeal No. 117 of 1995, accepted on 17-9-1997. Constitution of Pakistan, 1973-- —-Art. 13 read with S. 403 Cr.P.C. and S. 25 of General Clauses Act- Offence under Section 41'1 and 468 PPC read with section 5(2) of Prevention of Corruption Act, 1947-Acquittal by Assistant Commissioner-Conviction by Special Judge, Anti-corruption on same facts-Challenge to on point of "Double Jeopardy"-Article 13 of Constitution provides that no person shall be prosecuted or punished for same offences more than once-This Article enshrines fundamental rights against "Double Jeopardy" to any person-This Article offers a complete protection to appellant-Exceptions set out in S. 403 Cr.P.C. as such cannot be read to whittle down effect of this constitutional guarantee- Appellant once acquitted by court of competent jurisdiction and such findings having attained finality, his conviction on same facts again is not permissible-Appeal accepted. [Pp. 220 & 224] A & B PLD 1993 SC 247 ref. Mian Abdul Khaliq, Advocate for Appellant. Kh. Shaukat AH, Advocate for State. Date of hearing : 17-9-1997. judgment Muhammad Ashiq constable was charged under section 468/409/411 PPC and section 5(2) of the Prevention of Corruption Act, 1947 in the Court of Special Judge, Anti-Corruption, Lahore Camp at Okara. He was found guilty under section 411/468 PPC read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to six months R.I. on each count under section 411/468 PPC with a fine of Rs. 10,000/- on each count. In default of fine, he was to undergo R.I. for four months on each count. The sentence of imprisonment was ordered to run-concurrently. 2. According to the trial Court, as offence under section 5(2) of Prevention of Corruption Act, 1947 was included in section 411/468 PPC no separate sentence was being awarded under section 5(2) of Prevention of Corruption Act, 1947. The above conviction was recorded vide judgment dated 12.2.1995 and the same is now under appeal. 3. On the report of one Sarwar Din, a case was registered on 13.3.1991 vide FIR No. 75/91 at Police Station, A-Division, Okara to the effect that his motor-cycle Yamaha 80 CC, model 1985, Chassis No. 5 O5252, K, Engine No. 5112-05252, Registration No. 7306/OK was stolen while parked outside his house situated in Nawab Colony Okara. Intimation about the registration of this case was also sent to CIA/CRO. Lahore. As, neither the stolen motor-cycle was recovered and nor the accused could be Traced, the file of this case was consigned as untraced on Tabulation of Adam Pata" report dated 24.4.1991 by Abdul Aziz Inspector CIA, Okara. then seized of the investigation. 4. On 13.11.1993 a police party from CRO/CIA, Staff Lahore came to Okara for checking purposes. While they were at the gate of Police Station A-Division, they stopped Muhammad Ashiq, Constable (appellant) then posted as guard at the District Malkana situated in the premises of Police Station A-Division Okaram, to check his motor-cycle which bore registration plate bearing No. FDK. 1115, with words "Punjab Police" written thereon. 5. On inspection, by CIA, Staff from Lahore, it transpired that registration No. FDK 1115 was fake. Its actual registration number was OK 7306 and it was the same vehicle about the theft of which FIR No. 75/91 already stood registered at Police Station 'A-Division'. It was thus taken into possession as a stolen vehicle and thereafter an FIR No. 357/93 was registered on the following day (14.11.93) on the report of Arshad Latif Inspector/SHO Police Station 'A-Division' under direction of Superintendent of Police Okara. Recovery memo in respect of this motor-cycle was prepared under FIR 75/91 and a copy thereof was also placed on the file of FIR No. 357/93. 6. It is interesting that 'A-Division' Police prepared two challans in December 1993 table to same stolen vehicle. One in respect of FIR No. 75/91 under section 379/149 PPG and 15/6/79 Islamic Law for trial of the appellant before Assistant Commissioner. Okara and the other challan against him was submitted simultaneously in FIR No. 357/93 under section 409/468 and 5(2) PCA 1947 to the court of Special Judge, Anti-Corruption. 7. In the case before the Court of Assistant Commissioner, charge was framed against the appellant under section 411 PPC and evidence was adduced by the prosecution. After scrutinity and due appraisal of the prosecution evidence, the trial court acquitted the appellant vide judgment dated 20.11.1994. 8. In the challan arising out of FIR No. 375/93. the learned Special Judge, issued process on 16.11.1994 for 22.11.1994 on which date appellant, was produced in custody and the matter was adjourned to 13.12.1994 for framing of charge. On this date appellant made an application u/S. 249-A Cr.P.C. pointing out that his trial was unwarranted as he had been tried on that same facts earlier and acquitted by a competent court vide judgment dated 20.11.1994 (Ex. DI). The learned Judge instead of attending to the application u/S. 249-A Cr.P.C. proceeded to frame the charge u/S. 411/468/409 PPC read with 5(2) 47 PCA. 9. The appellant denied the charge and prosecution lead the evidence. Muhammad Arshad Inspector Police appeared as PWl and stated motor-cycle recovered from the accused was stolen property of case registration vide FIR No. 75/91 and on that, account he registered FIR No. 375/93 under order of Superintendent of Police Okara. No evidence was produced in respect of« entrustment of the motor-cycle or forging of any documents. The other material witness was Sarwar Din PW6. He deposed about lodging of FIR No. 75/91 and the ownership of the stolen motor-cycle. Muhammad Mansha F.C. PW7 and Shahbaz S. I PW8 vouched for the recovery of this motor-cycle from the possession of the accused and exhibited he recovery memo. The appellant, pleaded false and malicious frame-up at the behest of Shahbaz S.I and relied on Ex. Dl. the order of his acquittal dated 20.11.1994, passed by Assistant Commissioner. Okara. 10. The learned Special Judge found the appellant guilty u/S. 4688/411 and 5(21 47, but. held that as section 5(2)47 was included in section 411/468 no sentence need be passed in that behalf. 11. Learned counsel for the appellant, submits that as on these set, of facts, appellant stood acquitted already, his fresh trial was violative of his fundamental right, enshrined in Article 13 of the Constitution of Islamic Republic of Pakistan 1973. The conviction, on that score alone was not, sustainable. He maintained that the registration of the second FIR No. 75/93 and sending up challan thereunder was amounted to prosecuting the appellant, twice for the same offence/facts which too also not, permissible either under section 25 of the General Clauses Act as well as section 403 of the Criminal Procedure Code. 12. Learned counsel for the State submits that the accused/appellant has been tried under different offences although arising out of the recovery of the same stolen motor-cycle. He submitted that affixing a fictitious registration plate rendered the accused liable under 468 PPC for which he had been neither tried nor acquitted by the learned Assistant Commissioner. The trial before the Special Judge was protected by Sub-sections (2), (3) and (4) of Section 403, which were essentially provisions to Sec. 403 (1) Cr.P.C. He further argued that if one reads Article 13 of the Constitution of the Islamic Republic of Pakistan in conjunction with section 26 of the General Clauses Act and section 403 Cr.P.C., it cannot be said that the conviction of the appellant is repugnant to constitution protection against double punishment. Supporting the judgment, he further added that the conviction of the appellant was in conformity with the evidence adduced by the prosecution. 13. To better appreciate the issues arising in this appeal it, would be appropriate to examine these provisions. They are reproduced as under :— Article 13 of the Constitution of Pakistan. Protection against double punishment:- No person- (al Shall be prosecuted or punished or the same offence more than once. (b)

Section 403 Cr.P.C. Personance-acquitted not to be tried for same offence. (1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while conviction or acquittal remains in force, not be liable to be tried again for the Same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which separate charge might have been made against him on the former trial under section 235, sub-section (1). (3) A person convicted of any offence constituted by any act causing consequence which, together with such act, constituted a different offence from that of which he was convicted may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or where not known to the Court to have happened, at the Time when he was convicted. (4) Person acquitted or convicted of any offence constituted by any acts may. notwithstanding such acquittal or conviction subsequently charged with, and tired for any other offence constitution by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act. 1897, or section 188 of this Code. Section 26 of General Clauses Act. Offences punishable under two or more enactments. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. Section 3(37) of General Clauses Act. (Definition) Offence- "Offence" shall mean any act or omission made punishable by any law for the time being in force. Section 4(1X0) Criminal Procedure Code (Definition) Offence. "Offence" means an act or omission made punishable by any law for the time being in force : it also includes any act in respect of which a complaint may be made under section 20 of the Cattletrespass Act 1871. 14. Article 13 of the Constitution provides that no person shall be prosecuted or punished for the same offence more than once. This article enshrines fundamental right against double jeopardy to any person. It is a reiteration of legal Maxims : Nemo debt bis vexari, si const at curiae quod sit pro una et eadem cause i.e. No one ought to be twice punished if it be proved to the Court that it be for one and the same cause. Legal Maxims by P. Sreenevasrow 1873 Muhammad Niaz v. Martial Law Administrator (PLD 1979 Quetta 179). Prosecution against double jeopardy as a constitutional right, was Hi ':,'••.". iei for the first rime in the Constitution of Islamic Republic of Pakistan Ie73 Such a fundamental right did not exist either in 1956 Constitution or ::r :hat matter in 1962 Constitution. Prior to the coming into force of Constitution of Pakistan, 1973 an accused person wa? protected against double jeopardy through the procedural safe-guards provided by section 403 Criminal Procedure Code read with section 26 of the General Clauses Act. In this behalf Courts have regularly sought guidance from the common law interpretation of the time honoured maxim "autrc fois convict" and "autrc fois acquit". Protection against double jeopardy also figures in another Maxim "Rcsjudicata Pro veritate accipitur". The interpretations of these two principles of law rendered by the British Courts were given statutory recognition in the shape of section 403 of the Code of Criminal Procedure and section 132 of the Evidence Act, 1872 (now Article 15 of Qamm-e-Shahadat 1984). The Indian Constitution on the other hand tends to frame this right in a rather narrow compass. In Article 20(2) it provides that no person shall be 'prosecuted" and "punished" for the same offence more than once. It may be noted, that unlike Article 13 of our Constitution, in the corresponding provision of the Indian Constitution the words "Prosecution" and Punishment" have been used in conjunctively to accord constitutional status only to the principle autrc fois convict and not to the principle "autrc fois c.fqmt". In short, the Indian Constitution raises only one limb of the common law to the level of fundamental right and the other is left to be regulated by general law of the land. In India, to seek protection of the Constitutional guarantee in this behalf, two pre-conditions are required to be fulfilled i.e. that there should be not only the "Prosecution" but also a "punishment" in the first instance in order to bar a second prosecution and punishment for the same offence. The Indian Supreme Court has elaborated this point fair detail in cases like : Maqbool Hufssain v. State of Bombay (1963 SC Scr 730), Venkataraman v. State of India (1954 SC. SCR 115) and Kalaweati and another v. The State ofHimachal Pradesh (AIR 1953 SC 131). 15. The protection guaranteed by Article 13 of the Constitution of Islamic Republic of Pakistan 1973 is however, not contingent on an earlier conviction alone as in the case of Indian Constitution. Article 13 provides safe-guard both against the second prosecution as well as second punishment for the same offence. The words Prosecution and Punishment it may be noted, have been used Disjunctively. In Muhammad Ishaque v. The State (1992 P.Cr.L.J. 1273) this Court took a rather strick view and held that the second prosecution for the same offence is barred under Article 13 of the Constitution only where the prosecution has finally concluded and ended either in acquittal or conviction. 16, Similarly in Muhammad Akrarn v. Government of Punjab (PLD 1979 Lahore 462) it was observed that the bar of second trial under Article 13 of the Constitution operated only in the event of an accused having already been acquitted or convicted for the same offence or facts. The addition of word "facts" has enlarged scope of the word "Offence" by construing it in generic sense. The issue of double jeopardy was also examined rather liberally by the Karachi High Court in case of Pir Bakhsh (1979 P.Cr.L.J. 211). The petitioner was being prosecuted under section 5 of West Pakistan Control of Goondas Ordinance, 1969 on the report of S.H.O. Police Station, Phulleli District Hyderabad, While those proceedings were still pending the petitioner was again sought to be prosecuted under section 14 of the Crimes Control Act before the Tribunal set up therein on the same facts. Although Goonda Ordinance, 1959 stood repealed by the Crimes Control Act, 1975; the pending proceedings under Goonda Ordinance were saved by section 27 of the Crimes Control Act. In these circumstances, the Court quashed the proceedings under Crime Controls Act as it amounted to subjecting the petitioner to double jeopardy by prosecuting him on the same facts regarding the same charges under separate proceedings simultaneously. The proceedings were held repugnant to the Constitutional guarantee that no person shall be prosecuted or punished for the same offence more than once. It was observed that constitution provided clearly a bar even with regards prosecution apart from punishment to which person may eventually subjected. 17. The issue of autre fois acquit and second trail amounting to double jeopardy also arose in the case of Tasawar Hussain v. State O986 P.Cr.L.J. 2218). In this case, the petitioner after having been convicted to 14 years, challenged his conviction before the High Court on the ground that the Commissioner while referring his case to Jirga did not hear him and the High Court set aside his conviction on that score. No order had been made by the Higli Court for retrial of the etitioner. The Ilaqa Magistrate again summoned him to face commitment proceedings. He challenged the process of commitment proceedings before the High Court on the ground that the proceedings were violative of protection against double jeopardy an envisaged under Article 13 of the Constitution. 18. Adopting a broad perception of the word "prosecution", this Court held that fundamental right indicated by Article 3 of the Constitution covered the rinciples of both autre fois acquit and autre fois convict. In this judgment Mr. Justice Rustam S. Sidwa observed that if this Article was broken up, it would amount to laying down that no person who has been prosecuted for an offence earlier shall be prosecuted for the same offence or no person who has been punished for the same offence earlier shall be : umshed for the same offence again. Basically the first part of the wording : v.-ered the second and the second part has been seemingly added to cover cases where the earlier prosecution should have been prosecution in the strict sense of the terms and not of the proceedings akin to a criminal proceedings. However, in Zar Badshah Masood v. Commandant/Magistrate 1st Class and another (1985 P.Cr.L.J. 499) this Court gave a procedural perspective to Article 13; by observing :-- "Plea of autre fois acquit, statutorily recognised in section 403 Code of Criminal Procedure can be successfully raised only when a person is tried again, for the same offence for on the same facts for any other offence, for which a different charge from the one made against him might have been made under section 237 Nevertheless, issue- estopped does not prevent the trial of any offence as does autro fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidence has already been led and a Court of competent jurisdiction. Therefore, both under Article 13 Section 26 of the General Clauses Act, read with section 403 of the Code of Criminal Procedure to operate as a bar, the trial or subsequent prosecution must be for the "same offence" an "offence whose ingredients are the same Article 13 of the Constitution proceeds upon the same principle." From this observation one gains an impression that Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 has to be construed and interpreted interchangeable with section 403 Cr.P.C. With utmost respect, I, however, find it very difficult to ascribe to such a narrow and restrictive interpretation of a provision of the Constitution intended to safe guard a fundamental right relatable to freedom of an individual. 19. The case of the appellant is seemingly covered on all force of a judgment of the Supreme Court in Sherin Bacha and others v. Narnoos Iqbal and 3 others (PLD 1993 SC 247). In this case the parties were closely related. They had a land dispute about which the respondents had made a complaint stating therein that despite delivery of the possession pursuant to settlement, the appellants had trespassed on the same and, therefore, committed the offence of trespass under section 447 PPC. This complaint was filed as not proved; but all same was revived and consequently a fresh inquiry/trial commenced. This view was set aside by the Government. The order of Government was challenged and the High Court upheld the plea that original complaint had not been properly tried by a proper forum, therefore, it required to be re-investigated and retried and the case was sent back for further trial for fresh proceedings. On the same prerrises, an FIR had been lodged resulting in acquittal and the same was not challenged. The Supreme Court held, neither the Constitution for the law permitted the re­ trial of an offence for which a person having once been tried as accused stood finally acquitted. The judgment of the Magistrate having attained finality, the same accused could not be re-tried for the same offence in the complaint case. The judgment of the High Court remanding the case for fresh trial was thus set aside. The word "Prosecution" as appearing in Article 13 of the Constitution w r as taken in 'a general sence, and rightly so, as this word has not been defined in the Criminal Procedure Code or for that matter in the General Clauses Act. In Law Terms and Phrases Judicially Interpreted by Sardar Muhammad Iqbal Khan Mokal, "prosecution" has been defined in its generic sense as follows :-- "The term "prosecution will normally mean criminal proceedings in general But for the purpose of the tort of malicious prosecution, it includes all criminal proceedings to which by oral obloquy is attached. The word "prosecution" is not to be taken in the restricted sense in which it is used in the Code of Criminal Procedure. It is not essential that the original proceedings should have been of such a nature as to render a person against whom it is taken liable to be arrested find or imprisoned. S. T. Sahib v. Hasan Ali Sahib (AIR 1957 Mad. 646). Similarly in words and Phrases Judicially Defined Volume 4 by Roland Burrows K.C. it is stated that "a prosecution in common parlance, means, not brining an action, but preferring an indictment or information." Rawlinqs v. Jonkins (1843) 4.Q.B.419 per Patteson, J. at, 421." To render effective a Constitutional provision which Guarantees a fundamental right; it has to be given a broad and liberal interpretation. A restrictive or procedural interpretation is likely to destroy rather than safeguard this right having bearing on liberty of an individual. Engrafting of the provisos to section 403 Cr.P.C. to Article 13 of the Constitution, therefore, seems a little inapt. 20. In this view of the matter, I reckon that, Article 13 of the Constitution offers a complete protection to the appellant. Exceptions set, out in section 403 Cr.P.C. as such cannot be read to whittle down the affect, of this Constitutional Guarantee. The appellant once acquitted by a Court of competent jurisdiction and such findings having attained finality, his conviction on the same facts again is not permissible. 21. Resultantly this appeal is accepted and the conviction of the appellant is set aside. He is on bail He is discharged of his bail bonds. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 225 Present: GHULAM SARWAR SHEIKH, J. MAQBOOL AHMED alias KOOLA-Appellant versus STATE-Respondent Criminal Appeal No. 318 of 1993, accepted on 10-7-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302, 201/34-Murder-Offence of-Conviction for-Challenge to~ Evidence attributed appellant with regard to motive is irrelevant-Story concocted to tailor confession does not ring true by any stretch of imagination-Evidence regarding recovery of dead body of deceased from house of appellant is most uninspiring-Also it does not find support from entries in inquest report-Investigation was designed hostile to appellant and circumstantial evidence is impeachable on many scores- Requirement and standard of proof in such cases is undoubtedly that every link has to be proved by cogent and convincing evidence-Same is not only lacking, but also, chain is broken from its very inception-No conviction either under section 302 or 201 PPG could be based on such sketchy evidence and same is un-sustainable in law and open to grave exceptions-Appeal accepted. [Pp. 227, 228 & 229] A to D 1992 SCMR 2279, 1972 SCMR 15, PLD 1977 SC 515, PLD 1953 FC 214 ref. Malik Noor Muhammad Awan, Advocate for Appellant. Maqsood Ahmed Khan, Advocate for State. Date of hearing : 10-7-1997. judgment Instant appeal has arisen'from judgment dated 14.4.1993 passed by learned Additional Sessions Judge, Sheikhupura, whereby he convicted Maqbool Ahmad alias Koola appellant under section 302 PPC and sentenced him to imprisonment for life with fine of Rs. 50,000/- and in default thereof to undergo R.I. for two years for intentionally committing murder of Rehmat AH alias Piyar Ali as also under Section 201 PPC and sentenced him to seven years' R.I. and a fine of Rs. 25,000/-, in default whereof to suffer six months' R.I. for causing disappearance of evidence of his offence, while, his coaccused Mst. Naziran Bibi was acquitted of the charge. It was further directed that amount of fine, if recovered and realized, shall be paid in toto to legal heirs of deceased. However, benefit of provisions of Section 382-B Cr.P.O. was extended to him. 2. Put shortly, facts of prosecution case, as reflected and gleaned out of F.I.R. Ex. PF/1 are that about three years prior to occurrence, Rehmat Ali alias Piya/ Ali, real brother of Fazal Din complainant, was arrested in a case .if cutting/chopping hand of Maqbool Ahmad alias Koola appellant and ultimately acquitted in consequence of compromise and thereafter they developed cordial relations arid cultivated friendship. About one month prior l.i' report., Muhammad Yousaf PW6, son of Muhammad Bakhsh and Bashir Ahmad (given up PW.) son of Muhammad Din saw Rehmat Ali deceased in the company of Maqbool Ahmad alias Koola proceeding toward his house. Subsequently, latter was arrested in murder case of Imam Din. On 26.9.1991, during the course of its investigation, he reportedly made a disclosure and confession in presence of Muhammad Latif and several others that he alongwith his wife Mst. Naziran Bibi had committed murder of Rehmat Ali alias Piyar Ali in vengeance and hurried his deadbody in the compound of their house, from where, deadbody, rather skeleton of said Rehmat Ali alias Piyar Ali deceased was allegedly recovered on their pointation. 3. At the trial, prosecution examined as many as nine witnesses in support of its case. Rehmat Ali alias Piyar Ali deceased was lastly seen in the company of Maqbool Ahmad alias Koola by PW. 3 Muhammad Yousaf while Fazal Din PW.6 lodged complaint Ex. PF. Autopsy on dead body (skeleton) of Rehmat Ali alias Piyar Ali son of Chiragh Din was conducted by Dr. Naseer Al.imad PW. 4, Dr. Muhammad Riaz PW. 9, found various bones of male human being indicating him as 20/25 years old. Muhammad Ashraf PW.8, Inspector, Police Lines Sheikhupura is the Investigating Officer of this case. Rest; of witnesses are formal in nature. 4. When examined under Section 342 Cr.P.C. the appellant not only refuted the motive and repudiated the confession, but also, denied the recovery attributed to him and even involvement in the occurrence. He explained that actually prior to present occurrence his hand had been chopped off by Gujjar family and the matter was reported to police, but main, accused were left off and Rehmat Ali alias Piyar Ali was involved. However, he continued to pursue his case, but, was involved in the murder ase of Imam Din. No evidence, in defence, was led. 5. Upon appraisal and appreciation of evidence on record, learned trial Court came to the conclusion that the appellant Maqbool Ahmad alias Koola had committed intentional murder of Rehmat Ali alias Piyar Ali in vengeance, caused disappearance of evidence by burying dead body in his house and thus convicted and sentenced him as stated above. 6. Reiterating the points, grounds and factors urged in memorandum of appeal, learned counsel for the appellant has strenuously argued that circumstantial evidence does not inspire confidence inasmuch as necessaiy links are missing to connect the appellant with the commission of the crime. As such, his conviction has been assailed on the pleas that the same is neither warranted by data and material available on record nor in consonance with law. 7. Conversely, impugned conviction and sentence have been acclaimed to be correct and in conformity with prescribed notions of law in all respects by learned counsel representing the State. 8. However, verdict, is, apparently replete with legal infirmities on various counts. Seemingly motive, confession, recoveries and last seen evidence afforded the basis of conviction now sought to be impeached and set at naught. 9. Evidence attributed and ascribed to the appellant with regard to "motive" is not only totally irrelevant, but also, indicates that there was absolutely no reason for such an enmity as enemies of the appellant were, in fact, Gujjars, who, had involved him in crime and whom the appellant had been implicating in a series of cases. It is also borne out therefrom that police supported the Gujjars against the appellant, who, had to resort to a private complaint against them. Undoubtedly, Rehamt Ali alias Piyar Ali was acquitted in consequence of compromise entered into between him and the appellant. As such there was hardly any occasion for the appellant to cause eath of a person, with whom, he had developed visiting terms. 10. As enunciated in Maqbool Ahmad us. The State (1992 S.C.M.R. 2279) Satisfactory motive always plays an important part in any case dependent entirely on circumstantial evidence. In wake thereof ircumstantial evidence plays the role of marrow which, strengthens and activates bones, while, flesh motive, gives visible shape to human body and when both area missing only skeleton, is left behind as in the present case. 11. It is trite law and there can be no cavil with the proposition that confessions are made before friends and not foes, who, have already prepared a simmering cauldron for a person in shape of a murder case. Surrounding circumstances at the time of making confession are of vital importance. No sane person ensnares himself by making abrupt and candour admission especially before man in authority because he is never oblivious of consequences of such stupidity. He craves for back doors to escape and not abyss to fall into. Stoiy concocted to tailor confession does not right, true by any stretch of imagination, rather, it negates human psychology, hence, no B prosecution edifice could be erected thereupon. Rather a wall of sand evolved thereon is bound to crumble down like house of cards. 12. Another feature relates to the recoveiy of dead body from the house of the appellant. Evidence in this context is most uninspiring. Also it does not find support from entries in the inquest report, rather, the same belie the recoveiy and mode adopted for the same. 13. Dr. Muhammad Naseer Ahmad, who conducted post mortem on the dead body rather skeleton of Rehmat AH alias Piyar Ali observed to the effect that it was a deadbody of a person whose age, sex and identification was not possible as the body was in such condition that there was no skin or muscles on the whole of it. As a necessary corollary, identification of skeleton and supposition of that skeleton of dead body of Rehmat Ali alias Piyar Ali cannot be taken to be free from any doubt. Rather the same is wrapped in mist. Such recoveiy cannot lend support to the prosecution version and was wrongly taken to be so. 14. As regards last seen evidence, following illuminating observations made in Karamat Hussain v. The State (1972 S.C.M.R. 15) put the matter at rest :--"If the extra-judicial confession is disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant. In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstance shoiild be such as cannot be explained away on any hypothesis other than the guilt of the accused. In the present case, this test is by no means satisfied. The circumstances by themselves are neither sufficient to bring home the guilt to the accused nor are they of such a nature as to cany conviction." 15. Guiding principle expounded in Rehmat alias Reliman alias Waryam alias Badshuh v. The. State (PLD 1977 SC 515) is in these words :-- "On a balance of the decided cases it appears that the circumstances of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person, who, was last seen alive in his company." 16. There is yet another aspect of the matter. In circumstantial evidence it is necessary that the prosecution's role of collecting the evidence against the accused should be free from doubt and suspicion. In this case 'there are several reasons to doubt the role of Investigating Agency. In the first instance, motive theory adopted by the prosecution is far-fetched, irrelevant and repudiates the case of the prosecution instead of supporting it. Secondly, FIR Ex. PF/1, was recorded after recovery, which is rendered as inadmissible when measured by Yardstick of evidence. 17. On the subject of dependability of investigation it has been bserved in Fazal Elahi alias Sajawal v. The Crown (PLD 1953 FC 214) :-- "where there are indications of design, in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference." 18 On examination of entire evidence and material brought on record, I find that motive is completely irrelevant and even non-existent. Investigation was designedly hostile to the appellant and the circumstantial evidence is impeathable on many scores as indicated above. The requirement and standard of proof in such case is undoubtedly that eveiy link has to be proved by cogent and convincing evidence. In the instant case, same is not only lacking, but also, chain is broken from its veiy inception. No conviction either under Section 30i PPC or under Section 201 PPG could be based on such sketchy evidence and the same is un-sustainable in law and open to grave exceptions. 19. Up-shot of above discussion is that appeal succeeds, conviction and sentence on both counts are set aside and the appellant is acquitted of the charge levelled against him. 20. He shall be released forthwith, if not, required to be detained in any other case. 'MYFKi Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 229 Present : RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ASHRAF and another-Petitioners versus STATE -Respnndent Crl. Misc. No. 2258-B of 1997, dismissed on 26.5.1997. Crminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bai!--Grant of--Prayer--Offence u/s 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Both petitioners are named in FIR--Mere fact that FIR was delayed would not be relevant because such like occurrences i.e. zina> : involving family honour are reported reluctantly-There is no enmity between parties and petitioners have been named by victim for committing Zina-bil-Jabr with her after abduction-Petition dismissed. [P. 230] A Mr. M. Anwar Sipra, Advocate for Petitioners. Mr. Mazhar Sajjad, Advocate for State. Date of hearing: 26.5.1997. order The petitioners are involved in a case under Sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for committing- Zina-bil-jabr with Mst. Razia Bano, a sister of the complainant Nazeer Ahmad after she was abducted while she was passing from a street of the village. She was taken to a nearby field of Haji Mehar Din and after tying her mouth with a cloth, she was subjected to Zina-bil-jabr first by Ashraf and then by Imran petitioners respectively. 2. Learned counsel for the petitioners has submitted that the offence of Zina is not proved because there is no witness who had seen the occurrence; that according to the medical evidence there was no mark of violence on the person of the victim nor the semen was detected in the vagina; lastly that there was allegedly a delay of about nine days in filing the FIR which made the prosecution case doubtful. 3. The bail was opposed by the learned state counsel on the ground that delay in this matter is not very crucial because the people are resultant to report such occurrence as it involves family honour; that the statement of the victim clearly involves both the petitioners for committing the offence of Zina-bil-jabr and since there is no enmity between the parties, therefore, there is no possibility of false implication. 4. I have considered the above contentions and find that both the petitioners are named in the FIR which was filed by the brother of the victim who was employed in the Army as Lance Naik. The mere fact that the FIR was delayed would not be relevant at this stage because such like occurrence involving family honour are reported reluctantly. There is no enmity between the parties and the petitioners have been named by the victim for committing Zina-bil-jabr with her after she was abducted from a public street. 5. In view of the above facts, I do not find any extenuating circumstance to enlarge the petitioners on bail at this stage. The petition is accordingly dismissed. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 231 (DB) Present : ZAFAR PASHA CHAUDHRY AND MANSOOR ALAMGIR QAZI, JJ. SIFARISH ALI ETC.-Appellants versus STATE-Respondent Criminal Appeal No. 869 of 1992, dismissed on 12-8-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/34 read with Ss. 148 and 149-Double murder-Offence of- Conviction for-Appeal against-There is no evidence on record to show that deceased had pre-arranged meeting which culminated unfortunate incident-If deceased had gone armed then instead of the fact they being dead it would have been one or two persons on accused side who would have been done to death-Moreover, if deceased had such designs then they would not have taken their mother, uncle brother and cousin—After receipt c f shot deceased ran towards main entrance and after second shot he fell dead out side in bazar is a fact which indicates that he inspite of being hurt wanted to avoid the accused and to save his life ran outside, which negates version of accused—It is choice of complainant and prosecutor to produce as many and which witnesses to prove charge-It is quality of evidence and not quantity of evidence which puts noose around neck of accused-It was a family matter which was to be sorted out so they could not ask outsiders to accompany deceased and their family as it would have undermined their own family dignity-Hence, it was reasonable to take their own family members to patch up misunderstanding-There is no contradiction to disbelieve testimony of witnesses—Version given by accused is incomprehensible and incomplete one—Neither it is substantiated from record nor an iota of evidence is available to believe same-Held : Since facts involve a family dispute and a female question is involved, motive not being proved beyond doubt, it is not a case where sentence of death should be imposed or confirmed- Sentence of death converted to imprisonment for life—Order awarding compensation maintained-Appeal dismissed. [Pp. 236, 237 & 238] A to F Sardar Muhammad LatifKhan Khosa, Advocate for Appellants. Malik Fawad Hussain. Advocate for State. Syed Zahid Hussain Bukhari, Advocate for Complainant. Date of hearing : 12-8-1997. judgment Mansoor Alamgir Qazi, J.--Sifarish Ali 44 years, Ghulam Murtaza 30/31 years, Ghulam Mustafa 2.8/29 years alongwith Anwar and Muhamimt) TIh->" wprp arraigned for trial before the learned Additional Sessions Judge, Faisalabad in a case FIR No. 60/91 registered at Police Station Chak Jhumra under Sections 302/148/149 PPC. Through the judgment dated 11.10.1992 Anwar and Muhammad Khan accused were acquitted while Sifarish was convicted under Section 302(b) PPC for the murder of Suleman aged 25 years while Ghulam Murtaza and Ghulam Mustafa appellants were convicted under Section 302(b)/34 PPC for the murder of Muhammad Yousaf aged 35 years All of them were sentenced to death and in case death sentence was not confirmed, they were ordered to pay Rs. 30,000/- each to legal heirs of each deceased under Section 544-A Cr.P.C. respectively or in default to undergo six months R.I. each. They were also sentenced to pay a fine of Rs. 10,000/- each and in default of payment thereof, to under go R.I. for 2 years each. 2. Feeling aggrieved the convicts preferred Criminal Appeal No. 869/92 and the State has preferred Murder Reference No. 398 of 1992. Both these matters have been taken up today and will be disposed of through this single judgment. 3. The unfortunate occurrence took place on 19.2.1991 at 8.30 P.M. in the house of Muhammad Khan the acquitted accused who is brother of one Thoba. Mst. Gujri sister of Muhammad Yousaf and Suleman is married to said Thoba. The place of occurrence is situated in the area of Chak. No. 45/JB at a distance of 14 miles from Police Station Chak Jhurma. 4. Muhammad Younas (PW7) got his statement (Ex. P-H) recorded at 9.30 P.M. the same day at Bangla Bairanwala and the same was recorded by Nazar Hussain Sub Inspector (PW9). It was sent to the Police Station Chak Jhumra where on the basis of statement (Ex. P-H) formal FIR (Ex. P- H/l) at 10.15 P.M. was recorded by Muhammad Sajid (PW3). 5. The facts as narrated by Muhammad Younas complainant are that Muhammad Yousaf and Muhammad Suleman deceased of this case are his real brothers and he has two sisters. About seven months before the occurrence Muhammad Yousaf was married to Mst. Bano daughter of Khan and in exchange Mst. Gujri sister of the complainant was married to Thoba and that due to the quarrel in the family Mst. Bano left the house of Muhammad Yousaf her husband and went to the house of her brother Muhammad Khan. On the day of occurrence at 8.30 P.M. he alongwith Suleman (deceased), Muhammad Yousaf (deceased), Muhammad Yar his uncle, Ghulam Ali and his mother Mst. Sardaran went to fetch their sister Mst. Gujri from the house of Thoba. At that time an electric bulb was alight. Sifarish Ali, Murtaza and Mustafa all armed with .12-bore guns, Anwar and Muhammad Khan empty handed emerged out of a Kotha of Muhammad Khan. Anwar and Muhammad Khan raised Lalkara upon which Sifarish Ali fired at Suleman which hit him on the fore-head, nose and the right eye and came out from the back of the head. Mustafa accused fired which hit Muhammad Yousaf deceased on the right side of chest, below the right arm­ pit. Murtaza fired at Muhammad Yousaf which hit him on the left upper arm. On receipt of injuries Suleman fell in the court-yard while Muhammad Yousaf on receipt of shot rushed outside the house and fell infront of the main door of the ouse in hazar. Both the deceased succumbed to the injuries at the spot. The accused ran away after firing shots in the air. 6. Motive as narrated in the FIR is that Muhammad Khan was not willing to give the hand of Mst. Bano in marriage to Muhammad Yousaf eceased. Sifarish AH, Ghulam Mustafa, Murtaza and Anwar were also angry over this marriage and for this reason the accused had assaulted the deceased. 7. After arrival at the spot the investigating officer Nazar Hussain (PW9) prepare injury statement (EX. P-B) and inquest report (Ex. P-C) in respect of dead body of Suleman deceased. He also prepared injury statement (Ex. P-E) and inquest report (Ex. P-F) in respect of Muhammad Yousaf deceased and despatched both the dead bodies for postmortem examination under the escort of Muhammad Hanif Head Constable (PW5). 8. In the course of inspection of the spot he collected blood-stained earth from the place of murder of Suleman (deceased) which was made into a sealed parcel and taken into possession vide recoveiy memo (Ex. P-O). He also collected blood-stained earth from the place of murder of Muhammad Yousaf, made it into a sealed parcel and took it into possession vide recovery memo (Ex. P-P). Muhammad Younas (PW7), Nazar Hussain (PW9) and Muhammad Nawaz (not produced) attested the recovery memos (Ex. P-O and Ex. P-P). All the accused except Muhammad Anwar were arrested on 23.3.1991 while Muhammad Anwar was arrested on 26.3.1991. They were arrested by Nazar Hussain (PW9) the investigating officer. On 26.3.1991, while in police custody Sifarish AM accused got recovered .12-bore gun Ex. P- 9) from inside the 'petti' lying in his residential house. It was taken into possession vide memo (Ex. P-L). Ghulam Murtaza while in poli e custody led to the recoveiy of .12-bore gun (Ex. P-10) from a room of his residential house from inside a 'Jisti Petti'. It was taken into possession vide recoveiy memo (Ex. P-M). Ghulam Mustafa accused while in custody led to the recoveiy of .12-bore gun (Ex. P-ll) from his residential house from a Jisti Petti. The gun was recovered and he also produced licence for this gun, which were taken into possession vide, recoveiy memo (Ex. P-N). All these recoveries were attested by Nazar Hussain (PW9), Mehnga (PW 6) and Ahmad Hasan (not produced). 9. On 20.2.1991 at 8.30 A.M. Dr. Iqbal Ahmad Javid, D.M.S. District Headquarters Hospital, Faisalabad (PWl) performed autopsy on the dead body of Suleman deceased and found the following injuries on his person : 1. Seven, circular, lacerated wounds of fire-arms of enterance on the fore-head, nose, right eye, right eye-brow, left cheek, in a diameter of 5" x 3^". One wound was just on the right side of the mid line of fore head three wounds were on the nose, one on the right eye, one on the right eye-brow and one was on the left cheek, close to the nose, each would was 1/3" x 1/3" x probe passed deep in to the scalp cavity. The edges of all the wounds were inverted and ecchy-mosed. 2. A wound of fire arm exist on the back surface of the middle of the head on the mid line 2" x %" x fracture of the occipital bone. The edges of the wound were everted. In his opinion death was sudden due to stock and haemorrhage caused by injuries Nos. 1 and 2. Each injury was sufficient to cause death in the ordinary course of nature. Both the injuries were caused by firearm and were antemortem. The time between the injuries and death was immediate while that between death and the postmortem was 12 hours. 10. On the same day at 10.30 A.M. he performed autopsy on the dead body of Muhammad Yousaf and found the following injuries on his person :-- 1. Four circular lacerated wounds of fire arms enterance on the front of right side of chest 2^" above the right nipple and 4" lateral to the mid line in a diameter of 4" x 2^". Each wound was 1/3" and probe passed deep into the right side of the chest cavity. The edges of all the wounds were inverted and ecchymosed. Corresponding perforation was seen in the sweater, kurta and bunian, which were all blood stained. 2. Six wounds of fire arm of enterance on the lower part of the outer aspect of the left arm and the adjoining portion of the outer aspect of the left fore arm. Three wounds were on the left arm and three wounds were on the left fore­ arm, in a diameter of 6" x 3". Each wound was 1/3" x 1/3" x fracture of the left humerus bone. The skin surrounding the wounds were blackened, scortched and tatooed. The edges of all the wounds were inverted and ecchymosed. One wad was also recovered from this injury. The corresponding perforation was seen on the kurta, which was blood stained. 3. Six wounds of fire arm of exit on the inner side of the left arm each wound was }A" x 1/3". The edges of all the wounds were everted. Corresponding perforation was also seen in the kurta which was also blood stained. 4. Five circular lacerated wounds of fire arm enterance on the outer aspect, of the left side of the chest, three inches blow the left arm-pit, 3/3/4" away and lateral to left nipple, with inverted and ecchymosed edges each 1/3" x 1/3" x probe passed deep into the left side of chest cavity. This injury was corresponding to injury No. 3. In my opinion the five pellets which came out from the wound of exit, i.e. injury No. 3, have re-entered into the outer aspect of the left side of the chest. In his opinion the death was sudden, due to schok and haemorrhage caused by injury No. 1 to 4. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries were antemortem and were caused by firearm. Time between the injuries and death was immediate and that between death and postmortem was 14 hours. 11. The report of the Chemical Examiner (Ex. P-Q) and that of the Serologist (Ex. P-R) were tendered in evidence and the prosecution closed its case. 12. The accused were examined under Section 342 Cr.P.C. Sifarish Ali appellant in answer to question No. 2 has admitted that he is real brother of Muhammad Anwar co-accused and step brother of Ghulam ustafa and Ghulam Murtaza appellants while Muhammad Khan coaccused was his Khalazad. In answer to question No. 8 he has given a detailed answer which is as under :-- "The case against me is false. I alongwith Bano and Muhammad Khan were present in the house of Muhammad Khan co-accused at the time of present occurrence. Mst. Bano about twenty days prior to the present occurrence was missing from the house of her husband and at Sargodha with Mr. Bata, cousin of mine. She was returned by one Nawazish Shah of Mauza Ali Lakkan. The complainant, and her husband Yousaf deceased, Mst. Sardaran the mother-inlaw of Mst. Bano apprehended (though genuinely) that there was my hand in getting her missing. On the day of occurrence, Yousaf and Suleman armed with guns attacked me and Mst. Bano to kill. I alone acted in self-defence. Yousaf received second shot outside the house from some unknown person. Rest of the accused except Muhammad Khan were not in the premises of the place of occurrence. Rest of my statement is the same, which has been suggested to complainant Muhammad Younis P.W. during the crossexamination. Any how, Mst. Bano has waived her right of Qisas. The P.Ws. have deposed against me falsely with clear motive. The P.Ws Muhammad Younis, Muhammad Yar, Mst. Sardaran and Ghulam Ali were not with Muhammad Yousaf and Suleman deceased at the time of present occurrence". Ghulam Murtaza and Ghulam Mustafa have denied their presence and have submitted that they had been falsely implicated in the case due to their relationship with Sifarish Ali appellant. None of the accused produced defence evidence nor opted to appear as their own witness under Section 340(2) Cr.P.C. to disprove the allegations levelled against them. 13. Order dated 5.10.1992 of the trial court indicates that Mst. Bano widow of Muhammad Yousaf deceased waived her right of Qisas with respect of her deceased husband. Mst. Bano happens to be the sister of Thoba and Muhammad Khan. Muhammad Khan is the acquitted accused. 14. With the assistance of learned counsel for the appellant we have gone through the entire evidence recorded by the trial court and have perused the record of the case. Learned counsel for the State and that of the omplainant have also been heard at length. 15. It is an admitted position that the accused are closely related to each other and to the deceased. There is no denying to the fact that Mst. Gujri sister of the deceased is married to Thoba brother of Muhammad Khan amised and their sister is married to Yousaf deceased. The place of occurrence being in common courtyard of the Haveli of Thoba and Muhammad Khan accused. It is also established on record that the parties have no previous enmity with each other except that Mst. Bano wife of Yousaf deceased had left the house of her husband due to some family quarrel. Both the parties live one acre apart in the same village. 16. Muhammad Yar PW is uncle of the deceased and he is married to the sister of Anwar accused and his niece is married to Ghulam Mustafa accused. Hence he is a person who was elder among both parties and thus commanded respect and an effective say in both families. 17. The learned counsel for the appellants has argued that the deceased did not go that innocently as suggested by the complainant party. To elaborate his contention he has argued that wife of the accused had gone to her parental house and sister of the deceased was not agreeing to leave the house of her husband, hence the grouse lay with the deceased and thus they had gone armed with guns which were later on planted on Sifarish AH and Ghulam Murtaza. ntroverting these arguments we find that there is no evidence on record to show that the deceased had prearranged this meeting which cultimated in this unfortunate incident. Secondly under these circumstances if the deceased had gone armed then instead of the fact they being dead it would have been one or two persons on the accused side who would have been done to death. Lastly, if the deceased had such designs then they would not have taken their mother Mst. Sardaran (given up PW) and Muhammad Yar (PW8) their uncle, their brother Muhammad Younas (PW7) and cousin Ghulam Ali (given up P.W.). From the constitution of this assembly of persons reflects that they had gone there innocently, with peaceful intentions, to amicably sort out the misunderstanding so that both the marriages should survive. 18. The marriages had taken place about seven months prior to this occurrence and no untowards occurrence had taken place although as the prosecution suggest the appellants and Muhammad Khan accused were not willing to give the hand of Mst. Bano to Yousaf deceased. If this were true then Sifarish Ali appellant would have given the first shot to Yousaf deceased to eliminate the root but from the evidence it appears that he fired the first shot at Suleman deceased. Hence we are of the view that the motive as suggested by the prosecution cannot be accepted. It is incomprehensible that this peaceful, amicable mission became volcanic and culminated in these murders. Both sides are silent and have not stated any specific reason. Thus it is shrouded in mystery as to what preceded between the parties to trigger the occurrence and the fact that after receipt of shot Yousaf deceased ran towards the main entrance and after receipt of second shot fell dead out side in the bazar is a fact which indicates that he inspite of being hurt wanted to avoid the accused and to save his life ran outside which negates the version of the accused. 19. Learned counsel for the appellant has tried to raise much dust on the non-production of Mst. Sardaran, mother of the deceased in the witness-box and has suggested that we should draw an inference that she was not supporting the prosecution. We have with smile heard this point being raised. It is beyond comprehension that a mother who has lost two adult sons in prime of life would not like and leave no stone unturned to see the murderers of her sons receive punishment. It is choice of the complainant and prosecutor to produce as many and which witnesses to prove the charge. Burdening the record by repetition of same type of evidence would not help prove the charge. It is the quality of evidence and not quantity of evidence which puts the noose around the neck of the accused. In place of the mother the uncle has appeared and supported the case for the prosecution even though he was more related to the accused side. Hence this argument is strongly repelled as being against natural human conduct and nature and being an insult to the maternal love and instinct of a mother. Most probably this was an attempt through frustration when there was nothing better to lay hands on. 20. Lastly in order to establish the plea of self defence the learned counsel has advanced and stated that PW7 and PW8 should not be believed as they were not at the spot. Had they been there they would have received some injury and that their evidence is contradictory to medical evidence. 21. As already discussed we have held that these two witnesses were members of the party who had gone with the deceased to further substantiate it we are of the view that since it was their own family matter ith was to be sorted out they could not, ask outsiders to accompany them as it would have undermined their own family dignity and a personal family matter would have become public. Hence it was reasonable to take their own family members to patch up the misunderstanding or to decide it amicably. 22. With the assistance of learned counsel for the complainant once again the evidence of both PWs has been read in line with the medical evidence and we find no contradiction whatsoever to disbelieve the testimony f PW7 and PWS. As far as the PWs receiving no injury we would just say it was purely their goodluck. 23. The version given by Sifarish Ali is incomprehensible and an incomplete one. Neither it is substantiated from the record of the case nor an iota evidence is available to believe the same. He has stated that the second shot at Yqusaf deceased was fired at by some unknown person. Further he says that the two accused were armed with guns and they fired at him but he has no injury on him. Such incomplete and vague statements made orally without any substance or footing are not acceptable and meet the fate it deserves and we are not inclined to fall for such a version. 24. From all what has been said and discussed above we are of the view that since the facts involve a family dispute and a female question is involved, the motive not, being proved beyond doubt it is not a case where sentence of death should be imposed or confirmed. 25. Hence for reasons enumerated above we dismiss the appeal of the appellants, maintain their conviction under Section 302(b) PPC. However, the sentence of death awarded to each appellant is converted to imprisonment for life. The order awarding compensation is maintained. Sentence of fine is set aside as there being no provision under the new amended law. 26. The convicts shall be entitled to the benefit of Section 382-B Cr.P.C. The Murder Reference is answered in the NEGATIVE. With these observations and modifications, the appeal and Murder Reference are disposed of. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 238 [ Rawalpindi Bench] Present: MUMTAZ ALI MlRZA, J. ZAKIM KHAN MAHSOOD-Petitioner versus STATE-Respondent Criminal Misc. 627/B-1997, rejected on 24-7-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 -Bail-Grant of-Prayer for-Offence u/Ss. 409/468/471/477-A/109 PPC read with S. 5(2) 47 Prevention of Corruption Act, 1947-Allegation made in FIR and evidence collected during investigation prima facie connects petitioner a D.G. Audit, Defence Services with offence alleged against him-Certificates placed as Annexs to establish that petitioner was a man of means, were not placed before special judge central-Had these certificates been in existence or averments made therein bonafide and genuine, there was no reason why should same have been withheld from court below-Petitioner is named in FIR-He is civilian employee of Federal Government as such his case is within jurisdiction of FIA-- Absence of sanction of GHQ, would not render registration of case against him as illegal-Total transaction in 12 accounts of petitioner in local and foreign Banks freezed comes to Rs. 22,20,680.76 being embezzled of public fund-Bail rejected. [Pp. 240, 247 & 248] A, B, C & D Mr. S.M. Zafar, Advocate for Petitioner. Ch. Afrasiab Khan, Standing Counsel for State. Date of hearing : 16-7-1997. order Through this Crl. Misc. petition, bail after arrest, is sought for the petitioner in case FIR No. 2/97 dated 9.4.1997 registered at P.S. No. 7 Assets Branch, FLA, Rawalpindi under sections 409/468/471/477-A/109 PPC read with section 5(2)47 PCA. 2. The facts as disclosed in the FIR are that Muhammad Mohsin Khan, D.G. Audit, Defence Services made a complaint to D.G. FIA vide his D.O. Letter No. 3170/A-Admn. Cor/16/95-96/KW dated 10.1.1996 regarding the suspected embezzlement of over Rs. 1. Billion of Public fund during the period 1991-95 in the office of G.E. (Army) East and G.E. (Army) West, Rawalpindi. It was alleged in the complaint that (i) the above MES formations had spent about 20 million rupees on local purchase of stores though quotations from different suppliers in June, 1994. On a reference made by Audit, certain firms have denied receipt of these payments on the plea that they had not supplied any stores to the above formations. Similarly a number of firms who had received payments from these formations were contacted by Audit for confirmation of any supply of stores or receipt of payments against these supplies. The correspondence made with them through registered Postal service was, however, received back with the remarks of their non-availability at their postal addresses; and (ii) Similarly an amount of Rs. 5.93 million was shown paid to such firms during the month of June, 1994. These two instances provided sufficient evidence to Audit to suspect the bonafidcs of the disbursements made by these formation to the suppliers concerned. Number of firms were either not actually existing or fake documents in the name of existing firms were prepared to receive payments from the MES. The complaint made by D.G. Audit to D.G. FIA further said that another complaint in the meanwhile from one Muhammad Ayub Contractor was received containing allegation about misappropriation of more than 3 billion by the officers/officials of MES Rawalpindi during 1991-95 namely M/S Zulfiqar former SDO, Central Stock (Stores) Rawalpindi and Zakim Khan Mehsood, XEN, G.E. (West) Rawalpindi, the present petitioner, and others. It was further alleged by the said complainant, Muhammad Ayub, that Fazle Mukhtar and Muhammad Safdar Khan UDC/Cashiers had operated the Bank Accounts with Rs. 50 million opened in the names of bogus firms. The complaint of D.G. Audit further went on to allege that during the preliminary inquiry, Sakhi Muhammad Khattak confirmed in his statement that the cheques amounting to Rs. 17 million were issued in the name of his firm which were got encashed by one Muhammad Hafeez son of Muhammad Shan (brotherin-law of MR. Fazle Mukhtar), the then Cashier G.E. (West) by opening a fake account in the name of his firm in Habib Bank Ltd. Peshawar Road Branch, Rawalpindi whereas no material was supplied against the amount in question nor any record was available with the Department regarding the supply of items. He further deposed that the Central Stock (Stores) Rawalpindi had made an expenditure of Rs. 20 million through cheques in 15 days in the month of June, 1995 against suspected Bazar Supply contracts. The contents of the above mentioned complaints and the statements of witnesses, prima facie constituted the offences under sections 409/468/471/477-A/109 PPC read with section 5(2) 47 PCA against Zulfiqar, SDO, Zakim Khan Mahmood, XEN, Fazle Mukhtar and Safdar Khan UDCs/Cashiers. On the facts, thus, disclosed in the FIR, the case was registered against the accused persons with the approval of the competent authority. 3. The petitioner Zakim Khan Mahsood was arrested on 21.5.1997 pursuant to the FIR registered, as aforesaid, on 9.4.1997. He applied to the Special Judge Central for bail after arrest on 29.5.1997. His bail application was however, dismissed by the said Court on 23.6.1997. Hence this petition for post arrest bail before this Court. 4. The allegations made in the FIR and the evidence collected during the investigation prima-facie connects the petitioner with the offences alleged against him. After the registration of the case, the relevant record was requisitioned from the State Bank of Pakistan, Rawalpindi, A.B.L. Chohar Harpal Branch, H.B.L. Massey Gate Branch, City Bank, Military Accountant General, Controller of Military Accounts, Commander MES (Army), G.E. (Army) West, G.E. (Army) East, DW & CE (Army) E-in-C's Branch, GHQ and Qtg Branch, GHQ, Rawalpindi. However, according to the earned Standing Counsel only the scheduled Banks had provided the record so far. The scrutiny whereof revealed startling facts which showed that the heques of G.E. (Army) West signed by the ccused/petitioner amounting to more than 10 crores were deposited in 10 fake accounts of seven different bogus firms in A.B.L. Chohar Harpal Branch, Rawalpindi and H.B.L. Massey Gate Branch, Rawalpindi. These accounts were .operated by Fazle Mukhtar Cashier (since arrested). He made four Pay Orders from these accounts aimranting to Rs. 1,10,73,000/- in the name of Zakim Khan Mahsood the petitioner which were credited in his accounts in City Bank, Rawalpindi. The accused Fazle Mukhtar Cashier was arrested and savings certificates worth Rs. 2.75 crores were recovered. The accused admitted the fraud with the connivance of accused/petitioner Zakim Khan Mahsood. 13 Accounts in different Banks at Rawalpindi/Islamabad in the (??) petitioner, his son Sher Baz Khan and wife Mrs. Irana Mahsood were traced during the investigation. Their record was obtained. It revealed that total transactions of Rs. 25,12,68,665.70 have been made in these accounts. The accused has sent U.S. $ 29,25,925/- and $5,000/- to his Bank accounts in City Bank Dubai, London and Washington which is equal to Rs. 11.74 crores approx. An amount of Rs. 22,30,680.76 is still lying in his accounts which has been freezed. Scrutiny of the record of State Bank of Pakistan revealed that the petitioner spent Rs. 40.90 crores in just one month i.e. June, 1994 which is practically impossible. Moreover, the office of G.E. (Army) West Rawalpindi has the job of maintenance only. It has no concern with major works i.e. construction. Such a huge amount on mere maintenance cannot be spent. Formations under GHQ had not supplied the relevant record so far. The details of the Bank accounts of accused Zakim Khan Mahsood traced out so far during the investigation are as under :-- CITY BANK, RAWALPINDI 1. A/C No. 5314500-018 opening Rs. 4,88,01,249.35. dt. 30.3.94. Total turn out upto 12.4.95. Present Balance. Rs. NIL 2. A/C No. 5314500-107 opening $40,13,648.44 dt. 5.12,1992 in U.S. Dollars. (Rs. ,05,45,937.60) Total turn out upto 4.1.97.Present Balance $11.247,76 (Rs. 4,50,000/-) Amount transferred to Citi $ 26,25,925.00 Bank London and bai. 3. A/C No. 5314500-205 in Pound £ 57,513,58 Sterling opened on 5.12.92. Total turn up, upto 4.1.1997. (Rs. 37,38,000/-) Amount transferred to Citi £ 5000.00 Bank London. Present Balance. £ 93.98 (Rs 6500/-) 4. Joint Account Nr 5319718-011 , with his son Sher Baz Khan in |gT" Pak. Rupees opened on 2o.6.95. to Total turn out upto 12.5.1997. Rs. 1,28,98,343.46 - Present Balance. Rs. 5,024.80 5. Current joint Account No. 319718-028 with his son Sher Baz Khan opened on 18.1.96. Total turn out upto 5.5.1997. Rs..17,16,014.99 Present Balance. Rs. 2,41,996.16 6. A/C No. 5319719-018 in the name of Mrs. Irana w/o Zakim Khan Mahsood. Total turn out. Rs. 85,58,251.22 Present Balance. Rs. 88,214.91 7. A/C No. 319719-016 in the name of Mrs. Irana Mahsood w/o Zakim Khan Mahsood. Total turn out. Rs. 13,69,471.31 Balance. Rs. NIL 8. Citi Bank Credit, Card, visits of London, Paris, Netherlands, Turkey, Saudi Arbaia. BANK OF AMERICA, ISLAMABAD 1. A/C No. 6036-237934-090 in Pak. rupees. Total turn up and present Rs. 1,04,943.79. balance. 2. A/C No. 6036-237934-091 in US Dollars. Total turn out. $ 1,67,494,73 Transferred to Citi bank $ 1,50,000.00 Washington DC Present Balance. $ 17,491.73 A.N.Z. GRINDLAY'S BANK, RAWALPINDI 1. A/C No. 1150-103160-201 in Pak. rupees. Total turn out and present Rs. 3,12,228.54 balance. 2. A/C No. 1150-103160-281 in Pound Sterling. Total transaction & present £ 03,746,65 balance. 3. A/C No. 1150-103160-281 in U.S. Dollars. Total turn out. $ 1,59,080.87 Transferred out. $ 1,50,000.00 Present Balance. $9,051.66 BREAKUP $ 29,25,925.00 Total amount sent abroad in Foreign Currency. £ 5,000.00 (Rs. 11,73,87,000/-) Total transactions in 12 Rs. 25,12,68,665.70. accounts. Present Balance freezed. Rs. 22,20,680.76. 5. Mr. S.M. Zafar, learned counsel for the petitioner advanced the following contentions in support of his plea for the enlargement of the petitioner on bail :-- (i) Placing reliance on the letters dated 6.4.1995 attached with the application for bail as Annex: 'B', letter dated 9.4.1995 Annex: 'B/l', letter dated 29.2.1996 Annex: 'C', letter dated 25.3.1997 Annex : 'C/l', letter attached as Annex: 'D' and letter dated 29.4.1997 attached as Annex : 'D/l', learned counsel for the petitioner submitted that various functionaries of the Defence Formations had controverted the allegations made regarding the suspected embezzlement and in this view of the matter, the case against the petitioner was one of further inquiry and on the basis of settled position of the law as to this, the petitioner was entitled to the concession of bail; (ii) Placing reliance on certificates attached with the bail application as Annexs: 'E, E/l and E/2, learned counsel sought to establish that the petitioner was a man of means and huge deposits discovered by the FLA/Investigating Agency during the investigation could be explained away and no adverse inference could be drawn against the petitioner on the basis of the said deposits Vide certificate Annex: 'E', he allegedly sold out the following properties on prices mentioned against each and earned profits/increased the principal amount thereby :-- S.No. Property. Place. Value. 1. Agricultural Land Makin Rs. 85,00,000/- 2. Diyar Jungle. Shawal Rs. 60,00,000/- 3. Open Land. Raghzai/Shakarkot. Rs. 55,00,000/- 4. Miscellaneous Properties. Sarai Market/ Makin and Shehana (S. Waziristan) Rs. 68,00,000/- Vide certificate Annex: 'E/l', the petitioner is alleged to have sold the following properties and earned profit as shown against each :-- 1. Oak and Olive Jungle. Zhawar & Sapara Rs. 15,00,000/- 2. Three Shops Sarai Market Rs. 12,00,000/- 3. House Property Makin Rs. 16,00,000/- 4. Open Land. Manzai Rs. 9,00,000/- Vide certificate attached as Annex: E/2, it was allegedly certified by the Maliks of South Wazirastan Agency that owing to distribution of property done by a Jirga comprising of the said Maliks, in line with the Tribal Traditions the Petitioner became the Sole owner of the following movable and immovable properties with their value mentioned against each as under :-- S.No. Property. Place. Value. 1. Agricultural Land. Makin Rs. 25,00,000/- 2. Open Land. Baghzai Ashkarkot Rs. 15,00,000/- 3. Open Land. Shawal Rs. 5,00,000/- S.No. Property. Place. Value. 4. Open Land. Manzai Rs. 3,00,000/- 5. Commercial Land. Dwa Sarak Rs. 20,00,000/- 6. Diyar Jungle Shawal Rs. 30,00,000/- 7. Oak and Olive Jungle. Zhawar Rs. 4,00,000/- 8. Oak and Olive Jungle. Sapara Rs. 5,00,000/- 9. Oak and Olive Jungle, Shahana Rs. 5,00,000/- 10. House Property. Makin Rs. 8,00,000/- 11. Plot for Petrol Pump. Sarai Market Rs. 15,00,000/- 12. Gold and Cash. Makin Rs. 6,00,QPO/- 13. Three Shops. Sarai Market. Rs. 6,00,000/- 14. Weapons and Ammunition. Makin. Rs. 3,00,000/- 15. Bedford Trucks/ Bus (Five). S.W. Agency Rs. 7,50,000/- 16. Marhle Quarry. Zeer Sar. Rs. 7,00,000/- (iii) that the arrest and detention of the petitioner was wholly unatuhorized as the sanction of Anti-Corruption Council as envisaged under the instructions applicable to the FIA had not been obtained as the petitioner was a Grade-18 employee and could not be arrested or proceeded against without the prior sanction of the said Anti-Corruption Council; and (iv) that the FIA had not obtained in any case the sanction of the GHQ before the registration of the case against petitioner and for this reason also, the case against the petitioner could not be registered. 6. Ch. Afrasiab Khan, learned Standing Counsel for the Government of Pakistan assisted by Mirza Muhammad Ashraf, Assistant Director FIA controverted the contentions raised on behalf of the learned counsel for the petitioner and opposed vehemently the enlargement of the petitioner on bail. 7. I have considered and evaluated the submission made by the earned counsel for the petitioner, Mr. S.M. Zafar, Advocate and those made in rebuttal thereof by the learned Standing Counsel but do not feel pursuaded to exercise my discretion for enlargement of the petitioner on bail among others for the following reasons :— (i) that the letters of the various functionaries of the Defence Formations referred to by Mr. S.M. Zafar, Advocate and relied upon veiy heavily by him in support of his contention that the same rendered the case of the petitioner as one of further inquiry do not lend the requisite strength to the petitioner's case in as much as the case against the petitioner was registered on 9.4.1997 on the basis of a complaint made by the D.G. Defence Audit Services on 10.1.1996 whereas the letters in question were written prior to that period. This apart, a perusal of the said letters world show that general observations were made in the said letters to the effect that there was no possibility of the alleged embezzlement in the concerned Formations because of the constant checks and audit of the said organizations. As against these general observations made in these letters, the evidence collected during the course of investigation pursuant to the inquiry and the registration of the case against the petitioner, concret instances of the embezzlement had been unearthed, in the presence whereof there was no room for believing that there are reasonable grounds for believing that the petitioner is not connected with the offences alleged against him. It was not, therefore, correct to say on the basis of these latters that the case against the petitioner was one of further inquiry. In order to make a case as one of further inquiry, the conditions laid down in 1985 SCMR 382, (Ibrahim vs. Hay at Gul and others) and 1989 SCMR 899, (Najeeb Gul vs. Khalid Khan and another) had to be fulfilled ; (ii) that the reliance of Mr. S.M. Zafar, Advocate on the certificates attached with the bail application as Annexs: 'E, E/l and E/2', so as to justify the huge deposits found in the various accounts detected by the prosecution during the course of inquiry/investigation against the petitioner is also, in my view, of no avail. I have very carefully and minutely examined the said certificates, the most prominent feature whereof is that all the certificates are undated. Their being undated is neither accidental nor a casual omission. It is rather deliberate and wilfull. The certificates were left undated so as to make them capable of being used in any situation and for any period. This apart, their tone, tenor and the text betrays the purpose for which these have been got prepared by the petitioner. In any event, the certificates in question are conspicuous by the absence of necessary particulars of property subject matter of various transactions referred to therein. Yet another circumstance for disbelieving these certificates is that these appear to be an after-thought in as much as no such plea as has been advanced by the learned counsel for the petitioner before this Court based on these certificates was raised by him or pleaded before the learned Special Judge Central. Had these certificates been in existence or the averments made therein bonafidc and genuine, there was no reason why should the same have been withheld from the Court below or any plea based their upon not put up before the said Court; (iii) that the contention of the learned counsel for the petitioner that the registration of the case against the petitioner was wholly un-authorized and the very detention of the petitioner was illegal is also to my mind not such as can be made the basis of the plea for the enlargement of the petitioner on bail. The learned counsel in support of his this submission has referred me to the instructions of the Federal Government providing that the registration of the case against the specified employees of the Federal Government had to be preceded by a sanction for the purpose from the Anti-Corruption Council and that in the absence of the said sanction the very registration of the case against the petitioner is unauthorized and illegal. A perusal of the FIR would show that it is averred at the end of the FIR that the case has been registered with the approval of the competent authority. During the course of his argument, learned counsel for the petitioner did not refer to this part of the averment in the FIR or pointed out that the defect, if any, as to the approval of the competent authority which permitted the registration of the case. In any event, this question the learned counsel can more appropriately raise when the petitioner is put on trial. The present is not the stage fit enough for going into the question such as this. There is a clear case registered against the petitioner through the FIR subject matter of this case, he is named therein, the allegations made in the FIR prima-facie connect him with the offences alleged against him and so also the evidence collected during the inquiry and pursuant to the registration of the case. In the presence of all this, it can hardly be said that the arrest and detention of the petitioner is unauthorized or unwarranted; and (iv) that the contention of Mr. S.M. Zafar, Advocate, learned counsel for the petitioner that the sanction of the GHQ was not obtained prior to the registration of the case against the petitioner is also not such as deserves a serious notice. The petitioner is a civilian employee of the Federal Government though employed in a Defence related Formation. Being an employee of the Federal Government and accused of allegations such as formed the basis of the FIR against him, I am really at a loss to understand as to why should the petitioner's case be beyond the jurisdiction of the Federal Investigation Agency. The absence of sanction of GHQ, in my view, would not render the registration of the case against him as illegal or invalid. Nor has any provision of law been referred to me making the sanction of GHQ as sine qua non for the registration of the case against the petitioners. For all the afore-stated reasons, the bail application is rejected. (MYFK) Bail rejected.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 248 Present: sh. abdur razzaq, J. TAHIR MAHMOOD ETC.-Appellants versus STATE-Respondent Criminal Appeal No. 513 of 1994, dismissed on 6-8-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302, 109, 34-Murder-Offence of-Conviction for-Appeal against- There existed a motive for commission of offence on part of appellants as their brother and mother had been done to death at hands of a relative of deceased-Appellants have been nominated and assigned specific role of causing injuries to deceased-Version given in FIR stands corroborated by PWs-Medical evidence conclusively proves prosecution version that deceased was done to death as a result of injuries caused by three persons who could be none else except appellants-Promptness with which FIR has been lodged, rules out any possibility of false implication and involvement as well as of substitution-PW9 is neither related to complainant nor to deceased--PW8 is no doubt is related to deceased but mere relationship is no ground to discard his evidence unless and until it is proved that he had malice and animosity for making a false statement against-accused-No such malice has been brought on record in respect of PW8, hence, hjs evidence cannot be brushed aside simply on ground that he is related to deceased-No cogent and tangible evidence regarding presence of A accused in office at relevant time has been brought on record, as such, defence evidence has rightly been brushed aside-His presence at place of occurrence stands approved not only from ocular evidence but even from medical evidence-Appellants have been convicted by trial court strictly in accordance with law-Appeal dismissed. [Pp. 255, 256 & 257] AtoG Mr. Khurram LatifKhan Khosa, Advocate for Appellant. Mr. S.D. Qureshi, Advocate for State. Mr. Naveed Shehryar, Advocate for Complainant. Date of hearing : 6- 8-1997. judgment Instant appeal is directed against judgment dated 28.8.1994 passed by Mian Subah Sadiq, Additional Sessions Judge, Faisalabad, whereby he convicted all the three appellants under Section 302(b) PPC and sentenced each of them to imprisonment for life and fine of Rs. 20,000/- each to be paid to the legal heirs of the deceased as compensation or in default thereof R.I. for 6 months each. 2. Briefly stated the facts are that Muhammad Anwar complainant is resident of Chak No. 54/RB, whereas his cousins Muhammad Siddique and Pervaiz reside in Chak No. 103/RB. During the year 1991 Muhammad Ayub and Mst. Fazlan son and wife of Gulzar Ahmad were murdered, for which Pervaiz aforementioned and others were challaned and were convicted. A week prior to the day of occurrence i.e. 24.7.1992 Gulzar Ahmad apparently patched up with Muhammad Siddique and others, accused of murder of Muhammad Ayub and Mst. Fazlan, and fixed the said day i.e. 24.7.1992 for finalizing the details of compromise to be submitted in Court. Accordingly on 24.7.1992 the complainant alongwith Zakaryya and Mansaf Ali on a car, while Muhammad Saddique on his motor-cycle made for the house of Gulzar and reached near the land of Sardar Muhammad son of Mehr Ali at about 9.00 a.m. Muhammad Siddique asked the complainant and others to stop on the road and went to call Sardar Muhammad who was ploughing his field. He talked for a few minutes with Sardar Muhammad and while he was returning, he was waylaid by Tahir Mahmood D.B. gun and Muhammad Tariq and Muhammad Anwar armed with 12 bore guns who had concealed themselves in the sugar-cane field. The fired at Muhammad Siddique, hitting him at his chest who as a result thereof fell down. The accused then approached him (deceased) and fired at him indiscriminately and thereafter decamped from there. The incident was witnessed by Mansaf Ali and Sardar Muhammad. The motive behind this occurrence is that accused at the instigation of their father Gulzar had taken revenge of the murder of their brother and mother. Leaving Zakaryya, Mansaf Ali and Sardar Muhammad on the spot to guard over the dead-body complainant made for police station to lodge FIR, which was recorded by PW-1 Ghulam Mustafa Head Constable. Initially investigation was conducted by PW-11 Allah Ditta SI who visited the place of occurrence and prepared injury statement of the deceased Ex. PI and inquest report Ex. PJ. He then despatched the dead-body through Asghar Ali constable for post mortem examination to THQ Hospital Jaranwala. Muhammad Akram and Muhammad Sadiq accompanied the dead body and also identified the same at the time of post mortem examination. He collected blood stained earth from the place of occurrence and made a sealed parcel of the same vide memo Ex. PH and also prepared rough site plan of the place of occurrence vide memo Ex. PK. After post mortem examination, Asghar Ali constable produced last worn clothes of deceased Ex. PI to P3 alongwith a seald phail which he secured vide memo Ex. PC. On l.,8.1992, he got the site plan Ex. PG & PG/1 prepared through Patwari and red notes on the said site plan arein his hands. On 8.8.1992, he formally arrested accused Gulzar Ahmad. He handed over parcels of blood-stained earth to Moharrir Head Constable. On 30.8.1992, he arrested the accused Anwar and thereafter the nvestigation s handed over to Muhammad Nazir SHO/Inspector CIA who on 7.11.1992 arrested the accused Tahir Mahmood and Tariq. On 13.9.1992, the accused Muhammad Anwar led to the recoveiy of a 12 bore gun P7 alongwith two live cartridges P8/1-2 from his residential house which he secured vide emo. Ex. PF and also prepared site-plan of place of recovery vide memo Ex. PF/1. He also recorded statements of recoveiy witnesses, namely Muhammad Hussain and Muhammad Sadiq PWs. On 14.11.1992, the accused Tariq led to the recovery of gun P4 from his residential house which he secured vide memo Ex. PD. He also prepared site-plan of place of recovery Ex. PD/1 and recorded statements of recovery witnesses, namely Mansab Ali and Haroon Rashid. On the same day accused Tahir Mahmood also led to the recovery of gun P5 and five live cartridges Ex. P6/1-2 from his residential house which he secured vide memo Ex. PE. He also prepared site-plan of place of recovery Ex. PE/1 and recorded the statements of ecovery witnesses. After completing the investigation, he got the accused challaned. 3. A charge under Section 109 read with Section 302 PPC was framed against Gulzar Ahmad accused whereas accused Tahir Mahmood, Muhammad Tariq and Muhammad Anwar were charged under Sections 302/34 PPC, to which all accused pleaded not guilty and claimed trial. .4. In order to bring home guilt to the accused, the prosecution examined PWI Ghulam Mustafa Moharrir Headconstable who is the scriber of the FIR Ex. PA. He was also handed over one sealed parcel containing blood-stained earth for safe custody which he handed over to Ashgar Ali constable on 30.7.1992 for onward transmission to the office of Chemical Examiner Lahore. PW2 Dr. Muhammad Imtiaz Rabbani conducted post-mortem examination of Muhammad Siddique son of Muhammad Din on 24.7.1992 and found four wounds of entrance which are as follows : 1. Fire arm lac. wound margin black inverted 4 cm x 3 cm making a hotel 10 cm below from top of shoulder. The injury was on the front upper and outer part of right chest and direct downwards inwards and to the front. 2. A fire arm lac. wound margin black inverted 4. cm x 3 cm making a hole 12 cm below from left Axilla on the interior axillary line and directed to the right and inward. 3. A fire arm lac. wound margin black and inverted 3 cm x 2.5 cm making a hole 7 cm below from left nipple. The injury was directed inwards, upwards and to the right. 4. Fire arm lac. wound margin black inverted 2.5 cm x 2.5 cm on front of chest 17 cm below from supra sternal notch and directed backward upwards and to the right. He also found four wounds of exit which are as under : 1. 3 number of Lac. wounds margin everted each 1 cm x 1 cm on back of left chest lower part in an area of 3 cm x 2.5 cm. 2. 3 number of Lac. wounds margin everted each 1 cm x 1 cm on outer side of left abdomen in area of 6 cm x 5 cm. 3. 9 numbers of Lac. wounds 1 cm x 1 cm on outer side of right chest lower part in an area of 1Q cm x 7 cm. 4. 3 number of Lac. wounds 1 cm x 1 cm on the centre of front of chest. On dissection and opening the chest, four upper right ribs were fractured, left 5th and 6th ribs were fractured, right lung, left lung and heart were ruptured very badly. Chest cavity contained enough amount of blood. On opening the abdomen l/4th of the right side liver was ruptured and spleen was also ruptured. Abdominal cavity contained enough amount of blood. 3 numbers of plastic wads and 11 numbers of pallets were recovered from the body. All the injuries were anti-mortem, fatal and had been caused by fire arm. The death, according to the medical officer, was due to shock .and haemorrhage as a result of fire arm entrance wounds which were four in number and each one was sufficient to cause death in ordinary course of nature. The time between injury and death was immediate whereas the time between death and post-mortem was 3.30 hours approximately. He produced carbon copy of post-mortem report Ex. PB and sketch Ex. PB/1 which bear his signatures. After post-mortem examination, he handed over the deadbody alongwith last worn clothes, police papers and a sealed phail containing three wads and 11 pallets to Asghar ll constable. PW3 is Asghar Ali constable who escorted the dead-body on 24.7.1992 from the place of occurrence to THQ Hospital Jaranwala. After post-mortem examination, he was handed over last worn clothes of the deceased P 1 to P3 and a sealed phail which he produced before the Investigating Officer who secured the same vide memo Ex. PC which bears his signatures. On 30.7.1992, he was given a sealed parcel containing blood-stained earth by Mustafa MHC for onward transmission to the office of Chemical Examiner Lahore which he deposited in the said office intact. PW4 Haroon ur Rashid has deposed that on 14.11.1992, he alongwith Mansaf Ali joined the investigation and accused Tariq led to the recovery of a 12 bore double barrel gun 14 from a room of his residential house alongwith its license which was secured by the Investigating Officer vide memo Ex. PD which bears their signatures. On the same day Tahir Mahmood accused had also led to the recovery of gun P5 alongwith five live cartridges Ex. P6/1-5 which were secured vide memo Ex. PE which bears his signatures. PW5 Muhammad Husain is the witness of recovery of gun P7 alongwith two live cartridges P8/1-2 at the instance of Muhammad Anwar accused which were secured vide memo Ex. PF and which bears their signatures. PW6 Muhammad Sadiq has deposed that he had identified the dead-body of Muhammad Siddique on 24.7.1992 at the time of post-mortem examination in THQ Hospital Jaranwala. PW7 Mansaf Ali Patwari has deposed that on 1.8.1992, he visited the place of occurrence and on the pointation of PWs and directions of the police had prepared siteplans Ex. PG and PG/1. All the drawings and notes in black ink are in his hands and bear his signatures. PW 8 Muhammad Anwar is the complainant and has corroborated his version appearing in the FIR Ex. PA. PW9 Zakaryya is the eye-witness of this occurrence who has corroborated the version of PWS Muhammad Anwar. He has further deposed that he had joined the investigation of this case and the police had secured blood-stained earth and made a sealed parcel of the same vide memo Ex. PH which bears his signatures. He further deposed that the accused had committed the murder of Muhammad Siddique at the instigation of their'Tather Gulzar Ahmad. PW10 Muhammad Nazir was posted as Inspector/SHO at P.S. Khurianwala on 30.8.1992. He conducted the investigation of this case and his evidence has already been referred above. PW11 Allah Ditta SI was posted at P.S. Khurianwala on 24.7.1992. On the same day, he was handed over copy of FIR Ex. PA. He further conducted the investigation which has also been referred above.. The learned DBA produced the report of the Chemical Examiner PL and that of Serologist Ex. PX and after giving up Muhammad Sharif and Nasir Ali PWs having been won over by the accused, closed the evidence of the prosecution vide his statement dated 29.5.1994. . Statements of the accused Tahir Mahmood, Muhammad Tariq and Muhammad Anwar have been recorded under Section 342 Cr.P.C. wherein they denied the prosecution version and stated that none of them has committed murder of Muhammad Siddique deceased and they have been involved in this case falsely. They denied the recovery of guns etc. and stated that the said recoveries have been planted upon them just to strengthen the prosecution case. They did not claim the articles alleged to have been recovered at their instance. They stated that some unknown person fired at the deceased culminating into his death and they have been involved in this case due to their previous enmity. Accused Tahir Mahmood and Muhammad Tariq stated that neither they would produce defence evidence nor would examine themselves u/s 340(2) Cr.P.C. However accused Muhammad Anwar chose to produce evidence in his defence. He examined DW1 Abdur Rashid Piracha, DW2 Muhammad Azam and recorded his own statement as DW-3. The accused Gulzar Ahmad also denied the prosecution contention while recording his statement u/s 342 Cr.P.C. He reiterated the stand of his co-accused regarding his false involvement and murder of deceased at the hands of some unknown persons. He stated that neither he would record his statement u/s 340(2) Cr.P.C. nor would like to adduce evidence in his defence. 6. Arguments have been heard and record perused. 7. Learned counsel for the appellants has assailed the prosecution evidence on different grounds. 8. Firstly, he has stated that there is delay in lodging the FIR, that occurrence took place at 9.00 a.m. whereas FIR has been lodged at 10.05 a.m. when the distance between place of occurrence and police station is only six kilometers. Secondly, he has submitted that there is conflict between ocular evidence vis-a-vis medical evidence. While elaborating his contention, he submitted that as per averments contained in the FIR, the deceased was fired at by the appellants in the first instance and later on, they also fired indiscriminately on his (deceased) person, that it has been admitted by PW8 uhammad Anwar complainant that each accused-appellant had caused 5/6 fire shots on the deceased. He argued that if this contention of indiscriminate iring and of causing 5/6 fire shots by each appellant is accepted, then there must have been 15/20 wounds on the person of deceased, but this contention is not borne out from record, as only four wounds of inlet and four wonds of exit have been found on the person of deceased as per post-mortem report of PW2 Dr. Muhammad Imtiaz Rabbani. He next argued that this discrepancy in the number of injuries also makes the very presence of complainant at the spot highly doubtful, that even otherwise it is admitted fact that complainant resided 23/24 miles away from the place of occurrence and there is also no explanation of his being present there. He next argued that as evidence of eye-witnesses is inconsistent with medical evidence, so accused is entitled to benefit of such inconsistency and relied upon Mitho vs. The State (Law Notes 1972 360 (Karachi) as well as Allah Bakhsh and another vs. The State (1969 P. Cr. L.J. 251 (Lahore). He further argued that complainant Muhammad Anwar is related to the deceased and this partisan character of the complainant makes his evidence untrustworthy and relied upon Saeed Ahmad and another vs. The State (PLD 1972 Lahore 360). He further argued that even the defence evidence produced by Muhammad Anwar accused has not been properly appreciated by the trial Court, that even if it is assumed that there certain lacunas and defects in the defence evidence, that does not ford a ground for passing an order of conviction, as prosecution has to stand upon its own legs and weakness of defence plea is no ground to pass an order of conviction and relied upon PLD 1972 Lahore 360, that deceased had . various enemies as he stood involved in various cases as admitted by PW9 and there is every possibility that he (deceased) was done to death by one of his enemies. He thus submitted that prosecution has failed to bring home guilt to the accused/appellants beyond doubt, as such appeal may be accepted and they be acquitted by extending benefit of doubt. 9. On the other hand, judgment under appeal has been supported by learned counsel for the complainant, w'ho has submitted that there is no .delay in lodging •'',...• FIR as occurrence took place on 24.7.1992 at 9.00 a.m. whereas FIR has been lodged cm the same day at 10.05 a.m. when the distance between place of occurrence and police station is six miles that this promptness in lodging the FIR eliminates any chance of false implication, that substitution is a rare phcijomt'-non and there is nothing on the record to support this assertion, that occurrence having taken place during broad day light further eliminates chance;- of false involvement. So far as presence of PW8 Muhammad Anwar at -he oJaee of occurrence is concerned, he submitted that he was prescof, there as he was going alongwith other witnesses to the house of Cnlzflr Ahmad accused, since acquitted, in connection with the finalr/at ion of compromise to be submitted in the Court, that presence of PW9 Zakaryya also stands proved from his evidence and he being an independent witness, his evidence requires proper weight, that there are no discrepancies between ocular account of eye-witnesses and medical evidence as the statement of PW2 Dr. Muhammad Imtiaz Rabbani clearly shows that he had recovered three wads and 11 pallets from the person of the deceased, which fact clearly proves that the deceased had been caused three fire shots by three different persons. Had the medical officer been unable to collect three wads, there could be some substance in the arguments of other side, he argued. He further submitted that even the time of occurrence stands corroborated from the post-mortem examination report. He submitted that there were no mitigating circumstances for awarding life imprisonment to the appellants, as such, sentence of life imprisonment may be enhanced and the appellants be awarded capital punishment by accepting his revision petition, which is still at motion stage. 10. Learned counsel for the State has adopted the arguments addressed at the Bar by learned counsel for the complainant. However, he submitted that as it could not be ascertained as to whose shot had caused the death of the deceased, so the trial Court was justified in awarding life imprisonment and relied upon Sarfraz and 4 others vs. The State (1971 P Cr. L.J 205). He further submitted that as it was a broad day light occurrence, . accused have been specifically mentioned in the FIR which was lodged promptly and which stands fully corroborated by medical evidence, as such, it was no! necessary to look for corroboration and order of conviction could be passed on the basis of evidence brought on record and relied upon Muhammad Sharif vs. Muhammad Javed alias Jcda Tedi and 3 others (PLD 1976 SC 452). He thus submitted that there is no force in this appeal and the same be dismissed. 11. Now the question is, if prosecution has been able to bring home guilt to the accused or not on the basis of evidence discussed above. 12. A perusal of the FIR clearly shows that there existed a motive for the commission of this offence on the part of the appellants as their brother Muhammad Ayub and mother Mst. Fazlan had been done to death at the hands of Pervaiz, a relative of the deceased Muhammad Siddique and it was Muhammad Siddique deceased who had been pursuing the case of the accused of that case. Thus, there was a motive available to the accused for the commission of this offence. 13. All the three accused/appellants have been nominated and assigned a specific role of causing injuries to the deceased in the first instance and firing indiscriminately on the person of the deceased. The version given in the FIR stands corroborated by PW8 Muhammad Anwar as well as PW9 Zakaryya. There is no doubt that there are certain discrepancies in the statements of Muhammad Anwar and Zakanya in so far as the number of fire shots is concerned, but these discrepancies loose their force, when it is admitted by Medical Officer that he recovered three wads from the body of the deceased. This admission on his part conclusively proves that there were three assailants and three weapons had been used. Thus, the medical evidence conclusively proves the prosecution version that deceased was done to death as a result of injuries caused by three persons who could be none else except the accused/appellants. 14. Again in the instant case, occurrence took place at 9.00 a.m., whereas report was lodged at 10.05 a.m., when the distance between the place of occurrence and police station is 6 miles. The promptness with which FIR has been lodged and the detail of role assigned to each accused rules out any possibility of false implication and involvement as well as of substitution, which is otherwise a very rare phenomenon. 15. Much stress has also been laid on the ground that prosecution evidence consists of partisan and interested witnesses. This stand is also devoid of force, as PW9 Zakaryya is neither related to the complainant nor to the deceased, as such, he cannot be termed as a partisan or an interested witness. There is no doubt that PW8 Muhammad Anwar complainant is elated to the deceased but mere relationship is no ground to discard his evidence. It is settled law that evidence of an nterested witness cannot be discarded unless and until it is proved that he had some malice and animosity for making a false statement against the accused. No such malice has been brought on record in respect of PW8, hence his evidence cannot be brushed aside simply on the ground that he is related to the deceased. 16. Learned counsel for the appellants has relied upon 1969 P Cr. L. J. 251 wherein explanation given for delay was not found to be plausible and hence benefit of doubt was given. In the said authority, occurrence took place on 29.11.1965, a little before sunset, whereas FIR was lodged on 30.11.1965 at 6.00 a.m. In the instant case, occurrence took place on 24.7.1992 at 9.00 a.nu whereas FIR has been lodged on tKe same day at 10.05 a.m. He also relied upon Law Notes 1972 360 (Karachi) in which occurrence took place on 21.6.1966 at trephari time whereas FIR was lodged on the next day at 2.30 p.m. Thus, the authorities relied upon by learned could for the appellants are not applicable to the facts in hand, as no such inordinate delay has been caused in lodging +^e FIR at the instance of PW8 Muhammad Anwar. Similarly, authorities relied upon by learned counsel for the appellants regarding partisan character of PW8 Muhammad Anwar and PW9 Zakaryya are not applicable as PVV9 Zakaryya is not related to either of the parties and PW8 Muhammad Anwar though related to the deceased, had no enmity with the accused party. 17. Learned counsel for the appellants/accused has also relied upon PLD 1972 Lahore 360 wherein it has been held that weakness of defence is no proof of the truthfulness of the prosecution case which must stand or fall on its own legs and should be positively proved against the accused. There is no doubt that the prosecution case must stand on its own legs and it cannot take any benefit of the weakness of defence plea. In the instant case Muhammad Anwar accused has examined himself as DW3 and has also broTight on record statements of DW1 & 2 to prove his presence in the office at the time of alleged incident and his absence at the place of occurrence at the relevant time. The evidence produced by the accused Muhammad Anwar has been fully discussed by the trial Court and it has rightly been disbelieved for reasons recorded therein, as it consisted of loose forms in respect of an attendance register alleged to have been maintained in the said office but eplete with discrepancies and interpolations No cogent and tangible evidence regarding his presence in the office at the relevant time has been brought on record, as such, the defence evidence has rightly been brushed aside. Even otherwise, presence of Muhammad Anwar accused stands proved not only from ocular evidence hut even from medical evidence of PW2 Dr. Muhammad Imtiaz Rabbani. 18. Learned counsel for the appellant/accused has also objected to the presence of PW8 Muhamnw \nwar at the relevant time, alleging that how he could be present there bei-ig - sklent of a village 23/24 miles away from the place of occurrence. There is no doubt that PW8 Muhammad Anwar resided about 23/24 miles away from the place of occurrence, but he was present over there as he and others were on their way to the house of accused Gulzar Ahmad for finalizing terms of compromise to be filed in the Court. Thus, the presence of the said PW is absolutely natural. 19. The up shot of the above discussion is that appellants/accused have been convicted and sentenced by the trial Court strictly in accordance with law. There is no force in this appeal and the same is hereby dismissed. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 257 Present: GHULAM SARWAR SHEIKH, J. KHALID MAHMOOD-Appellant versus STATE-Respondent Criminal Appeal No. 688/93, dismissed on 31-7-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 471-Employment in office of Deputy Commissioner was obtained with the help of forged documents—Convicted by Special Judge Anti- Corruption-Challenge to-False and fabricated documents were used to get employment by appellant, who, was thus liable under S. 471 PPC and rightly convicted there-under, same does not appear to suffer from any legal infirmity so as to call for interference by High court-Appeal dismissed. [P. 259] A Ch. Muhammad AshrafAzeem, Advocate for Appellant. Maqsood Ahmad Khan, Advocate for State. Date of hearing : 31-7-1997. judgment Khalid Mehmood appellant was tried by learned Special Judge Anti-Corruption, Gujranwala, found and adjudged to be guilty of an offence under Section 471 PPC and accordingly convicted and sentenced to R.I. for a term of nine months with fine of Rs. 5000/- (five thousand) and in default of payment of fine to suffer further R.I. for three months, vide judgment dated 14.10.1993. He was, however, .acquitted of the charge under Section 468 P.P.C. 2. In nut shell, he is alleged to have secured employment as "Clerk" in the office of Deputy Commissioner, Sialkot, on the basis of forged Result Card and Matriculation Certificate, photo-stat copies, whereof, find a mention on file as Ex: PC and Ex. PG re 3. To substantiate the allegation and prove its case as many as six witnesses were examined by the prosecution. Muhammad Yousaf (PW.l) is scribe of F.I.R. Ex: PB drawn upon complaint Ex: PA. As Investigating Officer Ch. Muhammad Akbar A.S.I. (PW.4) secured certified copies of result card, letter Ex: PD Certificate Ex: PG, letter Ex: PE and admission form vide memo Ex: PH. Papers were duly verified and compared with original by Ch. Qasim Ali Deputy Controller of Examination, Board of Education, Gujranwala, as PW.5. Due sanction for prosecution was accorded by Commissioner, Gujranwala in terms of Ex: PK. 4. In his statement under Section 342 Cr.P.C. the appellant denied all the incriminating circumstances figuring against him in the prosecution evidence professed innocence and raised the plea of false implication. He, however, admitted to have obtained employment on the basis of result card Ex : PC and maintained that he had duly appeared in the examination and passed Matriculation. 5. After passing through usual p liases and covering its Journey in about two years, trial concluded with following observations and conclusions:- "Next point to be seen is as to what offence has been committed by the accused. It is not known as to who provided these forged documents to the accused or who prepared the same. There is no evidence that accused himself prepared these documents. However, it is clear from the evidence that accused fraudulently and dishonestly used these forged documents to obtain employment in the Government department and he knew it veiy well that the documents are forged one. Thus the offence committed by the accused is covered by section 471 P.P.C." 6. With reference to S.C. 6 Indian Cases 776; 7 M.L.T. 428 and Gustad Maneckji Shekdar vs. The State (PLD 1959 Dacca 756), learned Counsel for appellant has argued with vehemence that photo-state copies are neither admissible into evidence nor Ex: PC and Ex: PG fall within the definition of "false document" and conviction based thereon is unsustainable in law. Inter-alia, it has been contended that in no way appellant was a "Public Servant" at the relevant time of alleged forgery and as such Anti- Corruption Laws are neither attracted nor can come into play. Also it has been canvassed that non-production of Khalid Mahmood, who, is said to have appeared in examination on the basis of admission form Ex: PF, Hand Writing Expert and submission of report with an in-ordinate delay of 18 month/; by the Board speak volumes about hollowness of prosecution Case. Learned Counsel for the appellant has further maintained that due consideration was not given to Ex: DA and the same has not been repelled any way. It lias therefore been remarked that the judgment, now sought to he impeached and set. at naught, runs Counter to principles of Criminal justice and thus nullity in the eye of law. Reliance has also been placed upon Allah Rakha versus The State (1986 P.Cr.L.J. 1928), Muhammad Akbar Khan Bugti and another versus The State (PLD 1967 Karachi 186), Niaz Muhammad and 2 others vs. The State. (1974 P.Cr.L.J. 516) and Mushtaq Hussain versus The State (PLD 1975 Lahore 603) in support of the contentions. 7. Conversely, same has been acclaimed to be perfect and correct in all respects. 8. Be that as it may, prosecution has successfully brought on record material evidence to establish that the appellant fraudulently and dis­ honestly used such documents to secure employment as genuine while he knew and had every reason to believe it to be forged. When examined under Section 342 Cr.P.C. the appellant candidly admitted to have produced photo­ stat copy Ex: PC of Result Card and claimed to have obtained employment on the strength of qualification of having passed Matriculation Examination. Such candour admission on the part of appellant and hard fact of having entered into service by tendering Ex: PC as also Ex: PG, be-speak loudly of his mischief and artifice. He knew and rather firmly believed that the document being used to seek employment was not genuine but made his employer believe that the name was not fabricated. Due verification by PW. 5 puts last, nail in this context and renders the matter ciystal clear. Needless to say that admitted facts need not be proved. In wake thereof pleas dvanced on behalf of appellant loose its charm altogether. 9. As a necessary corollary, employment as "Clerk" in the office of Deputy Commissioner, Sialkot was obtained by the appellant knowing fully well that the documents were forged or at least not genuine. In face of clear data and material on record, there can be no escape from such conclusion. In any event, the fact remains that false and fabricated documents were used to get employment by the appellant, who, was. thus liable under Section 471 PPC and rightly convicted there-under. Same does not appear to suffer from any legal infirmity so as to call for interference by this Court. 10. Appeal consequently, merits dismissal and is hereby dismissed. 11. As far as, enhancement of punishment is concerned, suffice it so say, that the appellant, has not only faced dismissal from service,, but also, would undergo sentence and suffer punishment awarded to him. Hence matter in this context is dropped and notice issued in terms of order dated 8.11.1993 is discharged. 12. Necessary steps for causing arrest of the appellant on bail, in connection with the execution of sentence shall be taken immediately. (K.A.B.) Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 260 [Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J. SHAUKAT KHAN-Petitioner versus STATE-Respondent Criminal Misc. 931-B of 1997, dismissed on 10-11-1997. Criminal Procedure Code, 1898 V of 1898-- —S. 497-Bail-Offence u/S. 420, 467. 468, 471 PPC read with Section 5(2) of Prevention of Corruption Act, 1947-Petitioner is named in FIR and facts disclosed therein linked him with occurrence and that deeper appreciation about merits of case cannot be undertaken at bail stage- Evidence collected by investigation agency provides reasonable grounds for believing that petitioner is linked with offences stated in FIR—No extenuating ground-Petition dismissed. [P. 261] A Mr. Muhammad Fayyaz Ahmed Khawaja, Advocate for Petitioner. Malik Muhammad Jaffer, Advocate for Complainant. S. Muzahar Naqvi, Advocate for State. Date of hearing : 10-11-1997. order A case under Sections 420, 468, 467, 471 PPC read with Section 5(2) of Prevention of Corruption Act, 1947 was registered against the petitioner at Police Station, Anti-corruption, Attock. He has applied for bail after his petition has been rejected by the learned trial Court. 2. The facts are that the petitioner while posted as Patwari Halqa Kot Soondki, Tehsil Hassanabdal entered mutation No. 626 regarding 325 kanals and 10 marlas and mutation No. 628 regarding 1432 kanals and 2 marlas showing a consideration of Rs. 23,000/- and Rs. 40,000/- respectively whereby the 'Murtehni rights' of the aforesaid land were transferred allegedly to his close relatives through deceitful means and taking advantage of his official position thereby misusing his power as a public servant. He got those mutations attested from the Revenue Officer saying that the transferors were present in the 'Jalsa-e-Am' when the mutations were presented before the Revenue Officer for attestation. However, at a later stage due to intervention of local MPA, the entries of mutation No. 627 were reversed and the property in question was conveyed back to the transferors by the transferee. The transferors of other mutation suffered wrongful loss due to alleged illegal act of the petitioner who earned wrongful gain by misusing his official position. 3. The learned counsel for the petitioner has submitted that provisions of Section 467 PPC are not applicable and after deletion of aforesaid section the remaining offences shown in the FIR do not fall within the prohibitory clause and as such the petitioner is entitled to bail; that being a public servant, there is no apprehension of the petitioner's absconsion and as such he would be entitled to bail and that he petitioner having been sent to judicial lock up, his person is no more required for further investigation and keeping him behind the bars would amount to punishment in advance. 4. The petition was opposed by the learned counsel for the complainant as well as by the learned State counsel on the ground that provisions of Section 467 PPC are attracted to the facts of this case because the mutations were got sanctioned in the absence of transferors by making forgery in the relevant record. In this connection, it was contended that ignatures of the transferors were forged although they were not present in the Jalsa-e-Am when the mutations were attested. 5. Secondly it is submitted that public servants ought to be have in a meticulous manner while discharging their duties. If they deviate from the course of their duties and perpetuate forgeiy in the official record in order to have wrongful gain or to cause wrongful loss to the aggrieved persons, then a strict view should be taken and bail in such situation should not be readily granted. Reliance was placed on PLD 1997 SC 545. 6. I have considered the foregoing submissions and find that the petitioner is named in the FIR and the facts disclosed therein linked him with the occurrence and that deeper appreciation about the merits of the case cannot be undertaken at this stage. The evidence collected by the investigating agency provides reasonable grounds for believing that the petitioner is linked with the offences stated in the FIR. There being no extenuating ground, the petitioner has no case for bail. The bail petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 261 [ Bahawalpur Bench] Present: sheikh lutfur rahman, J. FARZANA SHAHEEN-Petitioner versus STATE-Respondent W.P. No. 3703-Q of 1997/BWP, dismissed on 16.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Quashment of FIR-Prayer for-Offence u/S. 16 of the Zina (Enforcement of Hudood) Ordinance, 1979, r/w S. 109 PPC-The question whether the petitioner aged 16/17 years was abducted and forceably married and whether an offence ofzina has been committed are questions of fact which requires/investigation which is yet to be made, FIR therefore, cannot be quashed summarily—Petition dismissed. [Pp. 262 & 264] A, B & C Malik Ghularn Farid, Advocate for Petitioner Raja M. Sohail Iftikhar, Advocate for the State, Date of hearing : 16-10-1997. judgment The petitioners, through thi;; Constitutional petition, sought quashment of FIR No. 138/97 registered under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1978. vs-ad with section 109 PPC att. P.S. Qaimpur. 5. In the case of Fat eh A)t verxiif, I'mvinvr of Raloc.hi.stan through Secretary, Health and others (1997 RC31K 1687;. the apes Court approved the findings of the High Court that in a case of seriui-s factual controversy the discretionary Constitutional jurisdiction conk! lie declined. As a Court of competent jurisdiction is seized of the mattor, the interference by the High Court, in the exercise of the Constitutional iiuisdictioR ; s not called for. 6. A Full Bench of the Supreme Court as early as 1967 while disposing three appeals titled : (1) Ghulam Muhammad versus Muzamrnal Khan and four others (Criminal Appeal No. 29 of 1966). (2) Ghulam Muhammad versus Muzamrnal Khan and 3 others (Criminal Appeal No. 30 of 1966) and (3) Ghulam Muhammad versus Muzamrnal Khan and 5 others (Criminal Appeal No. 31 of 1966) (PLD 1967 SC 317) thoroughly examined the inherent power of the High Court contained in section 561-A read with section 435, 438 and 439 Cr.P.C. and while setting aside the High Court's order quashing proceedings under section 561-A Cr.P.C. observed as follows ;-- "It is, therefore, generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available." "If, in fact, an offence had been committed justice required that it should be inquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of N. S. Khawaja versus The State." "The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed the charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence." " ................................... has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of investigation of the complaint, particularly, if the sentence and is itself a good ground for suspension of sentence-Sentence suspended-Petitioner was directed to submit a bank guarantee to secure payment of Arsh and Daman to PWs-Disbursement of such amount shall depend on final decision of appeal. [P. 266] A Ch. Faqir Muhammad, Advocate for Petitioner/Appellant No. 2. Mr. Muhammad Rafique, Advocate for State. Date of hearing : 11-12-1997. order Nazir Ahmed and Ghulam Shabbir petitioner were tried in this case before the learned Additional Sessions Judge, Kot Addu. 2. Nazir Ahmed stands convicted under Section 302 PPC and sentenced to imprisonment for life for having caused the death of Saeed Ahmed while the petitioner was acquitted of this charge. 3. The petitioner and Nazir Ahmed co-accused stand convicted and sentenced under Sections 337-A (ii) and 337-L (ii) PPC read with Section 34 PPC vide judgment dated 14.4.1996 on three counts for having caused injuries to Muhammad Hussain. Mst. Sarwar Mai and Mst. Naseem Mai and ordered to undergo sentence of 5 years R.I. each and to pay jointly Rs. 10147/- as 'Arsh' on each count under Sections 337-A (ii)/34 PPC and to undergo two years R.I. each and pay Rs. 5000/- as 'Daman' on each count under Sections 337-L (ii)/34 PPC. 4. It was ordered by the learned trial court that all the sentences shall run concurrently and they shall be detained in jail till the payment of Arsh and Daman is made to the three injured PWs. 5. Ghulam Shabbir petitioner has through this petition sought the suspension of sentences awarded to him. It has been argued that since the appeal is a continuation of trial, the payment of Daman and Arsh would be made after final order is passed by this Court. It has also been argued that it is a short sentence and the petitioner has undergone and completed the statutory period in jail and still the appeal has not been fixed for hearing. 6. Learned counsel for the State has controverted these arguments and submits that the order of the learned trial court is clear that the petitioner would be detained in jail till the payment of Arsh and Daman and he has referred to Section 337-X pertaining to the payment of Arsh which declares that the Arsh may be made payable in a lump sum or in installments spread over a period of three years from the date of the final judgment. Second part of tiie same section provides that, where a convict fails " we can see no legal bar to the police submitting a challan in respect, of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of investigation......" 7. A similar view was expressed by a Division Bench of this Court, of which I had the privilege of being a member, in case Muhammad Shabbir versus Muhammad Saleem (W.P. No. 456 of 1996). 8. At this stage, 1 would like to mention that the ruling given by the Full Bench of this Court in the case of Hafiz Abdul Waheed vs. Miss Asma Jehangir and another (PLD 1997 Lahore 301) is not applicable to the facts of the case in hand. 9. In the instant case, it is question of fact which requires inquiiy/investigation and the FIR cannot be quashed summarily. Even the allegation of mala fides in registration of the case cannot be properly and judiciously assessed at this stage as the investigation is yet to be made and the evidence is yet to be recorded. This finds support from the decision in the case of Sheikh Rashid Ahmad vs. LutfAli Malik and another (1995 P.Cr.L.J. 717). Reliance is also placed on the case of Ahmad Saeed vs. The State and another (1996 SCMR 186). 10. The matter is dispute can only be resolved after the parties have adduced their respective evidence. The writ petition has no merits and is accordingly dismissed. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 270 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. TAIMUR ABBASI and another-Petitioners versus STATE-Respondent Criminal Misc. No. 944-B/1997. dismissed on 10-11-1997. Criminal Procedure Code, 1898 (V of 18.98)-- —-S. 497-Bail-Grant of-Prayer for-Offence u/s 13/14 (Enforcement of Hadd) Offence of Zina Ordinance, 1979-Both petitioners were closely associated in nsporting girls at, instance of Mst. G and Mr. N in cars driven by them-It cannot be said that they were oblivious of their nefarious activities as they have been engaged to transport girls from house of Ms?. G to place of prostitution-They have been actively associated with crime according to FIR and evidence so far collected by police-Petition dismissed. [P. 272] A Mr. Abdul Baseer Qurcshi, Advocate for Petitioner. Syed Nayyer Hussain, Advocate for State. Date of hearing : 10-11-1997. judgment A case under Section 13/14, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is registered against the petitioner and others vide FIR No. 247 dated 1.9.1997 at Police Station, Margallah, Islamabad for letting 6 girls for the purpose of prostitution. 2. According to FIR one Mst. Ghazala indulged in supplying women for prostitution through a person named Naveed Khan. A deocy customer was sent to the house of aforesaid Ghazala for booking of 6 girls for prostitution. The transaction was settled and girls were agreed to be supplied through Naveed Khan with the help of the present petitioners, who were the drivers of cars in which 6 girls were transported to the place of prostitution. Upon a raid those 6 girls were arrested alongwith other three persons, which included present petitioners. All the 6 girls being victim were admitted to bail by this court vide order dated 2:10.1997. 3. The learned counsel for the petitioners has submitted that both the petitioners were drivers of the vehicles in which the aforesaid girls were transported for dropping them at the place of prostitution. Out of them Taimur Abbasi petitioner No. 1 was a professional driver working with Capital Rentals dealing in the business of 'Rent a Car' at Islamabad. The aforesaid driver was performing duty with one Salim Andrews for the last 4 months. The aforesaid Salim Andrews is residing in Punjab House and since petitioner No. 1 was on duty with him, therefore, he had no knowledge about the business of prostitution. The other petitioner is the driver in Punjab House and as such had no knowledge of such shameful business; that he had been working with the aforesaid Salim Andrews at Punjab House and on the fateful day was accompanying petitioner No. 1. In view of the above facts, it is submitted that real culprits were Mst. Ghazala and her associates namely Naveed Khan, and Salim Andrews. They are allegedly still at large but the petitioners have been roped in being poor car drivers. It is submitted that since they had nothing to do with the action of letting out aforesaid girls, for prostitution, therefore, they were entitled to bail. 4. The learned counsel for the State has, however, opposed the bail petition on the ground that a gang was operating to trap innocent girls and then to let them out for prostitution. Admittedly the petitioners were named in the FIR and a specific role was attributed to them for transporting the girls aforementioned to a brothel and as such they were a link in the chain and their vicarious liability could not allegedly be distinguished at this stage. As such it was prayed that they have no case for bail. 5. I have considered the foregoing submissions and without entering into the merits of the case, it appears from the perusal of record that both the petitioners were closely associated in transporting the girls aforementioned at the instance of Mst. Ghazala and Naveed Khan in the cars driven by them. They were associated with aforesaid Mst. Ghazala, Naveed Khan and Salim Andrews for some time and as such it cannot be said that they were oblivious of their nefarious activities as they have been engaged to transport the girls from the house of Mst. Ghazala to the place of prostitution. They have been actively associated with the crime according to the FIR and the evidence so far collected by the police. The petitioners have no case for bail at this stage. Their bail petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 272 Present: DR. MUNIR AHMAD MUGHAL, J. NAZIR AHMAD-Appellant versus STATE-Respondent Criminal Appeal No. 329 of 1995, accepted on 29.9.1997. Pakistan Penal Code, I860 (XLV of 1860)-- —-S. 161 read with S. 5(2) of Prevention of Corruption Act, 1947-- Appreciation of evidence-Complainant stated that he did not tell Magistrate about number of currency note but left it with Magistrate-It was also stated that he gave currency note of Rs. 500/- to Lambardar who went inside room with appellant and gave him said note—He further stated that he did not see Lambardar passing money to accusedappellant-Lamfeardar who allegedly gave money to accused-appellant was sitting on his 'Dera' for Girdawari purpose when complainant came there and gave currency note of Rs. 500/- to accused appellant in his precence-It means that no bribe was given to appellant by Lambardar as tainted note was not in their possession and was in possession of Magistrate-Raiding Magistrate has frankly stated that he did not hear conversation between complainant and accused-appellant at time of payment of money and he also did not see accused accepting tainted money—Held : Mere recovery of tainted money in absence of evidence to the effect that amount was received by accused-appellant as bribe is not enough to prove charge-Held further : Statement of complainant, who is decoy witness is without consideration and on basis of it conviction cannot be passed—Appeal accepted. [Pp. 274, 275 & 276] A, B, C, D & E 1994 P.Cr.L.J. 2356, PLJ 1997 Cr. C. (Lahore) 1293 and 1994 P.Cr.L.J. 2233. Ch. Muhammad Ramzan, Advocate for Appellant. Mr. Muhammad Ishfaq Bokhari, Advocate for Respondents. Date of hearing: 29.9.1997. judgment This criminal appeal arises from the judgment dated 16.1.1995 passed by the learned Special Judge Anti-Corruption, Gujranwala in trial No. 15/95 whereby he convicted the appellant under Section 161 PPC read with Section 5(2) of the Prevention of Corruption Act, 1947, and sentenced him to nine months R.I. with a fine of Rs. 5000/- and in default of payment of fine to undergo further R.I. for three months. 2. The prosecution case is that on 25.3.1994 Shah Nawaz complainant had met the appellant, who was Patwari of Halqa village Hasan Bhattian to get a copy of Khasra Girdawari of the land under his cultivation and the appellant demanded illegal gratification of Rs. 500/- in addition to the official fee in the presence of Hafeez Ullah (PW. 4). The complainant reported the matter to the Police Station ACE, Sialkot on 6.3.1994. The Circle Officer/Anti-Corruption Establishment, Sialkot recorded FIR (Ex. PA) and on his application (Ex. PB) the Deputy Commissioner, Sialkot deputed Syed Ali Ausat Shah (PW. 3) Magistrate 1st Class for raid. The CO/ACE produced the complainant before the Raiding Magistrate who recorded his statement (Ex. PI). The complainant produced one currency note of Rs. 500/- before the Raiding Magistrate who after obtaining the serial number returned the same to the complainant. The complainant informed the Raiding Magistrate that he is to pay the money on 27.3.1994 at 11.00 a.m. to the appellant and further proceedings were postponed to the next day. On 27.3.1994 the raiding party wasconstituted and it went to Mauza Dulam Kahlwan. The complainant with necessary instructions was sent to pay the money to the accused. The complainant after about half an hour gave a signal from a distance about the payment of money and thereupon the raiding party entered the Dera of Hafeez Ullah (PW. 4) Lambardar. The accused was sitting on a cot with his record and he was called and the raiding party introduced itself. One currency note of Rs. 500/- (Ex. PI) was recovered from the right pocket of the Salooka of the accused and serial number tallied with the serial number already noted. The tainted money was taken into possession vide memo Ex. PC. Statement of the appellant was recorded and he was arrested and proceedings recorded by the raiding Magistrate were handed over to the C.O./ACE. After necessary investigation, sanction order (Ex. PJ) was obtained and the challan was submitted in the trial Court. 3. At the trial the prosecution examined four witnesses in all. PW. 1 is Rana Ashiq Ali C.O./ACE who recorded FIR Ex. PA on the statement of the complainant. He also stated that he made application Ex. PB to the Deputy Commissioner to nominate a Magistrate for raid. He also stated that he accompanied the raiding party and on the pointation of the complainant raided and took into possession a note of Rs. 500/- P. 1 vide memo Ex. PC from the search of the person of the appellant. He further stated that he took into possession another amount of Rs. Ill/- vide memo Ex. PD. In his cross examination he said that he had not heard the conversation between complainant and the accused and neither he saw the complainant giving bribe to the appellant. 4. PW. 2 is Shah Nawaz complainant. He stated that he had landed property in Mauza Hassan Bhattian. The accused-appellant was Patwari Halqa. About a year ago he met the Patwari to have a copy of Khasra girdawari and the accused demanded a bribe of Rs. 500/~. He said that on his pointation the raiding party made a raid and recovered the tainted money from the pocket of Salooka of the accused-appellant. He further said that at the time of search Rs. 70/- or Rs. 72/- were in the pocket of the accused-appellant which were taken into possession vide memo Ex. PD. In his cross examination he said that he had no land in Dulam Kahloon. He further stated that he did not tell the Magistrate about the number of the currency note but left it with the Magistrate. It was also stated that he gave a currency note of Rs. 500/- to Hafeez Ullah Lambardar who went inside the room with the appellant and give him the said note. He further stated that he did not see Hafeez Ullah Lambardar passing the money to the accusedappellant. 5. PW. 3 is Syed Ali Ausat Shah, Magistrate 1st Class, Sialkot who conducted the raid and recovered the tainted money from the appellant on the pointation of the complainant. 6. PW. 4 is Hafeez Ullah Lambardar who allegedly gave the bribe to the accused-appellant. He stated that on 27.3.1994 the accused-appellant was sitting on his Dera for Girdawari purposes when the complainant Shah Nawaz came there and gave a currency note of Rs. 500/- to the accusedappellant in his presence. Thereafter, raiding party conducted raid and recovered currency note P. 1 vide memo Ex. PC from the pocket of Salooka of the appellant, and nothing else was recovered. 7. In his statement under Section 342 Cr.P.C., the appellant denied the allegations levelled by the prosecution and contended that shortly before the raid Hafeez Ullah (pW.4) gave him a currency note of Rs. 500/- for obtaining change and the raid took place after he had given the change. The appellant also ntended that his statement Ex. PI was not accurately recorded by the Magistrate and it was not read over to him. The accused ontended that complainant Shah Nawaz neither owns nor cultivates land in the Mauza and he never demanded any copy from him and the raid was arranged by Hafeez Ullah (P.W. 4) to falsely involve him in the case due to his personal grudge. The accused-appellant also examined Muhammad Yousaf (D.W.I), Barkat Ali (D.W.2) and himself appeared as D.W. 3 in his defence. Both the DWs corroborated the statement of the accused. 8. Learned counsel for the appellant has vehemently argued that the prosecution evidence in this case is not reliable and it has failed to make out a case against the appellant. According to him the version put forth by the appellant in defence is more plausible and worthy of credit. Learned Statecounsel has opposed the acquittal saying that mere minor discrepancies in the statements of the P.Ws do not mean that the prosecution has failed to prove its case agafnst the accused-appellant. He ressed for dismissing the appeal. 9. With the able assistance of both the learned counsel, I have myself carefully and minutely gone through the record and seen the evidence on the record. The complainant has deposed that he gave note of Rs. 500/- to Hafeezullah Lambardar who passed it on to the appellant and that the complainant did not himself see the passing on of the money to the appellant. On the other hand Hafeezullah stated that the tainted money was given to the appellant by the complainant and not by him. This shows either the complainant or his witnesses Hafeezullah Lambardar is telling a lie which makes the passing on of the tainted money to the appellant as totally doubtful. The second material discrepancy fatal to the prosecution case is that the complainant has admitted that he did not note the serial number of the taincd currency note. Similarly in his Cross-examination he has admitted that he had left the currency note with the Magistrate a day before the raid and he never came to the court of the Magistrate on 27.3.1995. It means that no bribe was given to the appellant by Hafizullah Lambardar as the tained note was not in their possession and was in the possession of the Magistrate. The Raiding Magistrate, Syed Ali Ausat Shah (P.W. 3) has frankly stated that he did not hear the conversation between the complainant and accused-appellant at the time of payment of money and he also did not see the accused accepting the tainted money. Same is the statement of the Circle Officer/Anti Corruption Establishment Ashiq Ali (PW.l) who in his cross- xamination stated that he did not see the passing on of the tainted money. In Sultan Muhammad vs. The State (1994 P.Cr.L.J. 2356) (Lahore), and Sajid Naveed vs. State (P.L.J. 1997 Cr. Cases (Lahore 1293) in similar circumstances the conviction was set aside. The stress of the learned State counsel that the tainted money has been recovered from the appellant is of no help to the prosecution as mere recovery of tainted money in the absence of evidence to the effect that the amount was received by the accused-appellant as bribe is not enough to prove the charge. The view is fortified by the case Mirza Fayyaz Beg vs. The State (1994 P.Cr.L.J. 2233) (Lahore). According to complainant Shahnawaz (PW.2) he has no landed property in the village and the Fard was required for personal use creates serious doubts about the truthfulness of the prosecution case. Besides this there was no one else present when the bribe was allegedly demanded thus the statement of complainant, who is decoy witness, is without consideration and on the basis of it conviction cannot be passed. 10. In view of the above noted discrepancies and contradictions and legal position I find that the defence plea is more reliable than the prosecution case, and the prosecution has no legs to stand upon. 11. As a result of the above discussion I accept this appeal, set aside the judgment of the learned trial Judge dated 1.6.1995 and acquit the appellant. The appellant is on bail. He is discharged of his bail bonds. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 276 Present: DR. munir AHMAD MUGHAL, J. MUHAMMAD RAFIQUE-Appellant versus STATE-Respondent Criminal Appeal No. 46 of 1995, decided on 23-10-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 324, 337-F(v) and 337-L (ii)-Appeal against conviction-Full oportunity was given to appellant to cross examine witnesses and even to produce his own witnesses in defence and he did cross-examine the PWs but no dent could be made in prosecution case-Ocular evidence and medical evidence fully testified prosecution case-Use of carbine by appellant and inflicting of injuries on thigh and hand clearly shows that appellant had intention and knowledge that his act might cat •:? fatal injuries to victim-Anyhow appellant has already gone more than three years' imprisonment that has met ends of justice hence, sentence altered to sentence already undergone—Appeal partly accepted. [P. 278 & 279] A to C Syed Shabahat Hussain Tirmizi, Advocate for Appellant. Miss Amra Islam, Advocate for A.G. for the State. Date of hearing : 23-10-1997. judgment This is an appeal against the order dated 1.2.1995 passed by the learned Judicial Magistrate Section 30, Jhang whereby the appellant has been convicted under Section 324 PPG and sentenced to five years R.I. and under Section 337-F(v) PPG and sentenced to three years R.I. and also convicted under Section 337-L(ii) PPG and sentenced to one year R.I. All the sentences were ordered to run concurrently. It was also ordered that the appellant shall pay compenation of Rs. 10,000/- to the victim and in case of non-payment to undergo S.I. for one year which was ordered to run consecutively. 2. Briefly stated the prosecution case is that seven days prior to the occurrence marriage of complainant's nephew Haji Ahmad was solemnized with Mst. Manzooran. Haji Ahmad and complainant went to the parent's house of Mst. Manzooran to bring her to their house and on the day of occurrence Haji Ahmad, Mst. Manzooran and the complainant started their journey to their house and when they reached near the Dheri of Rajab at about 8.30 a.m. the appellant Muhammad Refique armed with a carbine suddenly came out of the wheat crop and fired at Haji Ahmad which hit on his left plam and finger and thigh. Haji Ahmad tried to catch the appellant but the apellant gave blow from the reverse side of the carbine which also hit on the left hand of Haji Ahmad. The fire shot attracted uhammad Ramzan and Khuda Bakhsh who were cutting the wheat crop in the nearby field but the appellant managed to escape by issuing threats that any one who came near him will be done to death. The motive as alleged is that complainanat suspected previous illicit intimacy of appellant with Mst. Manzooran and the assault upon Haji Ahmad was to remove him from the scene. After t e medical examination the matter was reported to the police where after necessary investigation the appellant was challaned to the trial Court. 3. The prosecution examined six witnesses namely Mahmood (P.W. 1), Haji Ahmad (PW.2), Muhammad Ramzan (PW.3), Dr. Muhammad Riaz (PW.4), Mst. Manzooran (PW.5) and Bashir Ahmad ASI (PW.6). 4. The appellant in his statement under section 342 Cr.P.C. denied the incident, however, he stated that the PWs had suspision that he had illicit relations with Mst. Manzooran before her marriage with Haji Ahmad and on that account they have deoposed falsely against him. No evidence was produced in defence. 5. Learned counsel for the appellant has assailed the impugned order of conviction and sentence on the grounds tht all the prosecution witnesses arae interested and inimical toards the appellant and that he was not given given an opportunity to cross examine the witnesses. On the other hand the learned counsel for the state has submitted that the witnesses area natural witnesses and that the accused has availed the opportunity to cross examine the witnesses. 6. I have given due consideration to the valuable arguments on both sides and have also gone through the trial Court record and the police file minutely. 7. PW. 1 Mahmood is the complainant who lodged the FIR. He has given the same statement as is recorded in the FIR. PW. 2 who is the victim in this case has also deposed the asme facts. Similarly, PW. 3 Muhammad Ramzan supported the FIR without any following injuries on the person of injured PW Haji Ahmad :-- (i) A fire arm enterance wound 0.8 cm x 0.5 cm on back of left little finger at proximal one third clinically there is crepitus of fractured bone ends of 1st phalynx of left little finger. X-ray is advised for documentary record. (ii) A fire arm exit wound 1.3 cm x 1 c.m. on lateral aspect of left little finger at proximal part. (iii) A fire arm enterance wound 1.1. cm x 06 cm on medical aspect of left ring finger at junction of proximal and middle one third. (iv) A fire arm exit wound 1.5 cm x 0.8 cm on lateral aspect of left ring finger at middle one third. (v) A lacerated wound 0.7 cm x 0.2 cm on front of left index finger at distal one third. (vi) A fire arm enterance wound 0.6 cm x 0.5 cm on anteromedial aspect of left thigh at middle. (vii) A fire arm exit wound 1 cm x 0.8 cm on postero lateral aspect of left thigh at upper part. This injury is 2 cm higher than injury No. 6. (viii) A fire arm enterance wound on medical aspect of right thigh at middle part. A hard foreign body is pelpated at anterior asapect of right thigh at level of this injury. He was of the opinion that injuries No. 1, 2, 3, 4. 5, 7 and 8 were by fire arm and he declaraed them grievous injuries. While injury No. 5 was with a blunt weapon. Injuries No. 3, 4, 6, 7 and 8 were kept under observation. After X-ray examination injury No. 1 was declared grievous while injuries No. 3, 4, 6, 7 and 8 were declared as simple. 8. PW. 5 Mst. Manzooran has also fully supported the complainant. PW. 6 Munir Ahmad ASI while posted at Shorkot (City inspected the spot and prepared the site plan (Ex. PJ) took into possession blood stained garments Shirt (P. 3) and Shalwar (P.4) vide memo of possession (Ex. PC), effected recovery of carbine vide memo (Ex. PD), prepared -site plan vide memo (Ex. PK). The accused-appellant was examined under Section 342 and 340 (2) Cr. P.C., who denied the whole incident and took the stand that he has been involved due to suspiction of PWs that he was having illict relations with Mst. Manzooran PW prior to the marriage with Haji Ahmad. PW. The record shows that full opportunity was given to the appellant to cross examine the witnesses and even to produce his own witnesses in defence and he did cross examine the PWs but no dent could be made in the prosecution case and the ocular evidence and the medical evidence fully testified the prosecution case. When confronted with this situation the learned counsel for the appellant has argued that the sentence imposed is too harsh. The use of the carbine which is a firearm by the appellant and inflicting of injuries on thigh and hand clearly shows that the appellant had the intention and knowledge that his act might cause fatal injuries to the victim. Though out of eight injuries only injury No. 1 was declared grievous. The other injjuries after X-ray report have been found simple and no fracture has been caused. The apapellant wasarrested on 7.5.1991 and was granted bail by the trial Court on 21.8.1991. He was again arrested on 1.2.1995 and is in jail since then, and thus has already undergone more than three years imprisonment that has met the ends of justice. 9. Keeping in view all the circumstances the conviction of the appellant is maintained but sentence awarded to the appellant is altered to the sentence already undergone by him with a fine of Rs. 5000/- which if realised shall be paid to the injured. In case of default of payment of fine he shall undergo six months simple imprisonment. (MYFK) Orders accordingly

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 279 Present: MUHAMMAD ISLAM BHATTI, J. NAZIR AHMAD-Appellant versus STATE-Respondent Criminal Appeal No. 66 of 1993, accepted on 15.10.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 161 read with Prevention of Corruption Act, 1947-Appreciation of evidence-Accused has candidly admitted receipt of money at very outset and has claimed bonafides which should have gone into and considered by Investigating Officer-Complainant made concessional statement and resiled from his original stand-He stated in so many words that nothing was recovered from person of accused and money was found from box lying in adjoining room of office of accused-He admitted suggestion as correct that accused told him that he would be required to purchase 15 posters and that since he did not know about it thought that money was being demanded as bribe-Held: It was imperative for prosecution to establish that money has passed as illegal gratification-Held further : Benefit of doubt must go to appellant and he is entitled to acquittal- Appeal accepted. [Pp. 284 & 285] A, B, C, D, E & F Ch. Ghulam Murtaza, Advocate for Appellant. Mian Muhammad Bashir, Advocate for State. Date of hearing : 9.10.1997. judgment This criminal appeal arises from the judgment dated 18.10.1993 passed by Malik Muhammad Afzal learned Special Judge Anti Corruption, Gujranwala whereby in case FIR no. 10 registered on 31.1.1993 at. Police Station A.C.E. Sialkot under section 161 PPC read with Section 5(2) of the Prevention of Corruption Act 1947, the accused Nazir Ahmad, appellant herein was, after he faced the trial, convicted and sentenced to suffer R.I. for a period of nine months and to pay a fine of Rs. 5000/- and in default of the payment of fine to further undergo R.I. for three months. 2. Briefly put the facts of the case are that Shabbir Ahmad PW-1, fond of keeping partridges, approached the accused/appellant Nazir Ahmad, a Game Inspector on 30.1.1993 in connection with the preparation of the requisite licence but the Game Inspector allegedly demanded an illegal gratification of Rs. 350/- as against the requisite licence fee of Rs. 50/-. Since he did not want to pay the illegal gratification he approached the Circle Officer Anti Corruption Muhammad Riaz Khan (PW-3) who after recording the statement of Shabbir Ahmad complainant Ex. PA made application Ex. PJ to the A.D.C. (G) for deputing a Magistrate to supervise the raid. Syed Sibte Hassan PW-2 was accordingly nominated for the purpose. Muhammad Riaz Khan PW-3, therefore, placed the complaint before the raiding Magistrate who recorded the statement of the complainant Ex. PB. The complainant then produced three currency notes of Rs. 100/- demonization each, Ex. P-l to P-3 and one currency note of Rs. 50/- Ex. P-4 and after recording their serial numbers, the Magistrate returned those notes, wills to the complainant and record a note in this behalf Ex. PF. The raiding party then reached National Bank Building Kotli Behram, the office of the accused being dated at first floor of the said Bank. The complainant was sent to the office of the accused. The other members of the raiding party went up stairs but stayed outside the office of the accused. After an interval of two minutes they went inside the office of the accused and themselves. The currency notes were, as per the version of Syed Sibte Hassan, recovered from the front pocket of the shirt of the accused. This amount was secured vide memo Ex. PC. He again recorded Ex. PF a note in this connection and Ex. PD the statement of Shabbir Ahmad. He also recorded Ex. PG the statement of the accused and ordered his arrest vide Ex. PH. 3. Nazir Ahmad accused appellant was charged as such under section 161 PPC read with Section 5(2) of the Prevention of Corruption Act on 21.6.1993. He pleaded not guilty and faced trial. It was then that Shabbir Ahmad complainant PW-1, Syed Sibte Hassan Magistrate PW-2 and Muhammad Riaz Khan C.O./ACE PW-3 were examined by the prosecution or establishing the guilt of the accused. Mian Muhammad Ashraf Tahir A.D.(P) tendered in evidence sanction Ex. PK and closed the prosecution evidence. 4. The accused in his statement under section 342 Cr.P.C. denied all the allegations of the prosecution except that the complainant had contacted him for a licence for keeping partridge and the licence fee was Rs. 50/-. He, however, maintained that he had asked the complainant to bring with him Rs. 350/-and two copies of the Identity Card for obtaining the licence because a sum of Rs. 300/- was to be paid the complainant as posters fee. He denied that amount of Rs. 350 was recovered from his pocket and asserted that this amount wasrecovered from his box lying in another room. He also maintained that Ex. PG is not the correct version/rendering of what he stated and he was forced to sign the same. He also produced Ata Ullah Junior clerk DW-1 and Arshad AM Game Watcher DW-2 in his defence before making statement himself on Oath as DW-3. 5. To give a resume of the prosecution evidence Muhammad Riaz Khan PW-3 after deposing as to how the raiding party was constituted, stated that they reached National Bank Kotli Behram where the accused had his office on the first floor and sent the complainant to the accused, that the complainant Shabbir Ahmad had in their presence (i.e. of the members of the raiding party) given a sum of Rs. 350/- to the accused and asked him to prepare the licence. The accused told the complainant that he would prepare the licence, that they heard the talk and searched (the person of the) accused and from the front pocket of his shirt were recovered three currency notes of Rs. 300/- and one currency note of Rs. 50/- the serial numbers of which tallied with the numbers already noted; that this tainted money was secured vide memo Ex. PC whereafter the statement of the complainant was recorded and the accused was arrested and that it was he who after necessary investigation submitted the challan. 6. Syed Sibte Hassan had supervised the raid and a brief account of what he has deposed has already been given above. Shabbir Ahmad omplainant (PW-1) went to the accused Nazir, paid him the money and after he assured that the licence would be issued, he signalled the raiding party after which the person of the accused was searched. It is, however, pertinent to note that according to the complainant nothing was recovered from the person of the accused and the money was in fact found from the box lying in the office of the accused. He was cross-examined by the learned Special Public Prosecutor in which he categorically denied the suggestion that he had stated before the Magistrate that the accused, after receiving the money from him put the same in the pocket of his shirt and the Magistrate and the Inspector after introducing themselves recovered money from the pocket of his shirt. It was, however, so recorded in Ex. PD to A. He denied that he was deliberately making a concessional statement to show favour to the accused and in fact the money was recovered from the front pocket of the shirt of the accused. In his cross-examination he went to the extent of saying that the box from which the money was recovered was lying in the adjoining room. He also admitted the suggestion as correct that when a licence was issued the posters were also issued to the licence holders. He also could not deny the suggestion that Nazir accused had told him that he would have to purchase 15 posters. He added that he did not known that officially he had to pay the price of 15 posters and, therefore, he thought that the money was heing demanded as bribe. He, however, turned down the suggestion that he got the case registered due to misunderstanding. 7. Ata Ullah Junior Clerk in the office of the District Wild Life Officer, Sialkot DW-1 produced photo-stat copies of the original notification and after letters issued by the Government of Punjab from time to time which are Ex. DA, Ex. DB, Ex. DC, Ex. DD and Ex. DE. Ex. DE and Ex. DF were the photostat copies of the challans. Arshad Ali Game Watcher claimed that he was also present in the office of the District Wild Life Officer Sialkot on 31.1.1993 where Shabbir PW alongwith another person came to Nazir accused for getting a licence and the accused told him that he would have to compulsorily purchase 15 posters at the rate of Rs. 20/- per poster. Shabbir wanted some concession but the accused told him that he was not empowered to give him any concession. The complainant then sought time to arrange the money and only after one hour the complainant again appeared there with another person. He added that the complainant did not pay any money to the accused but only after seeing the accused present in he office brought the raiding party. No tainted money was ecovered from the person of the accused or his Almirah but after some time they were again called and the Inspector recovered the tainted money from the box lying in the third room. In his cross-examination he turned down the suggestion that he was not present at the time of raid and being a colleague he deposed falsely and the tainted money had in fact been recovered from the shirt of the accused. Similar is the version of accused Nazir Ahmad. 8. It was on the basis of this evidence and after hearing the learned counsel for the parties that the learned trial Judge found the accused guilty and convicted him and sentenced him as stated above, thereby obliging the convict to come up in appeal. 9. In substance the evidence against the appellant was that he demanded a sum of Rs. 300/- from the complainant as illegal gratification besides a sum of Rs. 50/- which was the requisite licence fee and all this amount in the shape of tainted money was secured by the raiding Magistrate from the front pocket of the shirt of the accused-appellant after a conversation between him and the complainant was over heard by him and the Circle Officer PW-3. The learned trial Judge observed in the impugned judgment that it was clear from the deposition of the raiding Magistrate that the accused was not in possession of any posters when the raid was conducted but he did produce Ex. DA and Ex. DF to show the instructions regarding their sale. He was not impressed by the defence evidence because Arshad Ali DW-2 being a colleague of the accused was interested in saving him. He, therefore, felt convinced that the instructions of the Government regarding sale of posters were misused by the accused. 10. After giving my earnest consideration to the facts and circumstances of the case I fell convinced that there are inherent discrepancies and infirmities in the prosecution evidence entitling the appellant to benefit of doubt. The accused-appellant took the plea at the earliest possible opportunity i.e. immediately after he was apprehended, as is evident from his statement recorded by the raiding Magistrate Ex. PG, that he had received a sum of Rs. 350/- from Shabbir Ahmad with the intention to sell 15 posters to the complainant at the rate of Rs. 20/- per poster besides the requisite licence fee of Rs. 50/-. There is nothing in the evidence of Muhammad Riaz Khan C.O./A.C.E. PW-3 that he had carried out the necessary investigation regarding departmental instructions in respect of the price of posters, rather he has eposed in his cross-examination that he did not collect any such instructions nor did he interrogate any higher officer regarding the plea taken by the accused in his statement Ex. PG. He, however, turned down the suggestion that he did not do so deliberately. A careful and minute perusal of the documents placed on record by the accused-appellant constrains me to hold that there is in fact an inbuilt mechanism/scope for prompting the low paid staff to indulge in illegal practices. I fail to understand as to how a Game Inspector was competent to issue the licence or self the posters. According to Ex. DA, which is a photo copy of the notification on the subject, the fee of a live bird for the issuance of a licence was Rs. 50/- and the authority competent for issuing such licence was A.C.F. (PW), Deputy Game Warden, Assistant Game Awarden, District Wild Life Officer and Honorary Divisional and District Game Warden. The Game Inspector is obviously not mentioned therein. According to Ex. DB, which is a copy of the letter dated 2.12.1991 from Deputy Game Warden Publicity and Research Cell, the Secretary, Forestry, Wildlife, Fisheries and Tourism Department directed that all the persons approaching for the issuance/renewal of licences should be sold wildlife posters compulsorily, at the rate already intimated. Ex. DC and Ex. DD described the posters and the prices thereof. It has to be noted with concern that as per a hand-written endorsement in english and also in urdu dated 14.12.1991, copies of Ex. DB were sent to all the Game Inspectors District Sialkot and District Narowalfor compliance of this letter and the instructions with regard to the sale of wildlife posters compulsorily. It follows that this letter impliedly enabled the Game Inspectors to exercise he powers regarding issuance/renewal of licences and also selling of posters compulsorily. This letter, however, is silent with regard to the number of posters which had to be compulsorily sold to persons seeking licences/permits of various categories, enumerated in column No. 2 of the table of the notification copy Ex. DA requiring for ranging from a meagre sum of Rs. 50/- to a large amount of Rs. 25000/- (for netting of falcons). It was also thus left open for the staff to determine the number of posters and to coerce/elicit from the person applying for a licence to part with the price of the posters. I have not been able to find out any instructions in these notifications/letters as to how the price of the posters proposed to be sold compulsorily was to be received and deposited in the Government Treasury. It follows that this task was also left to the Game Inspector etc., to deal with the money at his discretion and to deposit it through challans etc., in the Government Treasury at his sweet will, as was done as per challan forms copies Ex. DE and Ex. DF respectively, pertaining to the month of July,' 1992 and a specific date i.e. 16.1.1993. This illegal practice should have been adverted to by the concerned/competent authorities. 11. It may also be noted that the version of the raiding Magistrate and the C.O./A.C.E. with regard to the hearing of the conversation between the accused and the complainant also does not inspire confidence. The contents of the conversation have not been elaborated. Shabbir Ahmad complainant PW-1 convinced himself to stating that he went to the accused and paid him the money and the latter assured him that the licence would be issued after which he signalled the raiding party to come. Syed Sibte Hassan PW-2 did not claim in his examination-in-chief that any such conversation was over heard by him or that he and the C.O. had gone inside the room/office of the accused on a signal given by the complainant. It was due to mishandling of the defence that he so deposed in the cross-examination that he had heard the conversation between the complainant and the accused before the payment of money but no details of this conversation were given. The version of PW-3 that it was in their presence that Shabbir Ahmad gave a sum of Rs. 350/- to the accused and asked him to prepare the licence on which the accused told him that he would do so, is also not worth credence. The principle that the conversation between the accused and the deocy witness/complainant should be over-heard by the raiding Magistrate and other PWs is obviously not a requirement of law but only a rule of prudence and caution but if it is pleaded it must be proved with cogent and convincing evidence. The accused had candidly admitted receipt of money at the very outset and has claimed bonafldes which should have been gone into and considered by the Investigating Officer. It was his bounded duly to have collected the instructions and to have joined the senior officer/competent authority for issuing the licence in the investigation in order to determine as to how for the accused could be held to be guilty of indulging in this illegal practice and demanding illegal gratification. Nothing appears to have been done by the Investigating Officer on these lines. 12. It is also note worthy that the complainant made a concessional statement and resiled from his original stand. He stated in so many words that nothing was recovered from the person of the accused and the money was found from the box lying in the adjoining room of the office of the accused and not in the room the accused was sitting. He added in his cross-examination that two years back no price of posters used to be charged and he did not known whether the price of posters had also to be charged at the rate of Rs. 20/- per poster. He admitted the suggestion as correct that the accused told him that he would be required to purchase 15 posters and that since he did not know about it he thought that the money was being demanded as bribe. There is no denying the fact that being a decoy witness, the evidence of the complainant could not be implicitly relied upon but being a PW his version shall have to be considered and the benefit of doubt, if any, must go to the accused. It has, therefore, to be held that prosecution in the circumstances failed to prove its case beyond reasonable doubt, particularly so when it was pleaded by the accused right from the beginning that he received the money, over and above the actual licence fee, for selling the posters which could be a reasonable probability. It was imperative for the prosecution to establish that the money had passed as illegal gratification, which it failed to do. 13. After giving my anxious consideration to all these facts and circumstances of the case I am of the view that benefit of doubt must go to the appellant and he is entitled to acquittal. This appeal is, therefore, accepted. The conviction and sentence of the appellant are set aside and the appellant is acquitted, having been given the benefit of doubt. 14. A copy of this judgment should go to the Secretary, Forestry, Wildlife. Fisheries and Tourism Department for guidance and necessary action in the light of the observations made in this judgment. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 285 Present: DR. MUNIR AHMAD MUGHAL, J. AJMAL BAKHSH & another-Appellants versus STATE-Respondent Criminal Appeal No. 1185 of 1988, accepted partly on 23.9.1997. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-S. 302/34-Murder Offence of-Conviction for-Challenge to-Appreciation of evidence-Except statement of appellant/accused under Section 342 Cr.P.C. there was no other circumstance direct or indirect connecting accused with commission of offence-Trial Judge has excluded exculpatory part of statement of acctised and based his judgment on inculpatory part which was not correct appreciation of law-Statement should be taken into consideration as a whole and plea advanced by accused was to be accepted-As per statement of section 342 Cr.P.C. of appellant/accused saw Sargiwala Mst. N with a stranger and due to sudden provocation, he murdered accused at the spot-Among agricultural tribes of Pakistan question of family honour touching females of family are of almost overpowering importance, and to vindicate that honour they feel bound to go to very great lengths-Case of appellants clearly falls under exception 1 to Section 300 PPC-Appeal was accepted to the extent that sentence of appellants was converted into section 304 (l)/34 PPC-Appeal partly accepted [Pp. 290 & 291] A, B & C 1974 SCMR 485, PLD 1966 (W.P.) Lahore 104 (DB). Mr. Masood Mirza, Advocate for Appellants. Mr. Shahbaz Saeed Sajid, Advocate for State. Date of hearing : 23.9.1997. judgment This criminal appeal calls into question the propriety and legality of the impugned judgment dated 5.10.1988 passed by the learned Sessions Judge, Sargodha, whereby he convicted Nabi Bakhsh and Ajmal Bukhsh, appellants, under sections 302/34 PPG and sentenced them to imprisonment for life with a fine of Rs. 25,000/- each and in default thereof to undergo RI for three years each. The fine, if recovered, was ordered to be paid as compensation to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. was, however, extended to the appellants. Five co-accused of the appellants were acquitted of the charge. 2. The prosecution case is that on 11.11.1987 at about 6.30 a.m. when Nazar Muhammad, father in law of the complainant, went towards north to ease himself, suddenly, Mahand armed with a hatchet, Nabi Bakhsh, armed with a soti, Ajmal armed with gun, Mushtaq armed with hatchet Akbar and Zafar, both armed with guns emerged raising lalkaras and attacked Nazar Muhammad. Zafar Iqbal fired with his gun hitting on chest near the right shoulder of Nazar (deceased). The second fire was made by Ajmal which hit on the front side of his right Pindli. The deceased Nazar Muhammad fell down and in that position, Muhand gave a hatchet blow landing on the left side of his face. The occurrence was witnessed by the complainant, Muhammad, Mukhtar and Muhammad Yousaf. Azar Muhammad after a short while succumbed to the injuries. 3. The motive was suspicion of illicit relations of Nargis wife of Muhammad Nazeer, the real sister of Mushtaq with Aslam Gondal. She had earlier to the incident passed on four tolas of golden ornaments to Aslam Gondal through Nazar Muhammad. 4. The complainant left the dead body of Nazar Muhammad with Yousaf and Mukhtar and proceeded to the Police Station and lodged the FIR. 5. Inspector Mushir Ali (PW.9) then proceeded to the place of occurrence, prepared the injury statement (Ex, PK) inquest report (Ex. PL), took the blood stained earth into possession, vide memo (Ex. PD) and took into possession the last worn clothes of the deceased. The police officer also recorded the statements of the witnesses u/S. 161 Cr.P.C. 6. Ajmal and Nabi Bukhsh, accused-appellants were arrested on 18.11.1987. At the time of arrest, Ajmal accused produced his licenced gun (PA) before the witness who took the same into possession vide memo (Ex. PF) Nabi Bakhsh, accused also produced Lathi (P.I) which was taken into possession vide memo (Ex. PG). The other acquitted co-accused were arrested on 21.11.1987 and while in police custody led to the recoveries. After the completion of the investigation, Inspector Mushir Ali Shah, submitted the challan. 7. On 11.11.1987, Dr. Inayat Ullah, Medical Officer, Rural Health Complex, Farooka (pW.l) conducted the post mortem examination on the dead body of Nazar Muhammad and found six injuries on his person. Injuries 1,2 and 6 were fire arm and injury No. 5 was also three fire arm wounds. Injury No. 3 was three bruises and injury No. 4 was a cut wound. According to the opinion of the doctor, injuries 1,2,5 and 6 were fire-arm while injury No. 3 was held to be inflicted by a blunt weapon and injury No. 6 by a sharp edged weapon. All the injuries were ante-mortem and where sufficient to cause death in ordinary course of nature. The probable time between the injuries and death was more than one hour. 8. The appellant when examined under section 342 Cr.P.C. denied the prosecution allegations and professed innocence. In answer to question, why this case against him, Ajmal Bukhsh deposed as under :— "On the day of occurrence at about Sargiwela I alongwith Nabi Bukhsh were going to our lands where we saw that Aslam Gondal was present in the fields of Nazar Muhammad deceased who was taking Mst. Nargis towards Aslam Gondal. I had my licensed gun with me while Nabi Bakhsh had hatchet for the use of his agricultural pursuits. We lost our temper and under grave and sudden provocation caused injuries to Nazar Muhammad deceased. None else was present there. Muhammad Aslam Gondal and Mst. Nargis managed to run away." The statement of Nabi Bakhsh under section 342 Cr.P.C. was also to the same effect. 9. The learned trial Judge disbelieved the prosecution evidence against 5 co-accused, viz., Fayyaz, Akram, Mushtaq, Zafar Iqbal and Mamand and acquitted them of the charge and believed the prosecution evidence in the case of the two appellants and convicted and sentenced them. 10. Learned counsel for the appellants vehemently contended that in keeping with the motive alleged in the FIR and statement of the accused under section 342 Cr.P.C. it Was a case of grave and sudden provocation; the ocular evidence highly interested due to relationship and that the learned trial court could not properly appreciate the law of maintaining consistency and by giving the benefit of doubt acquitted accused Fayyaz, Zafar, Mushtaq Mumand and by forming the same evidence convicted the appellants. 11. On the other hand the learned counsel for the state has submitted that acquittal of 5 accused and conviction of the appellants rather shows that the trial court acquitted the innocent and convicted the guilty. 12. I have critically examined the submissions of learned counsel and have perused the record with their able assistance. 13. First of all the prosecution evidence that has come on the record is to be scrutinized. The prosecution has produced nine witnesses. PW.l is Dr. Inayat Ullah who conducted the post mortem examination on the dead body of Nazar Muhammad on 11.11.1987 at 2.30 p.m. He found the following injuries on the dead body :-- 1. Fire-arm wound of entry 4 c.m. x 2 c.m. going deep in chest cavity on upper outer front right side of chest 6 c.m. below and outer right calvical; 2. Fire-arm wound of entry 2.c.m. x 2 c.m. on upper front outer right side of chest 1/2 c.m. inner to injury No. 1; 3. Three bruises 2 c.m. x 1 c.m. on outer upper front aspect of right shoulder 4 c.m. above injuries No. 1 & 2; 4. Cut wound 5 c.m. x 1 c.m. bone deep on outer lower aspect of left lower jaw; 5. Three fire-arm wounds of exit 1 c.m. x 1 c.m. on back middle left aspect of chest in an area of 8 c.m. x 6 c.m; 6. Fire-arm wound of entry 3 c.m. x 2 c.m. on front upper aspect of right fore-leg just below right knee. Injury was just bone deep. In his opinion injuries No. 1 and 2 were sufficient to cause death in the ordinary course of nature. The death in this cause has occurred due to haemorrhage and shock. He also have the opinion that injuries No. 1, 2, 5 and 6 were inflicted by a fire arm weapon while injury No. 3 was by a blunt weapon and injury No. 4 by a sharp edged weapon. All injuries were ante mortem. Three pellets were found in the body which were sealed into a phial. His post mortem examination report has come on record as Ex. PA and diagram of injuries Ex. PA/1. PW. 2 is Muhammad Yousaf Patwari who prepared the site plan on 18.11.1987 after seven days of the occurrence. PW. 3 is Muhammad Khan FC who escorted the dead body of the deceased Nazar Muhammad for post mortem examination and produced before the Investigating Officer vide memo Ex. PC blood stained shirt P. 1, blood stained Chadar P. 2, sealed phial of pellets P. 3. He received the sealed parcel of blood stained earth and delivered it further to the Chemical Examiner, Lahore. He was also given by the Moharrir parcel of blood stained hatchet which he delivered to the Chemical Examiner, Lahore on 5.12.1987. PW. 4 is Muhammad Afzal who is brother of Nazar Muhammad deceased. He identified the dead body at the time of post mortem examination on 11.11.1987. PW. 5 is Sarfraz alias Sher who witnessed the recovery of blood stained earth from the spot vide memo Ex. PD. PW.6 is Muhammad Mumtaz and PW.7 is Muhammad Mukhtar. They gave the eye witness account. PW. 8 is Muhammad Nazir ASI who was handed over the sealed parcels Said to contain blood stained earth and blood stained hatchet which he gave to Muhammad Khan FC for onward delivery to Chemical Examiner. PW. 9 is Masheer All Shah Inspector who investigated the case. 14. The first allegation in the FIR is that on the day of occurrence Nazar Muhammad deceased went for easing himself on the northern side of the village and suddenly Ajmal Bakhsh, Akram, Zafar Iqbal accused armed with guns, Mahand and Mushtaq accused armed with hatchets, Nabi Bakhsh and Fayyaz accused armed with soties came from the village side raising Lalkaras. At the trial the complainant appearing as PW.6 did not mention of any Lalkara. Similarly, PW.7 Muhammad Mukhtar has said nothing about the Lalkara. To this extent the prosecution version has not prove from the record. 15. The second allegation in the FIR is that the said seven accused attacked Nazar Muhammad deceased. Zafar Iqbal accused fired shot which hit the deceased on the right side of his chest. PW.6 and PW.7 both have stated the same fact. The medical evidence shows that there were two fire arm injuries on upper front right side of chest and these two injuries were sufficient to cause death in the ordinary course of nature. According to the record Lalkara was attributed to seven persons and first gun shot was attributed to Zafar Iqbal hitting on the right side of the chest and the second gun shot attributed to Ajmal Bakhsh hitting on the right leg and hatchet blow on left side of the face attributed to Mamaiid. The ocular evidence does not involve the appellant Nabi Bakhsh in any manner. Similarly the gun shot hit on thepindli of the deceased is injury No. 6. It is attributed to Ajmal Bakhsh. The medical evidence declared it not fatal. The learned Sessions Judge has also disbelieved the evidence of the eye witnesses in respect of live co accused and acquitted them giving benefit of doubt. In a case where the prosecution evidence has been disbelieved in respect of five accused the appellant could not be convicted merely on their own statement without corroboration and if it is to be believed then it must be believed in toto. In the present case the version of the accused-appellant Nabi Bakhsh is that he is innocent and the version of accused-appellant Ajmal Bakhsh is :-- "On the day of occurrence at about Sargiwe.la I alongwith Nabi Bakhsh were going to our lands where we saw that Aslam Gondal was present in the fields of Nazar Muhammad deceased who was taking Mst. Nargis towards Aslam Gondal. 1 had my licenced gun with me while Nabi Bakhsh had hatchet for the use of his agricultural pursuits. We lost our temper and under grave and sudden provocation caused injuries to Nazar Muhammad deceased. None else was present there. Muhammad Aslam Gondal and Mst. Nargis managed to run away." 16. In the present case except the statement under Section 342 Cr.P.C., of appellant-accused Ajmal Bakhsh there was no other circumstance direct, or indirect connecting the accused with the commission of the offence. It is strange that the trial Judge has excluded the exculpatory part of the statement of the accused and based his judgment on the inculpatory part of it which is not. the correct appreciation of the law. In the case of Sultan Khan us. Sher Khan (PLD 1991 SO 520) the Hon'ble Supreme Court of Pakistan held that if the conviction of the accused is to be passed solely on his statement in Court this statement should be taken into consideration in its entirety and not. merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case and in such a condition, the exculpatory part if proved to be a false may be excluded. 17. As such, the exculpatory part of the statement of the accused Ajmal could not be excluded. The statement should be taken into consideration as a whole and the plea advanced by the accused was to be accepted. According to the complainant Muhammad Mumtaz (PW.6). Mst. Nargis a sister of Mushtaq accused had illicit relations with Aslam Gondal of village Gondal and she had given four tolas of gold to said Aslam about 4/5 months prior to the occurrence and the accused persons had a suspicion that she had passed the gold to Aslam through Nazar Muhammad deceased due to the said reasons the accused persons had killed the accused. PW.6 also admitted that the accused had suspicion that the deceased was a go-between Mst. Nargis (a sister of Mushtaq accused) and Aslam Gondal. He also admitted that about two months prior to the occurrence the ornaments were passed from Mst. Nargis to Aslam Gondal through Nazar Muhammad deceased. Thus the illicit relations of Aslam Gondal with Mst. Nargis and the status of Nazar Muhammad deceased as an intermeddler. No untoward incident took place between these five months. It is the actual going of Mst. Nargis alongwith Nazar Muhammad and Aslam Gondal at Sargiwela seen by the appellants was sufficient, to give them the provocation and to believe it as grave and sudden provocation is plausible as no reasonable man could maintain his self control in such a circumstance. The Hon'ble Supreme Court of Pakistan in the case of Khuda Dad vs. The State (1974 S.C.M.R. 485) observed, 'among the agricultural tribes of West Pakistan questions of family honour, touching the females of the family, are of almost overpowering importance, and to vindicate that honour they feel bound to go to veiy great lengths." Keeping in view the facts of this case as proved on the record and the law applicable in the said circumstances the case of the appellants clearly falls under Exception I to Section 800 PPC and the accused-appellants could not be convicted under Section 302 PPC. The conviction can be passed in such circumstance under Section 304(1) PPC as was observed by a Division Bench of this Court in the case of Muhammad Sadiq vs. The State (P.L.D. 1966 (W.P.) Lahore 104) (D.B.). 18. Accordingly, the appeal is accepted to the extent that the sentence of the appellants is converted to fall under Section 304 (D/34 PPC. They have already undergone rigorous imprisonment of four years, three months and four days as they were arrested on 18.11.1987 and bailed out on 22.2.1992 and I feel convinced that the sentence already undergone by them is sufficient. Order accordingly. (A.P.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 291 Present: DR. MUNIR AHMAD MUGHAL, J. GHULAM NABI alias KALA-Appellant versus STATE-Respondent Criminal Appeal No. 216 of 1990, accepted on 1.10.1997. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-Ss. 302/148/149/109-Murder-Offence of-Conviction for-Challenge to-- Appreciation of evidence-Ocular evidence is not only contradictory as to weapon of offence, seat of injury and direction of infliction of injury—It shows that PWs were not speaking truth and they have not seen occurrence-Their testimony was discarded and disbelieved by trial court qua eight accused and in the same circumstances appellant under the rule of consistency also equally entitled to benefit of doubt-Motive and conspiracy as alleged in FIR stand not proved-Recovery of weapon also doubtful-Appeal allowed. [Pp. 296 & 297] A, B, C & D Mr. Muhammad As if Ranj ha, Advocate for Appellant. Mr. Dil Muhammad Tarar, Advocate for State. Date of hearing : 1.10.1997. judgment The appellant Ghulam Nabi alongwith eight others namely Muhammad Anwar, Imtiaz Ahmad, Bashir, Liaqat Ali, Ahmad Khan, Inayat Ullah, Muhammad Shafi and Noor Hussain was charged and tried by the Court of Ch. Mazhar Hussain Minhas, Additional Sessions Judge, Gujrat under Sections 302/148/149/109 P.P.C., in a case arising out of FIR No. 221 dated 29.5.1984 lodged at Police Station Saddar Gujrat. The learned Additional Sessions Judge vide judgment dated 31.3.1990 acquitted all the accused except the appellant giving them the benefit of doubt. However, he found the appellant guilty and convicted and sentenced him under Section 302 PPC to Life Imprisonment and a fine of Rs. 20,000/-. In default of payment of fine the appellant was ordered to undergo further R.I. for two years. The amount of fine if recovered, half of it was ordered to be given to the legal heirs of the deceased. Against his conviction and sentence the appellant has filed the appeal in hand. 2. Briefly the prosecution case is that on 29.5.1984 Muhammad Afzal complainant moved application Ex. PB to the Police in which he stated that about 6/7 days before accused Muhammad Shafi (since dead) collected his co-accused Muhammad Bashir, Liaqat Ali, Ashiq Hussain (since dead), Ahmad Khan and Muhammad Inayat in his flour mill at Wazirabad for planning to commit the murder of Muhammad Tufail deceased. Thereafter, in furtherance of pre-planning he got the above named five accused arrested in a case at Police Station Wazirabad. Accused Noor Hussain, Ghulam Nabi alias Kala (appellant), Anwar and Imtiaz were detailed for committing the murder of Muhammad Tufail. But the deceased came to know about their conspiracy upon which on 25.5.1984, he collected respectables of village Samma and Chak Ghazi namely, Muhammad Riaz, Muhammad Akbar, Ghulam Rasool etc., and asked them to inquire from the accused why they wanted to kill him. The respectables promised to tell him after inquiry from the accused why they were after his life. On 28.5.1984 Muhammad Tufail deceased called the complainant, Abdul Aziz and Ch. Nawab from Wazirabad for consultation and for his personal security. Muhammad Tufail informed them about all the facts upon which they advised him to take any step after the decision of respectables. On 29.5.1984 at about 7.30 a.m. the complainant, Muhammad Tufail, Abdul Aziz, Ch. Nawab and Ghulam Ghaus were going out of the house towards Dera in the southern side of the village. When they reached near Khokha of Basharat on Samma Road, accused Muhammad Bashir, Liaqat, Ashiq Hussain (since dead), Ahmad Khan all armed with 12-bore gun, Muhammad Inayat armed with revolver, Anwar armed with dagger, Imtiaz armed with carbine, Noor Hussain armed with 12-bore gun and Ghulam Nabi alias Kala appellant armed with carbine attacked Muhammad Tufail, Muhammad Bashir raised Lalkara not to spare him upon which Noor Hussain fired with 12-bore gun hitting the deceased on his back. PWs Abdul Aziz, Ghulam Ghaus, Ch. Nawab and complainant ran back and took shelter behind a house. In the meantime all the accused started firing at the deceased, who fell down on the ground. Anwar accused inflicted dagger blow to Muhammad Tufail in fallen condition. Muhammad Txifail succumbed to the injuries there and then. After the occurrence the accused ran away towards G.T. Road in the sought. The occurrence was witnessed by complainant and PWs Abdul Aziz. Ch. Nawab, Ghulam Ghaus, Muhammad Ashraf and Muhammad Sadiq. The motive for the occurrence was stated to be that Muhammad Tufail deceased was challaned in the murder case 'of Nabi Ahmad, the brother of Muhammad Shafi accused (since dead) due to that grudge the accused committed his murder in conspiracy with Muhammad Shafi (since dead). Application Ex. PB was sent to the police station for registration of case upon which case was registered, vide Ex. PB/2. 3. The investigation of the case was conducted by Muhammad Latif ASI (P.W. 4), Abdul Rehman Inspector (PW.13) and Muhammad Shamim Ahmad (DW.l). After completion of the investigation the accused alongwith the co-accused, since acquitted were challaned for trial. The prosecution produced Dr. Khalid Mehmood (PW. 1), Muhammad Riaz (P.W. 2), Nazir Ahmad (P.W. 3) Muhammad Latif (P.W. 4), Akhtar Naqqash Darfstman (P.W. 5), Bashir Ahmad (P.W. 9), Muhammad Arif (P.W. 7), Muhammad Inayat (P.W. 8), Muhammad Iqbal (P.W. 9), Muhammad Ashraf (P.W. 1), Muhammad Afzal (P.W. 11), Ghulam Ghaus (P.W. 12) and Abdul Rehman (P.W. 13) in support of its case. P.Ws Muhammad Akbar and Muhammad Akram were given up being dead. PWs. Ghulam Rasool, Muhammad Nawab, Muhammad Ashraf, Muhammad Sadiq and Dr. Muhammad Iqbal, Assistant Chemical Examiner were also given up being unnecessary. PWs Abdul Aziz and Shamim Khan were also given up being unnecessary. 4. P.W. 1. Dr. Khalid Mehmood conducted autopsy of deadbody of Muhammad Tufail and found following injuries on his person : (1) Firearm wound of entry 3 x 3 cm rounded with inverted margins on the inferior angle of left scapula. (2) Incised wound 7% x 2^ cm on the front of abdomen 3" above the umbilicus which is muscle deep. (3) Multiple bruises 15 x 5 cm on the front of abdomen above the injury No. 2. (4) Firearm wound of entry rounded with invested margins 2 x 2 cm on the front of the abdomen near injury No. 3. (5) Bruise 2M x 2% cm on the right side of chest in the mid axillary line. (6) Bruise 2% x 2% cm on the right side of chest in midaxillary line below injury No. 5. (7) Bruise 2x2 cm on the right side of abdomen upper part. (8) Bruise 12 x 3 cm below the injury No. 7. (9) Wound of entry % x % cm founded with invested margi s on the front of left shoulder which is muscle deep. On dissection the following was observed : Thorax : The bullet after entering the chest cavity through 7th and 8th ribs to which they damaged then damaged the left lung, and Khokha was removed. Diaphragm was damaged then it damaged the right lobe of liver and then seven metallic pieces were removed from the subcutaneous tissue of fright side of chest lower part. About one thousand C.C. of blood was present in the thoracic cavity. Abdomen: Right lobe of liver was damaged and there was nothing significant in other viscera in abdomen. About 88 C.C. of blood was present in abdominal cavity. Injury No. 2 has no peritoneal cut. Cranial Nothing significant in cranial cavity was Cavity: found. After the postmortem examination, the doctor opined that all the injuries were ante-mortem. Injury No. 2 was by sharp edged weapon while rest were by fire arm weapon. Injury No. 1 was sufficient to cause death in ordinary course of nature due to haemorrhage and shock and all other injuries were contributory in causing the death. PW. 1 proved the postmortem report Ex. PA and sketch of injuries Ex. PA/1 in his handwriting bearing his signatures. 5. P.W. 4, Muhammad Latif SI/IO conducted the initial investigation, who while at bus stand Gujrat received application Ex. PB and forwarded it to the police station for registration of case with his note Ex. PB/1. He prepared injury statement Ex. PC, and inquest report Ex. PD of deceased. He also on the same day took into possession the blood stained earth vide Ex. PF. He also got prepared site plan Ex. PG and its duplicate Ex. PG/1 and made the notes in red ink on them. Akhtar Naqqash (PW. 5) is draftsman who prepared site plan Ex. PG and its duplicate Ex. PG/1 in the scale of 1" = 20'. Bashir Ahmad (P/W. 9) is witness of recovery of blood stained earth from place of earth vide memo Ex. PF. Muhammad Arif (P.W. 7) is recovery witness of Carbine P-l taken into possession vide memo Ex. PJ. P.W. 11, Muhammad Afzal and Ghulam Ghaus (P.W. 12) are eye­ witnesses of the occurrence. Abdul Rehman Inspector (P.W. 13) partly investigated the case. On 29.5.1984 he recorded FIR Ex. PB/2, inspected the spot and recorded statements under section 161 Cr.P.C. and took into possession last worn clothes of the deceased vide memo Ex. PL. He also arrested the accused-appellant. The prosecution closed its case by tendering in evidence the reports of the Chemical Examiner, Ex. PM and Ex. PN, the reports of the Serologist Ex. P.O and Ex. PP and report of the Fire Arms Expert Ex. PQ. 6. The accused were examined under Section 342 Cr.P.C. and all of them claimed that they have heen implicated falsely due to enmity and were innocent. The appellant and Imtiaz Ahmad and Anwar accused denied the recovery of any weapon of offence from them. Except Noor Hussain all declined to produce defence evidence or to appear as defence witness under Section 430(2) Cr.P.C. The accused Noor Hussain produced DW. 1 Shamim Ahmad Khan S.P. After hearing the arguments on both sides the learned Additional Sessions Judge passed the impugned judgment under Section 302 PPC and sentenced him to life imprisonment and a fine of Rs. 20.000/- and in default of payment of fine to undergo further R.I. for two years. If the amount of fine is recovered that was to go to the legal heirs of the deceased. 7. In appeal the first contention of the .learned counsel for the appellant is that the case initially set up by the prosecution has been improved at the time of trial by the prosecution witnesses drastically to bring it in line with the medical evidence and even then it could not. It has also been contended that the motive and conspiracy have not been proved and that the recovery evidence is of no consequence and that the case against eight accused has been found false who have been acquitted and the appellant whose case was on better footing has been convicted by wrong ppreciation of evidence and not constraing the law applicable correctly. On the other hand the learned counsel for the state has supported the impugned judgment and has taken the stand that only that person has heen convicted who has been found guilty at the hilt. 8. I have given due consideration to the valuable arguments on both sides and thoroughly scrutinized the roccvd with their able assistance. him for his personal security, made the statement the Noor Hussain accused fired with his 12-bore gun hitting the deceased on his chest. On receiving the fire shot deceased turned about upon which Kala accused fired with carbine which hit the deceased on his back. Thereafter, accused Inayat armed with revolver, Ashiq armed with 12 bore gun, Ahmad Khan armed with 12-bore gun, Imtiaz armed with carbine, Bashir armed with 12-bore gun fired at the deceased which hit on different parts of the body. On the other hand PW. 12 (Ghulam Ghous) has deposed that Ghulam Nabi alias Kala fired with his gun which hit Tufail accused on his back. According to the medical evidence injury No. 1 was fatal which has not been attributed to the appellant. In this manner the ocular evidence is not only contradictory as to the weapon of offence, the seat of injury and the direction of infliction of injury. The carbine is not a gun, and the chest is not back. Similarly, front and hind are totally opposite. It shows that the PWs are not speaking the truth and they have not seen the occurrence. Their testimony has already been discarded and disbelieved by the learned trial Court concerning eight accused and in the circumstances the appellant is also equally entitled to the benefit of doubt. 10. So far as the second contention of the learned counsel for the appellant is concerned it is the non-proof of motive as alleged. The case as set out by the prosecution in the FIR was that Muhammad Tufail deceased was challaned in the murder case of Nabi Ahmad, the brother of accused Muhammad Shafi (since dead) and due to that grudge the accused committed his murder with conspiracy with Muhammad Shafi (since dead). According to the first information report 6-7 days prior to the occurrence, Muhammad Shafi son of Muhammad Hassan had collected all the petitioners in his flour mills, with a purpose, for murdering Muhammad Tufail (deceased), first cousin of the complainant, and according to the conspiracy hatched up by them, had got the 5 petitioners arrested at Police Station Sadar, Wazirabad, while Nur Hussain son of Allah Ditto, Ghulam alias Kalu, Anwar son of Rehmat and Imtiaz son of Ahmad Khan were deputed for the murder of Muhammad Tufail. However, Muhammad Tufail came to know of this conspiracy. On 25.5.1984 he collected Muhammad Riaz, Muhammad Akbar and Ghulam Rasul residents of village Samman to join him, to enquire from Muhammad Bashir etc. as to why they want to murder him, (Muhammad Tufail). These persons while sitting as a Punchayat in which the complainant was also present, promised with Muhammad Tufail that they will inform him after making enquiries. According to the complainant a day before the occurrence Muhammad Tufail had Chak for the complainant, his uncle Abdul Aziz and Nawab to Ghazi Gahk for consultations and for his protection. All these three persons had reached the house of the deceased on the evening preceding the day of occurrence. This story of hatching conspiracy having earlier been hatched up by Muhammad Shafi and fact of the accused having been got arrested at Police Station Sadar, Wazirabad was found false during the investigation. Further there is no connection of the appellant with Muhammad Shafi by way of relationship and the complainant Muhammad Afzal (P.W. 11) being not, corroborated by any one else, the motive cannot be said to have been proved. The most important witness was Muhammad Riaz (P.W. 2) who has been turned hostile and he has shown complete ignorance about any pane hay at, as such, to the extent of motive having not been proved the learned Additional Sessions Judge has correctly appreciated the evidence on record and I am also of the considered view that the motive and conspiracy as alleged in the FIR stand not proved. 11. Regarding the recovery of carbine it has come on record that the appellant got recovered carbine (PW. 1) from his house which was taken into possession by Abdul Rehman, Investigating Officer (PW. 13) vide recovery memo Ex. PJ attested by Muhammad Arif (P.W. 7) and Muhammad Akram the given up PW but PW. 7 has frankly conceded that the Baithak, that is, the scene of recoveiy was jointly owned by accused Ghulam Nabi and his family members. In such circumstance it cannot be said that the recovery was from the exclusive possession of the appellant. The learned State counsel could not controvert the arguments of the learned counsel for the appellant in the presence of the above scrutiny of evidence. 12. For the above reasons the appeal merits to be allowed and the same is allowed. The impugned conviction and sentence are set aside. (K.K.F.) Appeal accepted

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 297 Present: raja muhammad khurshid, J. AMJAD alias AJJU-Petitioner versus STATE-Respondent Criminal Misc. No. 4235/B of 1995, dismissed on 29.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail--Grant of-Prayer for-Offence u/S. 302/109/148/149 PPC- Non-recovery of weapon of offence—Whether matter of further inquiry- Question of—FIR clearly shows that petitioner has chosen head of deceased to cause injuries by wielding sota blows carried by him- Reference to postmortem report of deceased clearly indicates that injury No. 1 was caused by sharp edge weapon whereas injury No. 4-a, b, c and d alongwith injuries Nos. 8 & 9 were caused by fire Arm-Rest all of injuries were caused with blunt weapon-Held : It will be premature to say that petitioner has case of further inquiry—Petition dismissed. [P. 298] A, B & C Mr. Mazhar Iqbal Sindhu, Advocate for Petitioner. Mr. Maqsood Ahmad Khan, Advocate for State. Date of hearing : 29.10.1997. order Jafar Hussain deceased was murdered on 15.6.1996 at about 7.00 PM due to attack made upon him by the petitioner and his co-accused. A case under sections 302/109/148/149 PPG was registered against the petitioner and others at police station, Khanqah Dogran, District Sheikhupura for the aforesaid occurrence. 2. It is submitted by the learned counsel for the petitioner that fatal injuries of the deceased were attributed to the co-accused, whereas the petitioner was shown to have wielded sota causing injuries to the deceased on his head and other parts of his body. However, no recovery was allegedly effected from the petitioner regarding the aforesaid weapon of offence. It is prayed that the petitioner be admitted to bail because insignificant injuries have been attributed to him and that since no weapon of offence has been recovered, therefore, the case has become a case of further inquiry against him. Reliance was placed on Walayat and others vs. The State reported as 1984 SCMR 530 and Abdul Sattar vs. The State reported as NLR 1991 Cr. L.J 274 (Lahore). 3. The learned counsel for the State opposed the bail petition on the ground that the petitioner is named in the FIR and a specific role is attributed to him for causing injuries to the deceased including the fatal part of his body such as head. Post Mortem Report showed that although injuries Nos. 8 & 9 basically resulted into severe haemorrhage and shock leading to cardiorespiratory failure of the deceased, but, those injuries individually and ll injuries collectively resulted into death of the deceased. It was, therefore, submitted thai '.he petitioner had no case for bail at this stage. 4. I have considered the foregoing submissions made at the Bar. The FIR clearly shows that tha petitioner has chosen the head of the deceases to cause injuries by wielding sota carried by him. He also gave injuries on the other parts of the body of the deceased and as such it cannot be said that his role or injuries were insignificant for the limited purpose of deciding this bail petition. On the contrary there were 15 injuries on the person of the deceased including fire-arm as well as injuries with blunt weapon. In this respect reference to the postmortem report of the deceased will show that injury No. 1 was caused by sharp edge weapon whereas injury No. 4-a, b, c and alongwith injuries Nos. 8 & 9 were caused by fire-arm. The rest all the injuries were caused with blunt weapon. It will be, therefore, pre-mature to say that the petitioner has a case of further inquiry. Hence the petitioner has no case for bail. The bail petition is dismissed. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 299 Present : CHAUDHRY IJAZ AHMAD, J. Mst. NAZRAN BIBI-Petitioner versus SHAMIRA & 2 others-Respondents Criminal Misc. No. 328-H-97/BWP, dismissed on 17.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491-Habeas Corpus petition-Custody of minor-High Court asked particularly from detenu regarding his own wish to remain with her father or with her mother-She replied positively that she wants to remain with her father-Court not inclined to exercise discretion in favour of petitioner as petitioner filed petition malaflde, therefore, it did not remain of right and petitioner has alternative remedy under normal law of land-Held : Petitioner is at liberty to file application for her custody hefore Guardian Judge under law-Petition dismissed. [P. 300] A, B & C Mr. G.M. Gohar, Advocate for Petitioner. Samina Qureshi, Advocate for Respondents. Date of hearing : 17.9.1997. order This habeas petition arises out of the facts that petitioner solemnized' marriage with respondent No. 1 and out of the wed-lock Mst. Azra was born. The petitioner's counsel argued that the age of the detenue is 5/6 years. He further stated that petitioner has already filed suits for dissolution of marriage and maintenance which are pending before the Family Court, Liaquatpur. On 11.6.1997 at 7.00 p.m. respondent No. 1 by force took the detenu alongwith him. He further stated that petitioner has already submitted application to the Ilaqa Magistrate for the registration of a case who passed the order to the DSP and the SHO concerned to act strictly in accordance with law but, the police officials did not register the case against the father of the detenue. Hence the present habeas petition. 2. Learned counsel of the petitioner contended that it is the inherent right of the petitioner to keep the detenue with her till the age of majority under Injunction of Islam and he relied upon Mst. Nasim Akhtar vs. Sh. Gulzar Ahmed and 4 others (1995 P.Cr.L.J. Karachi 474) and Muhammad Naseer Humayon us. Mst. Syeda Ummatul Khabir (1987 SCMR 174). He further argued that the detenue is of tender age, therefore, it is right of the petitioner to keep the detenue with her. The learned counsel for the respondent disputed the age of the detenue and stated that the age of the detenue is 10 years. He argued that, this Court has no jurisdiction under Section 491 Cr.P.C. or under Article 199 of the Constitution to decide the custody of the minor child of the petitioner and the respondent No. 1. It is a inherent right of the competent Court to decide the same after recording the evidence. He relied upon Ahmed Jawad Sanuar vs. Mst. Zenia (1996 SCMR 1907) and Abdul Rehnian Khakwani and others vs. Abdul Majid Khakwani and2 others (1997 SCMR 1480). 3. Since it is the discretion of the Court to allow the custody of the detenue either to the petitioner or to respondent No. 1 for the satisfaction of my conscious. I personally enquired from the detenue whether she wants to live with petitioner or respondent No. 1, she replied in positive terms without any ambiguity that she wanted to live with respondent No. 1 i.e. real father of the detenue. The case was adjourned and the police official was directed to keep the detenu away from petitioner and respondent No. 1 then suhseqviently the case was called at 2.00 p.m. and I asked particularly from the detenue regarding his own wish to remain with her father or with her mother. She replied positively that she wants to remain with her father. It is admitted fact as narrated by the learned counsel for the petitioner that two suits are already pending before a Family Court for adjudication i.e. maintenance and dissolution of marriage. Keeping in view these circumstances I do not inclined to exercise my discretion in favour of the petitioner as the petitioner filed this petition malafide, therefore, it did not remain of right and the petitioner has alternative remedy under normal law J3 of the land. Petitioner is at liberty to file application for her custody before Guardian Judge under the law. In case the petitioner files application before a Guardian Judge, then the learned Guardian Judge shall not be influenced by the above observations and dispose of the same on merits without considering these observations in mind. 4. With these observations this habeas petition is dismissed having no force. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 300 Present: zafar pasha chaudhry, J. AMJID FAROOQ and another-Appellants versus STATE-Respondent Criminal Appeal No. 210 of 1993, allowed on 21-10-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302, 307/34 and 109-Murdet-Offence of-Conviction for-Appeal against-Complainant and his brother, an eye witness, did not witness the occurrence-Injury No. 2 according to them caused from a distance with dagger-Subsequently after receipt of post mortem report it was disclosed that said injury had infact been caused by fire arm-Said discrepancy cannot be treated as immaterial or insignificant by any stretch of imagination—It has occurred not on account of some forgetfulness or misconception but indicates that witness had not seen occurrence, otherwise such an erroneous statement could not be made-Moreover, injury with a dagger would be caused from a close quarter and not from a distance-Recovery of fire arm in absence of any matching empty was inconsequential and failed to advance the case of prosecution-Motive has rightly been disbelieved by trial Court, because no independent evidence was brought on record to prove the same-Trial Court rightly discarded evidence of confessional statement of accused R as this statement do not confirm a standard prescribed for acceptance of the same—Investigation does not appear to have been conducted fairly and impartially— Prosecution has not been able to prove guilt of appellants beyond shadow of doubt-Appeal allowed. [Pp. 306 & 307] A to D Mr. Anwar Bhindar, Advocate for Appellants. Mr. Arif All Hazoor, Advocate with Abdul Rashid Ch. A.A.G. for State. Date of hearing : 21-10-1997. judgment This judgment will dispose of Crl. Appeal No. 210/93 as well as Crl. Revision No. 227/93 both directed against judgment dated 1.3.1993 passed by Abdur Rashid .Khan Additional Sessions Judge Gujranwala whereby both the appellants i.e. Amjad Farooq & Muhammad Afzaal were convicted u/s 302/34 PPC and sentenced to imprisonment for life with a fine of Rs. 10.000/- each and in default of payment thereof to undergo RI for two years each. Each of them has to pay compensation of Rs. 10,000/- to the legal heirs of the deceased in default of payment of the same to undergo imprisonment for six months. Conviction was also recorded u/s 307/34 PPC and each of the appellant was sentenced to undergo RI for five years with a fine of Rs. 5000/- each and in default of payment of same to undergo RI for six months. Both the sentences were ordered to run concurrently and benefit u/s 382-B Cr.P.C. was extended. In fact five accused persons namely Rehmat alias Ijaz aged 30 years, Muhammad Akbar aged 36 years, Amjad Farooq aged 24 years, Muhammad Afzaal aged 26 .years and Muhammad Riaz aged 36 years were sent up to face trial u/s 302/307/109/34 PPC but on conclusion of the trial only Amjad Farooq and Muhammad Afzaal were convicted and sentenced as referred above. The remaining three accused i.e. Rehmat alias Ijaz, Muhammad Akbar and Muhammad Riaz were acquitted. Criminal Appeal in hand has been filed on behalf of Amjad Farooq and Muhammad Afzaal convicts whereas connected criminal revision has been moved against all the five accused persons seeking enhancement of sentence qua the present appellants and re-trial of the remaining three acquitted co-accused. Since both the appeal and revision are directed against the same judgment, therefore, they have been taken up together. 2. The prosecution case in brief as revealed from F.I.R. Ex. PF recorded on the statement of Khan Muhammad PW. 9 father of Mukhtar deceased registered with Police Station Alipur Chatha District Gujranwala u/s 302/307/149/34 PPC is that complainant purchased 70 acres of agricultural land in village Sardarpur Sehgal and he was residing on the same land. On 25.7.89 at about 3.00 p.m. when complainant Khan Muhammad alongwith Taj Muhammad, his brother PW. 10, and Nadir Khan were proceedings towards Kot Wehar complainant's son Mukhtar Ahmad deceased aged about 20 years, who had also come from Sardarpur Sehgal, after getting motor bike from Saifullah at Chah Khajoorwali bearing registration No. GAA-9431 was leading towards Alipur City to make some purchases. He came across the complainant near dcra of Sher Muhammad situated in Mauza Khajooi-wali at about 3.30 p.m. when he was at a distance of about 1% acre from the complainant, on the right side of water course he saw that Muhammad Akbar armed with khanjar, Afzaal with carbine, Amjad with 12 bore gun all residents of Sadhuwali and Rehmat alias Ijaz armed with 12 bore gun resident of Khajoorwali who were sitting on the bank of the water course suddenly got up. Rehmat alias Ijjaz and Amjad obstructed Mukhtar on the gun point. Mukhtar stopped his motor cycle on which Muhammad Afzaal fired a shot from his carbine hitting Mukhtar on his right arm. He fell down from the motor cycle. Thereafter Muhammad Akbar inflicted a khanjar blow on front of his abdomen. The occurrence was witnessed by the complainant Khan Muhammad PW. 9, his brother Taj Muhammad PW. 10 and Nadir Khan (not produced as PW). They raised alarm and rushed forward to rescue the deceased but Amjad and Rehmat alias Ijaz opened fire on them from their respective guns but fortunately the complainant and his companions remained unhurt. The accused persons made their escape from the place of occurrence while kept on firing from their respective weapons. Mukhtar succumbed to the injuries there at the spot. It was further stated that murder was committed at the behest of Muhammad Azam, Ijaz Ahmad and Muhammad Iqbal sons of Rehmat. 3 As regards motive it was stated that complainant purchased agricultural land in village Sardarpur Sehgal and he intended to purchase the adjoining land as well, but Ijaz as well as other accused wanted to purchase that land and on account of said reason a few days earlier Muhammad Azam and Ijaz Ahmad etc. had threatened the complainant as well as Mukhtar deceased of dire consequences. 4. The F.I.R. was recorded by Inspector Yousaf Ali Shah PW. 11 who was S.H.O. Police Station Alipur Chatha, on the same day i.e. 25.7.89 at 5.00 p.m. The investigation officer after recording the F.I.R. proceeded towards the place of occurrence; collected blood stained earth from the place of occurrence; recorded supplementary statement of the complainant on the same day i.e. 25.7.89; took into possession pair of chappal and a motor cycle Ex. PD. 8 vide Memo Ex. PH on which the deceased had come to the place of occurrence; prepared injury statement Ex. PE and inquest report Ex. PJ and thereafter despatched the dead body for post mortem examination to Wazirabad Hospital rough site plan Ex. PK was prepared; he recorded statements of witnesses u/S. 161 Cr.P.C; last worn clothes of the deceased alongwith post mortem examination report were delivered to him by Latif constable; he got scaled site plan Ex. PB and PB/1 prepared from Patwari; he arrested Akbar, Amjad and Afzal accused from outside the court on 20.9.89; Amjad accused had unlicenced 12 bore gun P. 2 in his possession which was taken into possession and secured vide memo Ex. PD; carbine Ex. P, 3 was recovered from the possession of Muhammad Afzaai which was also secured vide memo Ex. PE; separate cases were registered u/s 13/20/65 A.O. against both the accused; on 29.9.89 Riaz accused was produced by Riasat Ali CW alongwith gun P.I; he was arrested and gun P. 1 was taken into possession vide memo Ex. PC; a separate case u/s 13/20/65 A.O. was also registered against him; he produced Riaz accused on 30.9.89 in court of Resident Magistrate Wazirabad for getting his statement, recorded u/s 164 Cr.P.C. and thereafter he was sen! hack to the judicial lock; his statement u/s 164 Cr.P.C. was recorded on 15..10.89. The investigation was transferred from him to D.S.P. Rana Rashid Ahmad under the orders of superior officers. On completion of investigation challan was submitted in court, Rehmat alias Ijaz, Muhammad Iqbal, Muhammad Azam and Muhammad Ijaz were placed in column No. 2 whereas Muhammad Akbar, Amjad Farooq appellant, Muhammad Afzaai appellant and Muhammad Riaz were placed in column No. 3 of the challan. 5. The prosecution in order to prove its case examined 11 P.Ws and 3 witnesses were examined as court witnesses. PW. 2 Doctor Shaukat Iqbal conducted the post mortem examination and found the following injuries on the person of Mukhtar Ahmad deceased :-- 1. Bruised 11 x 6 cm on the right hemithora x 8 c.m. below the right nipple. 2. A fire arm enterance wound 7x6 c.m. x going deep wit bruised burnt, lacerated and inverted margins on front and middle of abdomen, including the umblicus, 10 c.m. below the xyphoid process. 3. Crushed injury through and through on right fore arm just below the elbow joint measuring 15 x 12 c.m. on back and front of fore arm, with multiple pellets present, in the wound vide X-rays report confirming the fire arm wounds. PW. 1 Muhammad Akram Constable, PW. 3 Muhammad Latif Constable, PW. 5 Muhammad Ashiq Constable, PW. 6 Saif Moharrar ASI and PW. 8 ijaz Hussain ASI are witnesses of formal nature. PW. 4 Patwari prepared the scaled site plan Ex. PB and PB/1 PW. 7 Ainjad Hussain ASI accompanied the I.O. On receipt of secret information a raid was conducted and as a result thereof the accused persons were arrested. Various recoveries effected from them have already been detailed above in the statement of PW. 11. PW. 9 Khan Muhammad complainant and PW. 10 Taj Muhammad (brother of complainant) are witnesses who furnished eye witness account of the occurrence. Their evidence will be referred to during discussion on the please raised by the parties. 6. Riasat Ali CW-1 has deposed about extra judicial confession made before him by Riaz Ahmad accused on 29.9.89. CW-2 Mr. Sibt-e-Hassan EAC Sialkot deposed that on 15.10.89 Riaz Ahmad was produced before him who had been brought from District Jail Gujranwala. His statement was recorded u/s 164 Cr.P.C. He stated of having observed all the legal formalities. According to him Riaz confessed before him that he had murdered son of Khan Muhammad and no one else was associated with him. He also confessed of having produced crime weapon before the police. CW-3 stated that he alongwith Sadiq, Aslam and Rehmat Ullah were grazing cattle when Riaz accused while armed with a gun fired two shots at Mukhtar Ahmad deceased who succumbed to the injuries. The learned prosecutor after giving up the remaining prosecution witnesses closed the case of the prosecution. 7. The accused including the appellants were examined u/s 342 Cr.P.C. They denied the allegations levelled against them and pleaded that they were innocent and had been falsely implicated on account of enmity. Neither any one of them appeared as his own witness nor adduced any evidence in defence. 8. The learned Trial Judge on conclusion of the trial acquitted Rehmat alias Ijaz. Muhammad Akhar and Muhammad Riaz whereas Amjad Farooq and Muhammad Afzaal were convicted and sentenced as noted bove. 9. It has been argued by the learned counsel for the appellants that the prosecution witnesses have materially deviated from the version as given by them in the FIR and put forward a new version before the co rt which indicates that neither the complainant nor his brother Taj Muhammad PW. 10 have witnessed the ccurrence; that the first version taken before the lice was subsequently changed with a view to bring the same in line with he medical evidence; that on behalf of prosecution itself three versions have been put forwarded: first version was given in the FIR by the complainant himself, second version was given in the statements during the trial which is materially different on all important points and a number of improvements were made with a view to incriminate the appellants and their co-accused, and third version has been attempted to be set up by the State alongwith the version of the complainant to the effect that in fact Riaz Ahmad had committed murder and he confessed commission of murder by making confessional statement before the Magistrate and also an extra judicial confession before C.W. 1. The eye witness was examined as CW. 3 who according to him had seen the occurrence alongwith others whereby Riaz Ahmad had committed murder by causing fire arm injuries on the person of Mukhtar Ahmad deceased. On account of three versions coming from the prosecution itself the case against the accused persons including the appellants becomes extremely doubtful. Neither of the versions can be accepted nor any one of them is sufficient to warrant conviction of the appellants. It was argued that original version is materially contradicted by the medical evidence, therefore, it lacks necessary support, and cannot be relied upon. The second version being a dishonest improvement merits to be rejected and no reliance can he placed on that either. The third version whereby Riaz accused pleaded guilty and confessed his crime cannot be accepted for the reason that the complainant and his accompanying witnesses do not own the same. It is further argued that during the crossexamination to PW. 9 and PW. 10 it has come on the record that their exists enmity in between the parties. Both witnesses being closely related to each other, being brother, son and uncle of the deceased squarely fall within the definition of interested witnesses. Testimony of interested witness can be accepted only if corroborated on all material points by some reliable material or trust worthy evidence. Neither of the two is available, therefore, uncorroborated testimony of the witnesses cannot be made basis for conviction. Further adds that the motive has been disbelieved and the evidence of recovery of fire arms by the police has been accepted to be inconsequential by the learned trial court. 10. On the other hand the learned counsel for the State who is assisted by the learned counsel for the complainant has supported the judgment. The learned counsel for the complainant who is also counsel for the petitioner in the criminal revision has argued that after holding the appellant as guilty u/s 302/34 PPC there are no mitigating and extenuating circumstances available for award of lesser penalty the convicts should have been sentenced to death. As regards the acquitted co-accused it is submitted that they have been erroneously acquitted which has caused injustice, therefore, re-trial may be ordered to be held. 11. Detailed arguments have been advanced by the learned counsel for the parties and also necessaiy reference has been made to record. Before attending to various contentions raised by the learned counsel I am constrained to observe that complainant, who has filed the criminal revision did not accept that Riaz was one of the accused persons. According to him he was introduced to damage his ca.sf at the instance of remaining .•uvn.-.eii tint in the revision he too has been implicated as respondent and prayer has been made qua him as well. 12. As evident from the narration of facts as made above the prosecution has led evidence comprising of occular account, medical evidence, evidence of recovery and the motive against the accused persons except Riaz., As against Riaz evidence of judicial confession, extra judicial confession and eye witness account with evidence of recovery has been furnished. 13. Taking up eye witness account in the first instance Khan Muhammad PVv. 9 is the maker of FIR. He claims to have witnessed the occurrence aloiigwith his brother Taj Muhammad PW. 10. The occurrence took place on 20.9.89 at 3.30 p.m. whereas the same was reported at the Police Station at 5.00 p.m. which is located at a distance of four miles. It. therefore appears to be a prompt FIR which was not recorded without any loss of time. According to the version contained in the FIR as noted above Amjad Farooq appellant was armed with gun and Muhammad Afzaal appellant was armed with carbine. Muhammad Akbar accused was armed with Khanjar. The fatl injury on the abdomen of the deceased noted at Sr. o. 2 by the Doctor is a fire arm enteiance wound 7x6 c.m. x going deep with bruised burnt lacerated and inverted margins. According to FIR this injury had been caused by Muhammad Aklar with a khanjar but according to medical evidence this had been caused by fire arm. The description of the injury does not leave any doubt that it had in fact been caused by a fire arm. It appears that the complainant and his brother, an eye witness, did not witness the occurrence and on seeing the injury on dead body and especially by noting the dimensions of the injury thought the same had been caused by some weapon like khanjar, therefore, it was stated that the injury had been caused by Muhammad Akbar who was armed with khanjar. Subsequently fter receipt of the post mortem report it was disclosed that injury No. 2 had in fact been caused by fire arm, therefore, the stance was accordingly changed and it was stated in the court that Amjad Farooq and Muhammad Afzaal who were armed with gun and carbine respectively had caused the injuries to the deceased. The discrepancy cannot be treated as immaterial or insignificant by any stretch of imagination. It goes to the veiy root of the case. It has occurred not on account of some forgetfulness or misconception but indicates that witness had not seen the occurrence, otherwise such an erroneous statement could not be made. Injuries according to them caused from a distance whereas injury with a dagger would be caused from a close quarter. Had the witness been present at the place of occurrence this misstatement could not have taken place. There is no similarity in between dagger and a carbine. This improvement is further strengthened by the fact that normally the PWs were not supposed to be present at the scene of occurrence. They jus! happened to be present at the place of occurrence per chance. The deceased had left on motor cycle whereas the complainant and his brother were proceeding on foot. It is strange coincident that they have happened to intercept each other at the place of occurrence where the accused persons were sitting and waiting arrival of the deceased. A serious doubt is cast on their presence at the place of occurrence and having witnessed the incident. No corroboration by way of motive or recovery is also available. It was rightly contended by the learned counsel that recovery of fire arm in absence of any matching empty is inconsequential and does not advance the case of the prosecution. The motive has rightly been disbelieved by the learned trial court because no independent evidence was brought on record to prove the same. 14. The learned counsel has stressed the argument on the point that Riaz co-accused had confessed his guilt by way of confession as well as extra judicial confession, therefore, the implication of the appellants as accused persons is rendered extremely doubtful. I do not think any detail comments are required to be made. Suffice it to say that the learned Trial Judge has rightly discarded the evidence of confessional statement. The learned Magistrate failed to abide by the rules and instructions laid down to record the confession u/s 164 Cr.P.C. Also the formalities required to be observed by section 364 Cr.P.C. have not been fulfilled. The confessional statements oth judicial or extra judicial do not conform a standard prescribed for acceptance cf the same. The investigation does not appear to have been conducted fairly and impartially. The manner in which the evidence was collected and the statements of the PWs were recorded and other material brought on the file has not proved to be of any help to dispense justice rather the same has created confusion and mis-understanding. The benefit of which invariably has to go to the accused. It is difficult to determine whether the same has been done with some ulterior motive or on account of inefficiency or incompetent. Since eye witness account as indicated above does not inspire confidence no detailed comments or discussion on the manner of conducting investigation or collection of material is called for. 15. In view of the above observations the prosecution has not been able to prove the guilt of the appellants beyond shadow of doubt, therefore, they were entitled to be given benefit of doubt. Their appeal is allowed and they are acquitted of the charges against them. The conviction and sentence recorded against them vide judgment dated 1.3.1993 passed by Mr. Abdur Rashid Khan, Additional Sessions Judge Gujranwala is set aside. 16. The appellants are on bail. They are discharged of the bail bonds. iMYFK) Appeal allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 308 [ Multan Bench] Present : M. A. QAZI, J. TAJ MUHAMMAD-Appellant versus Criminal Appeal No. 6 <•! , 995 decided on 5-12-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- — -S. 302--Murder~Offence of-Conviction for-Appeal against-There is no previous enmity between parties and complainant party did an act to prompt in culmination of incident—No doubt injuries to PW were given in first instance and then appellant returncv \» ith gun but intention to commit murder is not visibly inferable from conduct and seat of injury on body of deceased-Had accused intended to cause death of deceased he would have aimed and fired at vital parts of body, but ht never chose to fire of this area and further he did not attempt to cause a second shot at deceased or PWs which clearly indicates his case that he did not have intention to cause death of deceased-Recoveries have no corroborative value to prosecution-Evidence of absconsion of appellant cannot be read against him as the original arrest warrant has not been placed on file and exhibited in Court-Thus proceedings are incomplete and cannot be considered to be proved-Though prosecution case against appellant stands proved but sentence awarded to appellant needs consideration- Hence, imprisonment for 20 years R.I, modified and reduced to 10 years R.I.-Appeal Partly accepted. [Pp. 312 & 313] A & B ^ada Farooq Ali Khan. Advocate for Appellant, m/.s- Prrvaiz Raufand Ashraf Qureshi, Advocates for Complainant. M: Muhaintnad Anwar -ul-Haq, Advocate for the State. Date of hearing : 5-12-1997 judgment Taj Muhammad appellant aged 29 years was sent up for trial in the court of Ch. Muliriinmarl Aslarn Khokhar, Sessions Judge, Sahiwal. Through ludgment dared 29.11 94 the appellant was convicted under Section 302(c) PPC and sentenced to 20 years' R I and also directed to pay Rs. 10,000/- as compensation under Stcti .;• 544-A Ci P.C., in default of payment of compensation to undergo further 4 months' R.I. Under Section 337-Fu) PPC he was awarded ;jne yeur R.I and also ordered to pay Rs. 20.000/- as Daman to Muhammad Aslam injured PW, in default of payment of Daman to undergo further 4 months' R.I He was also directed to pay Rs. 40007- as compensation undo SV^inn f>44-A Cr.P.C. to Muhammad Aslam PW. or in default of payment to undergo further 3 months' R.I. All the sentence were directed to run concurrently. The appellant was also awarded the henefit. of Section 382-B Cr.P.C. 2. The appellant feeling aggrieved of his conviction and sentence has challenged the same through this appeal while the complainant has filed this Criminal Revision No. 51/95 praying that the sentence awarded to the appellant be enhanced to the maximum penalty of death. The appeal and the revision petition are being heard together and will be disposed of by this single judgment. 3. The occurrence took place on 12.8.93 at 1.15 P.M. in the area of Chak No. 8/E-B near the tubewell of Qudrat Ullah situated within the area of police station Saddar Arifwala at a distance of ten miles. Ghulam Nahi PW-7 father of the deceased lodged FIR Ex. PH at the police station which was recorded by Ghulam Farid, Inspector/SHO (PW-10) at 3.00 P.M. on 12.8.93. 4. The motive as alleged by the prosecution is that Muhammad Aslam PW-8 is a servant of Qudrat Ullah, one day prior to the occurrence he had cleaned the Khal from which the land of the complainant party is irrigated and he threw the silt on both sides of the Khaal. Taj Muhammad accused is owning land of one side of this Khaal. This act of Muhammad Aslam PW annoyed Taj Muhammad accused and he therefore committed the murder of Sabir deceased and caused injuries to Muhammad Aslam PW. 5. Briefly the facts of the case are that on the day of occurrence the omplainant alongwith Ashiq PW 9 given up) and Aslam PW-8 was sitting near the bore of Qudrat Ullah from where their lands were being irrigated. Sabir deceased went to see if the water was flowing and returned after checking the same. At about 1.15 P.M. Taj Muhammad accused came there and abused Sabir deceased and asked him as to why he had thrown the silt in his land. He tried to give hatchet blow to Sabir deceased, meanwhile Aslam PW intervened, the blade of the hatchet fell on the ground while the Danda of the hatchet struck on the right shoulder of Aslam PW. Taj Muhammad accused gave second blow which hit on the right hand of Aslam PW. Sabir deceased raised Lalkara that Sotas be brought so that they can save themselves. Taj Muhammad accused picked up the blade of the hatchet and ran away from the spot alongwith the Danda while PWs remained there. After a short while Taj Muhammad accused came there armed with a gun. He abused Sabir deceased and raised Lalkara that Sabir be not spared and fired at Sabir which hit on his right thigh. Sabir fell down on the ground and the accused ran away alongwith the weapon. They chased the accused to some distance but he m naged to escape. Sabir was being removed to the hospital but he succumbed to the injuries at the spot. Leaving the dead body in custody of Ashiq and Aslam at the spot he went to lodge the report at the Police Station where his statement Ex. PH was recorded. 6. The police arrived at the place of occurrence and prepared injury statement Ex. PE/2 and inquest report Ex. PE/3 in respect of the dead body of Muhammad Sabir deceased and despatched the same for post-mortem examination while the injury statement of Muhammad Aslam (PW) was also prepared which is Ex. PF/1 and he was sent for medical examination. In course of spot inspection the police took into possession blood-stained earth from Killa No. 8, Square No. 39 in the area of Chak No. 8/E-B near the bore of Qudrat Ullah. It was made into a sealed parcel and taken into possession vide memo. Ex. PB. 7. The accused was not available and thus his warrant of arrest was obtained and thereafter on 27.9.93 a proclamation Ex. PA was issued and ublished vide reports Ex. PA/1 and Ex. PA/2 and the appellant/accused as declared absconder. However, on 18.1.94 he was arrested by Muhammad Ansar Cheema PW-13 and on 1.2.1994 while in police custody he led and got recovered hatchet Ex. P5 from a room of his Dem in Chak No. 8/E-B. It was stated to be stained with blood and made into a sealed parcel and taken into possession vide memo Ex. PD which was attested by Gohar Ali PW-4, Muhammad Ansar PW-13 and Mumtaz PW (given up), hatchet Ex. P5 was never sent to chemical examiner. It is also on record that on 26.8.93 Muhammad Bashir Inspector (PW-11) raided the house of the accused in his absence and got recovered two .12 bore guns and one 7 mm rifle from'the house of the accused but apparently the same have no bearing with this case and as no crime empty was found at the spot hence it is not proved that any of these weapons were used in the commission of this offence. The appellant has produced photo-copies of arms licences which are on file. 8. Dr. Muhammad Saeed has appeared as PW-5 and has stated that on 13.8.1993 at, 10.00 A.M. he conducted the autopsy on the dead body of Muhammad Sabir deceased aged 25 years and found the following injury on his person : (1) An entrance oval lacerated wound on the antero-medial surface of right thigh 1/3 areas, the hole is going inward and latero-posteriorly. There is balckening present on the wound. On palpating the posterolateral surface of thigh an incision on the postrolateral surface is given and small tiny pellets are taken out alongwith the wad and card of cartridge, which are preserved. There is injury to the muscles of thigh and injury to the branches of femural vessels causing haemorrhage and haemotoma in the wound. This injury was declared fatal, ante-mortem and caused by fire-arm. The time between injury and death was about one hour and between the death and post-mortem within one day. He, also, on the same day at 11.00 A.M. medically examined Muhammad Aslam PW-8 and found the following injuries on his person :-- (1) Abrasion on the right shoulder, dimension 4 cm x 1% cm. (2) A diffused swelling on right hand, dimension 4x5 cm. Both the injuries were declared simple and were found to have been caused by the blunt weapon within the duration of one day. Ex. PF is the correct copy of the medico-legal report. 9. The prosecution produced 13 witnesses to prove the charge. At the close of the prosecution case the report of the chemical examiner regarding blood-stained earth was tendered in evidence which is Ex. PI and the report of the serologist in this respect is Ex. PJ. The appellant/accused was examined tinder Section 342 Cr.P.C. and he denied the prosecution case and in answer to question No. 10 has submitted that "he has been falsely involved in this case due to enmity and suspicion. The PWs are related intere and with the deceased. The deceased was a man of bad character and he had so many enemies. It was an unseen occurrence which took place in the darkness of the night". He has produced photo-state copies of licences, mark- A, mark-B, mark-C and a photo-state copy of an FIR mark-E and has declined to produce any other evidence. 10. With the assistance of the learned counsel for the appellant I have gone through the entire record and perused the evidence recorded at the time of trial. The learned counsel for the complainant has rendered valuable assistance in scrutinising the record and assessing the samel The learned counsel for the State has supported the judgment and prayed that the conviction and sentence awarded to the appellant be maintained. 11. Learned counsel for the appellant has at the very outset of the hearing made it clear that he is not going to contest the case for the acquittal of the appellant/accused but would contest the same for a lesser sentence. On the other hand, learned counsel for the complainant has submitted that he would argue the revision petition for the enhancement of sentence under Section 302 P.P.C., whereby the sentence of death may be awarded as Tazir or Qisas. 12. To support, his case for lesser sentence, learned counsel for the appellant has argued that there is no previous enmity between the parties, the mischief of throwing the silt taken out of the Kluial was done by the complainant party to achieve their own means so as to irrigate their land and thus deliberately they threw the silt in the land of the appellant/accused and that there was no direct motive for the accused/appellant to have committed the murder of the deceased, that the injury on the person of the deceased is on non-vital part of the body and that it was never repeated nor any shot was fired at the other PWs. That there is no recovery of any crime empty or gun rom the accused/appellant. That the original warrant on the basis of which the earlier statement of Gohar Ali constable (PW-4) was recorded for the issuance of the proclamation of absconsion is not available on the file and has not been exhibited. Thus, the proceedings for being declared absconder are not proved as required by law against the appellant/accused. 13. To rebut these arguments learned counsel for the complainant has submitted that it is a day time occurrence and the appellant/accused cannot say that he was not identified by the PWs or he has not committed the murder. That he first visited the place of occurrence armed with hatchet and caused injuries to uhammad Aslam PW and because the blade of the hatchet fell of the Dan da and ho could not use the hatchet, therefore, he after picking up the blade left the place of occurrence and then returned armed with gun and fired at the deceased from close ravage and whereby the femural artery was damaged and the deceased died. Therefore, it was a deliberate murder and the evidence of the two eye-witnesses is corroborated by the medical evidence and the appellant/accused deserves no leniency. urther the accused/appellant remained an absconder since 12.8.93 till 18.1.94 and this is itself a sufficient corroboration towards his involvement and that the guilt of the appellant/accused is proved beyond doubt and grounds for conviction under Section 302 PPC are established on record and it is a case fit for awarding of a maximum penalty. 14. I have given may anxious thought to the arguments advanced by the learned counsel for the parties and have weighed, assessed and cross­ checked each submission made, to evaluate and arrive at a just decision, even examined the file from this angle if the accused/appellant could earn an acquittal although his learned counsel lias not argued the case from this angle. From the flow of events adduced in evidence and highlighted by the . learned counsel it appears to be a correct position that there is no previous I.enmity between the parties and that the complainant party did an act to prompt/activate in the culmination of this incident. No doubt the injuries to the PW were given in the first instance and then appellant/accused returned with gun but the intention to commit murder is not visibly inferable from the conduct and the seat of the injury on the body of the deceased. Had the accused/appellant intended to cause death of the deceased he would have from that close a range aimed and fired at the vital parts of the body like the head and the chest area but it appears that he never chose to fire at this area and further if he did carry intention to commit murder he could have repeated or attempted to cause a second shot, at the deceased or PWs which is not forthcoming from the evidence which also clearly indicates and enhances his case that he did not have intention to cause the death of the deceased. The injury on the leg many have been caused to teach him a lesson but unfortunately the femural artery was punctured which resulted in loss of blood and culminated in the death of the deceased. As far as the recoveries of the hatchet, and guns are concerned they are of no avail or of any corroborative value to the prosecution. So far as the evidence of absconsion is concerned it cannot be read against the appellant/accused as the original arrest warrant which was obtained to prove that he was avoiding appearance has not been placed on file and exhibited in court and thus the proceedings are incomplete and therefore, these cannot be considered to be proved. 15. The revision petition under the circumstances appears to be devoid of force and there is absolutely no strength in the evidence to consider it a case fit for enhancement to maximum penalty. Even under the present circumstances the revision petition cannot be considered for admission or sustained to uphold the present term of sentence. Hence the revision petition being devoid of force is dismissed in limine. 16. The prosecution case against the appellant stands proved and substantiated on record. The convictions of the appellant are maintained. The sentence awarded to him under Section 302(c) PPG by the learned trial court needs consideration. As far as the quantum of sentence to be awarded to the appellant under Section 302^) P.P.C. for the reasons discussed above is concerned it would be appropriate and adequate if the sentence of imprisonment is reduced to 10 years R.I. which would sufficiently meet the ends of justice and commensurate with the act committed by the appellant. Thus for the foregoing reasons the appeal of the appellant is dismissed with this modification of reduction of sentence under Section 302(c) P.P.C. to 10 years R.I. while the remaining sentences, convictions and benefits awarded by the learned trial court to the appellant are maintained. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 314 Present: MANSOOR ALAMGIR QAZI, J. MUHAMMAD RAFIQUE-Appellant versus STATE-Respondent Criminal Appeal No. 4 of 1994, accepted on 9.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302-B, 364 and 207-Abduction and murder-Offence of-Conviction for--Challenge to-Female accused acquitted-Appreciation of evidence-Benefit of doubt-Prosecution case bristles that serious infirmities which hit root of case and prosecution case cannot be accepted at face value keeping in view short comings in investigation and manner in which Investigating Officer has tried to built up case against accused- Furthermore, when one accused is acquitted on basis of same evidence, it is legally difficult to maintain conviction against other when evidence against both is identical and case cannot be distinguished-Held : Prosecution has not been able to prove its case beyond reasonable doubt and thus appellant is given benefit of doubt-Appeal accepted. [P. 318 ??] A & B M,s. Roshan A7~a,, Advocate for Appellant,. m.s. Siddiqa Altaf Khan, Advocate for State. Date of hearing : 9.7.1997. judgment Muhammad Rafique aged 35 years was arraigned for trial in the court of Mr. Rustam Ali Malik, Additional Sessions Judge. Sheikhupura alongwith one Munawar Bibi. Through judgment dated 7.12.1993 Mst. Munawar Bibi was acquitted of all the charges while the appellant was convicted under Section 364 PPC and sentenced to 10 year's R.I. and a fine of Rs. 10,000/- and in case of default of payment of fine to further undergo R.I. for six months, under Section 201 PPC he was sentenced to 7 years' R.I. and a fine of Rs. 10,000/- and in case of default of payment of fine to further undergo R.I. for six months and under Section 302-B PPC he was convicted and sentenced to life imprisonment and Rs. 20,000/- was to be paid as compensation to the legal heirs of the deceased and in case of default of payment of the said compensation to undergo further R.I. for six months. All the sentences were ordered to run concurrently and he was also awarded the benefit of Section 382-B Cr.P.C. 2. Feeling aggrieved the appellant challenged the impugned judgment through the present appeal. The complainant also feeling aggrieved by the judgment has preferred Crl. Revision No. 81/94. Since both the cases are listed for hearing today, thus shall be disposed of by this single judgment. 3. Muhammad Abbas complainant PW-3 (uncle of the deceased) on 7.3.91 at 1.05 P.M. lodged FIR Ex. PC at Police Station Factory Area which is at a distance of 5/6 K.M. from Chattha Colony. It was recorded by Ghulam Ashgar S.I. PW-8. Initially the FIR was registered under Section 364 PPC and was later amended to Sections 302/201/34 PPC. 4. The facts as narrated by the complainant Muhammad Abbas are hat Imtiaz Ali Sabar deceased was his brother's son and worked as Electrician. On 12.2.91 the deceased left the house on his motor-cycle saying that he had to do some repair work in the house of Mst. Munawar Bibi after the duty hours. When the deceased did not return he inquired at the house of Mst. Munawar Bibi regarding the whereabouts of the deceased, where Mst. Munawar Bibi and Muhammad Rafique appellant both of them said that after finishing the work the deceased had left their house. During search he met Ch. Muhammad Ramzan PW and Bashir Ahmed Butt who told him that at 4.30 P.M. they had seen the deceased going on his motor­ cycle alongwith Muhammad Rafique appellant towards Chattha Colony Lahore Jaranwala Road. The complainant had further stated that he believes that Muhammad Rafique appellant, and Mst. Munawar Bibi to take possession of the motor-cycle of the deceased had called him to their house on a pretext and had done away with him or concealed him or his dead body somewhere. After recording of this FIR the police arrested both the accused on 7.3.91. 5. In course of investigation on 7.3.91 on pointation of both the accused the dead body of the deceased was dug up from the courtyard of the house of Mst. Munawar Bibi in the presence of the witnesses and it was taken into possession vide memo Ex. PP. The injuiy statement Ex. PS and the inquest report Ex. PR were prepared and the dead body was sent for post-mortem examination. On the same day on the pointation of Mst. Munawar Bibi wrist watch Ex. P7 and a pair of shoes Ex. P8/1-2 were also dug up from the courtyard of the house of Munawar Bibi in the presence of the witnesses and were taken into possession vide memo Ex. PE. Muhammad Rafique on 14.3.91 while in police custody led the police to the house of Mst. Munawar Bibi and got recovered the Danda Ex. P6 from the residential room. It was taken into possession in the presence of the witnesses vide memo Ex. PD. All these recovery memos were attested by Mahammad Ramzan PW-4, Ghulam Asghar PW-8 and Bashir Ahmed given up. On 14.3.91 both the accused led to the recovery of motor-cycle No. 6211/LHY Ex. P9 from the shop of Khalid Mehmood PW T -7 situated at Lytton Road near Jinazgah, Lahore. It was taken into possession vide memo Ex. PF which is attested by Muhammad Ramzan PW-4, Khalid Mehmood W-7 and Ghulam Asghar PW-8. Muhammad Rafique another witness was given up. Transfer letter Ex. PK, photo copy of I.D. Card of Muhammad Rafique Ex. PL/1, photo copy of I.D. Card of the deceased Ex. PK/1, transfer letter bearing thumb impression of Muhammad Rafique Ex. PL, sale receipt bearing signatures of the deceased in favour of Muhammad Rafique Ex. PM and sale receipt bearing thumb impressions of Muhammad Rafique and Munawar Bibi in favour of Khalid Mehmood PW-7 Ex. PN alongwith the original registration book Ex. PO were also taken into possession vide recoveiy memo Ex. PF. On 14.3.91 Ghulam Ashgar PW-8 moved an application Ex. PH for taking of the sample of the finger prints of both the accused. It was allowed by the Magistrate vide order dated Ex. PH/1 and the sample of finger prints of Muhammad Rafique were taken as Ex. PI and that of Mst. Munawar Bibi as Ex. PJ. They were through letter No. 6986 dated 16.3.91 sent to the Finger Print Bureau for comparison test. The comparison was conducted and the report of the Finger Print Expert is Ex. PU. On the basis of this evidence both the accused were challaned and sent up for trial where prosecution produced eight witnesses to prove the charge. 6. On 8.3.91 at 11.00 A.M. Dr. Shaukat Hayat who appeared as PW- 1 conducted the autopsy on the dead body of Imtiaz Ali Sabar aged 25 years and he found the following injuries on the person of the deceased :-- 1. Lacerated wound 5 cm x 2 cm x bone deep on the left side of head mid part, with swelling 12 cm x 8 cm around the injury. 2. A big ligature mark present around the neck under the ligature material. In his opinion all the injuries are ante-mortem caused with blunt weapon and the death occurred due to asphyxia and cardiorespiratory failure. Injury No. 2 was declared sufficient to cause the death of the deceased. The probable time between injuries and death was immediate while between death and post-mortem was within one month. 7. Both the accused were examined under Section 342 Cr.P.C. They denied the prosecution case and in answer to question No. 9 Muhammad Rafique has stated as under :-- "I am a resident of Khaney Di Pall, P.S. Raiwind. I have three sons, three daughters and a wife who are living in the said village. I am a carpenter and hence a poor man. I cannot think of getting my clothes was had from the washerman. Abbas and Ramzan PWs are not known to me nor did they know me prior to this occurrence. I have been falsely implicated in this case on account of suspicion and enmity. I had not got recovered the dead body or the Danda i.e. r the weapon of offence. I had also not got recovered the motor cycle nor any body had seen me going with Imtiaz Ali Sabar deceased. I have been falsely implicated in this case at the best of one Tufail Goraya and also on account of suspicion. The PWs have deposed against me at the instance of police and also on the behest of the complainant." He did not opt to make statement as required under Section 340(2) Cr.P.C. in disproof of the charges and allegations levelled against him. Neither did he produce any evidence in defence. Similarly Mst. Munawar Bibi in answer to question No. 9 has deposed as under :— "Before this occurrence Tufail Goraya property dealer had cut a dirty joke with me whereupon I had abused him and he had got me falsely involved in this case. In the said house my sons Naeem aged 22 years, Shahid aged 20 years, Fayyaz aged 18 years and my daughter Samia aged 7/8 years lived with my mother. Rafique co-accused is my paternal uncle who is a resident of Khanedi Pall, P.S. Raiwind and occasionally he visited us. Abbas and Ramzan PWs are not known to us. We are poor persons and cannot think of getting our clothes washed from the washerman. The PWs have deposed against me only on account of suspicion and at the instance of police and on the best of Tufail Goraya." She did not appear as her own witness as required under Section 340(2) Cr.P.C. to make a statement on oath in disproof of charges and allegations levelled against her. She too had opted to produce defence evidence but later did not produce any evidence. 8. Believing the prosecution evidence Muhammad Rafique was convicted as above while Mst. Munawar Bibi was acquitted by giving the benefit of doubt of all the charges. 9. The learned counsel for the appellant has argued that the coaccused of the appellant has been acquitted by way of benefit of doubt on the basis of the evidence which is at par with the case against the appellant. It has been further contended that the FIR has been recorded after due deliberations and unexplained delay and that the accused were taken into custody before the FIR was recorded. It has also been urged that both the accused have no common intention with each other and that Muhammad Rafique appellant was not a permanent resident of the house of Mst. Munawar Bibi in which she was residing alongwith her children and mother. It has also been urged that nothing has been produced to prove that the accused had been getting their clothes washed at the laundry of the omplainant. That the recovery of the dead body has been admittedly recovered on the joint pointation of the accused and is of no value while the other recoveries of wrist watch, pair of shoes and Danda have been planted on the accused to strengthen the prosecution case and there are no marks of identification on these items to connect them as the property of the deceased. That Muhammad Ramzan PW4 is cousin of a councillor and he is client and friend of the complainant PW-4 while the other witness Bashir Ahmed has not been produced. 10. So far as the recovery of motor-cycle is concerned and the document recovered in course of this recovery of motor-cycle from the shop of Khalid Mehmood the learned counsel has stated that it is aumitted by Khalid Mehmood PW-7 that Ghulam Asghar PW-8 remained posted at Police Station Lytton Road and that he used to get his motor-cycle repaired from his shop and that he had purchased the motor-cycle from Muhammad Rafique appellant for Rs. 21,000/-. He has also drawn my attention to an important piece of evidence in the cross-examination of the said PW that the recovery memo Ex. PF and transfer letter Ex. PK were prepared again in the police station. The recovery memo indicates that the transfer letter given by Muhammad Rafique was thumb marked and the sale receipt Ex. PN was also thumb marked by both the accused and that the signatures of the witnesses were obtained at the police station on both these documents. The learned counsel has also stated that there was no need for the appellant to thumb mark the documents when his statement under Section 342 Cr.P.C. indicates that he could sign his name in the English language. Hence, all these thumb impressions have been obtained forcibly to implicate the accused and to use these documents as corroborative piece of evidence to connect him with the murder of the deceased. The place of recovery of the dead body is jointly owned and inhabitated by the family of Mst. Munawar Bibi and thus, it cannot be stated to be in exclusive possession of any of the accused. Further more disbelieving this evidence which is at par with the case of the appellant the co-accused has been acquitted. 11. The learned counsel for the State has controverted the arguments and argued that the judgment has been based on cogent and legal reasoning and the sentence of the appellant be maintained. 12. The Crl. Revision was listed for hearing alongwith this Crl. Appeal and the name of the learned counsel was also printed in the list but the learned counsel for the complainant nor the complainant has put in appearance to pursue the Crl. Revision. Thus, there is no option left but to order that the Crl. Revision is dismissed for non-prosecution. 13. I have given my anxious thought to the contentions raised by the learned counsel and have perused the evidence and the record. The arguments advanced by the learned counsel for the State have also been thoroughly considered. I find that the prosecution case bristles that serious infirmities which hit root of the case and prosecution case cannot be accepted at face value keeping in view the shortcomings in the investigation and manner in which the Investigating Officer has tried to build up the case against the accused. Further more when one accused is acquitted on the basis of the same evidence it is legally difficult to maintain the conviction against the other when the evidence against both is identical and the case cannot be distinguished. 14. For reasons enumerated above I feel that the prosecution has not been able to prove its case beyond reasonable doubt and thus, the appeal is accepted and the accused/appellant is given the benefit of doubt and acquitted of all charges. He shall be released forthwith if not required in any other case. The motor-cycle No. 6211/LHY of the deceased shall be returned to the legal heirs of the deceased if and when they apply for it possession to the appropriate court of law. With these observations the appeal and the revision stand disposed of. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 319 Present: MANSOOR ALAMGIR QAZI, J. ABDUS SATTAR-Appellant versus STATE-Respondent Criminal Appeal No. 500 of 1994, accepted on 23.6.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 161 read with Prevention of Corruption Act, 1947-Appreciation of evidence--Appellant/accused stated that complainant had paid fees to him for obtaining copies of AKs Shajra and Khasra Girdawari of his land-This admitted by complainant which further strengthen case of appellant and his first version—Moreover, it has also been admitted by complainant that a person impersonating him appeared on his behalf before A.D.C (G) in appeal filed by complainant and he believed that accused had got this mischief done and that he made written complaint to A.D.C. (G) who ordered registration of case—Learned State counsel was unable to rebut arguments-Held : Prosecution has failed to prove its case beyond reasonable doubt-Appeal accepted. [P. 323] A, B & C Mr. Khalid Javed Saleemi, Advocate for Appellant. Mr. A.H. Masood, Advocate for State. Date of hearing : 23.6.1997. judgment Abdul Sattar Patwari appellant was challaned and was arraigned for trial before Syed Ejaz Hussain Rizvi, Special Judge, Anti Corruption, Lahore , who after recording the evidence found him guilty of the charge under Section 161 PPC and Section 5(2) PCA 1947. He was sentenced to six months R.I. and to pay a fine of Rs. 2000/- and in case of default to further undergo R.I. for 2 months vide judgment dated 7.9.1994. 2. The appellant feeling aggrieved preferred this appeal challenging his conviction and sentence. 3. Muhammad Tufail complainant (PW4) on 16.5.1993 got recorded his statement at Police Station ACE District Kasur at 8.30 A.M. which is Ex. PW2/1. It was recorded by Sultan Mahmood (PW2) who was posted as C.O./A.C.E. Kasur. Later on he was produced before Mian Muhammad Aslam Magistrate, Kasur (PW1) where his statement Ex. PW1/3 was recorded the same day at 11.00 AM and the five currency notes of the value of Rs. 100/- each Ex. Pi to Ex. P5 were noted and signed by the learned Magistrate and then proceeded to conduct the raid on the accused. 4. Briefly, the facts of the case are that the complainant owns land in Mauza Roday, Tehsil Pattoke, District Kasur. The appellant served as Patwari in the complainant's village about a year before the incident. The complainant wanted to get agricultural loan for which he purchased two blank Agricultural Pass Books and delivered the same to the appellant for their completion. After completion of Pass Books, the green one was received by the complainant on 14.4.1992 while the red one was deposited in the office of the Consolidation Officer. The green Pass Book is Ex. PW1/4. Khasra Girdawari was not in the name of the complainant therefore, he approached the appellant in February 1993 for correction of the Khasra Girdawari. The Complainant gave green copy of the Pass Book (Ex. PW1/4) to the appellant for the said purpose. The appellant promised to correct the record in the next Girdawari which was to be done in March 1993 but he did not do the needful and finally the complainant approached the appellant on 12.5.1993, when he returned the green copy Ex. PW1/4. On perusal the complainant found that there was cutting of Khasra numbers at pages 14 and 15 of the said Pass Book. He asked the accused to correct the entries because loan could not be advanced on such cuttings. The appellant demanded Rs. 1000/- was illegal gratification, out of which Rs. 500/- were paid and the complainant promised to pay the remaining amount later on. Since the complainant did not want to pay the bribe he lodged report Ex. PW2/1. He handed over copy of Ex. PWl/4 to the Magistrate who retained its photo copy Ex. PW1/10 and returned to original to him. Raiding party proceeded to Chunian. The complainant went to the office of the appellant but there was strike of Patwaris and his office was locked. The strickers camp was located at about two furlongs. Raiding Party remained near the National Bank while the complainant proceeded to the strikers campt. The appellant met him there and he brought him back to his office. The appellant corrected the original copy of Ex. PWl/4 and received Rs. 500/- from him. After correction of the relevant pages the appellant allegedly returned the original copy to the complainant. Thereafter the complainant returned from appellant's office and gave the fixed signal whereafter the raiding party went upstairs in the office of the appellant. The Magistrate (PW1) introduced himself to the appellant and he directed the appellant to produce Rs. 500/- received by him from the complainant. The appellant accordingly produced currency notes Ex. PI to Ex. P5 from his front pocket. Statement of the complainant was recorded at, the spot, by the Magistrate and copy of Ex. PWl/4 was taken into possession vide recovery memo Ex. PW1/12, which was also attested by the complainant. 5. To prove the prosecution case Mian Muhammad Aslam M.I.C., who conducted the raid and recovered the tainted money and the Pass Book Ex. PW1/10, appeared as PW1. He also proved his report regarding the raid conducted by him. Sultan Muhammad Inspector appeared as PW2. He stated that he had recorded the F.I.R. (Ex. PW2/1) on the statement of Muhammad Tufail correctly and was member of the raiding party. Ghulam Muhammad appeared as PW3 and stated that he was working as Reader/Ahlmad in the Court of Consolidation Officer, Chunian in May 1993. During investigation of the case he produced Pass Book (Ex. PW2/2) before the Investigating Officer and attested the recovery memo (Ex. PW2/3). Muhammad Tufail complainant appeared as PW4 and he supported his FIR. Ghulam Mustafa PW was given up as unnecessary. The prosecution evidence was closed and the accused was examined under Section 342 Cr.P.C. 6. The accused in answer to question No. 8 has deposed as follows :- "The complainant suspected that I managed production of a false person before the A.D.C. (G) in appeal in relation to the 31 kanals of land of the complainant. He was also annoyed with me for the reason that his matter of preparation/correction of Pass Book Ex. PW1/4 was delayed. Hence in order to satisfy his vengeance he involved me falsely in this case." He opted to produce defence evidence as well to appear as his own witness in defence. Naseer Din (DW1) has supported the defence of the accused that the amount of Rs. 500/- had been paid by the complainant to the accused as cost of some copies desired to be obtained by the complainant. Abdul Sattar appellant appeared as his own witness and stated on oath as DW2 and supported his case. 7. Believing the prosecution evidence the learned trial Court taking a lenient view as the accused appellant had since been retired from service and was of old age, convicted and sentenced him as stated above. 8. Learned counsel for the appellant and the learned counsel for the State have assisted me in going through the record and the evidence adduced on record which has been thoroughly perused and considered. 9. Learned counsel for the appellant has at the veiy outset of this case taken a preliminary objection and has placed reliance on Muhammad Rmz and 2 others vs. State (1996 P.Cr.L.J. 1007) decided on 1.10.1995 wherein it was held that the appointment of Syed Ijaz Hussain Rizvi, Special Judge, Anti Corruption Lahore being illegal all proceedings conducted by him in criminal cases pending before him were without jurisdiction and thus it was a case where trial stood vitiated <nd a de novo trial was the equirement of law. Howt-ver, keeping in view the rigours of a fresh trial and the old age of the appellant learned counsel opted to proceed with the case on merits and argued the same at length. He has urge! thai essential ingredient in trap cases is that tini.nveisahon bettvuen the accused and ihe complainant before passing of the tainted money or transfer and passing of the tainted money from the complainant to the accused is a must for the raiding party to hear and see but in the present case the prosecution has not proved this factum beyond shadow of doubt. He has further argued that the statement of the complainant is uncorroborated and that mere recovery of the tainted amount would not connect the appellant with the offence and that the defence version and the evidence adduced to prove it is plausible and is also supported from the prosecution evidence. On the other hand the learned counsel for the State has vehemently opposed the arguments of learned counsel for the appellant and has supported the judgment and prayed for upholding of the conviction and has further stated that under the Criminal Law Amendment Act 1958 the accused had to explain the possession of the tainted money. 10. Learned counsel for the parties have been heard at length and I have carefully gone through the record of the case. The present case was decided on 7.9.1994 while Criminal Revision Petition No. 215 of 1995 reported as Muhammad Riaz and 2 others vs. The State (1996 P.Cr.L.J. 1007) was decided much later in time on 1.10.1995 and through this petition the appointment of Syed Ijaz Hussain Rizvi, Special Judge, Anti-Corruption Lahore suffered disqualification as given in Section 3 (2Kb) of the Pakistan Criminal Law Amendment Act 1958 and it was further held therein that all proceedings conducted by him and criminal cases pending before him are without lawful jurisdiction. Thus I am of the view that since the case in hand was decided much earlier to the decision of Criminal Revision Petition No. 215 hence all judicial acts performed by him before the judgment dated 1.10.1995 are protected by law. My view is further strengthened by the judgment recorded by Naimuddin J. in case Abdul Salam Qureshi and another vs. Judge, Special Court of Banking for Sindh (PLD 1984 Karachi 462) wherein his lordship has pleased to hold that orders, judgments and decrees were saved by de facto doctrine. Further explanation to this doctrine is as recorded in para 19 of the said judgment at page 468, which reads as under :- "In any case the orders, judgments and decrees passed by Mr. Qureshi are saved by de facto doctrine. This doctrine gives validity to acts of judges de facto whatever defects there may be in the legality of their appointment. The doctrine is founded upon considerations of public policy and necessity, ibr tin protection of the public and individuals whoso iiiU's-ests may be effected thereby and to prevent esK confusion and endless mischief." 11. Be thai as may. ihe learned counsel has added that, the appellant has adiuni : uU reum! trous service and is an old man and if ht-s were to face a re-trial there is likelihood that he may not survive hazards of a second trial and may go to his grave with a stigma with him which is not desirable. I agree with the learned counsel that the case should be decided on merits whatever the fate may be. 12. The argument advanced by learned counsel that none of the members of the raiding party heard the conversation between the accused and the complainant nor did any of them witness the passing of the tainted money. Learned counsel hs placed reliance on Muhammad Ashraf vs. The State (1996 SCMR 181) wherein it was held that in such like transactions not only the payment of bribe money to the accused by the complainant is to be seen but also conversation between them has also to be heard by the members of the raiding party. This argument is supported by the dictum of the Supreme Court and it carries weight. 13. The version of the accused was recorded by the Raiding Magistrate as Ex. PW1/7 wherein the appellant stated that the complainant had paid him fees for obtaining copies of Aks Shajra and Khasra Girdawari of his land and that it was pointed out by the learned counsel that Muhammad Tufail, complainant, (PW4) has admitted in his crossexamination that he had demanded some copies of Aks Shajra and Khasra Girdawari from the accused. This admission of the complainant further strengthens the case of the appellant and his first version. Moreover, it has also been admitted by the complainant that person impersonating him appeared on his behalf before A.D.C. (G) in an appeal filed by the complainant and he believed that the accused had got this mischief done and that he made a written complaint to the A.D.C.(G) who ordered registration of the case. Learned State counsel was unable to rebut the arguments. eeping in view the admission of the complainant and the eorroboration to defence spelled out from the prosecution evidence there is much weight in the version of the accused. The above discussion leads me to the irresistable conclusion that the prosecution has failed to prove its case beyond reasonable doubt and the defence version winch the appellant adopted at the very initial stage stood. established and supported from the prosecution evident- fiie recovery of tainted money has also been plausibly explained by the acc'isid and thus has justified the onus thrusted by the law on his shoulders The appeal is accepted and the appellant is acquitted of the charge against him. He is on bail and is discharged of his bail bonds. (K.K.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 324 Present •. mansoor alamgir qazi, J. ZULFIQAR -Appellant versus STATE--Respondent Criminal Appeal No. 55-J of 1993, dismissed on 14.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302(2)--Murder-Offence of-Conviction for-Challenge to-PW-11 was a witness who was not related to deceased or complainant party and it was in his presence that deceased was taken by appellant on a pretext and thereafter deceased was not found alive-PW-3 and PW-4 are no doubt relatives of complainant-It was before them that appellant made extrajudicial confession and it was these witnesses who produced him before Investigating Officer-PW-7 was also related being brother of PW-4 and he witnessed recovery of amputated dead body burnt legs and arms of deceased at the instance of accused-Witnesses have no motive or enmity of falsely implicate appellant -Mere relationship would not discredit testimony of witnesses- Held There is no substance or force in appeal and it is accordingly dismissed [P. 327] A, B & C Rana Liaquat Ali Khan. Advocate for Appellant. Syed All Raza, Advocate for State, Date of hearing : 14.7.1997. judgment Zulfiqar appellant aged 18 years was arraigned for tnal in the said case in the court of Ch. Faiz Talib Khan, Additional Sessions Judge, Gujran-wala. Through judgment dated 1.4.93 the appellant was convicted under Sec­tion 302 (2) PPC and sentenced to life imprisonment. He was also ordered to pay the compensation to the tune of Rs. 10,000/- and in case of default of payment of the said compensation to further undergo R.I. for six months. 2. Feeling aggrieved the appellant has preferred the present appeal through jail challenging his conviction and sentence. 3. Abdur Rashid complainant PW-8 moved an application Ex. PE before Muhammad Saleem Inspector/S.H.O PW-14 of Police Station Model Town, Gujranwala on 9 2.92 at 7 45 A.M. whereupon FIR Ex PE/1 was recorded at the police station by the said officer regarding the murder of halul Iqhai aged 30 ears m Noman Engineering Works situated in Mohallah Muhammad pura at • tl, !.ai, - of six furlongs from Police Station Modei Town Gujranwalu Briefly the tads of the cast- are that Khahd Iqbal. deceased, who was the brother ot wile of Abdur Rashid. complainant PW 8 was running Noman Engineering Works situated at Ghanda Nala in the area of Dhullay and was manufacturing tractors axels. This factory was owned by the complainant. The deceased was the resident of Sheikhupura but was residing in the house of the complainant. On 4.2.92 Zulfiqar accused came to the house of the complainant where Khalid Iqbal deceased, Faiz-ur-Rehman PW-11 and the complainant were present at 5.00 P.M. and took Khalid Iqbal on the pretext that a customer had come to the factory to place an order. Khalid Iqbal accompanied him to the factory but he did not return at night time and thereafter the complainant went out to search for him He found the factory locked. Then he visited the house of the appellant but the appellant was also not available. He continued his search for the deceased and finally on 9.2.92 he presented an application for registration of the case which is in his hand and signed by him 5. The motive as stated is that the appellant worked as a labourer since the last three years in the said factory. He had been stealing steel from this factory and had been reprimanded by the deceased and also threatened the appellant that he would get him arrested for such conduct. A week prior to the present incident the appellant again committed theft of steel upon which the deceased took him to task and demanded the return of Rs. 5,000/- which had been taken as advance by the appellant. 6. On 9.2.92 Muhammad Bashir PW-3 and Dr. Taj Din PW-4 produced the appellant after he had made extra-judicial confession before them before the police at Chowk Dhullay at 2.00 P.M. The Investigating Officer PW-14 arrested the accused. 7. On 9.2.92 the appellant was interrogated and he made disclosures and thereafter he led the police to the factory of the deceased and pointed out the place where he had hurried the deceased The earth was dug up and the dead body of Khalid Iqbal deceased was recovered and it was found that the legs and arms were amputated and missing. Thereafter Zulfiqar appellant hile in police custody led the police to Ghanda Nala from where he got recovered two legs and two arms belonging to the dead body. The bead body, amputated legs and arms were taken into possession vide memo Ex. PD in the presence of Muhammad Ishaq PW-7 by the Investigating Officer PW-14 and Bashir Ahmed PW was given up Thereafter the injury statement Ex. PK and the inquest report Ex. PL were prepared and the dead body was despatched for post-mortem examination On 16.2.92 the appellant while in olice custody led the police to his house and from the Darba of pigeon he got recovered blood-stained Kassi Ex. Pi and Rado wrist watch Ex. P2 which were taken into possession vide memo Ex. PA which were attested by Haji Muhammad Anwar PW3, Investigating Officer PW-14 and Imtiaz Ali was given up. The Ex. P2 was identified by the complainant as belonging to the deceased On 19.2.92 while in police custody the appellant led the police to Ghanda Nala and from the adjoining northern wall of Noman Engineering Works he dug up and got recovered pistol Ex. P3 and four bullets Ex. P4/1-4. They were made into a sealed parcel and taken into possession vide memo Ex. PC which was signed by Muhammad Ashraf PW-6, Investigating Officer PW-14 and Aman Ullah was given up. 8. On 10.2.92 Dr. Anjum Javed Sindhu PW-9 performed the autopsy on the dead body of Khalid Iqbal at 10.30 A.M. and found the following injuries :-- 1. A firearm lacerated wound, a wound of entry 3/4 cm x 3/4 cm x going deep with inverted margins left side of head 2 cm above left ear alongwith an outlet wound 1 cm x 1 cm right side of head 3 cm above right ear. 2. Incised wound 14 x 1 cm x bone deep right eye brow. Incised wound 2 cm x 1 cm x bone deep middle of fore-head underline bone was fractured. 3. Incised wound 6 cm x 2 cm x bone deep on chin more on left side alongwith fracture of underline bone. 4. Incised wound 6 cm x % cm x bone deep on left cheek. 5. Multiple incised wound of different size are seen central part of fore-head and bridge of nose and the area is depressed downward. 6. Right leg was amputated at lower thigh level 30 cm below right iliac crest. 7. Left leg was amputated at lower thigh level. 8. Both right and left arms were amputated at shoulder join level. The death in his opinion occurred due to haemorrhage and shock under injury No. 1 which was sufficient in ordinary course of nature to cause death. The time between injuries and death was immediate while that between death and post mortem was 5 to 10 days. He further opined that injury No. 1 was caused by firearm while the rest of injuries were caused by heavy sharp edged weapon. Injury No. 1 was ante-mortem while the remaining injuries were post-mortem. 9. The prosecution produced 14 witnesses to prove the charge. The report of the Chemical Examiner Ex. PM, report of the Serologist Ex. PO and the report of the Forensic Science Laboratory Ex. PN were tendered in evidence. The accused was examined under Section 342 Cr.P.C. and he has stated as under :-- "Due to enmity with the PWs Rashid complainant was inimical towards me over a dispute regarding purchase of site underneath his factory. Other PWs are close relatives of complainant. He had also threatened me of dire consequences over llu- land in dispute and has falsely involved me in this case He did not produce any detente evidence nnr did he opt to appear as his own witness as required under Section 340(2> C'r P C . to disprove the charge and allegations levelled against him Believing ih.. piosecution case he was convicted as above. 10. I have with the assistance of the learned counsel for the appellant perused the entire evidence recorded and also scanned the record of the case. The learned counsel for the State has also been heard at length who has supported the judgment and prays that the conviction and the sentence be upheld. 11. Faiz-ur-Rehman PW-11 is a witness who is not related to the deceased or the complainant party and it was in his presence that the deceased was taken by the appellant on a pretext and thereafter the deceased was not found alive. Muhammad Bashir PW-3 and Dr. Taj Din PW-4 are no doubt relatives of the complainant. It was before them that the appellant made an extra-judicial confession and it was these witnesses who produced him before the I.O. on 9.2.92. Muhammad Ishaq PW-7 is also related being brother of Dr. Taj Din PW-4 and he witnessed the recovery of the amputated dead body and the burnt legs and arms of the deceased at the instance of the accused. This recovery is corroborated by the medical evidence where the doctor has stated that the dead body carried incised wounds and the legs and arms had been cut-off and the legs and arms where so found separately. Haji Muhammad Anwar PW-2 is also related to the complainant party and it was in his presence that the wrist watch belonging to the deceased was recovered at the instance of the accused and the blood-stained Kassi found stained with human blood was also recovered. Muhammad Ashraf PW-6 is also related to the deceased and he witnessed the recovery of pistol Ex. P3 at the instance of the accused. Though no crime empty was recovered from the place of occurrence yet the medical evidence shows that the deceased was murdered as a result of firearm injury. 12. The accused/appellant has made a wild statement in the air which is neither substantiated from the record nor has he led any evidence to establish his plea. The witnesses have no motive or enmity to falsely implicate the appellant in the said case. The recoveries were effected on his pointation from the places which were exclusively in his knowledge and no material has been brought on file to discredit the testimony of the prosecution witnesses. Mere 'relationship would not discredit the testimony of the witnesses. The deceased was done to death and his dead body was deliberately mutilated and disfigured and it was so found after recovery by the doctor at the time of post-mortem examination. It has been abundantly proved on record that the appellant was a labourer working in the factory run by the deceased. Though no theft case had yet been registered against him but still there is evidence to believe that the appellant, was reprimanded for such a conduct. The learned trial court, has also keeping in view his tender age dealt with him leniently. There is no substance or force in the said appeal and it is accordingly dismissed. However, the appellant was not awarded the benefit of Section 382-B, Cr.P.C. which is directed to be given to him as required under the law. (B.T.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 328 Present: mansoor alamgir qazi, J. MUHAMMAD ASLAM-Appellant versus STATE-Respondent Criminal Appeal No 7-J of 1993, accepted on 24 7.1997. (i) Pakistan Penal Code (XLV of 1860)-- —S. 302-Murder-Offence of— Conviction for/Sentence--Challenge to-Apprisal of evidence--From evidence it appears that both entry wounds on person of deceased are on back side of body while site plan and statements of eye-witnesses indicate that deceased and appellant were face to face when occurrence took place and deceased received injuries on front side of her body-Though prosecution witnesses have tried to improve their case and establish their credence as truthful witnesses of giving their testimony in line with medical evidence yet same has been confronted and established that all three eye-witnesses who appeared were not present at spot at time of occurrence and that it was blind murder—There is serious material contradiction between ocular account and medical evience-Held : Case against appellant has not been proved beyond shadow of reasonable doubt--Appellant acquitted. [Pp. 331 & 332] C, D & E (ii) Pakistan Penal Code (XLV of 1860)-- —S. 302—Appellant convicted for life imprisonment-Enhancement of punishment-Prayer for-It is well settled principle of law that when motive is not established by prosecution then accused cannot be saddled with maximum penalty-Held : Keeping in view settled principle of law, it is not a case fit for enhancement of sentence--Petition dismissed. [P. 331] A & B Mian Subah Sadiq Klasson, Advocate for Appellant. Mr. S.D. Qureshi, Advocate for State. Rana Muhammad Anwar, Advocate for Complainant. Date of hearing : 24.7.1997. judgment Muhammad Aslam aged 40 years was arraigned for trial in the court of Mr. Khalid Akhtar. Additional Sessions Judge, Depalpur. Vide judgment dated 26.10.1992 he was convicted under Section 302 PPC and sentenced to life imprisonment and also to a fine of Rs 10.000/- and in default of payment of the said fine to further imdergo I.R. for two years It was further ordered that if the fine is recovered it shall be paid to the legal heirs of the deceased. He was given the benefit of Section 382 Cr.P.C. and it was also ordered that his rifle Ex. P2 shall be confiscated in favour of the State. 2. Feeling aggrieved the appellant has challenged his conviction and sentence through jail vide Crl. Appeal No. 7-J/93 while the complainant Muhammad Yousaf (PW-3) has through Crl. Revision No. 749/92 prayed that the sentence of the appellant/respondent be enhanced to death. Both these cases are being heard and will be disposed of by this single judgment. 3. The present occurrence took place on 17.4.90 at 6.15 P.M. in street adjacent to Roheela Road in the area of Basirpur Town near the house of the appellant. The statement Ex. PA was recovered at Police Station Basirpur on the dictation of Muhammad Yousaf complainant (PW-3) by Muhammad Ali Sub-Inspector (PW-12) at 6.45 P.M. The police station is situated at a distance of 2 K.M. from the place of occurrence. 4. The motive for the alleged offence as stated by the complainant in the FIR is that Mst. Amina Bibi (deceased) who happens to be a paternal aunt of Mst Naseem Akhtar the ex-wife of the appellant was not allowing the appellant to meet with his children 5. Briefly the facts of the case are that after closing his shop he went to the sister's house at about 5.30 P.M. His mother Mst. Amina Bibi (deceased) was present there. He alongwith his mother left for their own ouse for Iftari. When they reached at. Buttock road, they were met by Zafar Iqbal (PW-4), Nazir Ahmed (not produced). Muhammad Mansha (PW-5) and the complainant offered them to breakfast and have Iftari at their house. All of them started towards the house of the complainant and Mst. Amina (deceased) was at some distance ahead of them. When Mst. Amina (deceased) reached near the house of the appellant he came out of his house armed with his rifle and said that he would teach her a lesson for not allowing him to meet his children and thereafter he fired with his rifle which hit mother on the front of abdomen whereafter the PWs started to run towards her. The appellant fired the second shot which hit his mother on the right side of chest and thereafter she fell down and the appellant ran away from the spot alongwith his rifle. The deceased succumbed to the injuries. Leaving the dead body in the care of Zafar Iqbal, Muhammad Mansha and Nazir Ahmed, the eye-witnesses of this case he went to the police station and lodged report FIR Ex. PA. 6. The police arrived at the spot and prepared injury statement in respect of the dead body of the deceased which is Ex. PH and inquest report Ex. PI and despatched the dead body for post-mortem examination. The blood-stained earth was taken into possession from the spot vide memo Ex. PB and it was made into a sealed parcel. The accused was arrested on 21.4,90 who was carrying rifle Ex. P2. It was taken into possession vide memo Ex. PD and made into a sealed parcel. The memo was attested by Muhammad Yousaf (PW-3), Muhammad Ali I.O. (PW-12) and Muhammad Sharif (not produced). In course of investigation uhammad Yousaf (PW-3) produced a copy of agreement deed executed between the appellant and his ex-wife Mst. Naseem Akhtar regarding the possession of the children. This document is Ex. PI and it was taken into possession vide memo Ex. PC. After completion of the investigation the accused was challaned and sent up for trial. To prove the charge prosecution produced 12 witnesses. The accused was examined under Section 342 Cr.P.C. and he denied the prosecution case and has stated as under :— "I am innocent. The complainant party was inimical to me because I had divorced Mst. Naseem Akhtar PW who is paternal cousin of Yousaf PW and on account of this enmity I have falsely involved in this case. I had no grievance against Mst. Amina Bibi regarding the custody of my daughters. It, was an unseen and unwitnessed occurrence which had taken place after sun set and during darkness. The complainant in collusion with the police changed the time of occurrence and lodged the FIR after consultations." He did not appear as his own witness to disprove the allegations against him. The appellant produced Naeem-ul-Ghani, Junior Clerk from the D.C. office Okara as DW-1 who proved that rifle 7mm No. A-1172 was licensed. Rifle entered in the name of the appellant and that the said licence is entered at serial No. 807 dated 7.8.1986 in the original register of arms licences, D.C. office Okara. 7. Dr. Shahid Farooq. T.H.Q. Hospital, Depalpur appeared as PW-6 and stated that on 18.4.90 at 10.00 A.M. he conducted the autopsy on the dead body of Mst. Amina Bibi aged 60 years and found the following injuries :-- 1. A fire arm entry wound measuring 3 cm x 1 cm x going deep on the lower part of back of right side of chest, 3 cm away from the mid line of the body. 2. A fire arm exit wound measuring 1 cm x 0.5 cm x deep going on front, of left side of chest 14 cm below the anterior axillary fold. 3. A fire arm exit wound measuring 2 cm x 0.75 x m x going deep on the front of left side of chest and it lies 1 cm outer to injury No. 2. 4. A fire arm exit wound measuring 1.5 cm x 1 cm x going deep on the front of left side of chest and it lies 1.5 cm outer to injury No. 3. 5. A fire arm .entry wound measuring 1 cm x 1 cm x going deep on the lower inner quadrant of left buttock. Gun powder staining was present; around the wound. Edges of the wound were inverted. 6. A fire arm exit wound measuring 4 cm x 3 cm x going deep in the mid line of front of abdomen. It lies 5 cm below the umblicus. Edges of the wound were everted. One deformed flattened metallic piece of a project tile was found lying in this wound. He has opined that the death was the result of haemorrhage and shock due to injuries No. 1 to 6 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by firearm. The time between injuries and death was almost sudden and between death and post-mortem was about 16 hours. Injuries No. 1 and 5 are the entry wounds while injuries No. 3, 4 and 6 are exit wounds. 8. Learned counsel for the appellant has taken me through the entire evidence recorded and the record has been perused and scrutinised. The arguments advanced by the learned counsel for the appellant, the State and the complainant have been heard at length. 9. It is well settled principle of law that when the motive is not established by the prosecution then the accused cannot be saddled with the maximum penalty. In the present case the learned trial court had disbelieved the motive. The learned counsel for the complainant was asked to give his reasons on basis of which the sentence would be enhanced. The learned counsel was not in a position to establish his case from the evidence and the material on the file. Hence keeping in view the settled principle of law to my mind it is not a case fit for enhancement of the sentence. Hence the Crl. revision is dismissed being devoid of force. 10. The learned counsel for the State has supported the judgment and prayed that the sentence awarded to the appellant be maintained. The learned counsel for the appellant states that all the eye-witnesses except Muhammad Mansha are closely related to the deceased while Muhammad Mansha has been an pprentice/pupil with Muhammad Yousaf complainant (PW-3) and as such he is under influence and obligation of the complainant. I find that no doubt there is no enmity between the parties except that the ppellant had divorced Mst. Naseem Akhtar some years back and the document Ex. PI aws executed in the year 1989 regarding the custody of the children and that could be a bad breath between the parties but since the matter pertains to the year 1989 and in between no untoward incident hook place. Hence it is clear that the appellant was not carrying any grudge or ill will regarding the matter which was past and closed transaction and thus had no motive to commit the offence. 11. From the medical evidence it appears that both the entry wounds on the person of the deceased are on the back aside of the body while the site plan and the statements of the eye-witnesses indicate that the deceased and the appellant were face to face when the occurrence took place and the deceased receive injuries on the front side of her body. Though the prosecution witnesses have tried to improve their case and establish their credence as truthful witnesses of giving their testimony in line with the medical evidence yet the same has been confronted and established that all the three eye-witnesses who appeared were not present at the spot at the time of occurrence and that it was a blind murder. Thus, I find that there is a serious material contradiction between the ocular account and the medical evidence. It is hard to digest without pinch of salt that these witnesses are in fact the eye-witnesses of the occurrence. Furthermore the learned counsel for the appellant has argued that according to the medical evidence it is a case where two different types of weapons have been used in the commission of the offence. This assertion carries no value as the doctor is neither eye­ witness nor a firearm expert. It appears that the accused has been framed in the present occurrence because he had divorced Mst. Naeem Akhtar and the complainant party was looking for opportunity to teach him a lesson. 12. From the above it clearly filters that the case against the appellant has not been proved beyond the shadow of reasonable doubt. Hence the appellant is entitled to its benefit as such he is acquitted of the charge. He is on bail. His bail bonds stand discharged. The learned trial court had ordered that his rifle Ex. P2 be confiscated in favour of the State since he has proved that it was a licensed rifle and also in view of the fact that he has been acquitted in this case rifle should be returned to him. Perusal of memo Ex. PD through which rifle Ex. P2 was taken into possession does not show the number of the rifle. However, the licence shows that rifle No. All72 stands entered on the licence proved to have been issued in the name of the appellant. 13. It is ordered that the rifle Ex. P2 shall be returned to the appellant as and when he applies for its possession after confirming that rifle Ex. P2 is carrying No. All72 as entered on the licence. If rifle Ex. P2 is having a different number then it shall stand confiscated in favour of the State. With these observations the Crl. Appeal and the Revision Petition are decided. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 332 (DB) Present: MANSOOR ALAMGIR QAZI & KHALIL-UR-REHMAN ramady, JJ. NASEER AHMAD etc.-Appellants versus STATE-Respondent Criminal Appeal No. 558 of 1991 and Murder Reference No. 375 of 1992, decided on 22.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)- —-S. 302/34-Murder-Offence of- Conviction for-Challenge to-Ocular account stands proved from evidence-Both witnesses were brothers of mother of deceased and were also related to accused-Accused and deceased have their Dharis at this Cfta/z-There is nothing on record to show that these witnesses had any enmity or illwill against accused- Their evidence coupled with evidence of recovery and medical evidence proves guilt heyond doubt-As motive had not been proved, death sentence awarded to appellants not confirmed-Held : Appellants were guilty u/S. 302/34 PPC-They were sentenced to life imprisonment-­ Murder reference answered in negative- Appeal decided accordingly. [P. 337] A Syed Shahid Hussain Qadree, Advocate for Appellants. Mr. A.H. Masood, Advocate for State. Date of hearing : 22.7.1997 judgment Mansoor Alamgir Qazi, J.--Naseer Ahmad alias Nasra aged 35 years, Sarfaraz a/;as Sharaf aged 28 years and Muhammad Ali alias Muhammad aged 60 years, all real brothers were arraigned for trial in the court of Hafiz Khalil Ahmad, Additional Sessions Judge, Sheikhupura. They were vide judgment dated 20.5 1991 found guilty under Section 302/34 PPC and sentenced to death on 2 counts for the murders of Mahmood aged 40 years and Muhammad Ishaq aged 28 years, both real brothers. All the accused were fined Rs. 20.000/- each and in default of payment to undergo R.I. for one year on two counts each. They were also ordered to pay compensation of Rs. 20.000/ each to the legal heirs of Mahmood and Muhammad Ishaq deceased and in default of payment of compensation all of them to undergo further R.I. for 6 months each on two counts. 2. Feeling aggrieved the appellants have preferred the Criminal Appeal No. 558/91 challenging their conviction and sentences, while the State has preferred Murder Reference No 375/92 for the confirmation of the death sentences awarded to the appellants 3. The present occurrence took place on 20.11.1987 at about noon time in the area of Mauza Malka Haji at a distance of 2 KMs from the Police Station Syedwala and was reported by Abbas (PW1) brother of the deceased vide statement Ex P-A which was recorded by Nazir Ahmad S.I./S.H.O Police Station Syedwala at Full Raj bah Syedwala. Jarranwala Road at 2.00 P.M. on 20 11 1987 and format FIR . Ex P -A/1 > was recorded at the Police Station at 2.10 P M by Hasan Ab Mohai rir (PW4) 4. The motive for the present occurrence, as stated in Ex, P-A is that about 5 years back the complainant party had given four acres of land to the accused on lease, while one acre was sold in their favour The sale deed was registered but no mutation was sanctioned The complainant party had again taken over the possession of this property about six months back and Nasra and others had filed a civil suit at Nankana Sahib. That was decided in their favour. Nasra and others had instituted an appeal in the Court District and Sessions Judge and that appeal was still pending. 5. The brief facts of the case, as stated by Abbas (PW1) are that haveli of the complainant and the deceased was at a distance of 4/5 squares from the village for tethering the cattle. On the day of incident he alongwith his two brothers Muhammad Ishaq and Mahmood, were present in their haveli and Mahmood was cutting fodder nearby. The complainant was present with his cattle when at about 12 noon Naseer Ahmad alias Nasra, armed with a gutv Muhammad Ali armed with a hatchet while Sarfraz alias Sharaf armed with a hatchet appeared there. Muhammad Ali raised a Lalkara that they had come to teach a lesson to Mahmood and Ishaque for taking over the possession of the land. Mahmood deceased stood up whereupon Naseer alias Nasra fired at him which hit him on his abdomen and he fell down. He repeated the fire, which hit the deceased Mahmood on his right buttock. Sharfa then inflicted a hatchet blow on the person of Mahmood deceased. Mahmood died at the spot. The three accused then ran towards their haveli. Muhammad Ishaque apprehending danger to his life concealed himself in the sugar-cane field of Taja son of Ghulam. Abbas also reached there. Nasra stood up on the eastern corner of the field with his gun, while Muhammad Ali and Sharfa, accused entered the sugarcane crop to search out Ishaque. Muhammad Ishaque then ran towards eastern side to save his life when Nasra accused fired at him. Muhammad Ali accused then inflicted hatchet blows on his person. Muhammad Ishaque died at the spot. The accused went towards the village. The incident was also witnessed by Sanatta (PW7) and Muhammad (PW6). 6. The investigating Officer (PW12) after recording the FIR arrived at the spot and he prepared injury statement of Mahmood deceased (Ex. P- S) and inquest report (Ex. P-T) and injury statement in respect of dead body of Muhammad Ishaque (Ex. P-Q) and inquest report (Ex. P-R) and despatched the dead bodies for postmortem examination. In the course of inspection of the post collected blood stained earth from the place of the murder of Mahmood deceased. It was made into a sealed parcel which was aken into possession vide, recovery memo (Ex. P-H). Similarly he secured blood stained earth from the place of murder of Muhammad Ishaque deceased, made it into a sealed parcel and took into possession vide recovery memo (Ex. P-J). One crime empty of .12 bore was taken into possession from the place of murder of Mahmood deceased. It was made into a sealed parcel and taken into possession vide recovery memo (Ex. PL) He secured 3 crime empties of .12 bore from the place of murder of Muhammad Ishaque deceased. They were made into a sealed parcel and »aken into possession vide recovery memo (Ex. P-M). ForHer, Chaddii (Ex. P-lOl and sickle (Ex. P-ll) where taken into possession from the place where Mahmood deceased was cutting fodder. They were secured vide memo (Ex. P-K). All these memos are attested by Muhammad (PW6), Sanatta (PW7) and Nazeer Ahmad the Investigating Officer (PW12). 7. All the accused were arrested on 2.12.1987. On 9.12.1987. Naseer Ahmad alias Nasra accused while in police custody led to his house and from a cot on which beddings were lying he got recovered one .12-bore gun (Ex. P- 6) and its licence (Ex. P-7). It was made into a sealed parcel and taken into possession vide memo (Ex. P-E). On the same day Muhammad Ali alias Muhammad accused while in police custody led to his house and from inside the room from a cot on which clothes were lying he got recovered blood stained hatchet (Ex. P-8). It was taken into possession vide memo (Ex. P-F). Sarfraz accused also on the same day while in police custody led the police to his house and from underneath a Jisti Patti he got recovered a blood stained hatchet which was made into a sealed parcel and taken into possession vide memo (Ex. P-G). All these memos were attested by Muhammad Abbas (PW5), Nazir Ahmad the Investigating Officer (PW12) and Asghar Ali (given up). Two sealed parcels containing the blood stained hatchets recovered from the accused were sent to the office of the Chemical Examiner who vide report Ex. P-K opined that they were stained with blood and were sent to the Serologist who vide report Ex. P-A opined that both the hatchets were stained with human blood. The blood stained earth was sent to the Chemical Examiner who vide report Ex. P-V and P-W opined that they were found to be stained with blood. Reports of the Serologist Ex. P-Y and Ex. P-Z show that the earth was stained with blood. The crime empties and the gun recovered from Naseer Ahrnad alias Nasra appellant were separately sent to the Forensic Science Laboratory on 25.11.1987 and 21.12.1987 respectively and vide report Ex. P-BB all the four crime empties (Ex. P. 12 and Ex. P- 13/1-3 were found wedded with gun Ex. P-6. 8. After completion o the investigation the accused were challaned and sent up for trial. 9. The accused were charged and prosecution produced 12 witnesses to prove the charge and thus believing the prosecution evidence the accused were found guilty and convicted as above. 10. Dr. Saif-ur-Rehman, Medical Officer, Tehsil Headquarters Hospital Naukana Sahib. District Sheikhupura (PW9) stated that on 21.11.1987 at 11.15 he conducted autopsy on the dead body of Mahmood deceased and found the following injuries on his person : 1. A lacerated wound in area of 10 cm x 8 cm on right side of abdomen just below and lateral side of umbilicus. 2. Five lacerated wounds on the right side of lower back and buttock. 3. An incised wound 1.5 cm x l.f> cm with trial about 6 c.m. In his opinion death had occurred due to shock and haemorrhage as a result of injuries No. 1 and 3 which were found sufficient to cause death in the ordinary cause of nature. Injuries No. 1 and 2 were caused by fire-arm while injury No. 3 was due to sharp-edged weapon. All the injuries were antemortem. The time between injuries and death was about half an hour while between death and postmortem was 24 hours. On the same day at 12.30 noon he conducted autopsy on the dead body of Muhammad Ishaq and found the following injuries on his person :-- 1. An incised wound 10 cm x 1 cm bone cut on the left side of head behind left ear. 2. An incised wound 10 cm x 1 cm x bone deep on right side of the head. 3. A lacerated wound with small multiple wounds on and behind right ear. 4. A lacerated wound on the lateral side of right arm 3 cm x 3 cm. 5. A lacerated wound 6 cm x 4 cm in the front of right arm. 6. A lacerated wound 20 cm x 15 cm on the right elbow involving arm and fore-arm with fracture of humorous, radious and ulna. 7. A lacerated wound on the left arm on lateral side. (A postmortem cut was made). 8. An incised wound on the back of left hand 10 cm with bone cut (Four metacarpals Nos. 2, 3. 4 and 5). 9. Thirteen lacerated wounds 1 cm x cm on the back on right side (Three post mortem cuts were made on the back). 10. An incised wound on the right shoulder. 11. A lacerated wound 2 cm x 1.5 cm on the epigastrium, with blackening of the edges of wound. 12 A lacerated wound 5 cm x 4 cm over left hypogastrium. In his opinion death was due to shock and haemorrhage as a result of injuries No. 11 and 12 which were sufficient to cause death in the ordinary course of nature. Injuries No 1. 2. 8 and 10 were caused by sharp-edged weapon while injuries No 3. 4. 5. 6, 7, 9. 11 and 12 were caused by fire-arm. All the injuries were antemortein Tin- tune between the injuries and death was 1% hour while thai between death and postmortem 2fi hours He has further stated that injuries No ! to 8 and 10 were collectively sufficient to cause death while injuries No. 11 and 12 wen- individually sufficient to cause the death in the ordinary course of nature 11. The accused were examined under Section 342 Cr.P.C. and they denied the prosecution case and pleaded that they have been falsely involved on account of enmity. Naseer Ahmad alias Nasra accused opted to produce defence while Sarfaraz and Muhammad AH did not. None of them appeared as required under Section 340 (2) Cr.P.C. to disprove the allegations leveled against them on oath. Tahir Jameel a Petition-Writer of the District Courts was examined as DW1 and copies of applications Ex. DD and DE were proved and placed on the record. 12. Learned counsel for the appellant has taken us through the evidence recorded in the course of trial and with his assistance the record has been perused and scrutinised. Learned counsel for the State was also heard at length who has supported the judgment and has prayed that the conviction and sentences awarded to the appellants be maintained. 13. Abbas (PW1) is the real brother of the deceased and he is the only witness who has stated about the motive in the FIR. He was declared hostile at the time of trial as he had not supported the prosecution case. His such behaviour is evident from the documents Ex. DD and DE wherein it is recorded that Khan father of the deceased and Abbas complainant (PW1) had pardon«4 the accused. Thus the motive behind the occurrence does not stand proved. However, the ocular account stands proved from the evidence of Muhammad (PW6) and Sanatta (PW7). Both these witnesses are brothers of the mother of deceased and are also related to the accused. Their father owns land at Chah Daddiwala which is near the place of the occurrence and the murder of Mahmood deceased had taken place in the same field in which they were grazing their sheep while the murder of Muhammad Ishaq deceased took place at some distance from this place. The accused and the deceased have their Dharis at this Chah. There is nothing on the record to show that these witnesses had any enmity or illwill against the accused. Their evidence coupled with the evidence of recoveiy and the medical evidence proves the guilt beyond doubt of all the accused. Keeping in view the applications ubmitted by Abbas (PW1), the complainant and Khan ather of the deceased and also keeping in mind the fact that in the present case the motive has not been proved we are not inclined to confirm the death sentence awarded to the appellants. Hence the Murder Reference No. 375/92 is answered in the EGATIVE and holding all the appellants guilty under Section 302/34 PPC they are sentenced to life imprisonment each on two counts which sentences shall run concurrently and they are also awarded the benefit of Section 382-B Cr.P.C. The sentence of fine and compensation ordered to be paid by each of them on each count by the learned trial Court is maintained. With these observation and modifications the Murder Reference and the appeal are decided accordingly. Appeal decided.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 338 Present: mansoor ALAMGIR QAZI, J. MUHAMMAD AYUB-Appellant versus STATE-Respondent Criminal Appeal No. 104 of 1995, decided on 17.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-C-Murder-Offence of-Conviction for-Challenge to-Appellant an uneducated young man of 19/20 years belonging to tribal area where no loose conduct (illicit relations) of female is tolerated and family honour is relishly guarded-Furthermore, appellant in such age group where tolerance is non-existent and rashness is order of day irrespective of ensuing consequences—If he remains in jail for long term, there is possibility that he comes out as hardened criminal which is not desirable-­ Conviction of appellant u/S. 302-C PPC maintained and sentence is reduced to five years R.I.—Appeal disposed of accordingly. [P. 341] A Mrs. Faiz Muhammad Khan Khosa, Advocate for Appellant. M/s Siddiqa Altaf, Advocate for State. Dates of hearing : 16.7.1997 and 17.7.1997. judgment Muhammad Ayyub aged 19/20 years alongwith one Pari aged 45 years were arraigned for trial before Malik Muhammad Aslam, Additional Sessions Judge, Jampur District, Rajanpur. Vide judgment dated 30.4.1995 the learned trial Court convicted Muhammad Ayyub under Section 302-C PPC and sentenced him to 25 years R.I. and he was also ordered to pay Rs. 50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. and in default of payment thereof to further undergo S.I. for 6 months. He was extended the benefit of Section 382-B Cr.P.C. Pari coaccused was given the benefit of doubt and acquitted vide the same judgment. 2. Feeling aggrieved by his conviction and sentence the appellant preferred the present appeal. 3. Ahmad AH (PW6) father of the deceased Mst. Shameem got recorded his statement (Ex. P-A) at Police Station Dajal at 8.30 A.M. on 12.4.1994 which is at a distance of 12 KMs from Mauza Rakh Azmat Wala. Ex. P-A was reduced into writing by Barkat Ali ASI (PW1). 4. Briefly the facts of the case are that on 11.4.1994 after watering their wheat crop in Mauza Rakh Azmat Wala, Ahmad Ali alongwith his Mui'--hi Rab Nawaz went to the house of the appellant who is his son-in-law. The\ jok their meals there and went to sleep. At about 11.00 P.M. they heard alarm. Pari co-accused was also present at the house of Ayub at that time. Mst. Shameem daughter of the complainant was raising alarm and they saw Pari and Ayub armed with gun and pistol respectively dragging her away. Pari accused raised lalkara that what was he seeing and why had he not taught her a lesson of her illicit relations with Muhammad Bakhsh, whereafter Muhammad Ayub appellant fired two shots with his pistol .12- bore which hit Mst. Shameem on the front of her chest and on the left arm and also on the left side of the chest. Both the accused managed to escape from the spot with their respective weapons towards south. The deceased succumbed to the injuries at the spot. The complainant further said that they did not try to apprehend the accused as they were armed. Because of the night time they remained with the dead body and on the next morning they went to the Police Station where the complainant reported the matter making statement Ex. P-A. 5. On 12.4.1994 the Investigating Officer prepared the injury statement Ex. P-B and inquest report Ex. P-C and despatched the dead body for postmortem examination. Thereafter on the same day blood stained earth was taken from the spot. It was made into a sealed parcel and taken into possession vide memo Ex. P-D which is signed by Muhammad Munshi (PW7), the Investigating Officer (PW1) and Rab Nawaz (given up). On 1.5.1994 the appellant was arrested by Hameedullah Khan S.I./SHO (PW2) and .12-bore pistol (Ex. P-5) was recovered from his possession. It was taken into possession vide recovery memo Ex. P-G which is attested by Muhammad Ali (PW6), the Investigating Officer (PW2) and Rab Nawaz (given up). After completing the investigation the accused were challaned. The prosecution produced 8 witnesses to prove the charge. 6. Dr. Faizullah Khan, Medical Officer, Tehsil Headquarters Hospital, Jampur appeared asa PW3 and stated that on 12.4.1994 he conducted autopsy on the dead body of Mst. Shameem aged 20 years and found the following injuries on her person :— 1. A fire arm wound 5 c.m. c 4 c.m. x going deep on the left side of abdomen 9 c.m. above the umbilicus just left to the midline. The margins of the wound were burnt and black, inverted irregular and torn up (wound of entrance)! 2. Three firearms wounds in an area of 7 x 7 C.M. on the left side of back of chest 1 c.m. x 1 c.m. x going deep each. The margins were everted, irregular (wound of exit of injury No. 1). 3. A fire arm wound in an area of 6% x 5^ c.m. situated 4% c.m. left to the injury No. 1. The wound bears seven multiple holes 1 c.m. x 1 c.m. x going deep each with the inverted and torn up margins (wound of exit). 4. Six fire arm wound in an area of 10 c.m. x 10 c.m. on right side of chest just blow and lateral to the right breast 1 c.m. x 1 c.m. x going deep each with everted irregular and torn up margins (wound of exit). 5. A fire arm wound 10 c.m. x 7 c.m. bone deep on the front and lateral side of left arm just above the elbow joint. The injury caused fracture of the lower end of the humerus Blackening and burning of the wound margins was present. The uterus was bulky and of size of about 4 months gasatation (pregnancy). On dissection a male baby 15 c.m. in length of about 4 months age was found in the gastational sac. In his opinion death occurred due to haemorrhage and shock and injury to vital organ consequent upon injuries No. 1, 3 and 5 which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem and caused by fire arm. Probable duration between the injuries and death was immediate while between death and postmortem examination was 14-18 hours. 6. The appellant when examined under Section 342 Cr.P.C. admitted that Mst. Shameem deceased daughter of the complainant was his wife and that out of the wedlock a girl was also born. He denied that prosecution allegations and instead took up the plea which is reproduced as under :-- "I saw Mst. Shamim deceased in objectionable position with Muhammad Bakhsh son of Haji and murdered her out of Ghayrat. Muhammad Bakhsh succeeded in making good his escape. The complainant and PWs were not present at the spot as well as Pari co-accused. This case has been got registered against me and Pari co-accused due to enmity between the complainant and Pari co-accused as Pari coaccused had cut away the nose of Ahmad Ali complainant." 7. The learned trial Court disbelieved the prosecution version and ccepted the version posed by the accused and thereafter convicted and sentenced the appellant. 8. I have heard the learned counsel for the appellant at length and the record has been perused and scrutinised. Learned counsel for the State has also been heard at length and she has supported the judgment and prayed that conviction and sentence be maintained as awarded by the learned trial Court as it commensurates with the offence committed by the appellant. 9. Neither the State nor the complainant has preferred any appeal or revision challenging the finding of the learned trial Court. The precise question now left to be decided is whether the sentence awarded be maintained or is it a case where the ends of justice would be met by a lesser sentence. The appellant has, however, challenged his conviction and prayed for acquittal through his appeal which I am afraid is not, permissible under the law and is misconceived. The learned counsel has argued this case on the point that it is a case where the indulgence of the Court is required for lesser sentence as the version of the accused had been accepted in totality and the prosecution evidence has been disbelieved. He has placed reliance on a reported case titled All Muhammad us. Ali Muhammad and another (PLD 1996 SC 274) and submits that in the light of dictum of the Supreme Court the appellant is entitled to lesser penalty. 10. I have given my anxious thought to all what has been said and after hearing the parties I am inclined to agree with the submissions made by the learned counsel for the appellant keeping in view the aforesaid dictum laid down by the Supreme Court. I have also considered the aspect from this angle that the appellant is an uneducated young man belonging to a tribe and area where no loose conduct of a female is tolerated and family honour is relishly guarded. Furthermore the appellant is in such an age group where tolerance is non-existence and rashness is the order of the day irrespective of the ensuing consequences. If he remains in jail for a long therm there is a possibility that he comes out as a hardened criminal which is riot desirable. The conviction of the appellant under Section 302-C PPC is maintained. However, the sentence is reduced to five year's R.I. and the sentence awarding payment of compensation is set aside. The benefit of Section 382-B Cr.P.C. is, however, allowed. With these observations and modification the appeal is disposed of. _ (K.K.F.) Appeal partially allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 341 Present: MANSOOR ALAMGIR QAZI, J. TARIQ MASIH-Appellant versus STATE-Respondent Criminal Appeal No. 3 of 1995, accepted on 28.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- ----5. 320-Qatl-i-khata by rash and negligent driving-Offence of-Conviction for--Challenge to-Accused was admittedly not arrested at the spot and Investigating Officer did not hold identification parade to connect accused with crime nor owner of tractor trolly was examined under section 161 Cr.P.C. or cited as P.W. in case who could have disclosed that whether appellant or somebody else was driving tractor on the day of occurrence and accused/appellant was the person in his employment-There is no cogent evidence to connect positively that accused/appellant was responsible of death-Ocular account unbelievable-It was duty of Investigating Officer to have fore-seen and left no gap in his investigation for accused to take advantage-Learned law officer has also inspite of best efforts not been able to bridge this lacuna which is hitting root of case- Held : Appellant is entitled to benefit of doubt-Appeal accepted. [Pp. 343 & 344] A, B, C & D Pir S.A Rashid, Advocate for Appellant. Syed Zulfiqar Ali Bokhari, A.A.G. for State. Dates of hearing : 25.7.1997 & 28.7.1997. judgment Tariq Masih was arraigned for trial in the said case before Ch. Irshad Ahmed Bosal, Judicial Magistrate Section 30, Lahore Cantt. Through judgment dated 4.1.95 the appellant was convicted under Section 320 P.P.C. an sentenced to seven years R.I. It was also directed that he will pay a penalty of Rs. 25,000/- as a portion of Diyat as the accused is a very poor man and if the amount of Diyat is recovered it is to be paid to the legal heirs of the deceased. 2. Feeling aggrieved the appellant has challenged his conviction and sentence vide this appeal. 3. The occurrence took place on 16.10.91 at 10.00 A.M. near Tonga Stand Ganda Nala in the area of Police Station North Cantt at a distance of 1/4 K.M. from the place of occurrence. The statement of Abdul Sattar PW-1 Ex. PA was recorded by Muhammad Aslam ASI (PW-4) at 10.30 A.M. and it was sent to the police station where formal FIR Ex. PA/1 was recorded by Ahmed Din S.I. (not produced) at 10.40 A.M. 4. Briefly the facts of the case are that on 16.10.91 at 10.00 A.M. Abdul Sattar complainant (PW-1) alongwith Asif Javed Butt (PW2) and Tariq Khurshid Butt (PW3) were present near Tonga Stand Ganda Nala when a tractor No. JM/4183 pulling a trolly loaded with the container came from the side of Octroi Post Mughalpura which was being driven in a very rash and negligent manner. A bus tried to overtake the tractor trolly but the tractor driver drove the tractor more rashly as a result of which a pedestrian Haqiqat Ali Khan was crushed under the wheels of the tractor and died at the spot. Leaving the tractor t olly at the spot the tractor driver succeeded in making good his escape. 5. The police prepared inquest report Ex. PD and despatched the dead body for medical examination. The tractor trolly loaded with the ontainer as taken into possession vide memo Ex. PB which is signed by ariq Khurshid, (PW3), Asif Javed (PW2) and Muhammad Aslam ASI (PW4). The accused was arrested on 20.10.91 by Fiaz-ul-Hassan S.I. (PW-5) and after completion of the investigation he was challaned. 6. Out of the 12 witnesses mentioned in the calender of witnesses prosecution opted to produce five witnesses only and closed the case of the rosecution. The accused was examined under Section 342 Cr.P.C. wherein he denied the prosecution case and stated that two months before the present occurrence he had given up the job as tractor driver as he had developed some differences with the owner of the tractor regarding his pay and that on the day of occurrence he was not driving the tractor and that the complainant had falsely involved him in connivance with the owner of the tractor. In proof of his defence he examined Ijaz Hussain as DW-1 who stated that Tariq Masih appellant was in his employment since 20.8.91 and that since 15.10.91 he alongwith Tariq Masih driver were in their village at Shakargarh and that the appellant was driving his Toyota car. 7. Disbelieving the defence evidence the trial court proceeded to convict and sentence the appellant. 8. The learned counsel for the appellant has taken me through the entire evidence recorded at the time of trial and the record of the case has also been perused and scrutinised. The learned Law Officer was called to assist the Court specially as the learned State counsel had come unprepared and without his brief. 9. It has been strenuously argued by the learned counsel for the appellant that admittedly the PWs and the accused were not known to each other prior to the occurrence and that the accused was not apprehended at the spot and that there is no evidence to connect the accused with the present occurrence. Although all the witnesses have supported the prosecution case but still it is to be seen as to how the accused has been wedded with the crime and that the DW has been examined who has proved that the accused was not driving the tractor trolly on the fateful day. The learned Assistant Advocate General was asked to rebut and show as to how the accused has been saddled with the responsibility of the present occurrence. 10. For my satisfaction I have re-examined the entire record from this angle and I find that the accused was admittedly not arrested at the spot and the Investigating Officer did not hold a test identification parade to connect the accused with the crime nor I find that the owner of the tractor trolly was examined under Section 161 Cr.P.C. or cited as PW in the case who could have disclosed that whether the appellant or somebody else was driving the tractor on that day and who was the person in his employment. It is because of this lacuna in the investigation that the accused/appellant has taken advantage and has made a statement that he had left, e employment as tractor trolly driver two months before the occurrence and further that on the fateful day he was driving a Toyota car and was in Shakargarh with Ijaz Hussain DW-1. The learned Law Officer has pointed o\it that Irshad Ahmed the owner of the tractor trolly was examined in course of investigation on 17.10.1991 but his statement under Section 161 Cr.P.C. was not recorded nor he was cited as PW. It is surprising that this case was also investigated by an officer of the rank of S.P. and still it never occurred to any body as to how they were actually going to prove beyond doubt that the accused/appellant was the person responsible for this accident. 11. I have no reasons to disbelieve the statement made by the accused under Section 342 Cr.P.C. and also the statement of Ijaz Hussain DW-1 on oath. Had the prosecution caught the accused at the spot or had the police got held a test identification parade arranged or at least the owner of the tractor trolly driver had been examined in court when it would have been a different matter and the statement of the eye-witnesses would have [been enough to prove culpability of the appellant but in view of the fact that a there is no cogent evidence to connect positively that the accused/appellant I is responsible it is difficult to believe the ocular evidence. This reflects on the competence of the Investigating Agency and it is neither the fault of the complainant party nor the witnesses. It was the duty of the Investigating Officer to have fore-seen and left no gap in his investigation for the accused to take advantage. The learned Law Officer has also inspite of best efforts not been able to bridge this lacuna which is hitting the root of the case. 12. For all that has been stated and discussed above, the appellant is entitled to the benefit of doubt and thus his appeal is accepted. The impugned judgment is set aside and he is acquitted of the charge. He is on bail and his bail bonds stand discharged. (B.T.) Appeal accepted

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 344 Present: ghulam mehmood qureshi, J. -Petitioners versus STATE & another-Respondents Criminal Revision No. 66 of 1997, dismissed on 15.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Offence u/Ss. 16, 10, 11 Offence of Zina (Enforcement of Hadood) Ordinance, 1979 and also u/Ss. 419, 420, 467, 468, 471, 109, 148, 149 PPC-Acquittal of petitioners by trial Court-In appeal before Federal Shariat Court case remanded—Whether acquitted persons could be summoned to face trial on remand of case-Whether High Court could interpret judgment of Federal Shariat Court under Section 561-A Cr.P.C.-Question of-Petitioners/acquitted accused who where neither present before Court nor any appeal had been filed against their acquittal, learned trial court has misconstrued judgment passed by Federal Shariat Court and wrongly issued summons to them- Admittedly, retrial has been ordered in light of judgment of Federal Shariat Court and if petitioners are at all aggrieved they have got remedy to file application before Federal Shariat Court and can seek classification about judgment passed by it-Held : This Court (H.C) has got no urisdiction to interpret or substitute findings recorded by Federal Shariat Court while exercising jurisdiction u/S. 561 Cr.P.C.—Petition dismissed. [P. 346] A Mr. Muhammad Ramzan Khalid, Advocate for Petitioners. Syed Akhtar Hassan Bukhari, Advocate for Complainant. Rana Muhammad Arif, Addl. A.G. for State. Date of hearing : 15.10.1997. order The relevant facts of the case are that one Khan Muhammad filed private complaint against the petitioners and two others for trial U/S 16, 10, 11 Offence of Zina (Enforcement of Hadood) Ordinance 7 of 1979 and also U/S. 419, 420, 467, 468, 471, 109, 148, 149 PPC learned trial Court vide judgment dated 29.10.96 while convicting Mst. Nusrat Mai and Ashiq, acquitted the petitioners. The above referred conviction was appealed before the Federal Shariat Court who vide its judgment dated 22.2.1997 allowed the appeal and set aside the conviction and the case was remanded for retrial. In the light of above said judgment passed by the Honourable Federal Shariat Court, the learned trial court has also summoned the petitioners, earlier acquitted vide its judgment dated 29.10.1996. Hence, this petition. Learned counsel for the petitioner submits that against the acquittal of the petitioner no appeal had been filed, therefore, at present their trial is abuse of the process of the court and merits interference U/S. 561-A of the Cr.P.C. Reliance is placed on PLD 1982 Karachi 567 Pir Jalal Shah vs. The State, 1992 P.Cr.L.J 1273 Muhammad Ishaq vs. State and PLJ 1991 Criminal cases 448 Muhammad Riaz vs. The State. Learned Additional Advocate General has entered appearance on Court's call, has raised the following points :— (i) Under Article 203 DD of the Constitution of Islamic Republic of Pakistan this Court has got no jurisdiction to interfere in the judgment passed by the Federal Shariat Court. (ii) if the petitioners are at all aggrieved by the post remand proceedings initiated against them in the light of the Federal Shariat Court's judgment the remedy from the same Court and the High Court cannot sit upon the judgment passed by the said Court. (iii) That provision u/s 561-A Cr.P.C. are not applicable in the present case and this criminal revision cannot be converted as petition u/s 561-A Cr.P.C. The learned Additional Advocate General in support of his arguments has placed Reliance on P.L.D 1983 F.S.C. 244, 1984 SCMR 129, PLJ 1987 F.S.C. 13 and 1997 SCMR 1136. Mr. Akhtar Hussain Advocate appearing on behalf of the complainant support the arguments advanced by the learned Addl. Advocate General, further submits that the petitioner has got the remedy before the Federal Shariat Court and the present revision petition is not competent. He further submits that no order u/s 561-A Cr.P.C. can be passed against the judgment delivered by the Federal Shariat Court. I have heard the learned counsel for the parties and also the learned Additional Advocate General. It is an admitted fact that the present petition has been filed seeking clarification of the judgment passed by Federal Shariat Court dated 22.2.1997. This Court cannot sit as revisional Court upon the judgment passed by the Federal Shariat Court . The grievance of the petitioner is that since they were acquitted by the trial court and against their acquittal no appeal was filed, only those accused who were convicted through the judgment dated 29.10.1996, filed an appeal before the Federal Shariat Court and while accepting the appeal the learned Court has been pleased to remand the case for retrial. The petitioners, acquitted accused who were neither present before the Court nor any appeal had been filed against their acquittal, learned trial Court has misconstrued the judgment passed by Federal Shariat Court and have wrongly issued the summons to them. Admittedly the retrial has been ordered in the light of judgment of the Federal Shariat Court and if the petitioners are at all aggrieved they have got the remedy to file an application before the same Court and can seek clarification about the judgment passed by it. This Court has got no jurisdiction to interpret or substitute the findings recorded by the Federal Shariat Court . I am also of the view that this Court cannot^ interfere while exercising jurisdiction u/s 561 Cr.P.C. as the matter relates to the interpretation of the judgment passed by the Federal Shariat Court so the petitioners can seek their remedy before the same forum if so advised. This petition has no forced and the same is dismissed. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 346 Present: ghulam mehmood qureshi, J. KALSOOM BIBI-Petitioner versus MUHAMMAD ASHRAF & another-Respondents Criminal Misc. No. 578/H-97, accepted on 10.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491-Guardian and Wards Act (VIII of 1890), S. 25-Habeas Corpus petition-Recovery of minors from custody of father-Provisions of Section 491 Cr.P.C. do not run counter to provisions of section 25 of Guardian and Wards Act and grant of refusal of custody of minors to applicant under Section 491 Cr.P.C. is always temporary and shall subject to elaborate decision by Guardian Court-Respondent No. 1 is at liberty to approach appropriate forum as it is only Guardian Court, who is competent to probe in depth on basis of evidence of parties and to decide about welfare of minors-Held : Till such time custody of three minor daughters shall remain with petitioner, mother-Petition accepted. [P. 348] A 1988 SCMR 1891, 1989 P.Cr.L.J. 1689. Ch. Muhammad Siddique Safdar, Advocate for Petitioner. Rana Muhammad Asif Saeed, Advocate for Respondents. Date of hearing : 10.11.1997. order The petitioner, Mst. Kalsoom Bibi has moved this petition under Section 491 of Cr.P.C. for recovery and production of three minor daughters namely Mst. Ghulshan Bano aged 8 years, Mst. Sumera aged 6 years and Mst. Bushra aged 3 years from illegal and improper custody of respondent No. 1, their father, so that they would be dealt with according to law, 2. Brief facts leading to the filing of this petition are that the petitioner filed a suit for dissolution of her marriage, which was decreed on 5.5.1997 in favour of petitioner by Judge Family Court, Khanewal. The suit for maintenance of minors aforementioned was also filed by the petitioner, which is still pending in the Court of Judge Family Court, Mian Channun. After the decree of suit for dissolution of marriage, respondent No. 1, forcibly took away the minors from the house of petitioner. Hence this petition. 3. The learned counsel for petitioner submits that the minor daughters were residing with the petitioner, who had also instituted a suit for maintenance against respondent No. 1, which is still pending in the Court of Judge Family Court, Mian Channun. In order to avoid the maintenance respondent No. 1. forcibly took away the three minor aughters in a most illegal and unlawful manner and this Court has got jurisdiction under Section 491 Cr.P.C. to counter the illegal removal of the minors. He also submits that keeping in view the tender age of the girls and their sex it is also n the welfare of the minors that their custody be handed over to the petitioner. 4. The learned counsel for respondent on the other hand argued hat father being natural guardian of the three minor daughters is entitled to retain their ustody under the Muslim Law. He further submits that the father is an earning hand whereas the petitioner is resoxirceless lady and under these ircumstances if their custody is allowed to the petitioner this will definitely affect the welfare of the minors. The learned counsel further submits that a suit for custody was filed by respondent No. 1 before Judge Family Court, but during pendency of the suit the petitioner handed over the minors to him, so in view of that respondent No. 1 did not pursue his case before the Judge Family Court, which was dismissed for non-prosecution and the story that respondent No. 1 has removed the minors from the custody of petitioner is concocted. The learned counsel for respondent has further submitted that the provisions contained under Section 491 Cr.P.C. are not attracted to the facts of this case and if at all the petitioner is interested in the custody of minors she can file application under Section 25 of the Guardian & Wards Act 1925. 5. I have heard the learned counsel for parties at some length and have also perused the record. While deciding about the interim custody of the minors, the sole consideration is welfare of the minors, keeping in view their welfare, it can certainly be handed over to the mother in exercise of jurisdiction vested in this Court under Section 491 Cr.P.C. In the case Muhammad Javed vs. Umrao (1988 S.C.M.R. 1891), it has been observed by Hon'ble Supreme Court that the question of interim custody of minors shall be determined while keeping in view their welfare and their custody can certainly be handed over to the mother in exercise of powers under Section 491 Cr.P.C. The principle laid down in the said case has also been adopted by a Division Bench of this Court in Mashir Hussain's case (1989 P.Cr.L.J. 1689). The contention of learned counsel for respondent No. 1 that the proceedings before Judge Family Court under Section 25 of the Guardian & Wards Act are better than the proceeding under Section 491 Cr.P.C., in my opinion, is totally devoid of force. The two proceedings are independent to meet different situations. Forcible removal of minors by respondent No. 1 from the custody of their mother cannot be protected. It is also evident the record that respondent No. 1 instituted as application before Guardian Judge for obtaining the custody of minors, but ultimately the same was got dismissed in default for the reasons best known to him. Thereafter, he adopted illegal method and forcibly took away the children just to save himself from proceeding being taken by the Court of competent jurisdiction for maintenance of the minors. This action on the part of respondent No. 1 is not legally justified, which warrant immediate action and provisions of Section 491 Cr.P.C. can be pressed into service ffir grant of quick and speedy relief to the aggrieved person within a shortest possible time. In my view the provisions of Section 491 Cr.P.C. do not run counter to the provisions of Section 25 of the Guardian & Wards Act and the grant of refusal of custody of minors to the applicant under Section 491 Cr.P.C. is always "temporary and shall subject to elaborate decision by the Guardian Court. Respondent No. 1 is at liberty to approach the appropriate forum as it is only Guardian Court , who is competent to probe in depth on the basis of evidence of parties and to decide about the welfare of minors. Till such time custody of the three minor daughters shall remain with the petitioner, mother. This petition suc­ ceeds and is allowed with no order as to costs. The petitioner has voluntarily agreed to allow respondent No. 1 to see minors from 8.00 A.M. to 4.00 P.M. on every Saturday in the house of Mr. Shahid Hameed Khattak, Advocate. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 358 Present: SHEIKH LUTFUR REHMAN, J. IMAM DIN-Appellant versus STATE-Respondent Criminal A.S.C (Tribunals) No. 1 of 1997, decided on 1.10.1997. (i) Medical Report-- —Medical Report-- Seminal grouping-Status-Whether without semen grouping conviction can be passed-Question of-'Seminal grouping' is not reliable and fool proof test—It is in fact exculpatory in nature than a positive proof to establish identity of accused in rape case, while more sure test DNA finger printing is not done in Pakistan-Held : Evidentiary value of Seminal grouping is merely corroborative of substantial evidence and it alone cannot be made basis of conviction of accused. [P. 365] B (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —-S. 10(3)--Pakistan Penal Code (XLV of 1860), S. 392 & 411-Appreciation of evidence-FIR was recorded on same night and allegations of Zina-bil- Jabr and decoity were clearly made in it-Ms?. R complainant, clearly deposed about commission of Zina-bil-Jabr turn by turn, by all three accused persons with her-There is nothing on record to show that prosecutrix or her husband had any enmity or ill-will against accused persons and that PWs had any reason to falsely involve-Statement of prosecutrix is fully corroborated by medical evidence as well as evidence of recoveries-Very fact that hue and cry attracted neighbours coupled with presence of semen on her private parts and 'shalwar' and ultimate recovery of looted cash/articles leave no room for doubt about occurrence— In absence of any enmity between parties, statement of prosecutrix supported by medical evidence and positive report of chemical examiner is more than sufficient to establish allegations of rape-Held : Prosecution has proved its case beyond any reasonable doubt against all three persons-Accused are youthful offenders, sentence of 14 years R.I. reduced to 10 years' R.I—Appeal partly accepted. [Pp. 362, 366, 367 & 368] A, C, D, E, F, G & H 1989 SCMR 1927, 1989 SCMR 1914, PLD 1989 FSC 77. Ch. Akhtar Shabbir, Advocate for Appellant. Mr. Shabbir Ahmad Afghani, A.A.G. for State. Dates of hearing : 30.9.1997 and 1.10.1997. judgment On 26.1.1996, at 8.00 p.m., while Mst. Rifat Parveen alongwith her children was sleeping in her house situated in Chak. No. 45/Fateh, Chishtian, three persons with muffled faces and armed with pistols and dagger entered the house, gagged her mouth and committed zina-bil-jabr with her, one after the other. During the scuffle she identified them as Muhammad Ismail, Ghulam Hussain and Imam Din accused persons. While leaving the house, they took away her belongings, including ornaments, cash of Rs. 5400/- and T.V. Set etc. Her husband, who was then away from the house, also reached and saw the accused leaving the house. Ghulam Muhammad and Allah Ditta P.Ws. also saw the accused when they were leaving the house after commission of offence. 2. Mst. Rifat Parveen on 27.1.1996, got recorded her statement Exh. P.O., on the basis of which formal F.I.R. No. 20/96, Exh. P.D/2 was registered at Police Station Saddar, Chishtian, under Section 10(3) of The Offence of Zina (Enforc .-2nt of Hudood) Ordinance, 1979 (VII of 1979) read with sections 392/411 P.P.C. In pursuance of the said F.I.R. all the three above-mentioned accused were arrested, tried and finally convicted and sentenced on 19.9.1997 by the Special Judge, Special Court, Anti-Terrorism, Bahawalpur Division, Bahawalpur, as under :— (i) Each of the accused convicted under section 10(3) of The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced to 14 years' R.I. and to whipping numbering 30 stripes. (ii) Each of the accused convicted under section 392 P.P.C. and sentenced to 10 years' R.I. and to a fine of Rs. 20,000/- and in case of default thereof to further imprisonment for one year RI. (iii) Each of the accused convicted under section 411 P.P.C. and sentenced to 3 years' R.I. All the sentences were made to run concurrently. The accused were given benefit of section 382-B Cr.P.C. 3. Imam Din accused through Crl. A.S.C. (Tribunals) No. 1 of 1997 and Muhammad Ismail and Ghulam Hussain accused through Crl. A.S.C. (Tribunals) No. 2 of 1997 challenged their convictions and sentences. Through this judgment both the said appeals are being disposed of. 4. The learned counsel for the appellants submitted that the prosecution had failed to prove its case beyond a reasonable doubt. In this regard he pointed out the weaknesses in the prosecution case as follows :-- (i) that the F.I.R. was recorded after un-explained delay of six hours, (ii) that Ghulam Muhammad was a hence witness being not a neighbour of the victim, (iii) that the husband (Munir Ahmad) and the son (Kashif Munir) of the complainant were not produced although witnesses of the occurrence, and (iv) that the recoveries in this case were doubtful being effected from the same place but on different dates. 5. The above contentions when examined in the light of the evidence available on record proved to be without any merits. The distance between the place of occurrence and the police station is 6 K.M, It is a night time occurrence. The nature of the offence i.e. gang rape and dacoity, is such that a considerable time is required by the victim to come out of the shock and to gather her senses. It should not be expected in such a case that the victim would immediately run to lodge a complaint with the police. On learning about occurrence of such type the neighbours and villagers gather on the spot and much of time is consumed in narrating the events to them. Hence, in fact, there is no delay in lodging the F.I.R., which could justify the presumption that the F.I.R. was recorded after meditation and contained a concocted story. Even no such suggestion was given to Mst. Rifat Parveen (complainant), when she appeared as P.W. 2 Ghulam Muhammad (P.W.3) is not at all a chance witness as he is resident of the same liability. He also gave a plausible reason for his present at the time of occurrence. He deposed as P.W. 3 that he was going to his tubewell from the Chak and he was attracted to the place of occurrence (house of Munir) by the hue and ciy raised by Mst. Rifat Parveen. The apex Court in the case of Muhammad Ahmad versus The State and others (1997 S.C.M.R. 89) held as follows :-- ........ "the presence of passerby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactoiy explanation of their presence at or near the spot at the relevant time, " The presence of Ghulam Muhammad P.W. 3 is clearly recorded in the F.I.R. and in no way he can be termed as a chance witness. 6. In the above-mentioned case, the Supreme Court also held as under :-- "Law is also fairly well-settled that the prosecution is not required to examine every eye-witness of a crime. Refer 1978 SCMR 136. That being so, the learned Courts were right is not drawing adverse inference against the prosecution for not examining Arshad P.W " Munir Ahmad was mentioned in the calendar of witnesses. He was given-up being un-necessaiy, while Kashif Munir being a child was not mentioned as a witness. Their non-examination as witnesses has no adverse effect on the prosecution case as it is the right of the prosecution to decide about the evidence to be produced during the trial. 7. The accused were arrested on 27.1.1996 and recoveries of the allegedly looted cash and articles were effected from them on 3.2.1996, while the arms were recovered on 7.2.1996. The learned A.A.G. rightly submitted that the recoveries were effected as and when the accused persons disclosed about them. He submitted that if those were to be planted upon the accused, the recoveries could have been made on the same day. The human mind and his nature differs from person to person. Different persons acted and react differently in different circumstances. It is not necessary that an accused or all the accused give in during investigation and disclose every-thing at one ime. Some times it does happen, but mostly the accused make disclosures in pieces according to their nurves and tolerance to the uestioning pressure of the Investigating Officer. So, this is no reason to consider the recoveries as fake, particularly, when Khan Muhammad (D,JV.l) admitted that "Gathri" (containing stolen articles) was handed over to him by Imam Din accused. 8. It was next contended on behalf of the accused that solitary statement of victim was not sufficient to warrant conviction under section 10(3,) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Reliance was placed on the case of Muhammad Maroof versus The .State (NLR 1994 S.D. 419). A perusal of this ruling shows that the solitary statement of the victim was found insufficient when the prosecution story was also found to be too absurd to deserve any credit. The learned A.A.G., on the other hand, contended that even a truthful and confidence inspiring solitary statement of the prosecutrix was sufficient for the conviction of the accused, The submitted that in a case of rape or gang-rape the presence of persons actually witnessing the happening was not practicable. He relied upon the following cases to support his contention :-- (1) Mst. Nasreen versus Fayyaz Khan and another (P.L.D. 1991 S.C. 412), (2) Muhammad and others versus The State (1984 S.C.M.R. 954)and (3) Abdul Hameed Versus The State (1988 SCMR 1772). In the absence of any enmity between the parties, the statement of the prosecutrix supported by medical evidence and the positive report of the Chemical Examiner is more than sufficient to establish allegations of rape. In the case of R iaz-ul-Haq and others versus The State (1989 S.C.M.R. 1927) the following are the observations of the Shariat Appellate Bench :-- This concludes the matter. 9. The learned counsel for the appellants then referred to the statement of Lady Doctor Shaista Khalida (P.W.4) to show that no marks of violence /were present over the body or private parts of the complainant and there was simply trendness on right cheek and right side of neck. He submitted that the version of the complainant that she was tied to a cot and inter-course was forcibly committed was not borne out from the medical evidence. The learned counsel failed to note that the said witness clearly stated that the examinee was subjected to sexual inter-course. In crossexamination, she categorically stated that she was of the firm view that the examinee was subjected to sexual inter-course. It is very relevant to mention here that as per reports of the Chemical Examiner (Exh. P.E./l) both the vaginal swabs and the 'shalwar' of Mst. Rifat Parveen were found to be stained with semen. 10. Dr. Abdul Ghaffar as P.W.I proved his reports Exhs. P.A., P.B. and P.C. and deposed that all the three accused persons were found capable of performing sexual inter-course. He was not cross-examined at all and thus the defence did not dispute this fact. 11. In the context of medical evidence, the learned counsel for the appellants submitted that as the vaginal swabs of the victim were not sent to the Serologist for semen grouping, the report of the Chemical Examiner had no evidentiary value in this regard. He placed reliance on the case of Abid Javed alias Mithu Versus The State (1996 P.Cr.L.J. 1161), wherein the relevant portion reads as follows :- "It is unfortunate that the prosecution in such cases does not obtain semen of the culprit for semen grouping and for matching it with the semen found on the swabs. The semen on the swabs even if is sent to the Serologist for semen grouping and report is obtained the same is not produced in Court. The semen found on vaginal swabs loses evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swabs by the Serologist. In cases of Zina the prosecution will be well-advised to obtain the semen of the accused and have it analysed by Serologist for matching with the semen found on the swabs. This Court even earlier in the case of Mst. Ehsan Begum v. The State PLD 1983 FSC 204 emphasized on the Investigating Officers and Medical Officers the importance of obtaining material evidence by having matched the semen of the alleged culprit with the semen found on the vaginal swabs". 11, Admittedly, the vaginal swabs were not sent to the Serologist for semen grouping and for matching it with the semen found on the swabs and 'shalwar' of the victim. The semen of the culprits were never obtained. When confronted with this proposition, the learned A.A.G. submitted that in the presence of direct, truthful and confidence inspiring evidence available regarding the commission of offence through the mouth of the victim, the non performance of the semen grouping test had no damaging effect on the prosecution case. He further submitted that in all the cases referred supra, the Supreme Court maintained the conviction without asking for such a test. 12, The learned A.A.G. referred to a recent case of Muhammad Nawaz versus The State (1997 P.Cr.L.J, 893) to show that the statement of prosecutrix corroborated by independent ocular testimony and medical evidence in the shape of positive Chemical Examiner's report about the vaginal swabs of the prosecutrix was found sufficient for the conviction of the accused. He submitted that even earlier this view was held by a Division Bench of Federal Shariat Court in the case of Muhammad Amir Khan versus The State (N.L.R. 1992 S.D. 705). 13, It has been very aptly said "rape is an allegation and can easily made-hard to prove and harder to disprove". No doubt the offence of rape is a brutal, dirtying, demoralising assault on a woman. Forensic medicine is defined as 'the medical speciality which applies the principles and practice of medicine to the elucidation of questions in judicial proceedings'. In the Parikh's Textbook of Medical Jurisprudence and Toxicology (Third Edition) in the Chapter of Forensic Science Laboratories and Crimes Detection under the Sub Head Biology-Serology it is observed as follows :-- "Typing (whether human or otherwise) and grouping (for individualization) of stains and examination of hair to link the accused with the crime of violence like murder, assault, rape, form the main plank of biological evidence. The identification of blood on the basis of peroxidase activity of haemoglobin, that of semen generally on the basis of acid phosphatase and strong inhibition thereof I-tartarate, morphological characterization of human sperm etc. immunological typing of stains for human origin or otherwise, the ABO and other grouping of stains and modern developments in the techniques thereof concern this Division. Recent advances in respect of individualization of stains by grouping on the basis of immunological and biochemical (enzymatic etc) systems also come within its purview". "As in the case of blood the preliminary examination of the Seminal stains is done by the State Chemical Examiner, while the determination of source and grouping is carried out by many forensic science laboratories " 14. The constituents of the semen form the basis for forensic tests for seminal stains. The object of taking specimens for the laboratory in cases of alleged sexual assault is threefold :— 1. to obtain confirmation of the allegations ; 2. to attempt to establish a link between the victim and the scene; 3. to attempt to establish a link between the victim and the assailant. 15. The sample of blood for grouping is taken as the blood group will be unchanged whatever the time interval and will still be relevant for comparison with any blood stains, seminal swabs et» found during the examination of the victim, victim's clothes or scene. 16. In Butterworths Medico-legal Encyclopaedia while dealing with seminal stains it is observed (at page 503) as under :— "Human semen contains large amounts of A.B. or H substances in those who are secretors and this property can be used towards personal identification of the donor. However, since only the ABQ blood group system can be tested, it is likely that a given specimen will be identified no more accurately than to the extent that it could have been donated by approximately 40 per cent of the male population-as a consequence, the findings have greatest usefulness in excluding a suspect". 16. The most reliable test of this modern age is "DNA finger­ printing". In Forensic Pathology by Bernard Knight under the heading Identification by DNA Characteristics, the following observations are very important :- "One of the most revolutionary advances in identification in recent years is the so-called 'DNA finger-printing'. This is a technique devised by Alec Jeffreys of Leicester University, in which virtually unique sequences of bases in the DNA strands of chromosomes are used to compare one blood or tissue sample with another and to investigate genetic relationships. The details of the technique are complex and require highly specialised reagents and apparatus. The method needs highly trained forensic scientists for its application to medicolegal problems". "Seminal fluid in the vagina of a victim of a murder-rape can be matched against the blood DNA pattern of a suspect-there is no need to match semen against semen, as all the DNA in a given person must, by definition, be identical". "In sexual crime cases, a great advantage of DNA testing over conventional blood-group secretor tests is that DNA can distinguish between mixed semen and vaginal fluides from a swab, which can confuse or negate blood group techniques". 17. Unfortunately the DNA finger printing, which is more reliable test in identifying the culprits/accused, is not being done in Pakistan. This is probably the test which an American lady asked a Pakistani politician to undergo the determine the paternity of her child. 18. The outcome of the entire forensic science advances considered above is that the 'seminal grouping' is not a reliable and fool proof test. It is, in fact, exculpatory in nature than a positive proof to establish the identity of an accused in a rape case, while more sure test DNA finger printing is not done in Pakistan. The evidentiary value of the seminal grouping is merely corroborative of substantial evidence and it alone cannot be made basis of conviction of an accused. Hence, the non performance of such a test is not at all damaging or fatal to the prosecution case. In fact, it is too much and too early to ask for such an evidence i.e. seminal grouping, in this country, which does not have necessary pathological backup, experienced, conscientious and scrupulous investigating officers and trained and dutiful medical personnels. 19. It was vehemently contended on behalf of the accused that they had been falsely involved in the case at the instance of husband of the complainant and one Saleem Jat. Imam Din accused in his statement recorded under Section 342 Cr.P.C. in this regard stated as under :--"Due to enmity and party-faction this case has been made against us at the instance of one Saleem Jat. The P.Ws. are interested witnesses". Muhammad Ismail and Ghulam Hussain accused also stated similarly. Khan Muhammad was examined in defence as D.W. 1.He stated that he heard alarm and was attracted to the spot at about 9/10 P.M. where the complainant told her that Imam Din had committed theft in her house. Then he went to the 'bathak' of Ghulam Hussain, where Imam Din gave him the 'Gathri', which was allegedly handed-over to him by the complainant for onward delivery to her mother at Faisalabad before reaching her husband. The witness then stated that he delivered the 'Gathri' to the complainant there and then. He also stated that the complainant did not level any allegation of zina-bil-jabr at that time and the allegations of zina and dacoity were levelled after five days at the instance of one Saleema Jatti, a woman of ill-repute. The statement of this witness, in fact, negates the entire defence. According to the accused persons, the case was fabricated at the instance of Saleem Jat, whereas according to this D.W. the allegations of zina and dacoity were levelled after five days at the instance of Saleema Jatti, a lady. Admittedly, the F.I.R. was recorded on the same night and the allegations of zina-bil-jabr and dacoity were clearly made in it. D.W. 1 claimed to have appeared before the Investigating Officer and still could not know about these allegations for five days. He admitted to be challaned in two murder cases and having appeared in defence in various Courts many times. He also admitted the present accused being his voters. He is not at all a reliable person. Similarly, no reliance can be placed on the statement of Muhammad Akbar (D.W.2), who is a resident of a place at a distance of two squares away from the house of the complainant. He also did not appear in defence of the accused before the Investigating Officer. He did not know even the names of the accused except that of Muhammad Ismail. What weight can be attached to the statement of a person appearing in defence of the accused, but not even knowing them. As a matter of fact, he supported the prosecution in a way when he admitted that 30/35 persons had gathered at the place of occurrence before his reaching there. It shows that there was lot of hue and cry because of grave nature of the offence, which attracted so many persons, and it was not at all a false and concocted story. As far as the defence plea is concerned, it is sufficient to «say that no suggestion was given to the complainant (P.W.2) that Imam Din accused lived in her house and so on. Ghulam Muhammad (P.W.3) was only suggested that he had made the statement due to friendship with Munir. Just friendship, even if admitted, is no reason to discard the truthful statement of a witness. The record shows that it was the Investigating Officer (P.W.7) who was suggested for the first time that Imam Din accused used to live with the complainant and the residents of the 'Basti' had objected to his living there. He was also suggested, contrary to the plea of the accused persons contained in their statements under section 342 Cr.P.C., that on the day of occurrence Imam Din came to the house of the complainant on her invitation. On behalf of the accused it was suggested to the said P.W. that Imam Din was apprehended by the inhabitants of the 'BastV alongwith stolen articles and that the accused were roped in this false case on the dictation of Saleem Jat. These suggestions amount to frank admission on the part of the defence that fmam Din accused had been in the house of the complainant and that he was apprehended alongwith stolen articles. The defence plea is obviously false, concocted and after-thought and is, therefore, rejected. 20. At this stage, I would like to examine briefly the facts constituting the commission of offence as alleged in the complaint Exh. P.O. (formal F.I.R. Exh. P.D./2) in the light of the evidence produced during the trial. Mst. Rifat Parveen complainant (P.W.2) clearly deposed about the commission of zina-bil-jabr, turn by turn, by all the three accused persons with her. She stated that after 8.00 P.M. on the fateful night the accused persons entered her house, took her in the other room, tied her with cot and forcibly committed zina with her. Thereafter, the accused escaped with the loot. Ghulam Muhammad (P.W.3) saw the accused leaving the house of the complainant after commission of offence and he also witnessed the recoveries of looted articles and cash and weapons of offence effected separately at the instance of each of the accused. Muhammad Sarwar, Inspector, as P.W. 7 proved the recoveries effected on the disclosures made by the accused. There is nothing on the record to show that the prosecutrix or her husband had any enmity or ill-will against the accused persons or that the P.Ws. had any reason to falsely involve the accused in this case. In fact, the defence admitted the occurrence although in a different manner. The accused Imam Din in his statement made under section 342 Cr.P.C. admitted having gone to the house of the complainant, while his witness Khan Muhammad (D.W.I) admitted that the said accused gave her a 'Gathri' when he had asked him about the theft committed in the house of the complainant. The statement of the prosecutrix as P.W.2 is fully corroborated by the medical evidence as well as the evidence of the recoveries. The very fact that a hue and cry attracted the neighbours coupled with the presence of semens on her private parts and 'shalwar' and ultimate recoveiy of looted cash/articles leaves no room for doubt about the occurrence. Hence, I hold that the prosecution has proved its case beyond any reasonable doubt against all the three accused persons. 21. The learned counsel lastly prayed for the reduction in the sentences awarded to the accused on the ground of their age. While placing reliance upon the cases of Mst. Imrana Bibi versus Khalid Hussain and others (1989 S.C.M.R. 1914) and Burhan versus The State (P.L.D. 1989 F.S.C. 77), it was submitted that as all the accused were around 20 years of age and as they had no previous history of conviction or criminal activity, they deserved leniency in the matter of sentence. 22. In the cases cited in the preceding para the sentence of 10 years R.I. with whipping awarded to the rapists was found sufficient in view of their young age. 23. The period of age between 12 to 20 years is very sensitive and crucial in brining up and grooming of a child. This age of adolescence is known as period of juvenility and puerility and if not properly taken care of the child may go astray and grow up as a criminal. Parents must not leave their wards to be on their own and they must keep a vigilant eye on their ctivities and engagements. Most of the children/juveniles are not given the attention, time and affection which is most essential at this time of age. The children then feel lonely and depressed and ultimately swayed by the bad company. Had the parents of these accused taken due caro of them and had they watched their daily routine carefully, neither they (parents) nor the accused would have faced this fate. It is not the accused who alone have suffered for their misdeeds, but the entire family will have to bear the pain and humiliation brought by the act of their children. This unfortunate and catastrophic event has ruined many families, on one hand the three families of the accused, who have suffered for their negligence, intentional or un­ intentional, in watching the movements of the accused, and on the other the family of the victim which suffered for rest of the life because of the fault of the parents of the accused. It is high time that the parents (and also the teachers) should realize their responsibility and duty in brining up the children to ensure a better and a crime free society necessary for a prosperous Pakistan and for establishment of a society based upon Islamic teachings. 24. The accused are youthful offenders and there is nothing on record that they have any previous criminal history. The sentence of 14 years R.I. awarded under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is, therefore, reduced to 10 years R.I., while all other remaining sentences are maintained. 25. In view of the above discussion, both the appeals are partly accepted and the sentences of 14 years R.I. awarded to all the three appellants under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are reduced to 10 years R.I. each, while their convictions and all the remaining sentences are maintained. (B.T.) Appeals partly accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 368 (DB) Present: KHALiL-UR-REHMAN ramday & mansoor alamgir qazi, JJ. MATI ULLAH etc.-Appellants versus STATE-Respondent Criminal Appeal No. 1242 of 1988, decided on 28.7.1997. (i) Motive- —Motive is double edged weapon-It is an incentive for accused to commit an offence as well as an opportunity for complainant to implicate their opponents—Motive alone is not sufficient to sustain conviction. [Pp. 375 & 376] A & B (ii) Pakistan Penal Code, 1860 (V of 1860)-- —-302/34-Conviction and sentence-Plea of Self defence-Khuda Yar appellant has taken plea of self defence and stated that he received injury on his thigh-It would not be loud thinking if it is presumed that this injury could be self suffered injury as appellant did not get himself medically examined on date of occurrence from District Headquarter Hospital but instead opted himself to be examined at primary Health Centre-His .12 bore gun being unlicenced was found wedded with crime empties by report of Forensic Science Laboratory, Lahore and that deceased carries .12 bore weapon injury while APW carries pellet injury- Thus his complicity with offence cannot be ruled out-Held : Conviction u/s 302 and u/s 307 PPC is maintained, but death sentence is not confirmed-Instead it is converted to imprisonment for life-Appeal against acquittal and revision petition devoid of force and dismissed and appeals of appellants partially accepted. [Pp. 376 & 377] C, D, E & F Raja Muhammad Anwar, Advocate assisted by M/s Irfan Ahmad Saeed and Ahmad Hassan Khan, Advocates for Appellants. Syed Alt Raza, Advocate for State. Sardar Khurram LatifKhosa, Advocate for Complainant. Date of hearing : 28.7.1997. judgment Mansoor Alamgir Qazi, J.-Matiullah 29 years and Kluida Yar 36 years appellants were arraigned for trial alongwith Muhammad Ajmal, Muhammad Akram, Muhammad Ashraf, Sher Dil sons of Atta Muhammad, Samiullah son of Attaullah, Muhammad Akram son of Khan Muhammad, Muhammad Asad son of Abdul Rehman and Zafar Khan son of Muhammad Abdullah before Ch. Ehsan-ul-Haq, Judge, Punjab Special Court for Speedy Trials No. 8, Sargodha (constituted under Act XV of 1987). Through judgment dated 11.12.1988, the learned trial Court convicted Matiullah and Khuda Yar appellants under Section 302/34 PPC and sentenced them to death each and a fine of Rs. 30,000/- each for the murder of Sanaullah deceased. In default of payment of said fine to further undergo R.I. for 5 years. Under Section 307/34 PPC for making murderous assault on Aziz Khan iPWll) both the appellants were sentenced to 4 years R.I. each and a fine of Rs. 10.000/- each, in default of payment of fine to further undergo R.I. for one year each. They were also convicted under Section 440/34 PPC and sentenced to one year R.I. each and a fine of Rs. 2000/- each and in default of payment of fine of fh-rther undergo R.I. for 2 months. It was further ordered that out of the fine, if recovered Rs. 40,000/- shall be paid to the legal heirs of Sanaullah deceased, Rs. 5000/- shall be paid to Aziz Khan (PW11) and Rs. 2,000/- to Muhammad Feroze (PW10) as compensation under Section 544-A Cr.P.C. The remaining accused were acquitted of the charges by giving them the benefit of doubt. Sher Dil accused was an absconder and was tired in absentia. He too was acquitted of the charges. Both the appellants were however, acquitted for the murder of Haji Abdul Aziz Khan alongwith other co-accused. Muhammad Arif accused was found innocent and was recommended to be discharged by the investigating officer on 26.4.1987 and he was discharged by the Magistrate on the said recommendation. 2. Feeling aggrieved, the appellants have challenged their conviction and sentences through Criminal Appeal No. 1242/88 while the State feeling aggrieved over the acquittal of the appellants for the murder of Haji Abdul Aziz and the acquittal of the remaining accused have preferred criminal appeal against acquittal No. 1243 of 1988. The complainant has filed criminal revision No. 713/88 praying for the enhancement of compensation and the fine awarded to the appellant and also prayed for convicting the acquitted respondents-accused. All these matters will be heard and decided through this judgment. 3. The present occurrence took place on 25.2.1987 at 2.30 P.M. in the area of Grain Market Liaquat Abad situated at a distance of 1^ furlong from Police Station Piplan, Distract Mianwali. Statement of Muhammad Feroze complainant (PW10) vide Ex. P-P was recorded at the Police Station on the said day at 3.30 P.M. by Allah Yar (PW13). 4. The motive set in the FIR Ex. P-P is that three days prior to the occurrence Mutiullah appellant etc. had beaten Muhammad Iqbal Peracha an Arrhti and the complainant helping said Muhammad Iqbal had got registered a case under Section 506/342/148/149 PPG against Mutiullah appellant etc. It is further stated that about two years prior to this occurrence Aziz Khan etc. who are the first cousins of Sanaullah deceased had caused injuries to Mutiullah appellant whereupon a case against. Aziz Khan etc. was registered under Section 307 PPC and in that case the accused Aziz Khan etc. had been acquitted. It is in this background that the accused made a concerted attack in prosecution of the common object of the said unlawful assembly and committed the murder of Sanaullah and Haji Abdul Aziz and caused injuries to Aziz Khan (PW11). 5. Briefly the facts as narrated by the complainant are that he has a shop of Arrhat as well as a shop for selling arms ammunition. On 25.2.1987 at 2.30 P.M. he (PWlO), Sanaullah deceased, Aziz Khan (PWll), Sher Bahadur (PW12), Falak Sher PW (not produced) and Abdul Rehman PW (not produced) were sitting in front of his shop in the Grain Market on cots placed on the terrace infront of his shop. All the accused alongwith one Arif and Sher Dil proclaimed offender armed with fire-arms came from the Gate of the Grain Market. Sher Dil (P.O.) raised a lalkara and fired at Sanaullah deceased hitting him on the front of his chest. Sanaullah deceased fell down. The complainant took shelter in his arms and ammunition shop whilfthe rest of the PWs took shelter in the Arrhat shop of the complainant Both the shops adjoin each other. It is stated that all the accused started firing Towards them and he in self defence fired at them. Mutiullah appellant and Ajmal accused took their position near the shop of Muhammad Hanif while some accused went to the Chaubara of Malik Akhtar and the other accused took places near the wall of shop of Malik Akhtar. The firing between the parties continued for about 30 minutes. The firing resorted by the accused hit on the door, windows and walls of the shop of the complainant. The accused were requested by persons from the Grain Market to restrain from firing, whereupon they did so and left the place of occurrence alongwith their weapons. Thereafter, the complainant came out of his shop and saw Sanaullah deceased had succumbed to the injuries while Aziz Khan (PW11) was injured. The glass-panes of the complainant's shop were broken into pieces. Muhammad Yousaf PW (not produced) approached the complainant and told the complainant that his father Haji Abdul Aziz had received a pellet shot at the hands of Mutiullah accused and as a result thereof died in his shop. Leaving the PWs with the dead bodies, the complainant left for the police station to lodge the report. 6. Allah Yar Sub Inspector (PW13) after recording the FIR arrived at the spot and prepared injury statement Ex. P-X and inquest report Ex. P- Y in respect of dead body of Sanaullah deceased. Injury statement Ex. P-Z and inquest report Ex. P-AA was prepared in respect of dead body of Haji Abdul Aziz and both the dead bodies were sent for postmortem examination under the escort of Ameer Abdullah F.C. (PWS). Blood stained sand and cement was collected from the place where the dead body of Haji Abdul Aziz was lying. It was made into a sealed parcel and taken into possession vide recovery memo Ex. P-Q. Two crime empties (Ex. P-9/1-2) of .12 bore were taken into possession from the place where Sher Dil accused is stated to have fired at Sanaullah deceased. They were made into a sealed parcel and taken into possession vide memo (Ex. P-R). He took into possession 20 .12 bore empties (Ex. P-10/1-20) scattered infront of the eastern shops in the area of Ghalla Mandi vide memo (Ex. P-S). Three empties of VMM bore (Ex. P-ll/1- 31 where taken into possession from the place where Mutiullah appellant is stated to have fired at Haji Abdul Aziz. They were made into a sealed parcel and taken into possession vide memo Ex. P-T. In course of spot inspection he took out 11 pellets which were embedded in the wall of the Arrhat shop of the complainant vide recoveiy memo Ex. P-U. Broken glass pieces from the shop of the complainant were taken into possession vide recoveiy memo Ex. P-\ Sixty photographs of the place of occurrence were prepared and taken into possession vide memo Ex. P-DD. These recoveries were attested by Allah Yar (PVV13), Sher Bahadur and Falak Sher (given up). 7. All the accused named in the FIR were avoiding arrest, and appearance before the police. As such the investigating officer on 21.3.1987 moved an application before the Court for issuance of non-bailable warrants. This application is Ex. P-EE. The warrant of Mutiullah appellant Ex. P-L/1 was issued on 21.3.1987 and Abdul Rehman (PW9) has reported vide report Ex. PM/1 dated 28.3.1987 that the accused was not traceable. The proclamation of Mutiullah (Ex. PO/1) was issued on 29.3.1987. Similarly the warrant of Khuda Yar appellant (Ex. P-L/8) was issued on 21.3.1987 and Abdul Rehman (PW9) vide report Ex. PM/8 stated that the accused was not traceable. This report is dated 28.3.1987. Proclamation against Khuda Yar accused was issued on 29.3.1987 which is Ex. PO/8. However both the appellants appeared within the stipulated time on 13.4.1987 and courted arrest. Similarly the other acquitted accused also appeared before the police on 13.4.1987 within the stipulated time. They were produced by Mushtaq Ahmad Khan before Malik Sher Muhammad Inspector CIA Mianwali (PW14). 8. On 13.4.1987 Khuda Yar appellant produced one .12 bore gun Ex. P-14. It was unlicenced. It was made into a sealed parcel and taken into possession vide recovery memo Ex. P-FF. On the same day Mutiullah appellant produced 7MM rifle Ex. P-22 and its licence Ex. P-23. It was made into a sealed parcel and taken into possession vide memo Ex. P-MM. Similarly, the acquitted accused Zafar produced 7 MM rifle Ex. P-15. Asad accused produced .12 bore gun Ex. P-16, Muhammad Akmal produced 7 MM rifle Ex. P-17, Muhammad Ajmal produced .12 bore gun Ex. P-18 and licence Ex. P-19. Akram produced .12 bore gun Ex. P-20 and its licence Ex. P-21. Sher Dil produced 7 MM rifle Ex. P-24 and its licence Ex. P-25. All these weapons were taken into possession and made into a sealed parcel and were secured vide memo. Ex. P-GG, P-HH, P-JJ, P-KK, P-LL, and P-NN, respectively. All these recoveries were attested by Faiz Muhammad Sub Inspector (not produced) and Muhammad Akram ASI (not produced) and Sher Muhammad Inspector (PW14). On 25.4.1987 Samiullah accused, while in custody of police, led to the recovery of unlicenced .12 bore gun Ex. P-26 from his house. It was taken into possession vide recovery memo Ex. P-OO. This recovery memo was attested by Malik Sher Muhammad Inspector CIA (PW14) and Muhammad Akram ASI and Gul Khan Constable (not produced). Two crime empties of .12-bore, three crime empties of 7 MM were only sent to the Forensic Science Laboratory on 4.3.1987 through Ameer Abdullah Khan Constable (PW5) while the weapons were sent to the Forensic Science Laboratory on 4.5.1987 through Atta Muhammad Constable (PW8). Vide report Ex. PSS of the Forensic Science Laboratory crime empties Ex. C-l and Ex. C-2 were wedded with the .12 bore gun Ex. P- 14 recovered from Khuda Yar appellant while the remaining weapons did not wed. The three 7MM crime empties did not wed with the weapons recovered from the accused. The blood stained earth was found stained with blood vide report Ex. P-QQ of the Chemical Examiner and vide report of the Serologist (Ex. P-RR) the said blood was human. After completion of the investigation the accused were challaned and sent up for trial. The prosecution produced 14 witnesses to prove the charge. 9. Dr. Mumtaz Khan, Medical Officer, District Headquarters Hospital Mianwali appeared as PW2 and stated that on 26.2.1987 at 9.00 A.M. he medically examined Aziz Khan aged 24 years and found the following injuries on his person :— 1. An entrance wound of firearm ^ cm x ^ cm, over the left cheek 3 cm below the eye and 5 cm from ear. 2. A Bruise over the left leg, on outer side ^ cm x ^ cm, 5 CM, below the knee. Both the injuries were kept under observation and vide report Ex.-PP and Ex. P-C/1 they were declared to be simple. Injury No. 1 was by firearm while injury No. 2 was with blunt weapon. On the same day at 10.00 A.M. he performed autopsy on the dead body of Sanaullah deceased aged 25 years and found the following injury on his person :-- 1. A firearm wound of entry % CM round, margin showed no balckening or burning on the front of chest 1 CM from mid line and 10 CM of left nipple. 6 CM below the inner end of left clevical. In his opinion death was due to haemorrhage and shock as a result of the said injury which was caused by firearm and was antemortem and sufficient to cause death in the ordinary course of nature. A distorted pellet was recovered from the dead body. The time between the injury and death was immediate while that between death and postmortem was 18 to 24 hours. On the same day at 11.30 AM he performed autopsy on the dead body of Haji Abdul Aziz aged 52 years and found the following injuries on his person 1. An entry wound of firearm 2 cm x 1 cm on the back of right side of chest. 3 C.M. from mid line and 5 CM. from lower end of scupla. 2. Corresponding wound of exit 3^ cm x 2 cm over the front of chest in the base of involving the sternum. In his opinion the death was due to internal haemorrhage and shock caused by injury Nos. 1 and 2 which were due to firearm. Both the injuries were antemortem and were sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate while that between death and postmortem was 18 to 24 hours. 10. Mutiullah appellant was examined under Section 342 Cr.P.C. and stated that Samiullah co-accused was his brother and the other co-accused were not related to him. He pleaded that he has been involved because of enmity and party faction and is innocent. Khuda Yar appellant was examined under Section 342 Cr.P.C. and he denied his relationship with Mutiullah co-accused. He has stated that he had fired two shots in his self defence and the crime empties Ex. P-9/1-2 were left by him at the spot. He has made a detailed statement which is reproduced as under :-- "On 25.2.1987 at about 12.00 Noon, I alongwith Ramzan Dhapal were proceeding to the shop of Muti Ullah accused when Abdur Rehman PW alongwith Sana Ullah deceased and 10/11 other persons armed with fire-arm were present at the shop of Malik Feroze Khan but he himself was not there. Sanaullah deceased abused us and fired at us. I sustained injury on my thigh. I and Ramzan Dhabal in self defence fired at them. No other accused was person there nor the other eye witnesses were present. During the firing some persons fired from the shop of Muhammad Iqbal. I took refuge behind the wall of the Gate and the firing continued till the police reached there and dissuaded the complainant party not to fire at us. I was also medically examined". In his defence he has produced Dr. Safdar Khan as DW1 who has stated that on 28.2.1988 he at 10.35 A.M. medically examined Khuda Yar appellant and found the following injuries on his person :-- 1. A partially healed oval shape lacerated wound 0.5 cm x 0.5 cm in diameter on the inner side of left thigh, 12 cm above the medical condyle of femer. There was sinking of hair in the wound. It was a wound of entrance and was septic. 2. A partially healed lacerated wound 1 cm x 0.5 cm in diameter, oblonge in shape over the inner side of medical surface of left thigh. 6 C.M. above and front of injury No. 1. 10 CM above the medial condyle of femer. There was tenderness between injury No. 1 and injury No. 2, which proved communication between both the injuries. On pulpation nothing was palpable between the two injuries. It was found of exit and it was also septic. In his opinion both the injuries were simple caused within the duration of four days. 11. With the assistance of learned counsel for the appellant we have gone through the entire evidence and the record of the case has been perused and scrutinised and the arguments of the parties have been heard at length. Similarly learned counsel in Crl. Appeal No. 1243-88 and Criminal Revision No. 713/88 have also been heard at length. 12. It is in evidence that Muhammad Ajmal, Muhammad Akmal, Muhammad Ashraf and Sher Dil are real brothers inter se while utiullah and Samiullah are real brothers. Muhammad Aslam is son of the sister of Sher Dil accused. Zafar accused is cousin of Mutiullah while Akram accused is son of cousin of Mutiullah accused and that Khuda Yar is a friend of Mutiullah accused. However, in his statement under Section 342 Cr.P.C. Khuda Yar has denied that he is a friend of Mutiullah, while Matiullah has admitted to the extent that Samiullah is his brother and has denied his relationship with his co-accused. On the other hand it is admitted that Falak Sher PW is the paternal uncle of Aziz Khan (PW) Abdul Rehman (PW) is tenant of the complainant. Sher Bahadur (PW) is uncle of Aziz Khan (PW) and that Sanaullah deceased is the cousin of Aziz Khan (PW). Aziz Khan (PW) is also politically allied with the complainant, and is his close friend. Hqji Abdul Aziz is father of Yousaf PW (not produced) and is not related to the complainant. It is also an admitted fact that father of the complainant was elected as MPA twice. He remained Chairman of the District, Council Mianwali and that Sher Dil and other accused related to him had opposed father of the complainant in the election of the District Council and the Provincial Assembly and that they were deadly opposed as political rivals. It is also an admitted fact that family of the complainant, is financially well off, they are landlords of the area, politically well connected and that they have two lawyers in the family and some persons in the family are holding posts of Sessions Judges in the judiciary. It is also admitted that after the occurrence father of the complainant, and his cousin Malik Zulfiqar Ali, Advocate arrived at the place of occurrence and that his father had asked the Sub Inspector to record the FIR. Thus it is evident that the FIR was recorded after due deliberations. It is also admitted that there is criminal litigation between the parties and that, on the day of occurrence Mutiullah and Khuda Yar were on pre-arrest bail in the case wherein they had assaulted Muhammad Iqbal Arrhti. It is admitted by the complainant that he was feeling aggrieved after this act and conduct of the accused/appellant. It is also admitted fact that the complainant owns 2 shops at the place of occurrence. One in which he was conducting the Arrhat business and one in which he sells arms and ammunition and it is also an admitted fact that he took protection in his arms and ammunition shop and resorted to firing with a .12 bore short-gun and the police did not bother to take that gun or the crime empties into possession. It is also case of the complainant that his father had launched a complaint with the higher authorities that the police had detained the accused persons in the police station for about one and a half month and was not showing their arrest. It has also been admitted by PW 13 that he did not ask the complainant to produce his gun with which he had fired nor could he give any reason for not making twenty empties (Ex. P-10/1-20) into a sealed parcel and for not sending them to the Forensic Science Laboratory. It is also the case of the prosecution that all the accused fired at, the complainant party indiscriminately and the complainant also in retaliation fired shot. The natural analysis from this evidence on record flows that on the day of occurrence there was a pitched cross-firing between the parties and naturally the FIR was recorded after due- deliberations and considerations against the persons whom the complainant wanted to be involved but that does not necessarily mean that all innocent persons had been involved. Som chaff has been sifted from the grain by the learned trial Court and the benefit of acquittal by way of doubt has beea extended while in light of the present evidence it is our duty to assess the evidence against the present two appellants. 13. No doubt that motive is a double edged weapon. It is an incentive for the accused to commit an offence as well as an opportunity for the complainant to implicate such persons. This is so true in the case of Matiullah appellant wherein the complainant party had a strong motive to implicate Matiullah in the present occurrence as in the recent occurrence of a Iqbal Arrhati he had been allowed pre-arrest bail and the complainant party could not digest his so moving about after having beaten Iqbal Arrhti. Be that as it may, motive alone is not sufficient to sustain conviction. In absence of other incriminating evidence it would be difficult for us to say that Matiullah appellant has been rightly held guilty by the learned trial Court. His 7 MM rifle Ex. P-22 was sent for comparison test to the Forensic Science Laboratory but the three 7 MM crime empties Ex. P-ll/1-3 were not found wedded with this rifle. Furthermore, the injury on the person of Sanaullah deceased for which he stands convicted does not appear to be an injury with 7 MM bullet because a distorted pellet was recovered from the body of the '"jsaid deceased. Khuda Yar appellant whose gun has been wedded with the i crime empties Ex. P-A/1-2 are of .12 bore weapon and thus the case of I Matiullah is distinguishable and does not appear to have been proved beyond 'reasonable doubt and the natural consequence which flows from this discussion and observations is that the impugned conviction and sentence of Matiullah on all the charges is set aside. He is given the benefit of doubt and acquitted of all the charges. His rifle (Ex. P-22) and licence (Ex. P-23) shall be returned to him as and when he applies for their possession. He shall be set at liberty forthwith if not required to be detained in any other case. 14. As far as the case against Khuda Yar appellant is concerned, he has taken the plea of self defence and stated that he received an injury on his thigh. Having gone through the medical report proved by DW1 we feel perturbed in accepting this injury to have been caused by the fire of the complainant side. The reason being that the entry and the exit wound are almost at the same level and has not touched the thigh bone and is just passing through the soft tissue. It would not be loud thinking if it is presumed that this injury could be a self suffered injury as the appellant did not get himself medically examined on 25.2.1987, the date of occurrence, from the District Headquarters Hospital Mianwali but instead opted himself o be examined at Primary Health Centre Kundian on 28.2.1987. Further­ more, keeping in view the seat of the injury and the fact that the place where the accused was is at a considerable place where the complainant Darty was and they were facing each other, this injury could not be caused n the manner alleged. Even if it is presumed to be a fire-arm injury and not a self suffered then keeping in view the seat of the injury there is i possibility that the accused appellant may have received this injury from ;he firing of one of his party men and thus the accused is taking advantage and made a specific statement regarding his involvement in the occurrence. Be that as it may, his .12 bore gun (Ex. P-14) being unlicenced was found^ wedded with the crime empties (Ex. P-9/1-2) by the report of the Forensic Science Laboratory, Lahore and that Sanaullah (deceased) carries a .12 bore weapon injury while Aziz Khan (PW) also carries a pellet injury. Thus his complicity with the offence cannot be ruled out and thus conviction under Section 302. PPC and under Section 307 PPC is maintained but the death sentence awarded to him is NOT confirmed. Instead it is converted to imprisonment for life. His sentence under Section 307 PPC as awarded by the learned trial Court is maintained. The sentence of fine awarded to Khuda Yar appellant under Sections 302 and 307 PPC is also maintained and the punishment in default of payment shall also be undergone as ordered by the learned trial Court. However, if the fine is recovered, the entire amount of recovered fine shall be paid to the heirs of Sanaullah deceased. Both the sentences of imprisonment shall run concurrently and he is extended the benefit of Section 382-B Cr.P.C. So far as conviction under Section 440 PPC is concerned, the said conviction and sentence awarded to him under the impugned judgment is set aside and he is acquitted of the charge under Section 440 PPC. 15. The appeal against acquittal and the revision petition being devoid of force are dismissed, accordingly. With these observations and F modifications the appeals and the revision petition are decided accordingly. (AAJS) Appeals and revision petition decided as above.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 377 (DB) Present : MUHAMMAD NASEEM CHAUDHRI & SH. ABDUR RAZZAQ, JJ. MOHSIN ATTA-Appellant versus STATE-Respondent Criminal Appeal No. 903 of 1992, accepted on 22.12.1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 103-West Pakistan Arms Ordinance (XX of 1965), S. 13--Conviction and sentence-Appreciation of evidence-Programme in matter of raid was chalked much earlier and there was sufficient time with police to associate some respectable persons of village or surrounding area for purpose of compliance of mandatory provisions of S. 103 Cr.P.C-Since raid/recoveiy was planned well in advance, it was duty of prosecution to make out why witnesses of public were not associated inspite of the fact that Registrar Supreme Court of Pakistan issued a letter dated 20.8.1990 to all four Provincial Inspector Generals of Police that in criminal cases reasons should be assigned for non-association of public witnesses- Proecution has miserably failed to prove allegations levelled and charge framed against appellant as no public witness was associated and no reason was assigned for non-compliance of section 103 Cr.P.C.--Held : Recovery of Kalashinkov from house of appellant is false and concocted- Appeal accepted and appellant acquitted. [Pp. 383, 385 & 386] C, D & F (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 46 and Chapter V-Constitution of Pakistan (1973) Art. 14-Search of house without search warrants-Effect-Without search warrants, Police could not enter house of a person otherwise it will presumed as a case of transgression of authority on the part of Police-Art. 14 of Constitution of Pakistan, 1973 provides that dignity of man and subject to law, privacy of home shall be invoidable-Held : Proceedings in such matters not only are violative of law same offend legal ethics; moral and human rights. [Pp. 382 & 383] A & B Cli. AsifRanjha. Advocate for Appellant. Mr. Masood Sacliq Mirza, Advocate for State. Date of hearing : 22.12.1997. judgment Muhammad Naseem Chaudhri, J.-This appeal is directed against, judgment dated 5.10.1992 passed by Ch. Zahoor Hussain, Judge, Special Court, Suppression of Terrorists Activities, Gujranwala Division, Gujranwala whereby he convicted and sentenced Mohsin Atta appellant son of Ch. Atta Ullah, Caste Jat Warraich, resident, of Chauranwali, District Gujnu to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 20,000/- or in defaxilt ot its payment to further undergo R.I. for a period of six months under section 13 of the Arms Ordinance, 1965. 2. The facts giving rise to this appeal are narrated in complaint Exh. PB sent by Umar Farooq Bhatti, DSP Phalia, District Gujrat (PW-2) to the SHO Police Station Parianwali on the basis of which Ghalib Hussain Moharrir ASI of the said Thana (PW-3) prepared formal FIR Exh. PB/1. It is narrated in Exh. PB that he (complainant PW-2) in the company of Mr. Khadim Hussain Bhatti ASP Kharian Circle District Gujrat PW-1, Mr. Kamal-ud-Din ASP (under training) Syed Zawar Hussain Shah DSP Mandi Baha-ud-Din, Abdul Hamid Kiyani DSP City Gujrat, Syed Shabbir Hussain Shah Inspector CIA Gujrat, Syed Riaz Ali Shah Inspector/SHO Police Station Parianwali PW-7, Tahir Mahmood SI, Mazhar Hussain Shah SI, Ghulam Haider SI, CIA Gujrat and Abdur Rasool ASI/Reader to DSP Mandi Baha-ud-Din alongwith 40 Constables were present in Mauza Chauranwali in connection with the investigation of crime case No. 185 registered at Police Station Parianwali on 10.5.1990 under section 216 Pakistan Penal Code. They entered the residential house of Mohsin Atta appellant and went to his bed-room. Umar Farooq Bhatti DSP PW-2 took into possession kalashinkov P-l with two magazines P-2/1-2 containing 140 rounds P-3/140, 9.22 bore rifle P-4, two magazines P-5/1-2, 25 rounds P-6/1-25 and rifle G-III bore P-7 and 285 rounds P-8/1-285 vide memo Exh. P-A attested by Mr. Khadim Hussain Bhatti ASP PW-1 as well as Syed Zawar Hussain Shah DSP, Mr. Kamal Din ASP (under training) and Abdul Majeed DSP (all three not produced). He prepared site-plan Exh. PC of the place of recovery. Riaz Hussain Shah SHO Police Station Parianwali PW-7 submitted application Exh. PW-7/A to the Ilaqa Magistrate and obtained warrant Exh. PW-4/A which he handed over to Muhammad Anaa Constable PW-4 to effect the arrest of Mohsin Atta appellant who had become an absconder. Exh. PW- 4/B was the proclamation and a copy of the same was pasted on the door of the Court at Phalia. The report of Muhammad Anaa Constable PW-4 is Exh. PW-4/C and Exh. PW-4/D. Muhammad Nawaz ASI PW-6 arrested Mohsin Atta appellant on 25.9.1991 and sent him to the Judicial lock up on 26.9.1991. Muhammad Hanif Naseem Fire Arms Expert Forensic Science Laboratory, Lahore (PW-5) examined Kalashinkove P-l in the Court on 26.7.1992 and gave his opinion that the same was automatic rifle of 7.62 MM bore commonly known as Kalashinkove. Muhammad Nawaz DSP PW-8 investigated the case and recorded the version of Mohsin Atta appellant. A brother in law of the appellant produced before the said DSP the affidavits of some persons about the innocence of the appellant, some licences of the fire arms in the names of the accused, photostat of the visa of the accvised and the record of Pilot Hotel Rawalpindi showing his presence there on the day of alleged recovery. Before him it was pleaded on behalf of the appellant that he had left for London on 11.5.1990. After completing the investigation the SHO submitted the challan before the trial Court. 3. Mohsin Atta appellant was charged under section 13 of the Arms Ordinance. 1965 who pleaded not guilty thereto. At the trial the aforesaid witnesses stood in the witness box and supported the prosecution case. When examined under section 342 of the Code of Criminal Procedure the appellant termed the alleged recovery of unlicensed kalashinkove P-l as false who did not own the same. He took up the plea that he was not present in the village on 10.5.1990 who had gone to Peshawar on 8.5.1990 from where he arrived at Rawalpindi on 10.5.1990, purchased the dollars, stayed in Pilot Hotel Rawalpindi and left for London on 11.5.1990. He took up the plea that one Ch. Faiz Muhammad was his political adversary in the area and due to his influence he was falsely involved in this case without any legal justification. He took up the stand that rifle 30.06 bore was owned by his brother-in-law Haji Muhammad Tabrez who was its licence-holder and he had arrived in his house. He expressed that .22 bore rifle was his licensed rifle. 4. Akhtar Hussain Jaffari DW-1 is a cousin and brother-in-law of Mohsin Atta appellant who stated that he intimated the Superintendent of Police Gujrat that Mohsin Atta was involved in a false case who had gone to London. Haji Muhammad Tabrez DW-2 is the brother of the wife of Mohsin Atta appellant who stated that he came to the house of Mohsin Atta who had left on 8.5.1990 at 8.00 a.m. to go to abroad and that in his absence the police raided his house who also took way his licensed rifle. Irshad Ullah DW-3 stated that he visited the house of Mohsin Atta on 10.5.1990 when the police took away to rifles from his house and went away. Muhammad Ashraf retired ASI DW-4 claimed that he also partly investigated this case and visited Pilot Hotel Rawalpindi where he checked the record about the stay of Mohsin Atta appellant. Muhammad Yaqoob DW-5, a Sub-Manager in Grindlays Bank Rawalpindi, stated that on 10.5.1990 Mohsin Atta accused received 200 dollars from the Bank. Shabbir Ahmad DW-6 is the Manager of Pilot Hotel Rawalpindi who stated that Mohsin Atta booked the Hotel for 24 hours at 2.00 p.m. on 10.5.1990. Atta Ullah DW-7 is the father of Mohsin Atta appellant who stated that Mohsin Atta lived in village Chauranwala alongwith his family members, that there were eight rooms on the first floor, that his son Mohsin Atta had left for Peshawar to enquire about the health of an ailing relative on 8.5.1990 and that on 10.5.1990 he was not present in the house when the police raided the same. The appellant produced different documents Exh. DC to Exh. DW-20/2, the photostats of different documents out of which Exh. DC is a photostat of FIR No. 185 registered on 10.5.1990 at 8.20 p.m. under section 216 PPC at Police Station Parianwali, District Gujrat on the ground that one Sikandar, fugitive of law, involved in criminal case No. 86/89 under section 302 Pakistan Penal Code registered at Police Station Parianwali was seen, having his dinner, by Umar Farooq.3hat.ti DSP and police party when both the aforesaid Sikandar and Mohsin Atta appellant) fled away on a mare on seeing the police party. It is proper to express that the aforesaid police officers mentioned in this judgment pertaining to FIR No. 186 dated 10.5.1990 registered at Police Station Parianwali are also mentioned as the persons present at the time of the aforesaid raid, after which aforesaid FIR No. 185 dated 10.5.1990 was registered. 5. After hearing the parties the trial Court gave the weight to the raid of the police, recovery of unlicensed kalashinkove P-l, statements of the recovery-witnesses and the alleged abscondence of the appellant. onsequently the appellant was convicted as narrated above. He has preferred this appeal which has been resisted by the State. 6. We have heard the learned counsel for the appellant as well as the learned State Counsel and gone through the record before us. The contentions of the learned counsel for the appellant are that fake and false roceedings were conducted, that FIR No. 185 dated 10.5.1990 was registered at Police Station Parianwali at 8.20 p.m. under section 216 Pakistan Penal Code which was said to be under investigation when the alleged recovery of Kalshinkov P-l was effected regarding which the complaint was sent at 8.00 p.m. He clarified that the complaint about the recovery of Kalashinkove P-l could not be sent at 8.00 p.m. when the earlier FIR was registered at 8.20 p.m. under section 216 Pakistan Penal Code. He maintained that no search warrant was obtained and it is a case of transgression of authority on the part of the police officers. According to him Mohsin Atta appellant had left the village on 8.5.1990 for Peshawar who went to Rawalpindi on 10.5.1990 and his presence in the house alongwith Sikandar, fugitive of law, mentioned in FIR No. 185 of 1990 (copy Exh. DC) could not be expected. He pointed out that it is a case of political victimization at the instance of Ch. Faiz Muhammad adversary in the political field especially when about 50 police officers/officials participated while illegally entering the house of the appellant. On the contrary learned Counsel for the State laid the emphasis that the police was justified to enter the house of Mohsin Atta appellant on 10.5.1990 without any search warrant as he was found alongwith one Sikandar, fugitive of law, of crime case No. 86/89 registered at Police Station Parianwali under section 302 Pakistan Penal Code. He maintained that the police officers are as good witnesses as the persons from the public and that the conviction against the appellant has rightly been recorded. We are of the view that the reasoning adopted by the learned counsel for the appellant has to prevail. Legally under section 54 of the Code of Criminal Procedure an accused involved in cognizable offence can be arrested by the police without warrant. If any fugitive of law is in a house the police is empowered under sections 47/48 of the Code of Criminal Procedure to enter the house with the reservation that the females area to be provided the opportunity to retire from the place keeping in view their prestige and honour. It is important to note that about the initial raid to arrest Sikandar absconding accused of crime case No. 86/89 registered under section 302 Pakistan Penal Code at Police Station Parianwali from the Dera of Mohsin Atta, there is nothing in the statements of Khadim Hussain Bhatti ASP PW-1 and Umar Farooq DSP (Complainant) PW-2. In the instant matter entiy in the Dera of Mohsin Atta appellant was allegedly made on 10.5.1990 before 7.30 p.m. on the basis of secret information about the presence of one Sikandar absconding accused of the aforesaid FIR 86/89. However, no copy of the said FIR No. 86/89 was adduced in evidence by the prosecution to justify the said stand/contention of the police. Without that it cannot be held that free legal hand was available to the police to enter the Dera of Mohsin Atta appellant. Mere writing in the matter in FIR No. 185 dated 10.5.1990 registered under section 216 is not enough to enable the police officers to enter the Dera of Mohsin Atta appellant which even otherwise has been claimed to be owned by his father Atta Ullah DW-7. It is pertinent to mention that from the Dera of Mohsin Atta appellant situated in Chauranwali after the alleged completion of the proceedings about the arrest of Sikandar absconding accused and preparation of complaint, the relevant complaint was sent at 7.30 p.m. to the SHO Police Station Parianwali which was at a distance of 6 miles from the said Dera. The entiy of this complaint was made on 10.5.1990 at 8.20 p.m. in the daily diary at report No. 29 of the said 'Thana'. Thereafter FIR No. 185 (copy Exh. DC) was formally prepared which keeping in view the recitals must have consumed at atleast half an hour. At the foot of the said FIR No. 185 it is mentioned that a copy was being sent to DSP Phalia. Keeping in view the distance of 6 miles between Police Station Parianwali and village Chauranwali it cannot be expected that copy of FIR No. 185 reached Parianwali before 8.00 p.m. It is not in the record that the number of FIR recorded under section 216 and mentioned at No. 185 was intimated by the Thana Clerk to Umar Farooq Bhatti DSP in the Dera/house of Mohsin Atta appellant on wireless. In this view of th« matter it is simply surprising that in complaint Exh. PB of the instant criminal case it is mentioned that it was during the investigation of crime case No. 185 registered at Police Station Parianwali under section 216 Pakistan Penal Code that the raid was effected and unlicensed kalahsinkove P-1.was recovered. In this regard complaint Exh. PB of this case is referred to wherein it is narrated that the same was prepared before 8.00 p.m. and was sent at 8.00 p.m. to the SHO Police Station Parianwali for the registration of the formal FIR. It is proper to repeat that if previous complaint was entered in the daily diary of Thana at 8.20 p.m. and thereafter FIR No. 185 dated 10.5.1990 was prepared how it was possible to send the complaint Exh. PB at 8.00 p.m. after recovery of unlicensed kalashinkove P-1 and thereafter the complaint sent at, 8.00 p.m. was entered in daily diary of Thana at 8.55 p.m. on the basis of which formal FIR Exh. PB/1 was prepared. The aforesaid analysis and dissection of the matter is enough to establish that the proceedings conducted by the police officers in the instant FIR No. 186 dated 10.5.1995 are false which were based on false complaint Exh. PB. 7. In the complaint exaggeration has been made about the alleged recovery of many illicit weapons (arms) while during the trial only kalashinkove P-1 was asserted to be without licence. Thus the initial stand of the appellant that his and that of his brother-in-law's licensed rifles were also taken into possession by the police is correct and rather this fact has also been determined by the trial Court in his favour. 8. It was admitted by Umar Farooq Bhatti DSP DW-2 that no search warrant was obtained to raid the house of Mohsin Atta. It was already been dissected and held that due to the non-production of the evidence regarding the raid on the house of Mohsin Atta for the arrest of Sikandar absconding accused the said fact has not been proved. As such without the search warrant the police could not enter the house of Mohsin Atta appellant and it was a case of transgression of authority on the part of the police as has become usual in the province of the Punjab for the last about two decades ignoring the fact that the Article 14 of the Constitution of Islamic Republic of Pakistan, 1973 provides that the dignity of man and, subject to law, the privacy of home, shall be inviolable. The important aspect of the matter is that, Mohsin Atta appellant was not the accused of any case before the entry of the police in his Dera and in his house including his bed-room. It shall not be out of place to express that Atta Ullah DW-7, father of Mohsin Atta appellant, has claimed to be owner of the house with whom the appellant lived as his son in the joint family. In such a state of affairs there was no justification on the part of the police to enter the Dera as well as the house of Mohsin Atta appellant without search warrant. This aspect of the matter in enough to make me hold that all the proceedings in the matter not only are violative of law the same offend the legal ethics; moral and human rights. 9- It is in the statements of Khadim Hussain Bhatti ASP PW-1 and Umar Farooq Bhatti DSP PW-2 that the raiding party was arranged in Gujrat in the office of the Superintendent of Police, Gujrat at noon when all the police contingent was present which raided the house of the appellant. It is also in their statements that about 50 police officers/officials took part at the time of the raid. The recovery memo Exh. PA was prepared by Umar Farooq Bhatti complainant PW-2 and attested by Khadim Hussain Bhatti PW-1 as well as three other superior police officers, not produced during the trial. Since programme in the matter of raid was chalked much earlier at noon time and the raid was effected thereafter at 8.00 p.m. there was sufficient time with the police to associate some respectable persons of village Chauranwali or the surrounding area for the purpose of the compliance of the mandatory provisions of section 103 Code of Criminal Procedure according to which the occupant of the place/house could also be asked to attend which fact in the matter is missing even thought the females and the servants of the house were present when the police entered the house of the appellant. Since the raid/recovery was planned well in advance it was the duty of the prosecution to make out as to why the witnesses of the public were not associated. In this view of the matter at this stage I have to express that the Registrar, Supreme Court of Pakistan, Rawalpindi addressed a letter dated 20.8.1990 to the respective Inspector General of Police, Punjab, Sindh, NWFP and Baluchistan, a coy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in toto as under :-- "J. B. 32-R(S)/88-SCJ" SUPREME COURT OF PAKISTAN RAWALPINDI AUGUST 20, 1990. From The Registrar, Supreme Court of Pakistan, Rawalpindi. To (1) The Inspector General of Police, Punjab, Lahore. (2) The Inspector-General of Police, Sindh, Karachi. (3) The Inspector-General of Police, NWFP, Peshawar. (4) The Inspector-General of Police, Baluchistan, Quetta. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned. 2. The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence. 3. It is requested that the above orders of this Court should be brought to all concerned for strict compliance. Sd/- (M.A. LATIF) Lahore High Court, Lahore. No. 17712-Genl/l-G. Dated Lahore the 20th Dec. 1990. From The Registrar, Lahore High Court, Lahore. To All the District and Sessions Judges in the Province of Punjab. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. I am directed to forward herewith a copy of letter No. J.P. 32-R(S)/88-SCJ, dated 20.8.1990 received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for information and strict compliance by all concerned. Your obedient, servant, Sd/- Deputy Registrar (Admn.) for Registrar. Endst : No. 17713 Genl/l-G, dated Lahore the 20th December, 1990. A copy is forwarded for information to :-- The Registrar, Supreme Court of Pakistan Rawalpindi, with reference to his letter No. J.P. 332 R(S)/88-SCJ, dated 20.8.1990. Scl/- Deputy Registrar (Admn.) for Registrar. 10. The aforesaid directions issued by the Registrar, Supreme Court of Pakistan have to be complied with by all the Police Officers of all the ranks and same cannot be ignored thereof. We have to express that this Court is also bound to follow the instructions mentioned in the aforesaid letter dated 20.8.1990. If the directions contained in the aforesaid letter are not complied with, the recovery of the instant nature need not be given the legal weight and legally the accused involved in the matter shall derive the legal benefit. There being no plausible explanation in not associating the witnesses of the recovery from public available at the time of the alleged recovery and even no effort having been made, it is enough to make out that the alleged recovery of kalaskhinkove from the house of Mohsin Atta appellant is false and concocted. 11. The plea of Mohsin Atta appellant' is that he was not present when the police entered the bed-room of the house. There is no evidence on record that the appellant was present with Sikandar absconder who tied away and that even thereafter he was present in his house. In the statements of The PWs the presence of Mohsin Atta appellant in the house is not narrated. Thus the statements of the DWs that Mohsin Atta appellant left Chaummvali on 8.5.1990 is not disputed who, as expressed above, was not present in his house at the time of the raid when kalashinkove P-l was recovered. it would be proper to repeat that his departure alongwith Sikandar absconding accused of the murder case has not been established by The prosecution. The statements of the DWs about, his arrival in Peshawar and then in Rawalpindi where he purchased the dollars and stayed in Pilot Hotel are thus entitled to due weight and this aspect of the matter has also inade us to hold that the case of the prosecution is false. 12. No doubt during the course of his statement on 25.7.1992 Umar Farooq Bhatti DSP complainant PW-2 stated that he was prepared to make a special oath on the Holy Book that his statement was truthful; yet this aspect of the matter is of no help to the prosecution against Mohsin Atta appellant-convict as according to section 163 of the Qanoon-e-Shahadat Order, 1984 the acceptance or denial of an assertion on oath does not apply to laws/offences relating to the enforcement of Hudood or other criminal cases. No presumption in favour of the prosecution in this regard can he drawn and this aspect of the matter has no legal force against the appellant. 13. According to Mohsin Atta appellant due to political differences with one Ch. Fiaz Muhammad he was falsely involved in this case. He has made his detailed statement when examined under section 342 of the Code of Criminal Procedure. In view of what has heen expressed and held ahove and the fact that about 50 police officers/officials are said tohave raided his house the aforesaid assertion has the factual weight. Without search warrant the police could not enter his house as well as his bed room at 8.00 p.m. _ Thus it is a case of transgression of authority as well as violation of law and human rights. This plea of the appellant cannot be brushed-aside as required and desired by the learned State Counsel. 14. The disappearance of Mohsin Atta appellant has not been proved by the prosecution. No doubt some evidence has been produced to make out that his warrant of arrest (Exh. PW-7-A) was got issued under section 24 of the Police Act. The proclamation was pasted on the do r of his house and the Court, in Phalia. However, the stand of the appellant is that he left for U.K. on 11.5.1990 who has produced the photostat of the visa and the p ss-port. According to uhammad Nawaz AST PW-6 the appellant was rrested on 25.9.1991. In the circumstances of the matter the abscondence of Mohsin Atta appellant is of no help to the prosecution which even otherwise need not be given the weight as the prosecution has brought a false case against him. 14. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, discussion and analysis/dissection of the evidence is that the prosecution has miserably failed to prove the allegations levelled and the charge framed against Mohsin Atta appellant. He was involved in a false and concocted case. As much he is held to be innocent. We, therefore, accept this appeal, set-aside the impugned judgment and acquit Mohsin Atta appellant. He is present before us on bail. His bail bond is cancelled and surety, discharged. (K.K.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 387 Present: KHALID PAUL KHAWAJA, J. SARNAWAZ-Appellant versus STATE-Respondent Criminal Appeal No. 1185 of 1991, accepted on 2.10.1994. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Murder-Offence of-Interested witness--Status-~PW has admitted in his statement that there was dispute between him and his brother over partition of joint agricultural land as a result of which relations between two families were not good-In this back ground when ocular evidence is examined it is found that it consists of testimony of closely related and nterested witnesses who had strained relations with appellant and his family-Held : It is not safe to place any reliance on their testimony without independent corroboration. [Pp. 392 & 394] C & F (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302--Conflict of medical evidence with ocular evidence-Site plan do not contain names of eye witnesses which is showing presence of eye witnesses highly doubtful-It is prosecution case that deceased was fired at distance of 2/3 karams i.e from 11 to 16 feet whereas according to edical opinion firing distance could not be more than three feet-Held : Medical evidence is in conflict with ocular evidence which strongly indicates that presence of eye witnesses at time and place of occurrence was highly doubtful. [Pp. 393 & 394] D & E (iii) Recovery- —Recovery of empties and weapon of offence—According to prosecution crime empties were lying at distance of two karams from dead body but in column No. 23 of inquest report no such recovery has been mentioned- So far as recovery of gun is concerned, SHO, about 14 days after occurrence raided dera and found appellant standing there with gun in his right hand which was taken into possession and sealed into parcel-It does not appeal to reason why appellant had been keeping licensed gun of his brother for 14 days after occurrence and for what purpose he was carrying it on 14th day in dcra of his father-Held : Prosecution evidence cannot, be relied with this regard. [Pp. 391 & 392] A & B Mr. Hussain Aziz Bhatti, Advocate for Appellant. Mr. Manzoor Hussain Basra, Advocate for Complainant. Ch. Dil Muhammad Tarar, Advocate for State. Date of hearing : 2.10.1994. judgment By his judgment dated 15.10.1991 learned Addl: Sessions Judge, Sheikhupura convicted Sarnawaz appellant (27/28) under Section 302 PPG for having murdered Riasat Ali (24/25) deceased and sentenced him to life imprisonment with a fine of Rs. 5000/- or in default of the payment of the said fine to undergo further rigorous imprisonment for three months. He was also directed to pay Rs. 10,000/- to the legal heirs of Riasat Ali deceased by way of compensation or in default to undergo six months rigorous imprisonment. 2. The occurrence took place on 12.11.1988 at 1 p.m. in a field situated in village Jatugala, District Sheikhupura which was at a distance of 1>< mile from PS Narang Mandi. 3. FIR Exh. PA was recorded at Police Station Narang Mandi on the same day at 2 p.m on the statement of Said Muhammad PW. 1 the father of the deceased. 4. The pi-osecution case as narrated in the FIR is that on 12.11.1988 at about 11 a.m Said Muhammad complainant, his sons Riasat Ali deceased and Muhammad Arif alongwi h Muhammad Javaid (both not examined) were reaping the paddy crop in their field. Another son of the complainant namely Waris PW2 was grazing his buffaloes at. a distance of about one 'Killa' from them. Sarnawaz alias Sarru appellant came there and started abusing and slapping Waris aforesaid. He asked WAris as to why he was grazing his buffaloes in the area which he had kept for his own cattle. Riasat Ali deceased went towards them to rescue his brother. He had an altercation with the appellant. The latter abused him and ran towards his 'Dera' threatening that he would teach him a lesson. He came back armed with a 12 bore single barrel gun. When the complainant saw him coming with a gun, he, his son Muhammad Arif, Muhammad Javaid alongwith Muhammad Shafi (given up as having been won over) ran towards Riasat Ali deceased. When they reached near him they saw Sarnawaz appellant firing at the deceased from a distance of 2/3 karams. The deceased received a fire arm injury in the front of his abdomen under umbilicus and fell down. The complainant fell upon his injured son (to save him from further injuries) who died at the spot. The companions of the complainant tried to apprehend the appellant but he ran away firing in the air.

5, After recording the FIR Inspector Liaquat Ali PW. 12, who was serving as SHO, Police Station Narang Mandi, proceeded to the place of occurrence and on reaching there prepared a rough site plan Exh. P.L. and gave his notes thereon. He then prepared the inquest report Exh. P.H and injury statement of the deceased Ex. PJ. During the spot, inspection he took into possession two empty cartridges Exh. P. 1/1-2 vide memo Exh. P.B. He then took into possession blood stained earth from the place of occurrence and sealed it into a parcel vide memo Exh. P.C. He despatched the dead body tn Sheikupura for post mortem examination. On the following day i.e. oa 13.11.1988 he took into possession last worn blood stained clothes of the deceased shirt P. 2 and uncler-wear P. 3 vide memo Exh. P.D. He recorded the statements of the witnesses and then on 26.11.1988 arrested Sarnawaz appellant. At that time gun Exh. P4 was recovered from his possession alongwith two live cartridges Exh. P. 5/1-2 which were taken into possession vide memo Exh. P.E. Exh. P.L/1 is the site plan showing the location of the place of recovery. He then got the site plans of the place of occurrence Exh. P.F and P.F/1 prepared through Muhammad Latif Patwari PW.IO and gave his notes in ^H ink on them. After the completion of the investigation he challaned the appellant. 6. On 13.11.1988 at 10.30 a.m. Dr. Sikandar Manzoor Medical Officer of District Headquarter Hospital, Sheikhupura conducted post mortem examination o. the dead body of Riasat Ali deceased aged about 24/25 years. Dr. Sikandar Manzoor had proceeded abroad and therefore, could not be served. As there was no likelihood of his coming back in the near future, Dr. Mobasher Ahmad S.M.O, District Head Quarter Hospital, Sheikhupura, who had worked with Dr. Sikandar Manzoor and was conversant with his handwriting and signatures, was examined as PW. 13. He proved post mortem examination report Exh. P.G and the diagram showing the location of injuries Exh. P.G/1. 7. According to the post mortem examination report the dead body was that of a youngman of average built wearing a 'Qameez' and under-wear. His eyes were closed. Mouth was semi-open. Rigor mortise and post mortem staining were present. No ligature mark was found around the neck. 8. The Medical Officer found the following injuries on the dead body:- 1. 6 firearm wounds of entry with balckening and burning of edges, five each measuring 1 cm x 1 cm, sixth measuring 2.5 c.m x 2.5 c.m in area 5cm x 5 cm of front of abdomen 3.5 c.m below umbilicus just to the left of midline, making five wounds of exit each measuring 1.25 c.m x 1.25 c.m on the left buttock upper part in area 4 c.m x 2.5 c.m and 5cm from natal left. 2. An ulcer 3cm x 1 cm muscle deep on the lower margin of left buttock with pus discharge. In the opinion of the doctor injury No. 1 had been caused with a fire­ arm and was ante mortem, while injury No. 2 was a discharging boil. Time between injury and death was 15 to 30 minutes while time between death and post mortem examination was 24 hours. The Medical Officer opined that the cause of death was due to cardio respiratory failure due to severe haemorrhage and shock. Injury No. 1 was individually sufficient to cause death of a person in ordinary course of nature. 9. The accused was formally charged under Section 302 PPC. He pleaded not guilty and claimed trial. 10. The prosecution examined 12 witnesses in support of its case including the two eye witnesses namely Said Muhammad PW. 1 and Muhammad Waris PW.2. 11. n his statement under Section 342 Cr.P.C. Sarnawaz accused denied the allegations levelled against him and maintained that he had not caused the death of Riasat Ali deceased. He maintained that it was a blind murder and he had been falsely implicated due to enmity. He asserted that he gun P.4 belonged to his brother Haq Nawaz who had a licence, that the gun was produced before the police by his said brother and that the police had fabricated an empty by firing through the said gun and then replacing it with crime empty received from the spot. He examined Haq-Nawaz above mentioned as PW. 1 who supported him. He declined to make a statement on oath under Section 340(2) Cr.P.C. 12. After the conclusion of the trial the learned trial court convicted and sentenced the appellant as stated above. Feeling aggrieved he has come up in appeal (Criminal Appeal No. 1185 of 1991) while Said Muhammad complainant has lodged a revision (Cr. Revision No. 36 of 1992) for the enhancement of the sentence of the appellant from life imprisonment to death. Since both these matters arise out of the same judgment I propose to dispose them of by this judgment. 13. I have heard the parties' learned counsel and have also gone through the record with their assistance. 14. The case of the prosecution rests on :-- (1) Evidence about motive, (2) Evidence about recovery of crime empties P.1/1-2 and 12 bore gun Ex. P. 4. (3) Ocular account consisting of the statements of Said Ahmad PW1 and Muhammad Waris P.W. 2, and (4) Medical evidence. 15. Learned trial Court has disbelieved the prosecution evidence on motive and recoveries and solely relying on the ocular evidence has recorded the conviction of the appellant. 16. First of all it will be examined if the learned trial Court was justified in disbelieving the prosecution evidence on motive and recoveries. In the F.I.R. the case of the prosecution is that Wans PW was grazing his cattle in the land belonging to Muhammad Malik father of the appellant to which the appellant strongly objected and to express his anger, he abused and slapped him. Riasat deceased went towards them in order to rescue his brother Waris. On reaching there the deceased and the appellant had an altercation whereafter the latter abused the former and went to his house extending threats that he would be taught a lesson. He came back with a gun and fired at the deceased. In their statements before the learned trial Court Said Ahmad and Waris PWs have not mentioned any altercation between the appellant and the deceased. The learned trial Court has very rightly observed that when the appellant had adequately punished Waris PW for the trespass which he had committed, it seemed highly improbable and untrue that the appellant had gone to his house to bring a gun to kill Riasat deceased who had not caused any annoyance to him. The learned trial Court held that trufi facts had been suppressed and the prosecution had failed to prove motive as narrated in the F.I.R. It is interesting to note that during the trial the prosecution introduced a new story about motive. P.W. 1 Said Ahmad stated that bout 5 to 7 days prior to the occurrence the son of the sister of Sarnawaz appellai- -tnd his son Waris had an altercation in the school and that on the same day Sarnawaz had extended threats to them and asked as to why they (the complainant party) thought that his nephew had nobody to protect him. Admittedly the witnesses in their previous statements had not made any mention of any such incident. It is thus an after thought. In my opinion introduction of a new motive during the trial also reflects upon the absurdity of prosecution's original story about motive. In these circumstances agreeing with the learned trial Court I also hold that, the prosecution had failed to prove motive against the appellant. 17. As regards recoveries, the prosecution case is that two crime empties Exh. Pl/1-2 were recovered from a distance of 2/3 karams from the dead-body of the deceased. According to the prosecution the appellant had fired only one shot at the deceased which had hit him. Learned trial Court was of the view that when the appellant had fired a single shot at the spot, the recovery of two empties from there was not understandable and that it indicated that the said empties had been planted. Learned counsel for the complainant has tried to explain the second empty by maintaining that it was the result of the firing which the appellant had resorted to after he was running away from the place of occurrence. This explanation is neither plausible nor acceptable. In their statements before the learned trial Court the eye witnesses have not made any mention of any firing which the appellant made while running away. Even otherwise the crime empty falling out of the gun of the appellant, when he was running away, would not have fallen along side the empty which had fallen out of the gun as a result of the fatal shot. The recovery of these empties is further rendered doubtful by the inquest report. According to the prosecution, as is revealed from the site plan Exh. PF and PF/1, the crime empties were lying at a distance of two karms from the dead-body but in column No. 23 of the inquest report no such recovery has been mentioned. So far as the recovery of the gun P.4 is concerned, the prosecution has introduced another unnatural and improbable story. The occurrence took place on 12.11.1988. There is ample material on record i.e. statement of Haq Nawaz DWl and the photostat copy of licence Exh. DD which shows that gun P. 4 belonged to Haq Nawaz aforesaid the brother of the appellant. According to the prosecution case on 26.11.1988 i.e. about 14 days after the occurrence SHO Liaqat Ali PW. 12, B who was investigating the case, received information about the presence of the appellant at the dcra of his father Muhammad Malik whereupon he alongwith the police party raided the said dcra and found the appellant standing there with gun P.4 in his right hand which was taken into possession and sealed into a parcel vide memo Exh. P.E. It does not appeal to reason as to why the appellant had been keeping the licensed gun of his orother for 14 days alter the occurrence and for what purpose he was carrying it on the 14th day in the dcra of his father. There is absolutely no vidence on record to show as to why the appellant had not been arrested earlier nor there is any material to show that the investigating officer had made any effort to arrest him earlier. It is not alleged that he had ever absconded. He was not hiding anywhere. All these circumstances indicate that the story of the arrest of the appellant on 26.11.1988 was unnatural and improbable. These circumstances also lend strength to the assertion of the appellant which finds due support from the statement of his brother Haq Nawaz DWl that he had been arrested on the very day of occurrence and that the crime empties had been manufactured on that veiy day from the licensed gun of Haq Nawaz aforesaid. Since these recoveries are shrouded in serious doubts, I agreeing with the learned trial Court am not pursuaded to rely on the prosecution evidence with this regard. 18. Now it is to lie seen if in the absence of motive and recoveries the conviction of the appellant could be based on mere ocular evidence. It is an admitted fact that Said Ahmad PW the father of the deceased and Muhammad Malik father of the appellant are real brothers. It is revealed from the statements of Said Ahmad aforesaid, Haq Nawaz DW1 and Sarnawaz appellant under Section 342 Cr.P.C. that they owned joint agricultural land and there was a dispute between the two brothers over its partition. Said Ahmad PW has admitted in his statement before the learned trial Court that there .was a dispute between him and his brother Muhammad Malik over the partition of the joint agricultural land as a result of which relations between the two families were not good. In this back ground when the ocular evidence is examined it is found that it consists of the testimony of closely related and interested witnesses who had strained relations with the appellant and his family. It has already been pointed out that Said Ahmad PW is the father and Muhammad Waris PW is the brother of Riasat deceased. As such it is not safe to place any reliance on their testimony without independent corroboration. Since the prosecution evidence with regard to motive and recoveries has been disbelieved I am of the view that the ocular evidence does not get any independent corroboration in the present case. Even otherwise the ocular evidence is improbable, discrepant, contradictory and does not inspire confidence. The veracity of the eye witnesses with regard to their deposition about motive has already been discussed. Circumstances appearing on record strongly indicate that Said Ahmad and Muhammad Waris PWs had not witnessed the occurrence or atleast their presence at the place of occurrence was highly doubtful. According to the prosecution the witnesses were present near the place of occurrence because they were reaping the paddy crop. P.W T . 10 Muhammad Latif Patwari, who had prepared the site plans Exh. PF and PF/1, has stated that he had visited the place of occurrence on 13.11.1988 i.e. on the following day of occurrence and that at that time there was no standing paddy crop which had already been reaped. This belies the prosecution story about the presence of the eye witnesses near the place of occurrence for the purpose of reaping the paddy crop. It is in the prosecution evidence that Riasat deceased was bare footed. Kad he been reaping paddy crop, he would not have been without shoes, for, it was highly inconvenient, and difficult to reap paddy crop with bare feet because of the hard stubs of paddy. Then, it. was the case of the prosecution which was duly agitated during the investigation that when the deceased had fallen down after receiving gun shot injury on his abdomen. Said Ahmad PW had fallen over him to save him from further injury. During the trial the eye witnesses tried to materially deviate from their said stand because had Said Ahmad PW thrown himself on the injured body of his son. his clothes must, have received blood stains but since they were not so stained with blood, the witnesses made deliberate effort to improve their statements by saying that Said Ahmad PW had fallen not on the body of the deceased but near him. For what purpose Said Ahmad PW had to do this exercise, nobody knows. This however is indicative of the fact, that the eye witnesses were not present at, the time and place of occurrence and that they are not trust worthy witnesses. The rough site plan Ex. PL prepared by the S.H.O./Investigating Officer and the site plans Exhs. PF and PF/1 prepared by P.W. 10 Muhammad Latif Patwari do not contain the names of the eye witnesses which according to the learned counsel for the appellant is another circumstance showing that the presence of the eye witnesses was highly doubtful. 19. Now I come to a very important aspect of this case. It is the prosecution case in the F.I.R. and it is shwon in the site plans Exh. PF and PF/1 that the deceased had been fired at from a distance of 2/3 karms i.e. from 11 to 16% feet. The post mortem examination report shows that the firearm entry wound on the dead-body of the deceased had blackening and burning on its edges. Dr. Mobasher Ahmad PW.13 has opined that in the present case the firing distance could not be more than three feet. The post mortem examination report further reveals that three pieces of wads had also been recovered from the wound of the deceased. This also shows that he had been shot at from a very close range. The medical evidence, therefore, in the present case is in conflict with the ocular evidence. This conflict strongly indicates that, the presence of the eye witnesses at the time and place of occurrence was highly doxibtful. 20. In view of the above discussion I am of the opinion that in the present case the conviction of the appellant could not be based on the ocular testimony of related, interested and antagonistic witnesses especially when he same was in conflict with the medical evidence and there was no independent, corroboration of it. I, therefore, hold that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. Consequently I allow that appeal and acquit him. He shall he released forthwith if not required in any other case. The revision petition instituted by the complainant stands dismissed. (A.P.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 394 (DB) Present : MANSOOR ALAMGIR QAZI AND KHALIL-UR-REHMAN RAMDAY, JJ. MUHAMMAD ANWAR-Appellant versus STATE-Respondent Criminal Appeal No. 1107 of 1992 and accepted on 23.7.1997 and M.R No. 470 of 1992 dismissed on 23.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- -— S. 302(b)-Murder-Offence of-Conviction for-Challenge to-Presence of eye witnesses at spot doubtful-Whether appellant could be convicted simply on basis of strong motive-Question of-Presence of eye-witnesses time of incident has not been established beyond doubt-Occurrence was unwitnessed one and appellant cannot be saddled just on account of very strong motive or other incriminating connected evidence-Had presence of eye-witnesses been accepted then connecting evidence would have been very strong incriminating corroborative piece of evidence, but presence of these eye-witnesses at spot at relevant time is doubtful and not established-Held: Benefit of doubt would flow in favour of appellant- Appeal accepted and M.R dismissed in circumstances. [P. 400] A Mian Aftab Furrukh and Hafeez Ullah, Advocate for Appellant. Rana Liaqat All, Advocate for State. Date of hearing: 23.7.1997. judgment Mansoor Alamgir Qazi, J.--Muhammad Anwar aged 38 years was arraigned for trial in the court of Mehr Muhammad Altaf Hussain, Additional Sessions Judge, Faisalabad . Vide judgment dated 29.11.1992 he was convicted under Section 302(b) PPG and sentenced to death and was also sentenced to a fine of Rs. 10,000/- or in default of payment of fine to suffer R.I. for two years. He was also directed to pay Rs. 25,000/- as compensation to the legal heirs of the deceased or in default of payment of compensation to suffer R.I. for six months. 2. Feeling aggrieved by this judgment he has challenged the same through Crl. Appeal No. 1007/92 while the State has preferred Murder Reference No. 470/92 for the confirmation of the death sentence. 3. The present occurrence took place on 4.691 in front of the house of one Muhammad Tahir in street No. 27, Madina Town, Faisalabad at a distance 3 K.M. from Police Station Peoples Colony, Faisalabad. The statement Ex. PD of Muhammad Shafi complainant (PW-4) was recorded on the same day at 10.30 A.M. at Civil Hospital, Faisalabad by Mushtaq Hussain S.I. while he was posted at Police Post Madina Town, Faisalabad. The statement was sent to the police station where formal FIR Ex. PD/1 was recorded by Zawar Hussain, Moharrar/Head Constable at 10.45 A.M. 4. The motive behind this occurrence is that 3/4 months prior to the occurrence wife of Muhammad Rafique deceased had gone to there parental house being displeaded and the accused wanted her divorce but the deceased as not willing, on account of which the appellant/accused has committed this offence. 5. Briefly the facts of the case are that the complainant Muhammad Shafi who is resident of Chak No. 75/GB on the day of occurrence he came alongwith Muhammad Shafique (not produced), his son and Muhammad Jamil PW-5 to the house of Muhammad Tahir, street No. 27, Madina Town to see his son Muhammad Rafique deceased. They saw Muhammad Anwar and Muhammad Siddique accused inflicting injuries with dagger to his son Muhammad Rafique deceased who fell down on receipt of the injuries. On alarm Muhammad Anwar and Muhammad Siddique both accused ran away from the place of occurrence alongwith their weapons of offence. The deceased was shifted to the hospital in injured condition where he died at 9.30 A.M. 6. Muhammad Siddique accused was stated to have been murdered on 25.5.92 and a case FIR No. 81/92 under Section 302/34 PPC stood registered for his murder, which means that at the time of trial which ommenced on 1.10.92 the proceedings against him stood abated. Muhammad Siddique accused (dead) was the first cousin of Muhammad Anwar appellant. Muhammad Anwar appellant is the real brother of the wife of the deceased and he is also the real sister's son of the complainant Muhammad Shafi (PW-4). 7. After recording the statement of the complainant at the hospital the Investigating Officer Mushtaq Hussain (PW-7) proceeded to prepare the injury, statement Ex. PH and inquest report, Ex. PJ in respect of the dead body of Muliammad Rafique and despatch the same to the mortuary for post-mortem examination. He visited the spot and collected the blood­ stained earth which was made into a sealed parcel and taken into possession vide memo Ex. PE. On 11.6.91 the Investigating Officer arrested Muhammad Anwar and Muhammad Siddique accused who were present at bus stop Abdullahpur. On 16.6.91 while in police custody Muhammad Anwar appellant got recovered blood-stained dagger Ex. P5 from Christian Graveyard, Khiaban Colony Road, Faisalabad. It was made into a sealed parcel and taken into possession vide memo Ex. PG. On the same day Muhammad Siddique accused got recovered dagger Ex. P4 from underneath a Shisham tree in the said graveyard. It was made into a sealed parcel and taken into possession vide memo Ex. PF. Both these recoveries were attested by Bashir Ahmed (PW-6), Muhammad Khaliq (given up) and Mushtaq Hussain S.I. (PW-7). After completion of the investigation the accused were challaned and sent up for trial. 8. Prosecution produced eight witnesses to prove the charge and Ijaz Ahmed was examined as CW-1. The reports of the Chemical Examiner Ex. PM, Ex. PN and Ex. PO and that of the Serologist Ex. PP, Ex. PQ and Ex. PR were tendered in evidence. The statement of the accused under Section 342 Cr.P.C. was recorded who denied the prosecution case and stated that his implication is due to party faction and enmity with the witnesses. He did not appear as his own witness to disprove the allegations on oath nor opted to produce any defence evidence. 9. Dr. Zahid Hussain, C.M.O., D.H.Q. Hospital, Faisalabad • appeared as PW-8 and stated that on 4.6.91 he medically examined Muhammad Rafique aged 30 years who was brought by Shamshad Ali Constable. Police Station, Peoples Colony, Faisalabad and found the following injuries on his person :— 1. An incised wound/stab 1^ cm x 1^ cm DNP, outer side left chest 7^ cm from the left nipple at 5'O clock position. 2. An incised wound 5 cm x ^ cm x muscle deep, outer side left arm middle part. 3. An incised wound 1 cm x 1/3 cm muscle deep on outer side left arm 1 cm from injury No. 2. 4. An incised wound 5 cm x 1 cm x muscle deep inner side left wrist extending to palm. 5. An incised/stab wound 2% cm x % cm x DNP on mid back of chest. 6. An incised/stab wound 2 cm x 1 cm DNP on back of right abdomen 6 cm from mid line. 7. An incised wound/stab 2 cm x % cm DNP on left side back of abdomen lower part. 8. An incised wound/stab 2 cm x 1 DNP on back of left buttock. 9. An incised wound/stab 2 cm x 1 cm DNP on back of eft buttock 2 cm from injury No. 3. 10. An incised/stab wound 2% cm x % cm DNP inner side right buttock. 11. An incised wound 2% cm x % cm muscle deep on back of left thigh upper part. 12. An incised wound 2 cm x % cm muscle deep on back inner of left thigh 6^ cm from injury No. 11. 13. An incised wound/stab 3 cm x 1% cm DNP on inner side right thigh upper part. 14. An incised wound 3 cm x % cm muscle deep on back of left fore arm lower part. 15. An incised wound 3 cm x ^ cm muscle deep on back of left wrist. 16. An incised wound 2^ cm x % cm bone deep on front of left leg middle part. All the injuries were kept under observation and were found to have been caused by sharp edged weapon and the injured was admitted in the hospital. 10. Dr. Tariq Salam, M.O. D.H.Q. Hospital, Faisalabad appeared as PW-1 and stated that the injured was received in the Emergency Ward, D.H.Q. Hospital, Faisalabad at 9.30 AM. on 4.6.91 and he expired in the surgical unit of the said hospital at 9.35 A.M. He has further stated that on the same day at 5.45 P.M. he conducted the autopsy on the dead body of Muhammad Rafique and found the following injuries on his person :-- 1. A stab wound 1% cm x % cm on outer side of left chest, 7% cm from left nipple at 5'O clock position. On exploration, the weapon entered into the chest cavity through fifth intercostal space and penetrated into the middle lobe of left lung. 2. An incised wound 5 cm x % cm on outer side of left arm in the middle part, cutting the underline muscle. 3. An incised wound of 1 cm x % cm on the outer side of left arm, 1 cm below under injury No. 2 cutting the underline muscles. 4. An incised wound of 5 cm x 1 cm on inner side of left wrist cutting the underline muscle. 5. A stab wound 2% cm x % on back of chest on mid line in iddle. It entered the chest cavity from behind through seventh inter-costal space after peircering the intercostals mulches penetrated into the middle lobe of right lung from behind. Right side of chest cavity was full of blood. 6. A stab wound 2 cm x 1 cm on back of right side of abdomen (right lumbar region) 6 cm from mid line. On exploration just entered the abdominal cavity after peicering the muscles not injured any abdominal viscera. 7. A stab wound 2 cm x ^ cm on left side back of abdomen, lower part cutting the underline muscles. 8. A stab wound 2 cm x 1 cm on back of left buttock, cutting the underline muscle. 9. A stab wound of 2 cm x 1 cm on left buttock 2 cm from injury No. 8. 10. A stab wound of 2% cm x % cm on inner side of right buttock, cutting the underline muscles. 11. An incised wound 2% cm x % cm on back of left thigh upper part cutting the underline muscle. 12. An incised wound 2 cm x % cm on inner side of left thigh' 6% cm from injury No. 11. 13. An incised wound 3 cm x 1% cm on inner side of right thigh upper part, cutting the underline muscle. 14. An incised wound of 3 cm x % cm on back of left fore arm at lower part. 15. An incised wound of 3 cm ^ on back of left wrist cutting the underline muscles. 16. An incised wound of 2% cm x % cm on front of left leg middle part cutting the under-line muscles upto bone. In his opinion the death was due to haemorrhage and shock caused by injuries No. 1 and 5 which were collectively as well as individually sufficient to cause death in the ordinary course of nature. Both these injuries were declared grievous and fatal while the other injuries were declared simple. They were caused by sharp edged weapon and were ante-mortem. The time between injuries and death was within one hour while that between death and post-mortem as within eight hours. 11. The learned counsel for the appellant has taken us through the entire evidence recorded and the record of the case has been perused and scratinised. The learned counsel for the State has, however, opposed and rebutted the arguments of the learned counsel for the appellant and has prayed that the sentence of the appellant be upheld. 12. Before we launch ourselves into the appreciation of the merits and demerits of the case it would be relevant to mention here that at the fag end of the trial just before announcement of the judgment Mst. Jamila Bibi widow of Muhammad Rafique deceased and sister of the appellant presented an application through the learned defence counsel stating that she had waived her right of Qisas and she had done so acting as guardian of her four minor daughters. The learned trial Judge recorded her. statement and thereafter convicted the appellant under Section 302(b) PPC as a right of Qisas had been waived. 13. It has been stressed by the learned counsel for the appellant that Muhammad Shafi PW-4 and Muhammad Jamil PW-5 were not the eye­ witnesses to the occurrence and while substantiating his stance from the evidence he has submitted that both these witnesses belong to Chak No. 75/GB which is at a distance of 10/12 miles from the place of occurrence and reached there at 7.30 or 7.45 A.M. and the deceased was being caused blows and the accused ran away on seeing them. The deceased was taken to the Hospital at 9.30 A.M. What happened in this 1% hour duration. Had these witnesses been present then either of them would have taken the deceased in an injured condition to the hospital in time but from the MLR it is abundantly clear that the deceased was brought by Shamshad Ali Constable in an injured condition. Secondly he has also drawn our attention to the admission made by the Investigating Officer that the FIR was recorded after conducting preliminary investigation at the spot and absence of these PWs is also indicated from the inquest report as none of them has been cited as witness of the inquest. Furthermore Tahir at whose house they were supposed to meet and had to purchase a buffalo has not been produced as witness. At the time of trial it has been admitted by Muhammad Jamil PW-5 that Tahir was not there when they reached there. If at all these witnesses had to meet the deceased then they could not have gone to the place where he worked. Why at the house of Tahir who was not at home at that time. The story of purchasing a buffalo is a lame pretext and cannot be digested without a pinch of salt. It has been further stressed that there was litigation pending between one Ghulam Muhammad alias Chakkar and the deceased and the complainant party and the deceased was done to death on account of this enmity. That Muhammad Siddique was suspecting that the deceased had been instrumental in breaking of the engagement of his sister. On the other hand he stated that Muhammad Anwar appellant was brother of the wife of the deceased and that he had through his good offices got the deceased employed in the Telephone Department and that he was having cordial relations with the deceased and no reason to murder the husband of his real sister. 14. We have given our anxious thought to all that has been stated and submitted by the learned counsel for the parties. In the present case no doubt that the motive as laid down in the FIR is a very strong factor contributing to the present occurrence and the other aspect regarding the complicity of the appellant is that his own real sister wise of the deceased while submitting application waived her right of Qisas and got her statement recorded where she stated that she had pardoned the appellant and waived her right of Qisas but, she has said nothing as to motive or innocence of the accused. The PWs also have no enmity to falsely implicate the appellant rather they are closely related and if someone else had committed the there were sixteen injuries on the person of the deceased. Be that as it may all this evidence would not, be collectively or individually sufficient to form basis of conviction unless the presence of the two eye-witnesses is established and credance could be attached to their testimony. We agree with the submissions made by the learned counsel for the appellant that the presence of the eye-witnesses at the time of incident has not been established beyond doubt. The present occurrence was unwitnessed one and the appellant cannot be saddled just on account of veiy strong motive or other incriminating connected evidence. Had the presence of eye-witnesses been accepted then the connecting evidence would have been a very strong incriminating corroborative piece of evidence but since we are of the mind that the presence of these eye-witnesses at the spot at the relevant time is doubtful and not established. Hence it is but natural that, the benefit of doubt would flow in favour of the appellant. Giving the benefit of doubt to the accused we accept the appeal, set aside the impugned conviction and sentences recorded against Muhammad Anwar appellant and acquit him of the said charge and direct that he be released from the jail forthwith if not required in any other case. The Murder Reference is answered in the NEGATIVE. 15. Before parting with this appeal we would like to record that the learned trial Judge was oblivious of the change in law. He has sentenced the appellant to fine which he could not do so under the amended new law. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 401 (DB) Present: KHALiL-UR-REHMAN ramday & mansoor alamgir qazi, JJ. SHAHBAZ AHMAD etc.-Appellants versus STATE-Respondent Criminal Appeal No. 1246 of 1991 and Murder Reference No. 49 of 1992, decided on 9.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/324/34~Murder--Offence of-Conviction for-Challenge to-It is admitted on record that appellants Shahbaz and Ghulam Abbas are sons of Muhammad Sharif (acquitted accused) while Altaf appellant is nephew of Said Muhammad Sharif-On other hand it is admitted that Nasir Iqbal (PW-10) and Muhammad Saleem (PW-11) are real brothers of deceased Akhtar Ali and they own shop in Bazar and their presence is natural-­ According to Dr. Muhammad Arshad Sian (PW-3) deceased after sustaining injuries was not. in position to perform any violitional act- Furthermore, keeping in view injuries on various parts of body, there was no likelihood of this being case where deceased was in clasp of Ghulam Abbas, appellant as stated by prosecution witnesses-In view of statement of Dr. Muhammad Arshad Sian (PW-3) it also seems probable that occurrence initiated and culminated at point 'B' which is in front of shop of accused which itself makes it abundantly evident and clear that complainant party came from distance to initiate attack-Altaf Hussain has been attributed blows with 'churrV to deceased alongwith Shahbaz Ahmad, Co-accused and number of injuries with 'c/mrri' are six-Held : Altaf Hussain accused has committed excess of what was allowed and permissible under law-His conviction is converted to one u/s 304 PPC and sentenced to undergo R.I for 7 years, conviction of Ghulam Abbas set aside-Appeal party accepted—Revision petition dismissed and death sentence not confirmed. [P. 407 & 408] A, B, C, D & E Mr, Iiaz Hussain Batalvi, Advocate for Appellants in Appeal No. 1246/91. Mr. Naean Ullah Khan Shcrwani, Advocate for Appellant in Appeal No. 123. r

/91. Mian Aftab Farrukh, .Advocate for Complainant. Mr. J. V. Gardner, Advocate for State. Date of hearing: 9.7.1997. judgment Mansoor'Alamgir Qazi, J.--Shahbaz Ahmad, aged 19 years, (ihulam Abbas, 17 years, Altai' Hussain 40 years alongwith Muhammad Sharif aged 54 years were sent up and arraigned for trial before Mr. Khadim Hussain Malik, Additional Sessions Judge, Gujranwala. Through judgment dated 30.11.1991 Muhammad Sharif was acquitted of the charge while Shahbaz Ahmad and Altef Hussain were convicted under Section 302/34 PPC and sentenced to death. They were also ordered to pay fine of Rs. H),000/- eacii and in default of fine to further undergo R.I. for two years. It was also directed that each of them shall pay Rs. 10,000/- as compensation to heirs of the deceased and in default thereof to undergo R.I. for a period of six months. While Ghulam Abbas was convicted under Section 302/34 PPC and sentenced to undergo life imprisonment. Pie was also sentenced to pay Rs. 1.0,0007- as fine and in default of the fine to undergo R.I. for two years. It was also ordered that he would pay Rs. 10,000/- as compensation to the legal heirs of the deceased and in default of payment, of compensation to undergo further R.I. for six months. Ghulain Abbas was further convicted under Section 324 PPC for having caused injuries to Muhammad Saleem and was sentenced to R.I. for one year and also ordered to pay Rs. 1000/- and in default of payment of tine of further undergo R.I. for one month. It was also directed that he shall also pay Rs. 1000/- as compensation to the injured and in default thereof to undergo further R.I. for one month. He was however, given the benefit of Section 382-B Cr.P.C. so far as his sentence under Seel ion 324 PPC, was concerned. 2. Briefly the facts of the case as narrated by Nasir Iqbal complainant are that he is the owner of Idnan Building Material Store situated in Main Bazar near Gali Arain, Wazirabad. Near to his shop there is another shop of tents namely Punjab Tent Service. Another branch of Punjab Tent. Service is in Moti Bazar Wazirabad. The owner of the Punjab Tent Sen/ice is Muhammad Sharif (the acquitted accused). He is resident of Mohallah Lakar Mandi. On 15.12.1989 at about 1.30/1.45 P.M. the shop of Nasir Iqbai complainant was open and he alongwith his brothers Muhammad Saleem and Akhtar Ali and one Zafar Iqbal his neighbour were sitting in the said shop. At the same time Shahbaz, Ghulam Abbas and Altaf alicifi Bhola accused, all armed with 'Churries' came out of the shop of Muhammad Sharif Hajam, their father. The accused persons raised Lalkara that they would not spare Akhtar Ali and his helpers. Muhammad Sharif accused also came there hurling abuses at the complainant party. At this two brothers of the complainant namely Akhtar Ali and Muhammad Saleem also came out of the shop. Ghulam Abbas grappled with Akhtar Ali and took him in his clasp from behind. After that accused Shahbaz and Altaf Hussain alias Bhola inflicted churries blows on the right, left and front side of the chest of Akhtar Ali. Blood started coming out from the injuries of Akhtar Ali at which Ghulam Abbas accused released him from his clasp. Akhtar Ali injuried while putting his hands on his injuries started running towards north side and fell down in front of the shop of Noor Muhammad. Muhammad Saleem VI 1) tried to rescue Akhtar Ali injuried at which Ghulam Abbas accused inflicted two churn blows to him which struck him on the right flank. The complainant came forward to rescue Akhtar Ali at which Muhammad Sharif accused picked up a chair lying nearby and struck the same on the complainants left wrist. The complainant alongwith his brother Muhammad Saleem picked up some bricks bats and threw the same at the accused persons. Muhammad Sharif accused received injuries by the brick-bats and fell down. The complainant party raised hue and cry at which many people gathered there who reprimanded the accused persons at which all of them except Muhammad Sharif fled away from the spot alongwith Their respective weapons of offence. The complainant alongwith Zafar Iqbal P\V (not produced) took both the injured Akhtar Ali and Muhammad Saleem to Civil Hospital, Wazirabad. Akhtar Ali injured succumbed to the injuries on the way to the hospital. 3. Motive for the alleged occurrence was that about 4/5 years prior to the occurrence Muhammad Riaz elder brother of the complainant and a nephew of Muhammad Sharif accused namely Sabir Hussain alias Bello who is also brother of Altaf accused worked as labourer in 'Abu-Dhabi' where They had a scuffle which had after-effects even at Wazirabad and created bad relations between the parties. Elders of the parties patched up the matter 2/3 Times but the accused kept, grudge in their minds. About one and a half hour before the present occurrence Akhtar Ali deceased who had come to Pakistan from France on 11.12.1989, on leave, had a scuffle with accused Shahbaz in Moti Bazar Wazirabad. After that Akhtar Ali deceased told the complainant side about the said quarrel at their shop. The accused had already made plan and thus after some time came to the complainant's shop and committed the present occurrence. 4. The present occurrence took place on 15.12.1989 at 1.45 P.M. in Main Bazar near Gali Arrayan at a distance of two furlongs from the Police Station City Wazirabad and Nasir Iqbal (PW10) got recorded his statement lEx.P-G) in the Civil Hospital, Wazirabad at 2.30 P.M. on 15.12.1989. It was recorded by Ghulam Qamar Inspector/SHO Police Station City Wazirabad and sent to the police Station for the formal registration of the FIR there. Rashid Hussain Shah Moharrir/ASI PW8 recorded the FIR (Ex. P-G/1) on l he basis of statement Ex.P-G. 5. Akhtar Ali deceased died of the injuries while on way to the Civil Hospital Wazirabad. The injury statement and the inquest report were prepared by the Investigating Officer and the body of the deceased was sent for postmortem examination. The blood stained earth was collected from the spot, made into a sealed parcel and taken into possession vide recoveiy memo Ex. P-B in the presence of Ejaz Hussain (PW2), Iftekhar Hussain (not produced), and the investigating officer, on 15.12.1989. All the accused were arrested by the investigating officer on 28.12.1989. On 9.1.1990 Ghulam Abbas, Altaf Hussain and Shahbaz accused got recovered blood stained Chhurris respectively (memos of the Churris have not been exhibited in Court for the reason that. Ghulam Qamar the investigating officer died before he could appear in Court and his hand-writing was proved through Rashid Shah (PW12) who was working as Moharrir ASI, Police Station Wazirabad). 6. Dr. Muhammad Asrhad Sian who has appeared as PW3 has stated on 16.12.1989 at 10.00 A.M. he conducted the autopsy of dead body of Akhtar Ali aged 32 years and found the following injuries on his persons :-- 1. An incised wound 2.5 cm x 0.7 cm x scalp deep on the left side of fore-head 2 c.m. above the left eyebrow just left to the mid-line. 2. An incised wound 4 c.m. x 1 c.m. x going deep on the left side of the chest, 4.5. c.m. below the left nipple 5 c.m. left to the midline. 3. An incised wound 2.5 cm x 1.2 c.m. x going deep on the right side of chest 6.5 c.m. below and left to the right nipple 5 c.m. right to the mid-line. 4. An incised wound 3 c.m. x 1 c.m. x going deep on the middle of left axilla 2 c.m. below the axillary-line. 5. An incised wound 4 c.m. x 0.5 c.m. x skin deep on the front of right chest 2 c.m. below and right to the injury No. 3. 6. An incised wound 5 c.m. x 0.5 c.m. x skin deep on the front of right chest and upper abdomen 12 c.m. above the umbilicus 1 c.m. right to the mid-line. 7. Abrasion 0.5 c.m. x 0.5 c.m. on the back of left elbow. 8. Abrated area 4 c.m. x 3 c.m. on the back and top of let shoulder". He has further opined that death in the present case occurred due to injury Nos. 2 and 3. All the injuries were antemortem and the time between the injuries was 3 to 10 minutes while between death and postmortem about 20 hours. Dr. Shaukat. Ali, Medical Officer, Tehsil Headquarters Hospital, \Vazirabad (PW4) medically examined Nasir Iqbal complainant and found the following injury on his person :-- "Abrasion area 5 c.m. x 2.5 c.m. on the back of left fore-arm, upper part 8 c.m. below the elbow joint". The doctor also opined that this injury was caused with blunt weapon with the duration of 48 to 60 hours. Dr. Shaukat Rana, S.M.O. THQ Hospital, Wazirabad (PW5) medically examined Saleem (PW11) and found the following injuries on his persons :-- "1. Incised wound 5 c.m. x 3 c.m. x skin deep horizontal in direction on right side of back of flanks 3 c.m. from eleiccrest 27 c.m. from umblicus. 2. Incised wound 4 c.m. x 0.8 cm x skin deep vertical in direction 2.5 c.m. below injury No. 1 above the eleic-crest". Duration of these injuries was opined to be fresh and caused with sharpedged weapon. On the same day at 2.00 P.M. he also examined Muhammad Sharif accused and found the following injuries on his person :-- 1. Lacerated wound 4 c.m. x 0.4 cm x scalp deep at the left side of hear 7 t.m. above left ear. 2. Lacerated wound 1 c.m.x 0.3 cm. x skin deep above the right eyebrow, on the lateral margin. 3. Abrasion 1 c.m. x 1 c.m., 2 c.m. above the lateral malulas on left leg. 4. Triangular wound 0.5 c.m. x 0.3 c.m. x going deep 4 c.m. above the medial malulas on the left leg. 5. Clinical fracture of left leg. Injuries No. 1, 2 and 3 were declared simple and injuries No. 4 and 5 were found as grievous. All the injuries were caused with blunt weapon and duration of the injuries was fresh. 7. To prove the prosecution case, the prosecution has produced 12 witnesses and the accused were examined under Section 342 Cr.P.C. Ghulam Abbas appellant has stated as under :-- "I am innocent. Nasir Iqbal and Zafar Iqbal PWs were not present at the spot. Zafar Iqbal has become PW due to his friendship with the complainant party. As a matter of fact Muhammad Saleem and Akhtar Ali came to my father's shop while armed with 'Sana' and a 'ChabbaV and after inquiry about Shahbaz accused started giving filthy abuses to my father. Akhtar Ali deceased picked up a quarrel with my brother Shahbaz at a shop in Moti Bazar 1% hour prior to this occurrence. Akhtar Ali and Saleem came to my father's shop in search of Shahbaz. As Shahbaz was not there, the aforesaid two persons pounced upon my father and launched a murderous assault on my father with their respective weapons. I apprehended death or grievous hurt to my father at the hands of afore-said persons, I picked up a small rope cutting knife from our shop and in order to scare off the assailants, I acted in the exercise of the right of private defence of my father. The complainant party had assumed the role of aggressors and it were they who launched a rmirderous attack on my father. We had advanced this plea before the 1.0. who accepted the same to be correct. The complainant party have fabricated a false story and implicated our family in this case." 8. None of the accused opted to appear as their own witness as required under Section 340(2) Cr.P.C. to disprove the allegations leveled against them and neither of them led any defence evidence. 9. Disbelieving the defence version, the learned Additional Sessions Judge Gujranwala convicted the accused/appellants as aforesaid vide judgment dated 30.11.1991. 10. The State has preferred Murder Reference No. 49/92 for the confirmation of the death sentence awarded to the accused. Shahbaz Ahmad and Ghulam Abbas have preferred Criminal Appeal No. 1246 of 1991 while Altaf Hussain has challenged the judgment vide Criminal Appeal No. 1235/91. Nasir Iqbal Complainant filed Criminal Revision No. 431 of 1992 for the enhancement of compensation and for also awarding death penalty to Ghulam Abbas appellant. The complainant through Criminal Revision No. 193/92 has challenged the acquittal of Muhammad Sharif accused and has prayed that he be also sentenced alongwith the other accused in accordance with law. We intend to dispose of all these matters through this one and same judgment. 11. At the very outset of hearing of these appeals Mr. Ejaz Hussain Batalvi, learned counsel for Shahbaz Ahmad appellant in Criminal Appeal No. 1246/91 has placed on record a certificate signed by the Medical Officer, New Central Jail, Bahawalpur dated 28.7.1997 wherein it is stated that hahbaz appellant died in the Jail Hospital on 27.1.1997 at 8.30 P.M. and thus the appeal against him stands abated. 12. Learned counsel for the complainant and the learned counsel for the State have been heard at length and the points urged by the defence have been discussed within the frame work of the prosecution evidence. However, learned counsel for the State has supported the judgment and prayed that conviction and sentence awarded to the appellants be maintained. 13. After hearing the parties at length we have given our anxious Thought and have perused the entire evidence on record. It is admitted on record that the appellants Shahbaz and Ghulam Abbas are sons of Muhammad Sharif (Acquitted accused) while Altaf appellant is the nephew of said Muhammad Sharif. On the other hand it is admitted that, Nasir Iqbal iPWlO) and Muhammad Saleem (PW11) are real brothers of deceased Akhtar Ali and they own a shop in Bazar and that their presence is natural. The occurrence taking place in main Bazar at day time is not, denied. However, the place of occurrence is contested by the complainant party who assert that the occurrence took place in front, of their shop while the accused assert that the occurrence took place in front of their shop in the said Bazar. - However, the blood stained earth was taken from point 'B' which is opposite to the shop of the accused. In the backdrop of these undisputed facts the learned counsel for the appellants have urged and submitted that if both the versions are placed in juxta position evidence can be assessed and appraised in tin proper legal perspective. Our attention has been drawn to the fact, that the blood stained earth was taken only from point 'B' which is in front of the simp of the accused while point 'A' being at a distance of 18 feet from the shop of the complainant and at, a distance of 29 feet, from point 'B' and that according to the Dr. Muhammad Arshad Sian (PW3) the deceased aftor sustaining injuries No. 2 and 3 which injured the left, lung, pericardium and B heart and the right, lung respectively, the deceased was not in a position to perform any volitional act. Furthermore, keeping in view the injuries on the various parts of the body, there was no likelihood of this being the case where the deceased was in the clasp of Ghulam Abbas appellant as stated by the prosecution witnesses. It has been urged that the injuries received by Muhammad Sharif (PW) are of such nature that they could not be sustained as explained by the prosecution witnesses. Dr. Shaukat Rana (PW5) has also negated the prosecution case and stated that he did not find any particle of bricks in the wound of Muhammad Sharif accused. It has been further urged that Akhtar Ali deceased had told his brother just, before the occurrence that he was present, at that time in Moti Bazar Wazirabad where Shahbaz accused had done grievous wound to him and thus it was the complainant party who was the aggrieved and the accused had to cause to initiate the attack. Lastly it was contended that the prosecution has not come forth with clean hands and the prosecution case does not stand proved beyond reasonable doubt, The version of the accused is plausible and it, is spelt out, also from the prosecution evidence. ];?. The submissions made by the learned counsel for the appellant cany weight, and injuries No. 4 and 5 suffered by Muhammad Sharif accuser! father of Shahbaz Ahmad, and Ghulam Abbas appellants are of grievous nature being fracture of tibia and fibular bone which could not in any manner be caused by brick-bats as alleged by the prosecution witnesses. In view of the statement of Dr. Muhammad Arshad Sian (PW3) it also seems f , probable that the occurrence initiated and culminated at point 'B' which is in front the shop of the accused which itself makes it abundantly evident and clear that the complainant party came from distance to initiate the attack. However, the participation of Ghulam Abbas with the role attributed to him appears to be doubtful and thus his case is distinguishable from that of Altaf Hussain. Altaf Hussain has been attributed blows with Chhurri to the deceased alongwith Shahbaz Ahmed co-accused (now dead) and the number of injuries with Chhurris are six. Thus it appears that Altaf Hussain has committed an excess of what was allowed and permissible under the law. So far as Altaf Hussain accused is concerned his conviction under Section 302/34 PPC is converted to one under Section 304 PPC and sentenced to undergo R.I. for seven years. He is also sentenced to fine of Rs. 10,000/- in default of payment whereof he shall undergo further R.I. for six months. He is allowed the benefit under Section 382-B Cr.P.C. 14. As far Ghulam Abbas his conviction and sentence under Section 302/34 PPC is set aside. However, his conviction and sentence under Section 324 PPC is maintained. The sentence of fine and in default of payment of fine R.I. is also maintained. The sentence awarding the compensation is set aside. 15. Both the criminal revision petitions are devoid of force and are thus dismissed. With the above observations all the matters are disposed of accordingly. Death sentence NOT confirmed. (B.T.) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 408 Present: dr. munir ahmed mughal, J. ZAFAR and another-Appellants versus STATE-Respondent Crl. Appeal No. 719 of 1993, decided on 7-10-1997. Pakistan Penal Code, 1860 (XLV of 1860)— —-Ss. 302/337/324/148/149-Murder-Offence of-Conviction for-Appeal against-Dispute arose regarding putting of mud over common Pakka Wai between parties-There was a sudden quarrel and both parties were injured but prosecution witnesses concealed injuries caused to accused party-Prosecution could not establish guilt of four co-accused and recoveries of weapon of offence have also not been proved beyond any doubt-Trial Court has ignored version of appellant side that injuries were caused by exchange of stones-Medical evidence is also to the effect that all injuries were caused by a blunt weapon-Version alleged by appellant appears to be more plausible and fitting in circumstances in which fight took place between parties-Injuries on the person of accused were also similar to injuries to complainant side which clearly shows that there had been brick batting exchange from both sides and a stone is a weapon which is a weapon in ordinary course of nature is not likely to cause death-Appellant No. 1 acquitted of the charge u/s 302/34 PPC but convicted u/s 324 PPC whereas, conviction of appellant No. 2 altered from Section 302/34 PPC to Section 316 PPC-Orders accordingly. [P. 416] A & B Mr. Shahid Hussain Qadri, Advocate for Appellants. Mr. Shahbaz Saee.d, Advocate for State. Date of hearing : 7-10-1997. judgment The appellants, Zafar and Muhammad Aslam alongwith 4 others were charged and tried by Mr. Parvez Mahmood Mian, Additional Sessions Judge. Faisalabad under sections 302/337/324/148/149 P.P.C. for causing Qatl-i-Amd of Abdul Ghafoor, deceased and for attempting to commit Qatl-i- Amri of Zulfiqar Mi Raza P.W. All except the present appellants were found innocent and acquitted. The learned trial Judge found both the appellants guilty under section 302/34 PPC and sentenced to life imprisonment with a fine of Rs. 25,000/- each and in default of payment to undergo further 2 years R.I. each. They were also directed to pay compensation to legal heirs of the deceased amounting to Rs. 25,000/- each and in default thereof to undergo 6 months R.I. each. The compensation if recovered was ordered to be paid to the legal heirs of Abdul Ghafoor, deceased. Muhammad Aslam appellant was also found guilty for attempt to commit Qatl-i-Amd of Zulfiqar Ali Razak injured P.W. and convicted under section 324 PPC and sentenced to 7 years R.I. with a fine of Rs. 5000/- and indefault thereto to undergo 6 months R.I. He was also directed to pay compensation to Zulfiqar Ali injured PW amounting to Rs. 5000/- and in default thereof to undergo 6 months further R.I. His both sentences were ordered to run concurrently. Both the appellants were given benefit of section 382-B, Cr.P.C. By this appeal they have assailed the judgment of the learned Additional Sessions Judge, Faisalabad. 2. Briefly the prosecution story is that Zulfiqar Ali Raza, complainant made his statement before the police on 24.10.1992 relating to the present, occurrence which had taken place on 22.10.1992 in which he alleged That he is resident of Chak. No. 61/GB, Abadi No. 2. There is a common pucca wall in between their house and that of Muhammad Tufail (accused). On 22.10.1992 at. about 2 P.M. Zafar s/o Muhammad Tufail, Mst. Naziran Bibi w/o Muhammad Tufail and Mst. Bashiran Bibi w/o Muhammad Tufail started putting mud over the common pucca wall. His father was not present in the house. The complainant and his mother Mst. Xaseeran Bibi refrained Zafar etc. from doing so because in this way the mud was dropping in the manger of their cattle and if they want to make the wall high, the same be made with pucca hricks upon which Zar replied that if the complainant would not let them to raise the katcha wall, he shall not let the pucca wall remained there and he pulled four layers of bricks from the wall. The complainant stopped him from doing so upon which Zafar jumped into their court-yard and gave him slaps. His mother, sister and Abdullah s/o Ghulam Rasul who had come to their house as a guest intervened and spread him from Zafar accused, Zafar went to his house and their women folk kept on abusing them. 3. At about 3 P.M. his father Abdul Ghafoor (deceased) was coming home upon receiving the information. When the reached near the house of Akram s/o Muhammad Tufail, Zafar armed with sota, Muhammad Aslam armed with hatchet, Atta Muhammad armed with sota, Khurshid Bibi w/o Muhammad Aslam and Perveen Bibi w/o Muhammad Akram armed with sntas residents of the village raising lalkara that Abdul Ghafoor be not speared today and attacked upon him. Aslam accused gave a hatchet blow upon the head of Abdul Ghafoor hitting on the left side of his head. Then Zafar ccused gave two sota blows on the back side of the head of Abdul Ghafoor who fell on the ground. When Abdul Ghafoor was fallen on the ground. Atta Muhammad. Muhammad Tufail and Mst. Perveen accused gave him one sota blow each which hit him on the back side of chest towards left side, on the back and mouth. In the meanwhile, the complainant alongwith his sister Ms?. Sarwari Bibi went forward to rescue their father when all the accused attacked upon them. Muhammad Aslam gave a hatchet blow hitting on the head of complainant, Khurshid Bibi gave him a sota blow on the head. Zafar, Muhammad Tufail and Atta Muhammad gave him sota blows which hit him on the right cheek, on the fore-head towards left side, on the hack side of left below, on the back of chest towards right side and on the left ankle. Perveen Bibi gave a sota blow on the right, side of head of his sister. On their hue and cry, Rana Abdul Sattar and Abdullah s/o Ghulam Rasul PWs were attracted to the place of occurrence. The PWs and other people of the village got them rescued from the accused. The complainant alongwith his father and sister came to Jaranwala Hospital in injured condition. He and his father (Abdul Ghafoor) was got admitted in the hospital. On 23.10.1992, Abdul Ghafoor was shifted to Allied Hospital, Faisalabad due to his serious condition. 4. Primarily the case was registered under sections 324/837/148/149 PPG but later, after the death of Abdul Ghafoor, deceased, section 302 PPC was added thereto. The police after investigating and completing the necessary formalities challaned the accused to the court where they were charged on 18.5.1993 under section 148, 302/149 PPG. Zafar. Muhammad Aslam. Muhammad Tufail, Atta Muhammad and Mst. Khurshid Bibi accused were also charged under section 324/149 PPG for causing injuries to ZuUiqar Ali PW while Ms?. Parveen was charged n/s. 337-A(i)/149 PPC for causing hurt, to Ms?. Sarwari Bibi PW. To prove its case the prosecution has produced 12 witnesses. Sardar Khan (PW.l) identified the dead body. Zulfiqar Ali (P.W.2) guarded the dead body of Abdul Ghafoor deceased and after the conducting of the post-mortem examination by the Doctor took relevant papers and last worn clothes Chaer P. 1 and Kameez P. 2 of the deceased which were taken into custody vide memo. Ex. PA by the Investigating Officer on 25.10.1992. Dr. Muhammad Imriaz Rabbani (P.W.3) on 25.10.1992 conducted post-mortem examination of the deceased and found following injuries on his body. (1) Al lacerated wound 3 cm x 1 cm x bone deep with swelling 10 x 8 cm on left, side of the top of head 4 cm below from mid-line. On dissection following were observations. There was a fracture line 5 x 1/10 cm on the skull. On opening the skull, multiple sub-dural haemorrhages were seen. 2. A swelling 8 x 5 cm on right side of top of head. On opening the scalp, haema-toma was seen. The suture line between frontal and prietal bone was separated. On opening the skull, multiple sub-dural haema toma was seen. 3 A swelling 5 x 4 cm on back of head. On opening the scalp no fracture was seen. On opening the skull, meninges and brain were normal. 4. There was a contused swelling 16x10 cm on back of left chest. On opening the chest, no fracture of ribs was seen. 5. A contused swelling 5 x 2 cm on back of lumber spine. On opening the abdomen, no fracture of lumber spine was seen. In his opinion, injuries No. 1 and 2 were fatal, rest were simple. All the injuries were ante-mortem and were caused by blunt weapon. The death in his opinion was due to injuries to brain, haemorrhage and shock which ultimately led to cardiopahnonal arrest as a result of injuries 1 and 2 which were fatal and caused by blunt weapon and were sufficient to cause death in ordinary course of nature. Muhammad Sabir (PW.4) deposed that on 24.10.1992 he recorded formal FIR No. 612/92 (Ex. PE) under sections 324/337 -F-i/148/149 PPC and sent the same to Muhammad Ashraf SI for investigation. He further deposed that he on 24.10.1992 produced death certificate of Abdul Ghafoor deceased issued by Dr. Muhammad Iqbal (Ex. PFi. He made its entry vide report No. 19 dated 25.10.1992 in the daily register and added section ,'502 PPC in the FIR (Ex. PE) and sent the copies of The same the I.O. and other concerned authorities on which amended FIR 'Ex. PE/1) was registered. He aiso kept in safe custody parcel containing blood-stained earth and hatchet in the rnalkhana and handed over the same to Ahmed Ali constable for onwards transmission to the office of Chemical Exuminer. Lahore. The said Ahmed Ali (PW.5) deposited the above said parcels in the office of Chemical Examiner on 4.11.1992 intact. P.W.6 is Dr. Muhammad Iqbal who on 24.10.1992 issued death certificate Ex. PF of the deceased, Abdul Ghafoor. 5. P.W. 7 is Dr. Muhammad Rafiq who on 22.10.1992 medically examined Abdul Ghafoor son of Abad Ali and found the following injuries on his person. 1. Lacerated wound 3 cm x 1 cm x bone deep on the left side of head. 2. A contused swelling 18 x 12 cm on the back of left chest. 3. A contusion mark 6 x 2 cm on the back (lumber region). 4. A contused swelling 4 x 3 cm on right side of head. 5. A contused swelling 4 x 4 cm on back of head. 6. two incisor and tow canion teeth of upper side were shaky Ex. PG is the correct carbon copy of his medicolegal examination and Ex. PG/I is the sketch of injuries in his own hand and signed by him. On the same day he examined Zulfiqar at 6.30 PM and found following injuries on his person : 1. An incised wound 3 x 1 cm bone deep on right side of head. 2. A contused swelling 3x2 cm on right cheek. 3. A contused swelling 2x2 cm on left side of fore-head. 4. A contused swelling 5x3 cm on left side of head. 5. An abrasion 2 x 1 cm on the left elbow. 6. Multiple contusion mark covering area 20 cm x 10 cm on the right and left chest (back of chest). 7. An abrasion 1x1 cm on the left key. Injury No. 1 was by sharp edged weapon and rest were found to be by blunt weapon. His medicolegal report is Ex. PH and sketch of injuries is Ex. PH/1. He also examined Mst. Sarwar Bibi on the same day at 6.55 PM and found following injury on her person. 1. A lacerated wound 1% x 1 cm skin deep with swelling 5 x cm on right side of head. The injury was declared to be caused by blunt weapon. Ex. PJ is the correct carbon copy of his MLR while Ex. PJ/1 is sketch of injury. 6. During cross-examination PW.7 admitted that according to MLR, on 22,10.1992 at about 4.55 PM he medically examined Muhammad Aslam and found following injuries on his person : 1. A contused swelling 16 x 10 cm with abrasion 12 cm x 1/8 cm on the back of right upper chest. 2. A contusion mark 10 x 8 cm on the left side of chest. (Back side). 3. Complaint of pain on the thumb of left hand. 4. A contusion mark 12 x 2 cm on the left shoulder. 5. Complaint of pain on the right thigh. Injuries No. 1 and 2 were kept under observation while the rest were declared simple and caused by blunt weapon. Ex. PB is the MLR No. 1197/92. On the same day he also examined Zafar Ali and found following injuries on his person : 1. An incised wound 2 x 1 cm bone deep on the left side of forehead. 2. A contusion mark 6 x 2 cm on the left side of chest. (Back side). 3. A contused swelling 7 cm x 5 cm on the back of right chest. 4. A contusion mark 6 x 2 cm on the back of right thigh. Injury No. 1 was caused by sharp edged weapon and rest where by blunt weapon. Ex. DC is the correct photo copy of the original kept by him. 7. Aurangzeb (P.W.8) is draftsman who prepared site plans Ex. PK and Ex. PK/1 under the instructions of police. Zulfiqar Ali Raza (P.W.9) who was an injured PW and complainant, lodged the FIR Ex. P.E. on 24.10.1992. He reaffirmed the story of FIR. He joined the police investigation and witnessed the blood stained earth taken into possession by the I.O vide Memo Ex. PL and signed it. He also produced his blood stained clothes Shalwar P.3 and Kameez P.4 which were taken into possession by the I.P. vide memo Ex. P.M. It was signed by him. It is stated by him that on 30.10.1992 Mst. Khurshid Bibi produced Sota). 5 taken into possession vide Memo Ex. PN and Parveen Bibi produced Sota P6 which was taken into possession by the I.O. vide memo Ex. P.O. He signed both these memos. It was also stated by him that on 2.11.1992 Aslam accused led to recovery of hatchet P. 7 which was taken into possession vide memo. Ex. PP. Zafar got recovered sota P. 8 taken into possession video Memo. Ex. PQ, Tufail accused got recovered Sota P. 9 which was taken into possession vide Memo. P.R. and Atta Muhammad led to recovery of sota P. 10 vide Memo. Ex. PS. Both Mst. Sarwari Bibi (PW.10) and Abdullah (PW.ll) corroborated the statement of complainant. She was medically examined by the Doctor. Her medico legal report is Ex. PJ. Muhammad Ashraf, Sub Inspector (PW.12) is the Investigating Officer who had conducted the investigation of this case. He deposed that he was in the area of Chak No. 101/GB, when he received the file of this case on 24.10.92. He went to the place of occurrence, recorded the statements of PWs, inspected the post, collected the blood stained earth vide Memo. Ex. PL signed by Zulfiqar and Abdul Sattar PWs and made into a sealed parcel. He prepared the rough sketch of the spot and the notes No. 1 to 7 area in his hand and signed by him which is Ex. PT. On the same day, complainant produced before him Shalawar P.3, Qami P.4, blood stained clothes of Zulfiqar Ali which he took into possession vide memo. Ex. PM signed by him and Zulfiqar Ali PW. Next day at 1.30 A.M. on receiving the information about death of Abdul Ghafoor deceased, he reached Civil Hospital Jaranwala, prepared injury statement of deceased vide memo, Ex. PC, prepared inquest report (Ex. PD) both signed by him. He took into possession Chader P. 1 and Shirt P. 2, last worn clothes of deceased vide memo. Ex. PA. He also recorded the statements of Safdar and Muhammad Boota PWs. He also got prepared site plan Ex. PK and P.K/1 and red notes thereon area in his hand and bear his signatures. On 30.10.1992, he arrested Mst. Khurshid and Mst. Parveen Bibi Mst. Khurshid Bibi produced sota P. 5 vide Memo. PN and Mst. Parveen Bibi produced Sota P. 6 taken into possession vide memo. Ex. PC. He sent both the ladies to judicial lock up on 31.10.1992. He arrested Zafar, Aslam, Muhammad Tufail and Atta Muhammad on 30.10.1992 who on 2.11.1992 led to recoveries of the weapon of offences. Zafar accused got recovered Sota P. 8 vide Memo Ex. PQ, Muhammad Tufail Sota P. 9 vide Memo Ex. PR, Atta Muhammad Sota P. 10 vide Memo Ex. PS, Muhammad Aslam hatchest P. 7 vide Memo. Ex. PP. He also prepared rough sketch of places of recoveries of Sota P. 8 which is Ex. PQ/1, Sota P. 9 which is Ex. PR/1, Sota P. 10 which is Ex. PS/1, hatchet P. 7 which is Ex. PP/1 and also recorded the statements of P.Ws. On 15.11.1992 he made two applications to the Medical Officer, THQ Hospital, Jaranwala to enquire about the nature of injuries on the person of Zulfiqar Ali and Sarwar Bibi which were .kept under observation. The said applications are Ex. PU and PV respectively and the reports of the doctor on the same are Ex. PU/1 and PV/1 respectively 8. Mst. Naseeran Bibi, Abdul Sattar, Nisar Ahmad, Falak Sher, Muhammad Boota and Safdar Ali PWs were given up by the prosecution being unnecessary. The reports of Chemical Examiner as Ex. PX and Ex. PY nd that of the Serologist as Ex. PZ and Ex. PA were tendered in evidence and the prosecution closed its case. 9. The accused in their statements u/S. 342 Cr.P.C. have stated that they have been involved due to enmity. None of the accused wanted t produce defence evidence. Accused Muhammad Tufail, Atta Muhammad, Khurshid Bibi and Parveen Bibi took the plea that they were not present at the time of occurrence. Zafar accused in answer to question submitted as under: "I am innocent. I have installed a new Toka machine in my havaili near the common wall and I and Aslam were placing Balas and Beems on the common wall whereupon Zulfiqar Ali PW insisted that we should pay the money of the common wall and then place the same on it. I said that the money has been paid and he is nobody to prevent us from placing Balas and Beems on the common wall whereupon Zulfiqar Ali PW abused me and I paid in the same kind. Then he inflicted hatchet blow on my left side of fore-head and there was profused bleeding. Abdul Ghafoor inflicted injuries with sota on my chest and thigh. I raised hue and cry. Muhammad Alsam threw brick bats just to save me from the clothes of the complainant party. The complainant party also threw brick bats which hit Muhammad Aslam on his chest, left shoulder and right thigh. I and Muhammad Aslam were admitted in the Hospital and from there after the death of Abdul Ghafoor deceased were arrested from the Hospital and the medicolegal certificates were also handed over to the police". 10. Learned counsel for the appellants has submitted that there is rwo days delay in lodging the FIR and during these days the complainant concocted a false stoiy and under a planning involved the innocent persons due lo enmity, that it was a sudden quarrel which resulted into death of Abdul Ghafoor, deceased, otherwise there was no intention on the part of the accused to murder the deceased, that there was no motive on the part of the appellants to ill the deceased and that when on the same set of evidence some of the accused have been acquitted, the appellants are also entitled to some benefit and to be acquitted. Lastly it was submitted that in no manner the case against the appellants falls under section 302 PPC but under section 304 Part II PPC and the sentence already undergone by them is sufficient to meet the ends of justice. As alleged the appellants have already undergone a sentence of 5 years. 11. On the other hands learned counsel for the State has submitted that the motive is fully proved and the prosecution has substantially proved its case against the appellants In answer to alternative argument of the learned counsel for the appellants that the case falls under section 304 Part II P.P.C. it has been submitted that the case falls under the provisions of Section 315 PPC and is liable to 14 years punishment under section 316 PPC because if the statements of appellants are admitted to be correct then it will be Qatl Shibh-i-Amd and liable to diayat and also punishment with imprisonment which may extend to 14 years. 12. I have minutely scrutinized the whole evidence on the record with the able assistance of the learned counsel for the parties and have also heard their valuable arguments. 13. The admitted position on the record is that there is a common wall between the appellants and the complainant party. It is also admitted position that the dispute arose regarding putting of mud over the common Pakka wall or by placing the Balasand beams on it. It is also admitted position on the record from the prosecution evidence that there was a sudden quarrel and the parties were injuried and the prosecution witnesses concealed the injuries caused to the accused party. It is also on the record that the prosecution could not establish the guilt of four accused namely, Muhammad Tufail, Atta Muhammad, Mst. Khurshid Bibi and Mst. Parveen Bibi and in this case the recoveries of the weapon of offence have also not been proved beyond any doubt. The learned trial Court has totally ignored the version of the appellant side that the injuries were caused by the exchange of stones and the medical evidence of Dr. Muhammad Rafique is also to the effect that all the injuries were caused by a blunt weapon. He had stated in the examination-in-chief that injury No. 1 was by sharp edged weapon while rest were by blunt weapon. On the other hand Dr. uhammad Imtiaz Rabbani who conducted the post mortem examination stated that injury Nos. 1 and 2 were fatal and caused by blunt weapon. Injuries to the deceased have been attributed to Muhammad Aslam accusedappellant specifically the fatal injuries. To a suggestion that whether injury caused by the edge of a blunt weapon can be mistakenly understood as that of sharp edged weapon he frankly admitted that it can be mistakenly so understood. In the present case the version alleged by the appellant appears to be more plausible and fitting in the circumstance in which the fight, took place between the parties. There were five injuries on the person of accused Muhammad Aslam and four injuries on the person of accused Zafar which were also similar to the injuries to the complainant side which clearly shows that thee had been a brick batting exchange from both sides and a stone is a weapon which is the ordinary corse of nature is not likely to cause death, as such, the conviction of Muhammad Aslam appellant is altered from Section 302/34 PPC to Section 316 PPC and he is held liable to pay Diyat amounting to Rs. 2,02,158/- and also punished with imprisonment of five years R.I. Zafar appellant is acquitted of the charge u/s 302/34 PPC but his conviction u/s 324 PPC is maintained and he is sentenced to five years R.I. and to pay a ine of Rs. 5000/- to the legal heirs of the deceased and in default to undergo R.I. for three months. Benefit of Section 382-B Cr.P.C. is extended to the appellants. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 417 [ Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J . , Mst. JANAT BIBI-Petitioner versus STATE-Respondent Criminal Revision No. 69 of 1997, dismissed on 12-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 435 and 439-Murder trial-Exhibition of documentary evidence written by deceased I.O. through Moharir ASI-Application for sending those documents with all exhibits and other documents purportedly written by deceased Inspector to hand writing Expert-Dismissal of- Revision against-No objection was ever taken to admissibility of documents in question from petitioner's side-These documents were brought on record in accordance with law of evidence—There is nothing on record to suggest that those documents were not in the hand of deceased Inspector—Mere suspicion of petitioner that some of documents were not in hand of said Inspector, would not call for their examination by hand writing expert, particular so when petitioner had failed to point out any admitted hand-writing of deceased Inspector with which aforesaid documents could be compared and examined-Impugned order was just and fair and did not suffer from any legal infirmity-Petition dismissed. [P. 418] A to C Mr. Muhammad Tahir Khan Kiani, Advocate for Petitioner. Date of hearing : 12-11-1997. order The petitioner alongwith two others was facing trial under sections 302/34 PPC for the murder of one Qamar Zaman. The trial is in progress before the learned trial Court. PW-7 Riaz Ahmad Khokhara ASI was xamined to prove some documents which were written by Muhammad Sarwar Inspector (since dead) with whom he was working as Moharrir ASI at Police Station Gujjar Khan while the deceased was the S.H.O. of that Police Station. No objection was taken to the aforesaid evidence either in the examination-in-chief or in cross-examination, hence the statement of that • witness was concluded. He denied the suggestion during the cross-examination that some of the documents were not in the hands of the aforesaid deceased Inspector. 2. The petitioner applied in the Court below that since some documents, which had not been written by the deceased Inspector, had been brought on evidence through PW-7, therefore, all the exhibits and documents purportedly written by the deceased Inspector be sent to the Hand Writing Expert, for obtaining his scientific and expert opinion. The application aforesaid was dismissed by the learned trial Judge vide the impugned order dated 7-7-1997 with the observation that the applications/accused had requested for sending almost all the documents exhibited in the Court to the Hand Writing Expert without specifying as to which documents were not in the hand-writing of the deceased Inspector. The case was thereafter adjourned for recording the statements of the accused/petitioner. 3. In this revision petition, the aforesaid order is challenged on the ground that grave injustice has been done to the petitioner as some irrelevant documentary evidence has been brought on record through PW-7. In this context, it, is submitted that some of the exhibited documents were prepared by the deceased Inspector as I.O. whereas some of them were not in his hand, as such, it was necessary to send all the documents to the Hand Writing Expert to find out, as to which documents were written by the deceased Inspector and which out of them were not in his hand. 4. I have heard the learned counsel for the petitioner and have also considered the contentions raised above. The perusal of the statement of PW-7 shows that no objection was ever taken to the admissibility of these ocuments from the petitioner's side. Even otherwise, the documents produced at the trial during the statement, of PW-7 were brought on record in accordance with tho Law of Evidence. The aforesaid ASI had clearly stated that he worked as Moharrir ASI at Police Station Gujjar Khan while Muhammad Sarwar deceased Inspector was the then S.H.O. of the said Police Station. As .such, he claimed to be well conversant with the hand­ writing and signatures <; { the deceased Inspector. After saying so, he clearly stated that the documents exhibited in his statement were in the hand of the deceased Inspector. There is nothing on record to suggest that those were not in the hand of the deceased Inspector. The mere suspicion on the part of the petitioner that some of the documents were not in the hand of the deceased Inspector, would not call for their examination by the Hand Writing Expert, particularly so when the petitioner had failed to point out y admitted hand-writing of the deceased Inspector with which the aforesaid docriments could be compared and examined. 5. In such a situation, the impugned order rejecting the application of the petitioner/accused was not only just and fair but did not. suffer from any legal infirmity so as to call for interference by this Court on its revisional jurisdiction. The revision petition being devoid of merit is dismissed in (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 419 Present: muhammad islam bhatty, J. Mst. NASREEN-Petitioner versus STATE-Respondent Criminal Misc. No. 4789-B of 1997, allowed on 19-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Offence u/S. 302/34-Petitioner has a suckling child aged hardly about 1^ years-Welfare of suckling child demands that child should not be made to suffer in jail for the murder allegedly committed y his mother-Mother should be in a position to lookafter child properly- Petitioner enlarged on bail. [P. 419] A NLR 1995 Criminal 8 and 1991 P. Cr.L.J. 1316 ref. Mr. Muhammad Ramzan Chaudhry, Advocate for Petitioner. Kh. Muhammad Iqbal Butt, Advocate for State. Date of hearing : 19-11-1997. order Relying on Ghulam Sakina and others vs. The State (1991 P.Cr.L.J. 1316) and also Ms?. Nusrat vs. The State (NLR 1995 Criminal 8), the learned counsel for the petitioner has urged that although Mst. Nasreen Akhtar petitioner has been accused of murder yet she is entitled to grant of bail as the welfare of suckling child demands that her mother should be in a position to look after the child properly and the child should not suffer in jail for the murder committed by his mother and that the release of the mother on such ground would be in furtherance of principles of justice expounded under Islamic Criminal Law. He states further that the petitioner does not want to press her bail on the other grounds taken in the petition. 2. The learned State counsel concedes that the petitioner has a suckling child aged hardly about 1 year. 3. I have had the privilege of going through the authorities cited at the Bar and I feel inclined to grant the petitioner bail merely on the ground that the welfare of the suckling child so demands and that the child should not be made to suffer in jail for the murder allegedly committed by his mother. In these circumstances, the petitioner is enlarged on bail subject to her furnishing bail bond in the sum of Rs. 1,00,000/- with two surties in the like amount each to the satisfaction of the Deputy Registrar (Judl) of this Court. •MYFKi Bail granted.

PL 1998 Cr PL 1998 Cr. C. ( Lahore ) 420 Present : IFTIKHAR HUSSAIN CHAUDHRY, J. QUTAB-Petitioner versus STATE-Respondent Criminal Misc. No. 619-B/1997, allowed on 21-8-1997. Criminal Procedure Code, 1898 (V of 1898)-- —.S. 497-Bail-Offence u/s 302/323/337-H-II, 148/149 PPC-Petitioner according to FIR had come to spot armed with hatchet, but no specific injury to any of PWs has been ascribed to him-Subsequently, Mst. K and N in their statements recorded u/S. 161 Cr.P.C. stated that he caused blunt weapon injuries to them-Individual role ascribed to petitioner does ot bring his case within prohibitory clause of section 497 Cr.P.C.-Bail allowed. [P. 421] A Mr. Abdul Haq Duggal, Advocate for Petitioner. Mr. Muhammad Jchangir, Advocate for State. Date of hearing : 21-8-1997. order Petitioner is one of 25 accused in case FIR No. 273 dated 26.12.1996 under sections 302/323/337- H( ii) read with section 148/149 P.P.C., P.S. Machhiwal, District Vehari. According to the complainant he alongwith the members of his family was picking cotton from the fields when Bashir Ahmad and others including Qutab, who was armed with hatchet came to the spot and started belabouring the complainant party. Bashir Ahmad gave a blow with hatchet to the head of Mst. Siani Bibi (deceased), while the other accused assaulted the members of the complainant party causing injuries to a number of them. No specific role was attributed to the petitioner in the FIR, but later, in their statement recorded under section 161 Cr.P.C. Mst. Karam Bibi and Noor P.Ws alleged that Qutab gave blows with wrong side of hatchet to their head and fore-arm. 2. The petitioner seeks post arrest bail in the case. 3. Learned counsel submitted that Ghulam Muhammad had cultivated cotton crop and the complainant party without any justification started picking up the cotton from the field and on account of that general fight between the parties took place in which a number of persons on both sides were injuried, but the complainant on account of death of Mst. Siani Bibi succeeded in getting this false case registered against the petitioner and 24 of his co-accused. It was submitted that in the first instance no overt act was ascribed to the petitioner but later two prosecution witnesses claimed that he had given blows with hatchets to them but injuries on their persons did n.it bring the case of the petitioner within the prohibitory clause of section 497 Cr.P.C. Learned counsel for the State opposed the grant of bail to the petitioner and submitted that he was member of an unlawful assembly, which had attacked the complainant, party. 4. Qutai- petitioner according to FIR had come to the spot armed with hatchet, but no specific injury to any of the P.Ws has been ascribed to him. Subsequently, Mst. Karam Bhari and Noor in their statements recorded under section 161 Cr.P.C. stated that he caused blunt weapon injuries to them. The individual role ascribed to the petitioner does not bring his case within the prohibitory clause of section 497 Cr.P.C. The petitioner, as such, is allowed bail in the sum of Rs. 50,000/- (Rupees fifty thousand with one surety in the like amount to the satisfaction of Sessions Judge, Vehari. (MYFK) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 421 Present : RAJA MUHAMMAD KHURSHID, J. ALI QADIR-Petitioner versus STATE-Respondent Criminal Misc. No. 923-B of 1997, dismissed on 11-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Bail-Offence u/s 324/34 PPC-Petitioner while armed with a revolver had fired at victim straight towards him-Though fire had hit non-vital part of upper portion of body, but weapon used; and firing it straight towards victim would give an impression that intention attributed to him in FIR cannot be successfully repelled at bail stage- Petitioner has no case of bail-Petition dismissed. [P. 422] A & B Raja Zahoor Ahmed, Advocate for Petitioner. Mr. Qaisar Hussain Zaidi, Advocate for State. Date of hearing : 11-11-1997. order A case under sections 324/34 PPC was registered against the petitioner at Police Station Gujjar Khan, District Rawalpindi, on the ground that while armed with a revolver, he made a fire straight upon the complainant thereby causing injury on the left upper arm of the victim namely Sated Iqbal comp 1 ainant 2. Learned counsel for the petitioner has prayed for bail on the ground that non-vital part of the body had received the injury; that the petitioner made only one fire and did not repeat it thereby showing that he had no intention to commit the murder of the victim and as such, the provisions of section 324/34 PPC were not attracted to the facts of the resent case. Reliance was placed on Muhammad Rarnzan vs. The State (1990 P.Cr.L.J. 897 (Lahore) and Muhammad Khurshid vs. The State (1996 P.Cr.L.J.544 (Lahore). 3. Learned State counsel contended that though the injury was caused on the upper part of left arm of the victim, but it was made from a revolver straight towards the victim which clearly showed that the intention was to kill him. As such, the facts of the reported cases were allegedly distinguishable from the facts of this case. 4. I have considered the above submissions and find that the petitioner while armed with a revolver had fired at the victim straight towards him. Though the fire had hit non-vital part of upper portion of the . body, but the weapon used; and firing it straight towards the victim would give an impression that the intention attributed to him in the FIR cannot be successfully repelled at this stage. 5. In view of my above discussion, the petitioner has no ca'se for bail at this stage. The petition is accordingly dismissed with the observation that the remarks made above are purely for the limited purpose regarding the 0 disposal of this bail petition and will have no bearing on the merits of the case during the trial. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 422 Present : RAJA MUHAMMAD KHURSHID, J. MUZAFFAR-Petitioner versus GHULAM RAZIQ etc.-Respondent Criminal Misc. 854/CB-1997, dismissed on 5-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)-Cancellation of Bail-Offence u/Ss. 302/34, 364 PPC-Being a blind murder respondents having been admitted to bail in view of their innocence having been established through three consecutive investigations, it has become a case of further inquiry-Bail once granted should only be cancelled if there are strong grounds to show that order granting bail was patently illegal or based oh conjectures or that concession of bail was misused by interfering with investigation; threatening the witnesses or subverting complainant side-None of foregoing gtounds exist so as to call for cancellation of bail granted to respondents No. 1 & 2-Petition dismissed. [P. 424] A & B Sardar An in at Ulah Khan, Advocate for Petitioner. Mr. Ghulam Habib, Advocate for Respondents No. 1 and 2. Mr. Arnjad Hamid Ghori, Advocate for State. Date of hearing : 5-11-1997. order A case under section 302/34/364 PPG was registered against the respondents Nos. 1 and 2 vide. FIR No. 344 dated 26.12.1996 at Police Station. Fateh Jang District Attack for the abduction and murder of a nephew of the petitioner/complainant namely Muhammad Rafiaz. 2. Respondents Nos. 1 & 2 applied for post arrest bail in the Sessions Court, Attock. The bail was granted by the learned Additional Sessions Judge, Fateh Jang, District Attock vide his order dated 16.7.1997, on the ground that both the respondents were declared innocent by three Investigating Officers and that the respondents were challaned in the light of 4th investigation. It was held that it was a case of further inquiiy as being a blind murder, the respondents aforesaid were linked with the occurrence on account of the fact that they had taken away the deceased on the pretext of hunting (shikar). The aforesaid deceased did not return whereupon both of them told the complainant that they should visit the garden near the Dam where the deceased used to go for plucking the oranges. The petitioner along with Ghulam Nabi and Umar Hayat went to the aforesaid garden where they found the dead body lying near the culvert. 3. The learned counsel for the petitioner has sought cancellation of bail on the ground that respondents Nos. 1 and 2 are nominated in the FIR; that all the PWs have persistently stated that the deceased had left the house in their company but did not return; that the dead body of the deceased was recovered from near the garden, which was pointed out by the respondents on the ground that the deceased used to go there for plucking the fruit; that there was strong motive for Abdul Razzaq who suspected illicit relations of deceased with his wife Mst. Naureen; that final investigation linked the respondents with the occurrence for the .murder of the deceased. Hence it was prayed that there was no case of further inquiiy, or investigation since the respondents have been challaned. 4. The learned counsel for respondents, however, defended the impugned order on the ground that all the PWs were inconsistent regarding the date of occurrence while appearing during 4th investigation. In that connection, it was submitted that according to the PWs the occurrence had taken place on 23.12.1996 whereas in the FIR the date of occurrence was given as 25.1.2,1996; that respondents were found innocent in three consecutive investigations which showed that the prosecution had a weak case from veiy start as it was a blind murder; that hail once granted cannot be cancelled until and unless the order is perverse, harsh or bad on the face of it. 5. The learned counsel for the State supported the petitioner on the same grounds which were raised by the learned counsel for the petitioner. 6. I have considered the foregoing facts. It is not possible to enter into deeper appreciation of the merits of the case. It is enough to say that being a blind murder respondents having been admitted to bail in view of their innocence having been established through consecutive three investigations, it has become a case of further inquiry. Even otherwise it is well established law that bail once granted should only be cancelled if there are strong grounds to show that the order granting bail was patently illegal or based on conjectures. The other ground, which is recognised is that the concession of bail was misused by interfering with the investigation; threatening the witnesses or subverting the complainant side. 7. None of the foregoing grounds exist so as to call for cancellation of ails granted to respondents Nos. 1 and 2. The petition being meritless is dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 424 [Rawalpindi Bench] Present: raja MUHAMMAD KHURSHID, J. ABDUL MAJID-Petitioner versus STATE-Respondent Criminal Misc. No. 943/B-1997, allowed on 10-12-1997. Criminal Procedure Code, 1898 (V of 1898)— —-S. 497-Offence u/S. 11 offence of Zina (Enforcement of Hudood) Ordinance 1979—According to statement of Abductee, there is no allegation of Zina gainst petitioner who is father of co-accused N with whom nikah of abductee was read which she claimed to be against her will and fictitious-As such it is a case of further inquiry in respect of petitioner-As far as validity or invalidity of Nikah of abductee is concerned, it can only be determined during trial-Petitioner was granted bail. [P. 425] A Raja Ghazanfar Ali Khan, Advocate for Petitioner. Raja Muhammad Ayub Kiani, Advocate for State. Date of hearing : 10-12-1997. order A case under sections 10/11 of the Offence of Zina (Enforcement of Hudoodi Ordinance, 1979, was registered against the petitioner and others on the ground that they abducted Mst. Zahida Bibi aged about 13/14 years and later on got her married against her wish with Niaz Hussain, a son of the petitioner and co-accused in the case. 2. The abductee Mst. Zahida Bibi was recovered by the police and made a statement under section 164 Cr.P.C. in which she stated her age as 18 years. She also deposed that after her alleged abduction, she remained with the petitioner and his son Niaz Hussain for about one month and four days in house situated in Village Aman Garah, District Noshehra, and uring all that period nobody committed any illicit inter-course with her. Though after alleged Nikah, she was subjected to inter-course by Niaz Hussain co-accused. 3. From the foregoing facts, it appears that there is no allegation of Zina against the present petitioner who is father of Niaz Hussain co-accused in the case with whom Nikah of the abductee was read which she claimed to be against her will and fictitious. As such, it is a case of further inquiry in respect of the petitioner. As far as the validity or invalidity of Nikah of abductee with Niaz Hussain is concerned, it can only be determined ducing the trial. As such, the petitioner is admitted to bail in the sum of Rs. 30,000/- with a surety in the like amount to the satisfaction of learned trial Court. 'A.P.> Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 425 [ Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ASHFAQ-UR-REHMAN-Petitioner versus STATE-Respondent Crl. Misc. No, 1123-B of 1997, allowed on 3-12-1997 . Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497«0ffence u/S. 337/A (ii) 324/34 PPC-Bail after arrest-According to report of daily diary complainant was aggressor who opened attack on petitioner-It is thus a case of two versions-Even otherwise according to FIR, petitioner was assigned a general role as was assigned to his coaccused, who have since been admitted to bail by lower court-Petitioner claims to be a student for which a college leaving Certificate is placed on record-He is not a previous convict-Investigation is since complete and he is no more required for investigation-Case has already been sent to Court for trial-Bail allowed. [P. 426] A & B Mr. Ghufran Khurshid Imtiaz, Advocate for Petitioner. Syed Muzhar Naqvi, Advocate for State. Date of hearing : 3-12-1997. order A case under Section 337/A(ii), 324/34 PPC is registered against the petitioner and others for an occurrence, which took place on 7.8.1997 within the area of Police Station, Secretariat, Islamabad, in which the complainant of this case received injuries. In the same transaction, present petitioner was also injured as is clear from the report recorded on 9.8.1997 in the daily diary of Police Station, Secretariat, Islamabad . According to that report, the complainant of this case was allegedly the aggressor as he had opened attack on the petitioner. It is thus a case of two versions about the same occurrence. Even otherwise according to the FIR, the petitioner was assigned a general role as was assigned to his co-accused, who have since been admitted to bail by the learned lower court. 2. The petitioner claims to be a strident of Intermediate for which a College leaving Certificate from the Principal Ishaq Shaheed Intermediate (Sc/Artc) College, Rawalpindi Cantt is placed on record. He is not a previous convict. The investigation is since complete and his person is no more required in connection with the investigation as the case has already been sent to the court concerned for trial. 3. In view of tinabove situation, allowing this petition, the petitioner is admitted to has, in the sum of Rs. 10,000/- with one surety in the like amount to the sat.?section of learned trial Court. (MYFK) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 426 [ Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD NAWAZ and another-Petitioners versus STATE-Respondent Criminal Misc. No, 830/B of 1997, allowed on 3-12-1997. Criminal Procedure Code, 1.898 (V of 1898)— —-S. 497-Bail-Offence u/S. 10 offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with S. 382/34 PPC-Victim Mst. R and PW Mst. R have exonerated oth accused to have committed offence alleged against them-Investigating officer has also identified Mst. R and Mst. R in Court-They stated that their tatements were true and voluntary and thai justice be done to petitioners as they were not actual offenders-Case has become of further inquiry-Bail allowed. [P. 427] A Ch. Zumurrad Hussain, Advocate for Petitioners. Qazi Ahmad Naeem Qureshi, Advocate for State. Date of hearing : 3-12-1997. order A case under Section 382/34 PPC read with Section 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioners and others as they maltreated the victim Mst. Robina Begum and deprived her of some cash before committing zina with her. Mst. Ruksana Begum PW aws also present at that time, but was not subjected to sexual inter-course as she was ill on that date. 2. The petitioners applied for bail in the court below, which was rejected vide the impugned order. 3. Today during the arguments, the victim Mst. Robina Begum has appeared in person and tendered affidavit mark 'A', whereby she exonerated Muhammad Nawaz petitioner by stating that he was not the person who had committed zina with her. Although the affidavit does not mention that the other petitioner namely Hasan Abbas has not been exonerated but the victim Mst. Robina Begum has exonerated him by stating that he was also not her accused as he did not commit any offence with her. In support of the above statement of Mst. Robina Begum two affidavits Mark 'B' & mark 'C' have been produced by Mst. Rukhsana Begum in which she has deposed that oth the petitioners namely Muhammad Nawaz and Hasan Abbas were not the persons who had committed any offence with Mst. Robina Begum aforesaid. According to Mst. Rukhsana Begum, who is also present in court both the petitioners are innocent. 4. In view of the above situation, victim Mst. Robina Begum and PW Mst. Rukhsana Begum have exonerated both the accused to have committed offence alleged against them. The Investigating Officer has also identified Mst. Robina Begum and Mst. Rukhsana Begum in court. They were asked by me whether their statements were voluntary or under some duress. They stated that their statements were true and voluntary and that justice be done to the petitioners as they were not the actual offenders. 5. In view of the foregoing facts, it has become a case of further inquiry. Accordingly allowing this petition, the petitioners are admitted to bail in the sum of Rs. 20,000/- each with one surety each in the like amount of the satisfaction of learned trial court. (A.P.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 428 [ Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ABBAS and another-Petitioners versus STATE-Respondent Crl. Misc. No. 4441-B of 1997, allowed on 24-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-There are two versions about same occurrence which had taken place due to brawl leading to a tussle between Meo and Jat brother hood-Petition was not named in F.I.R. and he was assigned the role of ineffective firing through a supplementary statement—Case was recorded on 15-9-1997 and therenfter 10 step has been taken nor any conclusion has yet been drawn—Case appears to be of further inquiry—Bail allowed. [P. 429] A & B Mr. Arif Chaudh/y, Advocate for Petitioner. , Raja Muhammad . lyub Kiani, Advocate for State. Date of hearing : 24-11-1997. order This petition was forwarded to this Bench vide order dated 10-10- 1997 passed by my Lord the Chief Justice, Lahore High Court, Lahore on Cr. M. No. 1670-M/97, as the bail petition of the co-accused was decided by me. 2. It is submitted by the learned counsel for the petitioners that according to the F.I.R. Muhammad Abbas while armed with 12-bore gun alongwith ten others variously armed attacked at the complainant side. The fire made by Muhanvmad Abbas had hit the left side of the chest of Zubair an injured PW. However, the injury was kept under observation and still the result has not been obtained by the Investigating Officer as the investigation was changing from one officer to other. However, no recovery of weapon of offence was effected from the aforesaid petitioner. Further contended that Abdul Ghafoor petitioner was not initially named in the F.I.R. but was subsequently involved in the case through the supplementary statement made on the following day of the registration of F.I.R. It was contended that he while armed with a gun made ineffective firing. 3. It is alleged that in fact the complainant side was the aggressor as they had assaulted the petitioner namely Muhammad Ahhas and thereafter there was exchange of fires from both the sides, as would he clear from the police investigation. There were fire-arm injuries on the person of one Yaseen from the complainant side v hut the Investigating Officer came to conclusion that those were self-suffered and as such the defence version was iscarded. However, a criminal complaint is iled by Muhammad Mansha, ather of petitioner No. 1, which is subjudice before the Ilaqa Magistrate in which it has been alleged that the complainant side was the ggressor. The injuries on the person of aforesaid Yaseen were allegedly suppressed in the F.I.R. As such, it is contended that it is a case of counter version; that the police has not yet submitted the Challan as required by the provisions contained in section 173 Cr.P.C. nor any explanation is given except that the matter is still under investigation and that the Investigating Officers were changing from time to time. 4. I have gone through the police record and find that the last diary in the case was recorded on 15-9-1997 by the Investigating Officer and thereafter no step has been taken nor any conclusion has yet been drawn. 5. In view of the foregoing situation and particularly when Abdul Ghafoor petitioner was not named in the F.I.R. and he was assigned the role of ineffective firing through a supplementary statement and that the investigation has not yet been completed, it appears to be a case of further B inquiry particularly when there are two versions about the same occurrence which had taken place due to brawl between one Arif from the complainant side and Muhammad Abbas petitioner leading to a tussle between the Meo and Jat brotherhood. 6. In view of above circumstances, the petitioner is allowed and both the petitioners are admitted to bail in the sum of Rs. 20,000/- each with a surety each in the like amount to the satisfaction of learned trial Court/Duty Magistrate. The petitioners are, however, directed to join the investigation as and when required by the Investigating Officer in writing. fMYFK) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 430 [ Multan Bench] Present: M.A. QAZI, J. MUHAMMAD ASHIQ-Appellant versus STATE-Respondent Crl. Appeal No. 28 of 1993, decided on 24-11-997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —- S. 103-Qanun-e-Shahadat Order, 1984-Art. 40-Murder-Offence of- Recovery of weapon of offence-Requirements of-Procedure required to be followed in course of a search in pursuance to warrants issued under ection 103 Cr.P.C. is entirely different from recovery effected on pointation of accused and procedure of section 103 is not at all applicable to such recoveries effected on disclosure of accused made in course of investigation-Recovery under Article 40 of Qanun-e-Shahadat can never be termed as search because it is never conducted under a warrant nor is it conducted at one particular place as pin-pointed in warrant—Place of recovery under Art. 40 is always in the mind/knowledge of accused and he in course of investigation discloses and agrees to lead and get the same recovered and thereafter while in custody leads, points the place and gets ecovered incrimination evidence as a link to main offence-For monitoring process of recovery under Art. 40, it is not an absolute requirement that recovery be witnessed by inhabitants of locality- General main requirement of law is that recovery be witnessed by two respectables of unimpeachable character. [Pp. 435, 436] D, E, F (ii) Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302-Murder-Offence of-Conviction for-Appeal against-All witnesses have admittedly no previous enmity with appellant and they have no motive or reason to falsely implicate him—They are independent and truthful witnesses-So much so that deceased also did not have any previous enmity with accused-Injuries as narrated by them are corroborated by medical evidence-There is no doubt that occurrence took place in broad day light and appellant being resident of locality was identified correctly-Weapon of offence churri recovered on pointation of appellant was found stained with human blood by the report of Serologist-So there is enough additional corroboration to crime committed by appellant-Conviction maintained-Appeal dismissed-Any how benefit of Section 382-B Cr.P.C. was given and sentence of fine set aside. [Pp. 433 & 436] A to C, G, H Ch. Faqir Muhammad, Advocate for Appellant. Mr. Muhammad Anwar-ul-Haq, Advocate for State. Date of hearing : 24-11-1997. judgment Muhammad Ashiq aged 23 years appellant was tried alongwith his brother Muhammad Iqbal aged 19 years in the court of learned Sessions Judge. Sahiwal in the said case which was registered at Police Station Galla Mandi. Sahiwal on 6.3.1992. Through judgment dated 2.12.1992 the learned Sessions Judge convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life and a fine of Rs. 10,000/-, in default of payment of said fine to further undergo four months, R.I. was awarded to him. Under Section 544-A Cr.P.C. it was ordered that the appellant will pay Rs. 10.000/- as compensation to the legal heirs of the deceased, in default of payment of said compensation to undergo further R.I. for four months. Muhammad Iqbal his co-accused was acquitted of the charge through this judgment. 2. Feeling aggrieved Muhammad Ashiq appellant has challenged his conviction and sentence through this appeal. 3. The unfortunate occurrence took place on 6.3.92 at 11.00 A.M. n the area of Mohallah Noor Park within the jurisdiction of Police Station Galla Mandi situated at a distance of four furlongs from the place of occurrence. Muhammad Sharif complainant (PW-8) the real brother of Ali Muhammad deceased reported the occurrence on the same day at the Police Station at 11.30 A.M. and the FIR Ex. PF was recqrded by Muhammad Akram, Inspector/SHO (PW-11). 4. Briefly the facts of the case are that the complainant alongwith Muhammad Ashiq son of Malang Ali, Muhammad Ramzan son of Muhammad Ashiq, Ali Muhammad deceased real brother of the complainant, Mst. Sardaran mother, Mst. Parveen and Mst. Nasreen sisters of the complainant are residents of Gulzeb Colony, Lahore. They had travelled from Lahore to the house of Muhammad Siddique PW-7 brotherin-law of the complainant resident of Mohallah Nur Park on 5.3.92. to rrange the marriage of Muhammad Ramzan PW-9. They had stayed the night because the date could not be arranged on their arrival on 5.3.92 and on the following morning at about 11.00 A.M. Ali Muhammad deceased was confronted by Ashiq and Muhammad Iqbal sons of Hakam Ali caste Rajput Bhatti residents of Mohallah Nur Park Sahiawl near the Railway Line while the deceased was proceeding for getting his clothes pressed. Muhammad Iqbal accused raised a Lalkara that Ali Muhammad be not spared and he caught hold of him. Ashiq accused gave a Chhuri blow to the deceased on his chest. The alarm raised at the spot attracted Muhammad Ashiq son of Malang Ali and Muhammad Ramzan besides the complainant who had witnessed the occurrence. Many other residents of the Mohallah had also reached there. All of them dared the accused and raised Lalkara upon which the accused ran away from the spot. Ali Muhammad had in the meanwhile fallen down on the ground in the street and had expired. The accused had managed to get away from the spot with the Chhuri. The motive for this occurrence mentioned in this statement is an altercation of the sister of the complainant with the female relatives of the accused prior to this occurrence. 5. After recording of the FIR the Investigating Officer arrived at the spot and he prepared injury statement Ex. PG and inquest report Ex. PH in respect to the dead body of Ali Muhammad deceased and despatched the same to the mortuary for post-mortem examination. He collected blood­ stained earth from the place of occurrence and made it into a sealed parcel and took it into possession vide memo Ex. PD which was attested by uhammad Siddique PW-7, Muhammad Ashiq PW-10 and Muhammad Akram, I.O. PW-11. On 21.3.92 he arrested Muhammad Ashiq appellant while Muhammad Iqbal accused was arrested on 8.4.92. On 21.3.92 Muhammad Ashiq accused while in police custody led to residential room and from a box got recovered a Chhuri Ex. PW which was made into a sealed parcel and taken into possession vide memo Ex. PE. The said memo was attested by Muhammad Siddique PW-7, Muhammad Ashiq PW-10 and Muhammad Akram, IP. PW-11. After completion of the investigation the accused were challaned and sent up for trial. 6. To prove the charge prosecution produced 11 PWs and tendered in evidence reports of the chemical examiner Ex. PJ and Ex. PK and those of Serologist Ex. PL and Ex. PM. The accused were examined under Section 342 Cr.P.C. and they denied the prosecution case and pleaded false implication. However, they did not opt to appear as required by section 340(2) Cr.P.C. to give evidence on oath in rebuttal to the prosecution evidence nor did they produce any defence evidence. 7. Dr. Muhammad Iftikhar Khan, Medical Officer, D.H.Q. Hospital, Sahiwal appeared as PW-1 and stated that on 6.3.92 at 3.30 P.M. he conducted autopsy on the dead body of Ali Muhammad deceased and found he following injuries on his person :— (1) An incised wound 2.5 CM x 1.5 CM x deep going on the grant middle part of left chest just inner to left nipple. (2) An incised wound 3 CM x 1.5 CM x through on outer and inner side of distal part of left forearm. In his opinion injuries No. 1 and 2 were caused by sharp-edged weapon and sufficient to cause death in the ordinary course of nature. Both the injuries were ante-mortem and the time between injuries and death was immediate while between death and post-mortem was five hours. 8. With the assistance of the learned counsel for the appellant the evidence adduced at the time of trial has been perused and the entire record scrutinised. The arguments of the learned counsel for the appellant and the learned counsel for the State have been heard at length. 9. The ocular account in the present case consists of Muhammad Sharif complainant (PW-8) real brother of the deceased, Muhammad amzan (PW-9) is the son of Muhammad Ashiq PW-10 who is husband of the sister of the deceased and all of them are residents of Lahore and had come a day earlier to the house of Muhammad Siddique who is also the husband of the sister of the deceased. All these witnesses have admittedly no previous enmity with the accused and have no motive or reason to falsely implicate him or nominate his brother in the said occurrence. So much so that the deceased also did not have any previous enmity with the accused and that all the witnesses have unanimously stated that Muhammad Ashiq appellant caused both the injuries in their presence and sight to the deceased. Both the injuries as narrated by the eye-witness are corroborated by the medical evidence. The learned counsel for the appellant has pointed out that the occurrence is stated to have taken place at a considerable distance from the house of Muhammad Siddique PW-7 and according to the evidence of the Doctor the deceased succumbed to the injuries and was not a position to move then how his dead body was found to be lying in front of the house of Muhammad Siddique when the police came at the spot. This point when considered keeping in view the normal natural human conduct it appeals to reason that the witnesses saw the deceased being injured and when he fell down the natural reaction of the PWs was to cariy him back to the house of their near ones to give him some aid or facility and may be in between that time for a few minutes or seconds he was alive and then he expired in front of the house of Muhammad Siddique where the police found the dead body lying. Secondly the PWs and the deceased where residents of Lahore and their only pivotal connection and base in Sahiwal was the house of Muhammad Siddique who happened to be their brother-in-law and thus it was but. natural that they would revert to Muhammad Siddique's house or ask for "his help in such a situation. As far as the identity of the accused is concerned there is no doubt that the occurrence took place in broad day light and the appellant being the resident of that locality was identified correctly. The other question is that how the witnesses who were the residents of Lahore knew the appellant. The answer is obvious and natural that since their sister is married in that Mohallah and that they have been coming and going frequently prior to this occurrence, the accused being a resident of that Mohallah they had known him prior to the occurrence. The appellant has not come out with any cogent and plausible reason as to why he has been implicated in this case especially under the circumstances when there was no previous enmity between the parties. The learned counsel for the appellant has submitted that all the witnesses are interested. The argument is not acceptable. It is a settled proposition that an interested witness is one who is related to the deceased and intc.r-Kp. with the other PWs and who is also inimical to the accused but in the present case in the absence of any enmity, mere relationship would not make them interested witnesses and a reason to discard their evidence. So far as my view is concerned they are independent and tnithful witnesses who have no reason or motive to falsely implicate the accused in the present, occurrence. The medical evidence even fully corroborates their testimony. 10. The learned trial court has already disbelieved the motive and for that reason awarded the lesser sentence to the appellant. The reasons given by the learned trial court for disbelieving the evidence of recovery are based on the mis-application and misinterpretation of law while the same has not been discarded or disbelieved on facts. To quote what the learned trial court has held; "the recovery being violative of the statutory provisions contained in Section 103 Cr.P.C. is also without any probative value. It is as such discarded from consideration because it is of no help to the prosecution". It is most unfortunate that this appeal has come up for hearing at a time when the author judge of this impugned judgment is no longer in this world to read and acquaint himself with the correct interpretation and application of law but yet to set things right in the proper legal perspective and for future guidance and proper appreciation and application of law it would be appropriate to settle this ambiguity. 11. To reiterate the manner and mode of recovery in the present case, it was effected on the pointation of the accused while he was in police custody and he led to that recovery. This type of recovery is conducted under Article 40 of the Qanun-e-Shahadat which is reproduced as under :-- "Article 40. --When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the ustody f a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved". The requirements of law and the manner mode for such recovery is totally different, the requirements of proof for such recoveries is also different, while the concept and application of Section 103 Cr.P.C. is entirely different and it can in no manner be invoked and required to be followed as a procedure for recoveries effected under Article 40 of the Qanun-e-Shahadat. The relevant provisions of law in the Cr.P.C. given under the heading 'D' pertaining to search are reproduced :-- "S. 101. -The provisions of Sections 43, 75, 77, 79, 82, 83 and 84 shall, so far as may be apply to all search-warrants issued under Section 96, Section 98, Section 99-A or Section 100. S. 102.-(l) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of such place shall, on demand of the officer or other person executing the warrant, and on production of the warrant allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress into such place cannot be so obtained the officer or other person executing the warrant may proceed in manner provided by Section 48. (3) Where any person in or about such place is reasonable suspected of concealing about his person any rticle for which search should be made, such person may be searched. If such person is a woman, the direction of Section 52 shall be observed. S. 103.-(I) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) The occupant of the place searched, or some person in his behalf, shall, in eveiy instance, be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person at his request. (4) When any person is searched under Section 102, sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by any order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Pakistan Penal Code." The bare reading of Sections 101, 102 and 103 of the Cr.P.C. indicates that the procedure required to be followed in course of a search in pursuance to warrants issued is entirely different from the recoveiy effected on the pointation of the accused and that the procedure of Sections 101, 102 and D 103 Cr.P.C. is riot at all applicable to such recoveries effected on the pointarion of accused of which a disclosure is made in course of investigation. 12. Recovery under Article 40 of the Qanun-e-Shahadat can never be Termed as search for the reason that it is never conducted under a warrant nor is it conducted at one particular place as pin-pointed in the warrant. The place of recovery under Article 40 is always in the mind/knowledge of the accused and he in course of investigation discloses that and agrees to lead and get the same recovered and thereafter while in custody leads, points the place and gets recovered the incriminating evidence as a link to the main offence. 13. For monitoring the process of recovery under Article 40 of the Qanun-e-Shahadat, it is not an absolute requirement that the recovery be witnessed by the inhabitants of the locality. The general main requirement of law is that the recovery be witnessed by two respectables of unimpeachable character and if they are also of the locality it would add to the veracity authenticity of the proceedings but if they are not of the locality then too their evidence cannot be discarded unless there are some other ogent legal reasons for disbelieving the same. Since the learned trial court has disbelieved the factum of recovery by misinterpretation of law only on legal aspect, hence, I find no reason to disbelieve the factum of recovery on factual grounds. The Chhuri Ex. P4 was found stained with human blood by the report of Serologist, I find that this is enough additional corroboration to the crime committed by the appellant and to maintain the conviction and sentence awarded to the appellant. He was not given the benefit of Section 82-B Cr.P.C. by the learned trial court, the same is given to him through this judgment. With these observations, the appeal of the appellant being devoid of any merit is dismissed. 14. Before parting with the appeal I have found that the above case was registered on 6.3.92 and at that time Qisas and Diyat Ordinance was already in force since October, 1990. Under the new Section of 302 PPG there is no punishment for sentence of fine to the accused and the learned trial court has been oblivious of this change in law. Hence to set things right he sentence of fine awarded to the appellant by the learned trial court and the sentence in default of payment of fine thereof is set aside. With this modification the rest of the conviction and sentence awarded to the appellant is upheld. (MYFKi Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 436 Present: DR. MUNIR AHMED MUGHAL, J. ASGHAR ALI-Appellant versus STATE-Respondent Criminal Appeal No. 637 of 1989, partly accepted on 30-9-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Murder nf-Offence of-Conviction for-Appeal against-It is a case of two versions, one lias been given by prosecution and other is put forth by appellant-Forjust decision of a case of two versions, both versions are put in juxta position and thereafter court has to see which version is more probable and near to truth according to evidence available on record subject to this qualification that onus of proof always remains on prosecution and if there is any doubt, that should be resolved in favour of accused—Appellant's version is that he committed murder on account of ghairat and sudden provocation-His one sister was in nikah of Z and during subsisu-nce of that nikah, he had for the second time abducted his other real sisti r coupled with the fact that participation and presence of deceased even according to prosecution version is admitted—A on whose dcra alleged Punchayat was to be convened was not produced in witness box-Casf; of appellant covered by exception I to Section 300 PPC-- Conviction under Section 302 PPC altered to section 304(1) PPG i.e. from Life Imprisonment to 10 year R.I.-Appeal partly accepted. [Pp. 438, 439 & 440] A 1992 SCMR 1592 ref. Ch. Shaukat All Javed, Advocate for Appellant. Mr. CM. Latif, Advocate for A.G. Date of hearing : 30-9-1997. judgment This appeal has arisen against the judgment passed by Mr. Muhammad Akmal Qureshi, Additional Sessions Judge, Gujrat whereby he convicted the accused-appellant Asghar AM for offence under section 302 PPG and sentenced him to life imprisonment with a fine of Rs. 10,000/- or in default thereof to undergo R.I. for one year. It was also ordered that out of the fine, if recovered, Rs. 8,000/- shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also awarded to the appellant. The State had also filed. Cr. Revision No. 570 of 1989 for enhancement of the sentence of life imprisonment to that of death. This judgment will dispose of hoth the appeal and revision. 2. The prosecution story as contained in the FIR No. 192/1986 lodged at Police Station Karianwala at the report of the complainant dated 19.9.1986 is that the complainant is a resident of Piro Shah and earns his livelihood through working at Power looms in Jalal Pur Jattan. On the day of occurrence, which was a holiday on account of Friday, at bout 9.00 a.m. he went to the house of his brother-in-law Allah Ditta s/o Hassan Muhammad, caste Arain, where Allah Ditta, his wife Mst. Fazal Begum and Muhammad Hussain were present. In the meantime, Asghar AM came into the house of Allah Ditta and told that day the respectables had convened an assemblage ai rhe Dcra of Inayat Ali s/o Niaz AM in connection with matter concerning with the abduction of his sister Mst. Farzana. Whereupon he, Asghar AM and Allah Ditta started towards the Dera of Inayat Ali. Allah Ditta was going ahead of them while Asghar AM was proceeding behind him at some distance and that the complainant and Ghulam Hussain were walking behind Asghar All and had reached the agricultural land of Muhammad Ashraf that suddenly Asghar Mi took out a carbine from his "Dub" and fired a shot at Allah Ditta which hit him on his back and he fell down. Asghar AM uttered a threat that if any one came near to him he would not be spread simultaneously issued second fire which hit Allah Ditta while he was in fallen condition, on his chest near by his abdomen, neck and right "Dola". Being frightened, the complainant party did not got near and Asghar Ali fled away from the scene of occurrence. When the complainant party went near Allah Ditta he had already expired on the spot. Leaving behind Ghulam Hussain, resident of Deh to guard the dead body of Allah Ditta, deceased, the complainant went to Police Station and lodged the FIR. The motive as alleged in the FIR was that about four or five months ago, Mst. Farzana sister of Asghar Ali had eloped with Zafar alias Zafra s/o Sardar Khan of village Massan in connection with illicit liaison. However, through the intervention of respectables she was restored to Asghar Ali accused. Asghar Ali accused had levelled the allegations that Allah Ditta deceased had a hand in the abduction/employment of Mst. Farzana. 3. After completion of investigation and preparation of necessaiy papers the accused-appellant was challaned to Court for facing trial. In the trial the prosecution examined as many as then witnesses in its support. Dr. Ghulam Abbas Zafar (PW. 1), Muhammad Afzal (PW.2), Muhammad Azam Constable (PW.3), Muhammad Bashir s/o Ghulam Hussain (PW.4), Mohsin Pervaiz (PW.5), Allah Ditta s/o Hassan Muhammad (PW.6), Ghulam Hussain (PW.7), Javed Akhtar Iqbal Patwari (PW.8), Muhammad Yousaf ASI (PW.9) and Khadim Hussain retired SHO (PW.10). 4. After the prosecution evidence the statement of the accusedappellant was recorded under Section 342 Cr.P.C. He, did not appear as his own witness under Section 340(2) Cr.P.C. on oath. No defence witness was produced by the accused-appellant. 5. Learned trial Court after completion of the trial convicted and sentenced the accused-appellant as mentioned above. Hence this appeal. 6. Learned counsel for the appellant vehemently contended that the learned trial Judge has not properly appreciated that it is a case of two versions; one version has been put forth by the prosecution and the other version advanced by the appellant in his statement under section 342 Cr.P.C. and that is that he caused the death due to "Ghairat" and that is that he caused the death due to "Ghairat" and self defence fearing imminent danger to his life. 7. Learned counsel for the State supported the judgment of the trial Judge and submitted that there is no mitigating circumstance in favour of the appellant so he is not entitled to any leniency. 8. I have critically examined the submissions of the learned counsel and have perused the record with their able assistance. 9. Admittedly it is a case of two versions; one has been given by the prosecution, that is, about four or five months ago, Mst. Farzana, sister of Asshar All, accused eloped with Zafar in connection with illicit liaisons: however, through the intervention of the respectable, Mst. Farzana was ' resorted to Asghar and he levelled the allegation against Allah Dit.ta, deceased, brother-in-law of the complainant that he had a hand in the abduction/employment of Mst. Farzana. The other version has been put forth by the appellant under section 342 Cr.P.C. that he caused the death of Allah Ditta, deceased due to "ghairat" and self defence as Zafar and Allah Ditta, deceased had abducted the sister of the appellant when he was away and on his arrival to home, he chased them. The appellant and the deceased grappled with each other and the appellant succeeded in snatching the carbine from the deceased. In the meantime, Mst. Farzana, sister of the; appellant and Zafar started running and the appellant fired at them and the) fire shot hit the deceased. 10. The sahitoiy principle of law for the just decision of a case of two versions is that both the versions are put in juxta position and thereafter the Court has to see which version is more probable and near to the truth according to the evidence available on record subject to this qualification that the onus of proof always remains on the prosecution and if there is any doubt, that should be resolved in favour of the accused. For this view, 1 am fortified by the judgment of the Supreme Court in the case of Muhammad Younax versus The. State (1992 S.C.M.R. 1592) wherein it was held as under:- "It is by now well established that in a situation like the one in hand, both the versions have to be kept in juxta position and the one favourable to the defence is to be preferred to, if it gets support from the admitted facts and circumstances of the case and appeals to common sense. 11. The prosecution in this case produced as many as 10 PWs. PW.l is the Medical Officer who conducted the post mortem examination on the dead body of the deceased. PWs 2, 3, 8 to 10 are the official witnesses, including the Investigating Officer. Ch. Bashir Ahmad, PW.4 accompanied Muhammad Sharif, PW to the mortuary where he identified the dead body of Allah Ditta, deceased. Mohsin Pervaiz, PW. 5 was a witness of recovery of blood stained earth. Allah Ditta. complainant, was examined as PW.6 while the other eye-witness, namely, Ghulam Hussain was examined as PW.7. Both Allah Ditta and Ghulam Hussain fully supported the prosecution case, no doubt, both these witnesses are related inter se. but mere relationship of the witnesses would not be a ground for discarding their evidence. The prosecution version is also getting support from the promptly lodged FIR, the medical evidence and the recovery of weapon of offence. The motive as given in the FIR is also proved as the appellant has not denied the same. 12. On the other hand, the case of the defence as set, up in statement under section 342 Cr.P.C. gets corroboration from the statement of Ghulam Hussain (PW.7) when he is cross-examination admitted that Zafar was married with Mst. Naziran, the real sister of Ms?. Farzana and Asghar Ali, accused and did not know when Farzana was abducted second time by the aforesaid Zafar. The other independent witness of the prosecution, namely, Allah Ditta (PW.6) in cross-examination admitted that Mst. Naziran was married to Zafar; out of this wedlock, they have a daughter; they had married 1% years prior to the instant occurrence and that it was correct that Zafar had not yet divorced Mst. Naziran when he abducted her sister Mst. Farzana. The motive furnished by the prosecution was that the appellant had levelled the allegation against the deceased that he had hand in the abduction of Mst. Farzana, the real sister of the appellant, Asghar AH. 13. Now keeping both the versions in juxta position, the version put by the defence that the appellant had committed the murder on account of ghairat and sudden provocation, was admittedly his one sister, namely, aziran was in the nikah of Zafar and during the subsistence of that nikah, he had for the second time abducted Mst. Farzana, his other real sister coupled with the fact that the participation and presence of the deceased even ccording to prosecution version is admitted, fits into the ambient of the circumstances of the case adequately. It is also an admitted position that Inayat Ali on whose dera the alleged punchayat was to be convened was not produced for the reasons best known to the prosecution. 14. The result of above discussion is that the case of the appellant is covered by exception I to section 300 PPC and in such a case, conviction can only be passed under section 304(1) PPC. Accordingly I partly accept the appeal, alter the conviction under section 302 PPC to that of under section 304(1) PPC and sentence the appellant to 10 years RI and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo further R.I. for one year. The fine, if recovered, the whole of its shall be paid to the legal heirs of the deceased as compensation under section 544 Cr.P.C. Cr. Revision No. 570 of 1989 is, however, dismissed. (MYFK) Appeal partly accepted

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 440 [Rawalpindi Bench] Present : RAJA MUHAMMAD KHURSHID, J. RAB NAWAZ-Petitioner versus STATE-Respondent Criminal Misc. 831/B of 1997, allowed on 4-12-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Offence u/S. 364/506 PPC-Offence of Zina (Enforcement of Hudood) Ordinance. 1979, Ss. 10/11/18-There is no allegation of zina or abduction against petitioner, who is real paternal uncle of abductee- Allegation against him is that he entered the room where abductee was allegedly detained by I a co-accused-He allegedly threatened her that she should marry aforesaid I-This fact has since been denied in affidavit sworn by complainant and abductee, therefore, the matter needs further inquiry-Petitioner allowed. [P- 442] A Raja Shafqat Abbasi, Advocate for Petitioner. Mr. Ayub Kiani, Advocate for State. Date of hearing : 4-12-1997. order A case under Section 364/506 PPC read with Section 11/10/18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at the report of the father of the abductee vide FIR No. 25 dated 4.3.1997 at Police Station, Golrah Sharif, Islamabad. 2. It was contended in the FIR that Kiren Naseer a daughter of the complainant had gone to school on 1.3.1997 at about 8.30 AM but did not return till 2.3.1997. He expressed suspicion on the Administrator namely Abdul Rashid and Chowkidars namely Muhammad Aslam and Aziz that they had abducted her. 3. The abductee on her recovery implicated Israr one of the coaccused of the petitioner for having abducted her with the object of marrying her against her will. Thereafter she made a statement under Section 164 Cr.P.C. in which she also implicated the present petitioner that while she was kept by the aforesaid Israr in his house, the petitioner Rab Nawaz also came there and threatened her by pulling out a knife that she should many the aforesaid Israr. The aforesaid Rab Nawaz is the paternal uncle of the aforesaid abductee. 4. It is submitted that there is no allegation of sexual inter-course against the petitioner or his co-accused; that Rab Nawaz has-been named only because he wanted that the abductee be married to some other person. 5. It is further contended that the parties have come to terms for which the father of the abductee and the complainant in this case had made a statement upon oath before the learned Additional Sessions Judge, Islamabad on 6.8.1997 during the hearing of the bail petition that parties have come to terms and that the accused be released on bail. Similar prayer was made by the abductee by tendering an affidavit, before the aforesaid court in which she also expressed that she will not like to pursue the case in view of compromise as she not been subjected to sexual inter-course or any other foul play. 6. The learned counsel for the petitioner has submitted that in view of the foregoing facts, atleast it has become a case of further inquiry and the petitioner is entitled to bail. 7. The learned counsel for the State has opposed the bail on the ground that the challan has already been submitted to the court concerned for trial. He has however, added that fact regarding compromise and affidavit cannot be denied and that the bail of the petitioner was denied by the learned Additional Sessions Judge, Islamabad only on the ground that the abductee after tendering the affidavit did not appear in the court in person. 8. The learned counsel for the petitioner has submitted that the abductee is being married shortly and as such she could not appear in the court below. However, it is alleged that this was not a good ground for refusing the bail. 9. I have considered the foregoing facts and find that there is no allegation of zina or abduction against the petitioner, who is real paternal uncle of the abductee. Allegation against him is that he entered the room where the abductee was allegedly detained by the Israr a co-accused in the case. He allegedly threatened her that she should many aforesaid Israr. This fact has since been denied in the affidavit sworn by the complainant, and the abductee, therefore, the matter needs further inquiry. This petition is accordingly allowed and the petitioner is admitted to bail in the sum of Rs. 10.000/- with one surety in the like amount to the satisfaction of learned trial court.. (MYFK) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 442 [ f ultan Bench] Present : M. A. QAZI, J. SAEED AHMED-Appellant versus STATE-Respondent Crl. Appeal No. 353 of 1991, dismissed on 18-11-1997. Pakistan Penal Code, I860 (XLV of 1860)-- —-S. 302--Murder--Offence of-Conviction for-Appeal against--Motive in this case took place in Saudi Arabia-Even though PWs 7 and 8 were never in Saudi Arabia yet their evidence is coupled with fact that appellant is having healed scar on nose which is a clear cut sign that some weapon was used on his nose by deceased while they both were in Saud Arabia-False implication of appellant is not established-Occurrence took place in day time and thus identity of appellant could not be mistaken- There is nothing on record to disbelieve presence of PWs 7 and 8 which also corroborated by medical evidence and evidence of recoveries- Prosecution proved- its case beyond doubt-Trial Court has already considered young age of appellant and awarded lesser penalty-Appeal dismissed. [P. 445, 446] A to C Ch. Muhammad Yaqoob Rang, Advocate for Appellant. Mirza Fayyaz-ud-Din, Advocate for State. Date of hearing : 18-11-1997. judgment Saeed Ahmad (15 years) appellant was sent up to face the trial in case FIR No. 58 dated 17.4.1990 registered under Section 302 PPC at police station Kot Mubarik, District D.G. Khan. 2. Through judgment dated 7.10.1991 the learned Additional Sessions Judge, D.G. Khan convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life with a fine of Rs. 5000/- and in default thereof to further undergo two years R.I. He was also directed to pay Rs. 10,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to the payment of said compensation 6 months S.I. 3. Feeling aggrieved he has challenged the impugned judgment vide the present appeal. The unfortunate occurrence took place on 17.4.1990 at 8.00 A.M. near the shop of one Noor Muhammad in the area of Adda Yaroo within the jurisdiction of Police Station Kot Mubarik wherein Haji Ghulam Rasool aged 40 years succumbed to the injuries caused by the appellant and' died at. the spot. The place of occurrence being at a distance of three miles from the police station, Zulfiqar a cousin of the deceased (PW7) got his statement (Ex. PC) recorded at the police station which was recorded by Muhammad Anwar Inspector/SHO (PW11) on 17.4.1990 at 9.20 A.M. 4. Briefly the facts of the case, as narrated in the FIR, are the appellant and the deceased were residing in neighbourhood in village Yaroo. They had good friendly relations with each other since about two years prior to the occurrence. About one year prior to the occurrence the deceased took Saeed Ahmad appellant to Saudi Arabia by bearing his expenses from his own pocket. Saeed Ahmad appellant developed friendly relations with some one else there. This annoyed the deceased. Due to this grudge the deceased cut the nose of the appellant in Saudi Arabia and came to his home from Saudi Arabia. The appellant, remained in Saudi Arabia and when he came back the deceased went to Saudi Arabia. The appellant was bearing grudge on the ground of chopping off his nose. On the day of occurrence the deceased was coming to Adda Yaroo from his home, the complainant, Nazar .fussain and Ghulam Mustafa (PWs) were present near the bridge at Adda Yaroo. When Haji Ghulam Rasool reached near the shop of Noor Muhammad, the appellant who was way laying him near that shop, challenged him that 'he woxild teach him a lesson for chopping off his nose. The appellant fired a revolver shot which landed upon the chest of Ghulam Rasool within the view of the aforesaid PWs. He fell down. The appellant pulled out a Kati from Naifa of his Shalwar and chopped off the nose and lip of Ghulam Rasool. He also inflicted Kati blow upon his arm. When the aforesaid witnesses tried to apprehend the appellant, he extended threats of dire consequences and fled away with the weapons of offence. The complainant and the other PWs went towards Ghulam Rasool who succumbed to the injuries at the spot. The occurrence was witnessed by the Nazar Hussain (given up) and Ghulam Mustafa (PWS) apart from the complainant (PW7). The motive behind the occurrence was that Haji Ghulam Rasool chopped off nose of Saeed Ahmad in Saudi Arabia nearly one year prior to the occurrence. Due to that grudge the accused-appellant committed the murder of Ghulam Rasool. The complainant after leaving the dead body in the supervision of Nazar Hussain and Ghulam Mustafa (PWs) went to the police station to report the occurrence. 5. On the arrival at the spot the investigating officer prepared injury statement (Ex. PK) and inquest report (Ex. PL) in respect of the dead body and despatched the same for postmortem examination while he secured blood stained earth from the place of occurrence which was made into a sealed parcel and taken in possession vide recovery memo (Ex. PD). He also secured one crime empty (Ex. P-5) from near the spot which was made into a sealed parcel and taken into possession vide recovery memo (Ex. P-E). Both these rnemos were attested by Ghulam Mustafa (PWS), Ch. Muhammad Anwar Bhatti (PWll) and Nazar Hussain (PW given up). 6. Dr. Umar Farooq Ahsan (PW9) on 17.4.1990 performed the autopsy on the dead body of Ghulam Rasool deceased and found the following injuries on his person :-- 1. A lacerated wound somewhat circular in appearance of ¼ C.M. x % C.M. on the front of the left side of the chest. 3%" below and medial to the left nipple, (wound of entrance). 2. An abraded wound of 1% c.m. x 3/4 C.M. of circular appearance on the front of the left chest. 3%" medial to the left nipple just above injury No. 1. 3. An incised wound of 5" x 3" (with all muscles, nevers, tendon etc. were cut) going deep to the bone (humerus) on the antero medial aspect of the right upper arm, 4" above the right elbow joint. 4. A cut wound (incised) on the front of the face extending from the root of the nose and cutting the nose, 2^" of the upper lip (about 3/4th of the total), 2" of the right side of the lower lip, making the teeth and nasal bone naked. Cut flap of the nose was present. In his opinion the death was occurred due to shock and haemorrhage due to injury No. \ which was sufficient to cause death in the ordinary course of nature. The time between injuries and death was immediate while that between death and the postmortem was six to ten hours. All the injuries were antemortem and were caused with fire-arm, blunt and sharp-edged weapons. Injury No. 1 was stated to be fatal while the other injuries were simple in nature. 7. The accused was arrested on 24.4.1990 by Ch. Muhammad Anwar Bhatti (PWll) from the canal Pull D.G. Khan. On his personal search revolver (Ex. P6) was recovered from his person which was made into a sealed parcel and taken into possession vide recovery memo (Ex. PG). On the same day while in police custody, the accused led to his residential room and got recovered blood stained Kati (Ex. P7), blood stained shirt (Ex. P8) and blood stained Shalwar (Ex. P9), which were made into sealed parcels separately and were taken into possession vide recovery memo Ex. PH. Memos Ex. PG and Ex. PH were attested by Muhammad Sohail (PW10), Ch. Muhammad Anwar Bhatti (PWll) and Muhammad Ishaq (given up PW). Reports of the Chemical Examiner (Ex. PN and Ex. PO) and those of the Serologist (Ex. PP and Ex. PQ) were tendered in evidence. Report of the Forensic Science Laboratory, Lahore (Ex. PR) was also placed on the record. 8. To prove the prosecution charge, eleven witnesses were produced. The accused was examined under Section 342 Cr.P.C. and he denied the prosecution case and pleaded that he has been involved because of enmity and he did not opt to make a statement as required by section 340(2) Cr.P.C. nor did he adduce any defence evidence. 9. With the assistance of learned counsel for the appellant and the learned counsel for the State the entire evidence adduced at the time of trial has been perused and the record of the case has been minutely scrutinized and arguments of both the learned counsel also heard at length. 10. The motive in the present case is one which took place in Saudi Arabia and thus the deceased and the accused were the only persons to be aware of it Though the prosecution has tried to establish it from the mouths of PWs 7 and 8. The accused has categorically denied that his nose was ever chopped off by the deceased but the fact remains, even though PWs 7 and 8 were never in Saudi Arabia yet their evidence coupled with the fact that the appellant is having this healed scar on the nose is a clear cut sign that some weapon was used on his nose while he was in Saudi Arabia. Since the accused has not come forth with any satisfactory plea explaining as to how he carries this healed scar on his nose, the only inference which can be drawn to believe is that whatever has been suggested by the PWs as a motive is the only plausible conclusion and even though the accused may not admit it, yet the healed scar on his body speaks volumes of the incident which took place and thus motive to the present occurrence stands proved and established beyond doubt. 11. As far as the ocular account is concerned, learned counsel for the appellant has pointed out minor discrepancies in the evidence of PWs 7 and 8 which do not, hit or touch the root of the case. Furthermore, learned counsel for the appellant has not been able to establish any enmity for false implication of the appellant in the present case and though PW7 is stated to be a cousin of the deceased yet this relationship in absence of any other material is not sufficient to discard his evidence. The occurrence took place in his presence, in day time and tlnis identity of the appellant could not be a mistaken one. Therefore, there is nothing on the record to disbelieve the presence of these two witnesses. Their evidence is also corroborated by medical evidence and the evidence of recoveries of blood stained Kati (Ex. P7) and blood stained clothes of the accused (Ex. P8 and P9). 12. As far as the recovery of revolver (Ex. P6) is concerned, though the crime empty has not been found to be wedded with the revolver (Ex. P6) yet the report of the Forensic Science Laboratory is that the weapon recovered from the appellant was in working condition and the fact remains that it was found from the person of the accused at the time of his arrest cannot exonerate him merely because the crime empty was not found wedded with the weapon but the fact remains that the medical evidence does show that the deceased was carrying a fire-arm injury and that proved fatal in the instant case and the witnesses (PWs 7 and 8) stated that the accused fired at the deceased. Hence on all fours the prosecution has proved its case beyond reasonable doubt. The learned trial court has already considered his young age to be a mitigating circumstance for awarding lesser sentence and he has already been dealt with very leniently. The appeal being without force is dismissed, the conviction and sentences awarded to the appellant are maintained. The appellant is, however, extended the benefit of Section 382-B Cr.P.C. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 447 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD DAUD-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 185/B of 1997, decided on 17-3-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1), third proviso-Bail-Grant of-Prayer for-Statutory delay- Ground of-Pakistan Penal Code (XLV of 1860), S. 364/302/201/34 read with Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17/18-Delay in disposal of case had occurred on account of multifarious reasons which could not be said to be unprecedented-Case, now fixed before Trial Court which has remarked that same would be disposed of within current month—Disposal of case being within sight, accused was not entitled to bail at such a stage-Bail declined. [P. 448] A PLD 1995 SC 49 ref. Sh. Zamir Hussain, Advocate for Petitioner. Muhammad Nazeer Mian, Advocate for the State. order The petitioner alongwith two co-accused namely Gohar Sultan and Shajar-ul-Haq were involved in a case under section 364/302/201/34, P.P.C. read with Section 17/18 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered on 18-10-1994 vide F.I.R. No. 497 lodged with the Police Station Wah Cantt. District Rawalpindi. The allegation against the petitioner and his co-accused was that they murdered the deceased Muhammad Khurshid. The co-accused of the petitioner absconded, whereas the petitioner was arrested on 19-10-1994. 2. That bail is pressed only on statutory ground that since two years have elapsed after the arrest of the petitioner, therefore, he is entitled to be released on bail in view of the provisions contained in the 3rd proviso to section 497, Cr.P.C. In this respect, it is contended that the petitioner is continuously behind the bars since the date of his arrest i.e.; 19-10-1994 but the trial in the case has not yet included; and that the trial was not delayed in any manner by any act or omission on the part of the petitioner/accused or any other person acting on his behalf. Reliance was placed on PLD 1995 SC 49 to support the proposition. 3. It is true that the provision contained in the 3rd proviso to section 497. Cr.P.C. should be strictly construed and the bail should normally be granted to an accused/petitioner if he is in continuous detention of two years without the delay being attributed to him. In the instant case, the perusal of the copies of the order-sheet will show that the case was taken cognizance for the first time on 11-1-1996 and the witnesses in the case were summoned. However, later on, the case was adjourned on many dates because of the transfer of the Presiding Officer without substitute. Again it was fixed before the Presiding Officer but incidently, he too was transferred without substitute. It was thereafter that the case was made over to the present incumbent who has clearly expressed in the order that the delay of trial occurred on account of multifarious reasons such as absconcion of the coaccused; their subsequent arrest and submission of supplementary challan to be tried alongwith the present petitioner; that the Presiding Officer was transferred without substitute; that sometime was also consumed as the Presiding Officer remained busy in election duty; and that now the matter has already been fixed and according to the learned trial Court, it is likely to be disposed of before the month of March, 1997. 4. In view of the above situation, it cannot be said that delay in disposal of the case was unprecedented which now stands fixed before the trial Court which has remarked that the same shall be disposed of within this month. It follows that the disposal of the case is within sight and under such circumstances, the petitioner would not be entitled to bail at this stage. The petition is accordingly dismissed. (K.K.F.) Bail refused.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 448 Present: jawaid nawaz khan gandapur, J. MUSTAQEEM-Petitioner versus STATE-Respondent Criminal Mis ./ Bail Applications Nos. 274 and 1246 of 1995, decided on 12-5-1996. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 498 & 561-A--Imposition of condition upon accused to deposit cash amount for getting his release on bail-Deletion of condition-Prayer for- Accused was directed to be released on bail by High Court subject to furnishing bail bond with two sureties and depositing Us . 1,00,000 i.e., half of the Diyat amount in the Court of Zilla Qazi-Prayer of accused for deleting the additional condition regarding deposit of amount in cash was not opposed by State and same was deleted. [P. 449] A & B Iqbal Hussain, Advocate for Petitioner. Shah Jehan Khan, Addl. A.-G. for the State. Date of hearing : 12-5-1996. judgment 7-5 -e-tion has been filed by Mustaqeem who has prayed that N": r : : :h;s Court's Order, dated 5-6-1995 may kindly be deleted. The ir : ? iri :: :he said order is reproduced as under :-- Ir. addition to this the petitioner is also directed to deposit Rs. 1.00.000 i.e., half of the 'Diyaf amount in the Court of Zil-a Qazi failing which he shall not be released on bail." _ Mr. Shah Jehan Khan, Additional Advocate-General appeared on :~ ::" hr State and submitted that he has no objection if the prayer made by ir.r ::e:::::<ner is accepted. o Since the State has no objection to the deletion of Para . 6, as n :er. T :cr.ed above, therefore, this petition is accepted. Para . No. 6 of this ' r\ ;n s Order, dated 5-6-1995 stands deleted. Petition accepted

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 449 (DB) Present: mamoon kazi, C.J. AND mrs. MAJIDA RAZVI, JJ. NADEEM AHMED-Appellant versus THE STATE-Respondent Criminal Appeal No. 4 of 1996, decided on 18-6-1997. West Pakistan Arms Ordinance, 1965 (XX of 1965)-- -—5. 13-D-Pistol-Recovery of-Conviction for-Challenge to--Appreciation oi evidence-Two versions-In the presence of two different versions, one Driven by prosecution and other by defence, Court was bound to keep tiiem in juxtaposition in order to arrive at a just conclusion which it had failed to do-Entire evidence recorded by Trial Court, therefore, required ir-appraisal-Conviction and sentence of accused were consequently set aside and case was remanded to Trial Court for delivering a fresh ;v.:lgment after considering entire evidence available on record. [P. 451] A & B

r;rrfnr Muhammad Ishaque, Advocate for Appellant. HcJj'.'j Ahmad, Asstt. A.-G. for the State. Date of hearing : 2-6-1997. judgment Mamoon Kazi, C.J.--Appellant Nadeem Ahmed was tried by the Special Court No. 1, Suppression of Terrorist Activities, Karachi , for having committed an offence under section 13-D of the Arms Ordinance and found guilty of commission of the said offence. He has been convicted accordingly and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 5,000 (rupees five thousand). In default of payment of fine, he has been further sentenced to suffer rigorous imprisonment for six months. According to the case of the prosecution, the appellant was found to be in possession of a .30 bore TT pistol with five bullets, loaded in a magazine, by Fazal Hussain, S.I.P. Police Station Pak. Colony, on 5-8-1995, when he was on patrol duty. As the appellant could not produce any licence for the same, he was arrested .and a Mashirnama was prepared in presence of Mashirs, P.Ws. Ahmed Hussain and Fateh Muhammad. An F.I.R. was then registered at the said police station under section 13-D of the Arms Ordinance. The appellant pleaded not guilty to the said charges. According to him, he was picked up by the police on the night of the 4th and 5th August, 1995, from his residence situated in Pak Colony, Old Golimar, in presence of D.Ws. Muhammad Sabir and Muhammad Rafique and one Mustafa. The appellant's statement was also recorded under section 340(2), Cr.P.C. He examined the said witnesses in his defence who fully supported his version. The prosecution examined P.Ws. Ahmed Hussain and Fazal Hussain, who were posted at the said police station as a police constable and a Sub-Inspector respectively. The prosecution case was fully supported by the said witnesses. P.W. Ahmed Hussain, during his cross-examination, also denied that the appellant had been picked up from his residence on the night of the 4th and 5th August. Both the witnesses further denied the suggestion that the appellant had been falsely implicated in the case. The learned trial Court upon such evidence found that the case of the prosecution had been fully established. As recoveries had been made from the appellant during the search, the learned trial Court was of the view' that it was not possible for P.W. 2 S.I.P. Fazal Hussain to strictly comply with the provisions of section 103, Cr.P.C. and procure independent witnesses to witness the search. The learned trial Court was also of the view that, according to the special provisions of section 8 of the Suppression of Terrorist Activities (Special Courts Act), 1975, burden of proof was on the accused, which the appellant had failed to discharge in the present case. Therefore, the prosecution had succeeded fully in establishing its case against the appellant. The appellant was, therefore, convicted and sentenced accordingly. The main contention of Sardar Muhammad Ishaque, learned counsel for the appellant, before us has been that although the appellant had examined witnesses in his defence, but the learned trial Court failed to take their evidence into consideration and convicted the appellant upon consideration of the prosecution evidence only. The contention appears to have a lot of force. As pointed out earlier, the appellant had examined D.Ws. Muhammad Sabir and Muhammad Rafique in his defence besides getting his statement recorded on oath under section 340(2) of the Code of Criminal Procedure. Both the said witnesses had fully supported the appellant by stating that the appellant had been picked up by the police from his residence in Pak. Colony on the night of the 4th and the 5th August, 1995. The witnesses, according to them, lived in the same locality where the appellant resided and had witnessed the said incident. However, the defence version appears to have been completely discarded by the learned trial Court on the ground that the defence theory was not put to S.I.P. Fazal Hussain who was the Investigating Officer. Although, the learned trial Court appears to be right in this regard, but nevertheless the other P.W. who was an equally important witness for the prosecution, had been cross-examined on the point. When, there were two different versions, one given by the prosecution and the other by the defence, it was imperative that the learned trial Court should have kept them in juxtaposition and arrived at its conclusion accordingly. However, evidently, the same has not been done in this case. We are, therefore, of the view that the entire evidence recorded by the learned trial Court requires reappraisal. In the result, the appeal is partially allowed, the judgment is set aside and the case is remanded to the learned trial Court for delivering a fresh judgment after reconsideration of the entire evidence recorded by it. Since the appellant is in custody, it is expected that the learned trial Court will record its findings as expeditiously as possible and preferably within one month after receiving the record of the case from this Court. •K.K.F.) Case remanded.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 451 (DB) Present: SH. RlAZ AHMAD AND MUHAMMAD ASIF JAN, JJ. SARFRAZ alias SAPPI and 2 others-Appellants versus THE STATE-Respondent Criminal Appeal No. 799 of 1995, heard on 12-2-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34-Murder-Offence of-Conviction for-Challenge to- Appreciation of evidence-Bitter enmity existed between parties-F.I.R. had been promptly lodged without any premeditation or delay Complainant could not substitute real killers of his son with somebody else-Eye-witnesses including an independent witness had given a straightforward, truthful and consistent narration of occurrence which was in line with medical evidence-Prosecution had, thus, proved its case beyond all reasonable doubts-Convictions and sentences of accused were upheld in circumstances. [P. 456] A, B, C, D & E Munir Ahmad Bhatti, Advocate for Appellants. Malik Muhammad Suieman, Advocate for the State. Muhammad Taqi Khan and Mian Zafar Ali, Advocates for the Complainant. Date of hearing : 12-2-1997. judgment Muhammad Asif Jan, J.--Sarfraz alias Sappi aged about 17 years, Abdul Rashid aged about 36 years and his brother Muhammad Ashraf aged about 39 years were convicted under section 302/34 of the Pakistan Penal Code by Mian Muhammad Sikandar Hayat, Judge, Special Court No, III Suppression of Terrorist Activities, Lahore Division, Lahore, vide judgment/ order, dated the 28th of November, 1995. Sarfraz alias Sappi and Abdul Rashid were sentenced to death alongwith a tine/compensation of Rupees one lac each, and, in case of default in the payment of fine, further imprisonment for six months each. Muhammad Ashraf was sentenced to imprisonment for life along­with fine/compensation of Rs. 50,000, and in case of default In the payment of fine/compensation, further imprisonment for six months. Sarfraz alias Sappi, Abdul Rashid and Muhammad Ashraf appellants have appealed against their conviction and sentence by way of Criminal Appeal No. 799 of 1995. 2. Co-accused Muhammad Amin who is a brother of Abdul Rashid and Muhammad Ashraf appellants and co-accused Muhammad Afzal were cquitted by the learned trial Judge. Their acquittal has been challenged by Ahmad Khan (P.W. 2) complainant and the unfortunate father of Muhammad Azam eceased by way of Criminal Appeal No. 134 of 1996. 3. Complainant Ahmad Khan has also brought a petition under section 435/439 of Code of Criminal Procedure against Sarfraz alias Sappi, Abdur Rashid and Muhammad Ashraf praying inter alia for enhancement of sentence awarded to Muhammad Ashraf and also for enhancement of compensation awarded under section 544-A, Cr.P.C. to the legal heirs of Muhammad Azam deceased. 4. By this judgment/order we propose to decide all these three matters together. 5. The occurrence took place on the 4th of June, 1993 at about 7 p.m. in the aiea of Ratti Tabbi which is about 5 kilometers from Police Station Safdarabad of District Sheikhupura. The occurrence was reported by Ahmad Khan (P.W. 2), the unfortunate father of Muhammad Azam deceased on the 4th of June, 1993 at 8-30 p.m. in the area of Ratti Tibbi and his statement (Exh. P.C.) was recorded by S.-I. Ghulam Asghar (P.W. 10), who was the Station House Officer of Police Station Safdarabad. The formal F.I.R. (Exh. P.C./I) was drawn on the same day at 8-50 p.m. at Police Station Safdarabad of District Sheikhupura by Moharrir Head. Constable Muhammad Khurshid (P.W. 5). 6. The case of the prosecution is to the following effect :-- During general elections held in the year 1990, Muhammad Latif son of Sultan, a resident of Ratti Tibbi was murdered. Muhammad Azam deceased son of complainant Ahmad Khan (P.W. 2) was amongst the accused persons in the murder case of the said Muhammad Latif. As a result, of a compromise effected between the parties, the complainant's son Muhammad Azam deceased was acquitted by the Court. Although, the matter was compromised but the brothers of Muhammad Latif nonetheless bore a grudge in their hearts and minds. On the day of occurrence at about 7 p.m., complainant Ahmad Khan alongwith Iiitsar Haider (not produced) and Sakhawat Hussain (P.W. 3), both residents of Ratti Tibbi were going to the house of Murtaza also a resident of the same area. When the complainant alongwith his two companions reached near the house of the said Murtaza, Muhammad Azam deceased met them near the house of one Mustafa. At that point of time, suddenly, Sarfraz alias Sappi and Abdul Rashid both armed with .12 bore guns; Muhammad Ashraf armed with a 222 rifle; Muhammad Amin armed with a klashnikov and Muhammad Afzal armed with 8 m.m. rifle arrived at the spot. Go-accused Muhammad Afzal told Sarfraz alias Sappi to murder Muhammad Azam deceased, because he was the murderer of his father. On being, thus, encouraged, Sarfraz alias Sappi who was armed with a .12 bore gun fired at Muhammad Azam deceased and hit him on the right, side of the shoulder on the rear and also on the back side of the chest near the neck. Co-accused Muhammad Ashraf and Muhammad Amin took positions with their respective weapons and threatened to kill anyone who would try to come to rescue of the victims. The second shot was fired by Abdul Rashid with his .12 bore gun which hit the complainant's son Muhammad Azam deceased on the neck and on the left inside of the shoulder on the backside. Mxihammad Azam deceased fell down and died at the spot. The accused persons avenged the killing of Muhammad Latif, father of Sarfraz alias Sappi by murdering Muhammad Azam deceased. This occurrence was witnessed by complainant Ahmad Khan (P.W. 2), Intsar Haider (not produced) and Sakhawat Hussain (P.W. 3). Leaving behind the dead body of his son Muhammad Azam deceased in the custody of Intsar Haider and Sakhawat Hussain, complainant, Ahmad Khan (P.W, 2) was proceeding towards the police station to report the matter when he met S.-I. Ghulam Asghar S.H.O. (P.W. 10) in the area of Ratti Tibbi and made his statement (Exh. P.C.) on the 4th of June, 1993, which was recorded at 8-30 p.m. by S.-I. Ghulam Asghar (P.W. 10). The formal F.I.R. (Exh. P.C./I) was drawn on the same day at 8-50 p.m. at Police Station Safdarabad of District Sheikhupura by Moharrir Head Constable Muhammad Khurshid (P.W. 5). 7. S.-I. Ghulam Asghar (P.W. 10) conducted the investigation of this case. After recording the statement of complainant Ahmad Khan (P.W. 2), he proceeded to the place of occurrence and collected blood-stained earth from the place of occurrence on the 4th of June, 1993, vide recovery memo. Exh. P.A., in the presence of Niaz Ali (not produced) and Muhammad Iqbal (P.W. 1). S.-I. Muhammad Asghar (P.W. 10) arrested Sarfraz alias Sappi alongwith co-accused Muhammad Ashraf on the 19th of June, 1993. Sarfraz a^'as Sappi appellant, led to the recovery of double-barrel gun Exh. P.I from his house on the 28th of June, 1993, which was recovered and taken into possession vide recovery memo. Exh. P.B. by S.-I. Ghulam Asghar (P.W. 10) in the presence of Muhammad Iqbal (P.W.I) and Tasawar Hussain (not produced). 8. The earth which was recovered from the place of occurrence by the Investigating Officer was sent to the Chemical Examiner on the 16th of June, 1993 and was received by him on the 17th of June, 1993. The earth in question was found to be stained with blood by the Chemical Examiner whose report is Exh. P.K. Pieces from the said earth were sent to the Serologist for purposes of analysis on the 19th of June, 1993 and were received by the Serologist on the same day. The result of the analysis was that the pieces in question were found to be stained with human blood by the Serpjogist whose report is Exh. P.L. 9. Dr. Muhammad Modassar (P.W. 4), who was posted as Medical Officer D.H.Q. Hospital Sheikhupura performed the autopsy on the dead body of Muhammad Azam deceased who was aged about 25 years on the 5 th of June, 1993 at 4 p.m. and found the following injuries on his dead body :-- (1) 3 penetrating wounds with blackening and tattooing around the wound margin measuring 1 c.m. x 1 c.m. at the left side of the neck mid-part close and below of the left chin in an area of 3 c.m. x 3 c.m. (2) Wound of exit at the right side of the neck mid-part. (3) 3 penetrating wounds on the back of the chest right side each measuring 1 c.m. diameter. 1st penetrating wound at upper of back of right chest, 3 c.m. from the mid-line to the right 2nd penetrating wound 2 c.m. below the 1st one. 3rd penetrating wound at the back of right mid chest 4 c.m. from the 2nd one. (4) Wound of exit at the tops front of the right upper chest at the end above the clavicle. (5) 3 penetrating wounds on the front and outer and back of the left shoulder joint. In the opinion of the doctor, the injuries on the neck by the fire-arm "weapon had disrupted the vascular channels leading to hypovolemic shock, neurologic shock. The injuries on the back of the chest had punctured the right lung and left lung punctured by the injuries.at the left shoulder made the lungs infarction through the track. Whole of the injuries collectively were sufficient to cause haemorrhage shock cardio vascular compromise leading to cardio vascular and respiratory failure leading to death. All the injuries were of antemortem in nature and were inflicted by fire-arms. Probable time between injuries and death was immediate and between death and post­ mortem was 18-20 hours. 10. The accused persons pleaded total denial and false implication due to enmity. Nor did any of the accused persons chose to make a statement on oath under section 340(2), Cr.P.C. in order to disprove the case of the prosecution. However, copies of different F.I.Rs. were placed on record in order to show that there was enmity between the parties and also that the deceased was involved in various cases. Sharafat Ali Moharrir Head Constable appeared as D.W.I in order to prove that Muhammad Azam deceased son of the complainant Ahmad Khan (P.W.2) was an accused person in F.I.R. No. 81 of 1993, dated the 13th February, 1993, recorded at Police Station "B" Division Sheikhupura, under section 302/324/148/149/188 of the Pakistan Penal Code (Exh. D.W.I/A). A.S-I. Jafar Hussain appeared as D.W. 2 and produced daily diary Register of Police Station Sadar Farooqabad containing Report No. 15, dated the 4th of June, 1993 which was placed on record as D.W. 2/A and Report No. 23. dated 5-6-1993 D.W.2/B. A.S.J. Muhammad Nawaz appeared as D.W.3 and gave evidence regarding the alibi of co-accused Muhasmmad Amin Police Constable who has been acquitted by the learned trial Court. Moharrir Head Constable Saifullah appeared as D.W.4 and brought different F.I.Rs. which were placed on the record as Exhs. D.W.4/A, B, C, D and E. S.-I. Muhammad Ashiq appeared as D.W. 5 and gave evidence that Muhammad Azam deceased was recruited as a police constable on the 20 th of February, 1985 but was subsequently dismissed from service on the 10th of September. 1991. The entire defence evidence does not advance anybody's case. There is no denial of the admitted position that there was bitter enmity between the parties. The fact that Muhammad Azam deceased was dismissed from service did not and could not give a licence to the accused persons to kill him. 11. The occurrence took place, at 7 p.m. on the 4th of June, 1993 in the Bazar near the houses of Murtaza and Mustafa in the area of Ratti Tibbi which is about 5 kilometers from Police Station Safdarabad of District Sheikhupura, where the formal F.I.R. Exh. P.C./l was drawn on the same day at 8-50 p.m. on the basis of the statement Exh. P.C of complainant Ahmad Khan (P.W.2), which was recorded at 8-30 p.m. by S.-I. Ghulam Asghar (P.W.10). Thus, the matter was reported within an hour and half. It is in evidence that complainant Ahmad Khan did not have any transport at his disposal and proceeded on foot to report the matter. We are quite clear in our minds that the report was lodged promptly and without any pre- B meditation or delay. Complainant Ahmad Khan (P.W.2) saw his young son Muhammad Azam deceased being shot to death and stood by helplessly. Homicide is almost always a crime with multiple victims. There is the dead person himself, and those who loved him. There is no pain to compare to burying a murdered son; no rage so impotent as that of a father who failed, through no fault of his own, in the elementary duty to protect his child's life. Parents who have experienced the loss that time cannot health to demand justice. We are quite clear in our minds, that the complainant Ahmad Khan (P.W.2), the unfortunate father of Muhammad Azam deceased would not substitute the real killers of his son with somebody else. The other eye-witness of the occurrence namely Sakhawat Hussain (P.W. 3) is not related to the deceased neither is he inimical towards the accused persons. In other words, Sakhawat Hussain (P.W. 3) is a completely independent eye-witness. Both Ahmad Khan complainant (P.W.2) and Sakhawat Hussain (P.W. 3) have given a straightforward; truthful and consistent narration of the occurrence which is in line with the medical evidence. The prosecution has succeeded in proving its case beyond all reasonable doubts. 12. Resultantly, Criminal Appeal No. 799 of 1995 brought by Sarfraz alias Sappi, Abdul Rashid and Muhammad Ashraf against their conviction and sentence is dismissed. Criminal Appeal No. 134 of 1994 brought by Ahmad Khan complainant (P.W.2) against the acquittal of co-accused Muhammad Amin and Muhammad Afzal is also dismissed, and, so is Criminal Revision No. 49 of 1996. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 457 Present: zakir hussain MlRZA, J. ABDUL WAHAD JUNEJO-Applicant versus STATE-Respondent Criminal Bail Application No. 631 of 1997, decided on 8-5-1997. <i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1), third proviso-Bail-Grant of-Prayer for-Statutory delay- Ground ef-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)-Accused was in custody for the last two years and 10 months and his trial had not so far concluded-Delay had not occasioned on account of any act or omission either of accused or of his representative-Involvement of accused in some cases did not disentitle him to grant of bail unless he was shown to be a hardened or dangerous criminal-Bail granted. [Pp. 458 & 459] A & C (ii) Criminal Procedure Code, 1898 (V of 1898)-- —- S. 497(1), third proviso-Bail on ground of statutory delay-Many cases pending against accused whether disentitle him to grant of bail—Held: Involvement of accused in a number of cases will not disentitle him to the grant of bail unless he has been established to be a hardened criminal by a Court of law. [P. 458] B Sardar Muhammad Ishaque, Advocate for Applicant. Muhammad Ismail Memon, A.A.-G., Sindh for the State. order Accused/appellant is facing trial before the Sessions Court before Additional Sessions Judge, Karachi South for offence punishable under section 17(3), Offence Against Property (Enforcement of Hudood) Ordinance, 1979 registered under F.I.R. No. 230 of 1994 by Kharadar Police Station. Briefly, the facts are that the complainant Hasan Ali is the Manager Muslim Commercial Bank, Kharadar Branch, reported the matter to the said police station that he was on duty on 11-7-1994. One person aged about 30 ,35 broke into his cabin and directed him to open the safe. In the meantime, he also found that the rifle of P.C. Gul Muhammad, who was guard of the bank, was being snatched. Three/four other persons also surrounded the cashier. They asked the Manager to keep silent and guided him to the strong room alongwith other staff. The complainant noticed that cashier Islam Ali was bleeding and the gun of the private security guard was lying in the gun room. Constable Gul Muhammad informed the police on telephone. The police arrived and then constahle Gul Muhammad and gun man Murad saw a person in custody of police whose name they came to know as Abdul Wahab (present applicant). A white bag was secured from Abdul Wahab which contained robbed amount. It was opened and Rs. 34,95,567 and prize bonds worth Rs. 4,75,000 were found in it. During the interrogation, the applicant/accused disclosed names of co-accused Imdad Ali, Shah Muhammad, Waheed AH and another friend of Shah Muhammad. During investigation, police also arrested co-accused Imdad Ali whereas six other accomplices of the applicant/accused are still absconders. The applicant, after having failed to obtain bail from the trial Court, has filed this application. The bail plea has been pressed on solitary ground of statutory delay which has occurred in conclusion of trial. The applicant/accused is in custody since 11-7-1994 when he caught red-handed by police and is still in A custody ever since the day. It has been pointed out by the learned counsel that the copy of diaries filed by him show that not a single adjournment has been obtained by the applicant and the case has been delayed not on account of any act or omission on the part of the applicant or his representative. This delay can only be attributed to prosecution with the sole object to keep the accused in custody as long as they can. Learned counsel has referred to the authorities reported in Ghulam Abbas v. State 1997 MLD 1743, 1997 SCMR 361 which is a D.B. decision in case of Jagat Ram v. The State and a Full Bench authority reported in 1997 SCMR 412 in the case of Muhammad Rafique v. The State. He has also referred to the authority reported in 1993 SCMR 535 in case of Jalal v. Allah Yar and others. He also referred to a chain of authorities pertaining to the issue of statutory delay. It is finally argued by the learned counsel for the applicant that, in view of the authorities referred by him, the applicant/accused is entitled to the grant of bail as of right. The ground on which the bail has been refused by the lower Court is that there is a chain of cases against the present applicant as such he is a dangerous and hardened criminal and not entitled to bail though the learned lower Court has recorded that the statutory delay has occurred not on account of the accused but on the prosecution. It is the settled law that mere fact that the accused is involved in a number of cases will not disentitle him to the grant of bail unless he has been established to be a hardened criminal by the Court of law. The learned A.A.-G. frankly concedes to the situation and states that the diaries produced by the applicant do not show that the delay in conclusion of trial has occasioned due to any act or omission on the part of accused or his representative. Under these circumstances, he has no objection if bail is granted to the applicant on the ground of statutory delay. Under these circumstances and in view of the authorities referred to by the learned counsel for the applicant, I am clear in my mind that the delay has not occasioned on account of any act or omission by the accused or his representative which makes him entitled to the grant of bail on this solitaiy ground. In the circumstances of the case, I accept his bail plea and direct that he be released on bail upon furnishing one solvent surety in the sum of Rs. 2.00,000 (rupees two lacs) with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. (K.K.F.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 459 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ASHRAF-Petitioner versus THE STATE-Respondent Criminal Miscellaneous No. 271/B of 1997, decided on 24.4.1997. ( i ) Ipse dixit of Police- -—Investigating Officers' opinion-Weight and relevance-Finding of Investigating Officer regarding innocence of accused, though not a legal evidence, yet being adverse to prosecution puts one's mind on inquiry as to the veracity of complainant's case. [P. 460] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Offence U/Ss. 302/324/148/149- Accused was named in F.I.R. and had been shown to have fired with a .12 bore gun which though did not hit anybody, but, prima facie, his vicarious liability existed with his co-accused who had come alongwith him to kill deceased by making fatal shots at him and out of them two were still absconding—Eye-witnesses having linked accused with murder of deceased alongwith his co-accused, opinion of Investigating Officer regarding innocence of accused was not relevant at such stage- Evaluation of defence version at bail stage was not possible nor it could be put in juxtaposition with prosecution case—Bail was declined to accused. [P. 461] B 1970 SCMR 299 ref. Sardar Muhammad Ishaq Khan, Adovcate for Petitioner. Malik Muhammad Nawaz , Adovcate for the Complainant. Raja Ghazanfar AH, Adovcate for the State. order The petitioner is arraigned alongwith others for an offence under section 302/324/148/149, P.P.C. vide F.I.R. No. 92, dated 8-5-1996 registered at Police Station Mandra , District Rawalpindi , on the ground that all of them after forming an unlawful assembly and in prosecution of the common object, committed the murder of Manzoor Hussain and caused injuries to Mst . Taj Begum P.W. 2. Learned counsel for the petitioner has submitted that the petitioner is entitled to bail because no injury is attributed to him to any person; that he has been found innocent in the investigation conducted by Basharat Mahmood D.S.P. and his name is placed in column No. 2 of the challan ; that there is a cross-version in defence for which a complaint has already been lodged because the petitioner was also injured during the occurrence and had suffered a number of fire-arm injuries on his person on account of the alleged aggression by the complainant's side and that the recovery of .12 bore gun was not effected from him although his licensed rifle was taken into possession after the same was produced by him before the police. 3. In the light of foregoing submissions, it was contended that the petitioner was entitled to bail particularly when he had been found innocent by the Investigating Officer. Though such finding was allegedly not a legal evidence, yet being adverse to the prosecution puts ones mind on inquiry as A to the veracity of the complainant's case. As such, it would make out a good case for bail the petitioner as held in Rehmat Ullah alias Rehman v. The State and another 1970 SCMR 299. 4. The bail application is opposed by the learned State Counsel assisted by the learned counsel for the complainant on the ground that the opinion of the Investigating Officer is not binding on the Court particularly when it is based on the statement of one witness whereas the eye-witnesses have been ignored while forming such opinion; that the petitioner is named n the F.I.R. and a specific role is attributed to him by the eye-witnesses in connection with the murder of the eceased that the injuries on the person of the petitioner would prima facie show that he had participated in the occurrence being present at the spot and that his co-accused namely Muhammad Yousaf and Javid Iqbal have been declared as absconders in this case which too would put the Court on alert to grant bail to the present petitioner who may also escape after earning bail. The mere fact that the fire made by the petitioner did not hit anybody would not automatically entitle the petitioner to the right of bail as his vicarious liability is prima facie established with his co-accused in killing the deceased. Reliance is placed on S.M. Zaheer v. The State 1969 SCMR 107, Munawar v. The State 1981 SCMR 1092, Rashid Khan and another v. The State and others 1986 SCMR 933 and Syed Ikhlaq Hussain and others v. The State 1995 PCr . LJ 1114 ( Lahore ). 5. I have considered the above submissions and find that the deeper appreciation of the merits of the case at this stage is not advisable lest it may prejudice the trial itself. It is enough to say that the petitioner is named in the F.I.R. and has been shown to be armed with a .12 bore gun and made a fire which though did not hit anybody, butpn/na facie his vicarious liability would co-exist with his co-accused who had come alongwith him to kill the deceased by making fatal shots at him and out of them, two are still absconding. The opinion of the Investigating Officer will not be relevant at this stage as all the eye-witnesses have linked the petitioner with the murder of the deceased alongwith his co-accused. The evaluation of the defence version at this stage is not possible nor it can be successfully put in juxtaposition with the prosecution case at the bail stage. The petition being meritless is dismissed. (K.A.B.) Bail refused.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 461 Present: zafar hadi shah, J. MUHAMMAD MUJAHID-Applicant versus THE STATE-Respondent Criminal Bail Application No. 561 of 1997, decided on 21-5-1997. Criminal Procedure Code, 1898 (V of 1898)-- —- S. 497-Bail-Grant of-Prayer for-Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)--Qanun-e- Shahadat (10 of 1984), Art. 38-Complainant and accused being unknown to each other prior to incident, identification parade was necessary, more particularly when complainant had stated that he could recognize accused-Prosecution case having been based on disclosure made by accused during police custody such course was inadmissible and of no legal value in view of Art. 38 of the Qanun-e-Shahadat, 1984-No recovery made from accused-Accused admitted to bail. [Pp. 462 & 463] A, B, C & D 1993 SCMR 1322 and 1996 PCr. LJ 1608 ref. Sardar Muhammad Ishaque, Advocate for Applicant. Miss Nasreen Zafar, Advocate for the State. order The applicant/accused is facing trial under section 17(4), Offences Against Property (Enforcement of Hadd) Order, 1979 under F.I.R. No. 128 of 1996, registered at Police Station Azizabad, Karachi . According to the F.I.R., on 1-5-1996, at about 2-45 p.m. the complainant H.C. Sohail Ahmed and P.C. Muhammad Yaqoob were riding on motorcycle No. GT-8758, when they reached near Gulistan-e-Shamim Block 8 near Future Grammar School Federal "B" Area, Karachi , they were fired from the Honda Civic car of light blue colour bearing No. F-546, in which 4 persons were sitting. H.C. Muhammad Yaqoob expired on the spot while the complainant jumped and saved himself. They also took away service SMG-25735 loaded with thirtyfive cartridges of P.C. Muhammad Yaqoob. The learned counsel appearing for the applicant/accused argued that the accused/applicant was not arrested on the spot and that the complainant and the accused were not known to each other prior to the incident. No identification parade of the accused after his arrest was conducted. The learned counsel further argued that the entire prosecution case is based on the disclosure made by the accused/applicant during his police custody which according to him was not admissible under Article 38 of the Qanun-e- Shahadat. The learned counsel Miss Nasreen Zafar appearing for the State argued that the complainant had identified the accused in the police station and she opposed the bail application. From the record of the case it transpires that the complainant and the accused were not known to each other prior to the incident. In such a situation the identification parade was necessary, more particularly when the complainant had stated that he could recognize the accused. The learned counsel has placed reliance on Miran Bux v. The State 1995 PCr. LJ 88 wherein it has been held as under :-- "It appears that the assailants were not known to com­ plainant prior to the occurrence. Admittedly identification parade was not conducted. I think that identification parade was necessary particularly when the complainant and other witnesses present on the scence of occurrence had stated that they could recognize the accused." Further, the Honourable Supreme Court in a recent case reported in Muhammad Raftque v. The State 1997 SCMR 412 held as under :-- "It has not come on record, as to, why identification test of the petitioner through eye-witnesses was not held when his name did not appear in the F.I.R. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observations made in the case of Ishaq Maseeh v. The State (1993 SCMR 1322) are relevant. In the circumstances, we convert this petition into appeal, grant bail to the applicant Muhammad Rafique." It is an admitted position that in the present case the prosecution has based its case on the disclosure made by the accused during his police custody which under Article 38 of the Qanun-e-Shahadat is in admissible and is of no legal value. On this point the relevant case is the case of Muhammad Siddique v. The State reported in 1996 PCr. LJ 1608 wherein it has been held that the confession of an accused before a Police Officer is an inadmissible evidence, in view of the mandatory provision of Article 38 of Qanun-e-Shahadat, 1984. Further, admittedly no recovery has been made from the accused/applicant even the alleged SMG-25735, which according to the F.I.R. was taken away by the accused has not been recovered. In view of the above, I am of the opinion that the accused is entitled to bail. The bail application is allowed and the applicant/accused is ordered to be released on bail in this case on his furnishing one solvent surety in the sum of Rs. 1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. (K.A.B.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 463 (DB) Present: KAMAL MANSUR ALAM AND ZAFAR HADI SHAH, JJ. QAZI-UR-REHMAN-Applicant versus STATE-Respondent Criminal Bail Application No. 635 of 1997, decided on 29-5-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)-Bail-Grant of-Prayer for-Further inquiry-Ground of Offence u/S. 302/34 of PPC-Witnesses examine during investigation had given two different versions of occurrence and at such stage it was not possible to prefer statements of some of them over statements of others- Two of Investigating Officers had declared accused innocent in case-Case needed further probe-Bail granted. [P. 464 & 465] A 1989 PCr. LJ 692 ref. Shaukat Hayat, Advocate for Applicant. Raza Hashmi, Advocate for the Complainant. ' Habib Ahmed, .A.- . for the State. order Kamal Mansur Alam, J.-Applicant is facing trial in the Court of the Special Judge (S.T.A.) Karachi , South for the-offence under section 302/34, P.P.C. in Special Case No. 502 of 1997 arising out of F.I.R. No. 232 of 1996 of Police Station Chakiwara. Complainant Sultan Bahadur Khan has alleged in the said F.I.R. that on 20-9-1996 at about 8-30 p.m. on the occasion of a marriage at Shaikh Muhammad Din Community Hall in the presence of large number of guests the applicant alongwith Azam Khan, both armed with pistol, came to the place and co-accused Azam Khan gave Lalkara to Tarique AM Abbasi to be ready for the consequences of having insulted the accused at the marriage the previous night. The applicant is said to have then instigated Azam Khan to fire at Tarique Ali whereupon Azam Khan fired from his pistol which hit Tarique Ali who died on way to the hospital. The two accused were caught hold of by several persons present there and were brought to the police station. Statement of Sultan Bahadur was recorded under section 154, Cr.P.C. at the hospital at 10-20 p.m. and was later incorporated in the F.I.R. S.-I. Mushtaque Hussain after registering the F.I.R. took-up the investigation of the case but after sometime the investigation was entrusted to C.I.A. and later to the Crime Branch. Thus, in this case investigation was conducted by three agencies. In the course of investigation statements of several persons were recorded under section 161, Cr.P.C. from time to time, who gave different version of the incident, in that, while some supported the prosecution story, some stated that the deceased was hit by a stray bullet during the usual ceremonial firing at the marriage. The main contention of the applicant's counsel is that as two versions of the incident have emerged as a result of the three investigations and in the opinion of the two of the Investigation Officers the applicant was innocent, the applicant is entitled to the benefit of bail. Reference is made to the cases of Muhammad Rafiq v. Abdur Rehman and 5 others 1986 SCMR 1978 and Malik Nazir Ahmad and another v. The State 1989 PCr. LJ 692. Mr. Raza Hashmi, the counsel appearing for the complainant vehemently opposes the grant of bail to the applicant. His contention is that with a view to create confusion the case was deliberately entrusted to three different agencies for investigation and that only those persons whose statements were recorded by the Investigating Officer soonafter the registration of the F.I.R. had truthfully stated the facts supporting the prosecution while several of the others who were examined later by the Investigating Officers, were set up with ulterior motive to give different version of the occurrence, and therefore, their statements should not be given any weight. In the challan submitted in Court as many as 50 witnesses have been cited by the prosecution and most of these had been examined during the investigation and as mentioned earlier, had given two different versions of the occurrence. In these circumstances it is not possible, at this stage to give preference to the statements of some of the persons over others, as suggested by complainant's counsel. Accordingly, in view of the two versions of the occurrence and the fact that two of the Investigating Officers had declared the applicant innocent of the crime we consider applicant's case to be of further enquiiy. In the result we allow this application and grant bail to the applicant in this case on his furnishing two sureties in the sum of Rs. 1.00,000 (rupees one lac) each and P.R. Bond in the like sum to the satisfaction of the trial Court. iK.A.B.) Bail allowed

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 465 (DB) Present: arif iqbal hussain bhatti and rao naeem hashim khan, JJ. ABDUL KARIM alias ABDALLI-Appellant versus STATE-Respondent Crl . Appeal No. 674 of 1995, decided on 6-2-1996. Railways Act <IX of 1890)-- -—S. 128-Accused after having been tried in absentia was convicted under S. 128 of Railways Act, 1890 and sentenced to undergo three years' R.I.-- Maximum sentence provided under S. 128 of the Railways Act, 1890 being two years, sentence of three years' R.I. awarded to accused was illegal and without jurisdiction-Extraordinary delay of 5% years in filing appeal by accused was condoned on account of illegal sentence awarded- Prosecution was unable to support conviction of accused in circumstances and he was acquitted accordingly. [P. 466] A, B & C Bagh Alt Bhatti , Advocate for Appellant. S.D. Qureshi , Advocate for the State. Date of hearing : 6-2-1996. judgment Arif Iqbal Hussain Bhatti , J.--Abdul Karim alias Abdalli , appellant has filed appeal against the judgment and order of conviction, dared 14-2-1990, passed against him by the learned Judge, Special Court , S.T.A.. Lahore . The learned Judge convicted the appellant to three years' R.I under section 120 of the Railways Act. 2. Brief facts of the case are that R.I.R. No. 299, dated 29-12-1987, offence under section 506/186, P.P.C. and section 120/121/128, Railways Act was registered at Police Station Railway Police, Lahore , on the application of Muhammad Iqbal Wattoo , Railway Guard of the train. Allegations against the accused were that on 29-12-1987, railway train No. 57-Up stopped at Jia Bugga while Muhammad Iqbal complainant/Guard and other staff were present when the appellant came to him and stated that there was no seat in the railway compartment, therefore, he should open the brake-compartment for sitting. On his refusal he abused and assaulted him. He removed hose­ pipe of the boge of the train and did not allow the train to start. The accused v- ,s arrested in January, 1988 The accused during trial of the case absented and was convicted in absentia under section 128 of the Railways Act to three years' R.I. 3. The appellant was arrested on 13-10-1995 and filed appeal against his conviction in this Court. This appeal was filed after a period of 5-1/2 years. The appellant challenged the conviction as being illegal. Learned counsel submitted that the maximum punishment provided in section 128 of the Railways Act is two years and awarding of sentence of three years to the appellant was illegal and without jurisdiction. Due to this legal ground, the extraordinary delay caused in filing the appeal was condoned. 4. Learned counsel during the hearing of the appeal has once again reiterated that under section 128 of the Railways Act the maximum sentence provided is two years and the award of sentence of three years is illegal and without jurisdiction. Learned counsel for the State has frankly conceded the point and is unable to support the conviction awarded to the appellant. In this view of the matter, the appeal is accepted, the conviction and sentence awarded to the appellant is set aside and shall immediately be released from us :!, if not squired in any other case. ( K.A.b ., Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 466 (DB) Present: kamal mansur alam and zafar hadi shah, JJ. EHTESHAM YOUSUF-Applicant versus STATE-Respondent Crl Bail Application No. 555 and Misc. Application No. 654 of 1997, decided on 29-5-1997. Criminal Procedure Code, 1898 (V o f 1898)-- —-S. 497(2)--Bail-Grant of-Prayer for-Further inquiry-Offence u/S. 302/34 Pakistan Penal Code, 1860-Accused had been implicated in case by co-accused in his confessional statement recorded under S. 164, Ci -.P.C.-Statement of injured witness recorded under S. 161, Cr.P.C . was at variance with details of incident given in F.I.R.--Despite statement of injured eye-witness that he could identify culprits, no identification parade was held in the case-Question of involvement of accused in ^rime required further inquiry in circumstances and he was admitted to bail accordingly. . [P. 467] A Irfan Ahmed Usmani , Advocate for Applicant. Muhammad Saleem , A.A.-G. for the State. order Kamal Mansur Alam , J.--Granted for the present subject to all just exceptions. 2. Head Constable Dildar Hussain of Peerabad Police Station, Karachi-West lodged Crime No. 142 of 1995 in his police station on 30-10- 1995 alleging that at about 3-30 p.m. in the afternoon while he alongwith some other police personnel was on duty they heard fire-arm report whereupon they proceeded to the place and saw the applicant as well as some other co-accused named in the F.I.R. and 2/3 unnamed persons were firing as a result of which Constable Muhammad Asif was hit by bullet on his chest and one Muhammad Saleem was hit in his right arm. The injured constable died while injured Muhammad Saleem was taken to hospital. The police papers show that the applicant was arrested on 1-8-1996 on the pointation of co-accused Ilyas Hassan , who had been arrested in some other crime but in his confessional statement under section 164, Cr.P.C . implicated the applicant in this crime. Statement of injured Muhammad Saleem was recorded under section 161, Cr.P.C ., but it appears to be at variance with the details of the incident given in the F.I.R., inasmuch as, in the F.I.R. the complainant stated that the firing was resorted to by the culprits in his presence and in presence of other police personnel while in his statement the injured stated that the police arrived at the scence after he and the constable had been injured. The injured, in his statement, did not name anyone but stated that he could identify the culprits, yet no identification test was held in the case and the injured was not called upon to identify the applicant or other accused of the crime. Consequently, we are left only with the statement of the police personnel and somewhat inconsistent statement of the injured. In the absence of the identification of The applicant by the injured, who was an eye-witness to the occurrence the question of applicant's involvement in the crime requires further inquiry. We. accordingly grant bail to the applicant on his furnishing surety in the sum of Rs . 1,00,000 (rupees on lac ) and P.R. Bond in the like sum to the satisfaction of the trial Court. ' K.A.B.i Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 468 (DB) Present : RANA BHAGWAN DAS AND ZAKIR HUSSAIN K. MlRZA, JJ. GHULAM HUSSAIN and 5 others-Appellants versus STATE-Respondent Crl. Appeals Nos. 13/J, 26 of 1995 ( Hyderabad ), 11/J and 12 of 1997 ( Karachi ), decided on 30-5-1997. (i) Pakistan Penal Code, 1860 (XLV of I860)- —-S. 302/149-Evidence-Appreciation of-Non-examination of prosecution witnesses named in F.I.R. as eye-witnesses whose evidence was material and admissible in order to arrive at a just and correct conclusion, was not explained by prosecution-Prosecution witnesses examined at the trial court not be termed as eye-witnesses of occurrence and their testimony was neither unimpeachable nor reliable-Accused were not proved to have a strong motive to commit murders of deceased-Circumstance that accused had already been shown to witnesses well in advance of identification parade was fatal to prosecution case which was inherently weak and full of material inconsistencies and infirmities-F.I.R. had been lodged after long deliberations and virtually after completing investigation—Accused were acquitted in circumstances. '[P. 471, 472, 473, 474] A, B, F, G, H & I PLD 1981 SC 142 and 1991 PCr. LJ 133 ref. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/149-Evidence-Child witness-Status-Witnesses of tender age if intelligent enough do not ordinarily speak lies and their evidence carries higher value than ordinaiy witnesses, reason being that they are generally considered to be innocent and oblivious of motives and evil considerations. [P. 472] C (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/149--Motive-.-Motive by itself is not adequate enough to base a conviction on a capital charge, but a strong motive, if established, may serve as corroborative to the remaining evidence provided same is trustworthy and unassailable for recording a finding of guilt. [P. 472] D (iv) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/149-Motive-Motive is not to be necessarily established for commission of crime as motiveless crimes do occur in society, but once a motive is alleged for commission of a crime same must be proved otherwise it may reflect upon truth and bona fides of prosecution version: [P. 472]E Muhammad Qasim Mirjat, Advocate for Appellants. Syedain Zaidi, Asstt. A.-G., Sindh for the State. Date of hearing : 5-5-1997. judgment Rana Bhagwan Das, J.--This judgment shall dispose of the aforesaid two appeals filed by appellant Ghulam Hussain and five others convict/appellants which are directed against the judgment and conviction recorded by S.T.A. Court No. I, Hyderabad on 27-12-1994 convicting and sentencing the appellants under section 302 read with section 149, P.P.C. and sentencing them to life imprisonment and a fine of Rs. 50,000 or in default to undergo R.I. for two years. 2. Fateful incident leading to the death of deceased Mohib AH and others took place on or about 20-4-1992 at about 7-30 p.m. near village Gahelo Taluka Matiari District Hyderabad. Report of the incident was lodged by first informant Jan Muhammad at Police Station Matiari on the next day at 1-00 p.m. Prosecution case in nut-shell is that on the material day at relevant. f ime first informant Jan Muhammad accompanied by P.Ws. Muhib and Sadiq was returning home when on the Link Road leading towards village Sono Khan Khushk, 7/8 persons duly armed surrounded them and made them to sit in the ditches where they saw their relatives namely Muhib Ali son c f Misri, Khawand Bux son of Muhammad Khan, Imam Ali son of Morio, Zulfiqar son of Ghulam Hussain, Mehar son of Obhayo, Iqbal son of Ibrahim, Obhayo son of Muhammad Umar, Ghulam Hyder son of Mala, Noor Muhammad son of Mitho, Hussain son of Allah Bux and two young boys namely Allah Bux son of Haroon and Najam son of Sadiq. all by caste Khushk. One Ghulam Shabbir son of Muhammad Issa Kaskheli was also found sitting over there and all of them were being guarded by 10/12 dacoits. It is said that all of them were tied with ropes and asked to go ahead. One of the criminals whistled upon which 10/12 other criminals arrived and the number of the culprits was raised to 30/32 persons. The witnesses were able to identify Major Khoso, Jurio alias Sepoy Makrani Khoso, Ghulam Muhammad, Zahroo, Nangar, Metlo, Ali Sher Makrani Khoso amongst the criminals. All the persons were taken to mountain side after crossing protective Bund where Major Khoso told them that their companion Jalal Khoso had been killed. Major Khoso untied the fust informant and his companions Muhib and Sadiq as well as Ghulam Shabbir Khaskheli and informed them that the culprits were avenging the murder of Jalal Khoso upon other captives. He handed over a chit to the witnesses to be delivered to Muhammad Ali and Madad Khushk and warned the P.Ws. to disappear from the scene for securing their own lives. In the meanwhile culprits who were armed with Kalashnikovs, rifles and guns fired straight at the captives and fled away leaving Muhib Ali and nine others with burst injuries of deadly weapons. First informant leaving the witnesses to watch the dead bodies left for police station and on any came across Muhammad Yousuf, S.H.O. Matiari and his staff. He narrated the incident to police who visited the scene of offence, prepared relevant Memos. and referred the bodies to Rural Health Centre Matiari where post-mortem on the dead bodies was performed by Dr. Zahiruddin Ahmed. 3. Appellant Ghulam Hussain was arrested on 26-6-1992 whereas appellants Fazal Muhammad, Allauddin, Dur Muhammad and Mehmood came to be arrested on 6-4-1993 while appellant Zahroo who was shown as absconder in the initial charge-sheet was arrested on 15-4-1993. On completion of investigation including identification parade in respect of the appellants they are sent up for trial before the Special Court for Suppression of Terrorist Activities, Hyderabad where their trial intended and conviction and sentence as stated above. 4. In support of its case prosecution examined Jan Muhammad P.W.I, Muhammad Sadiq P.W. 2, Muhib Ali P.W.3, Dr. Zahiruddin Ahmed Qazi P.W 4, Mashir Muhammad Murad P.W. 5, Taj Muhammad Pathan, Mukhtiarkar Matiari P.W.6, Rashid Ahmed Channa, Assistant Mukhtiarkar, Matiari P.W.7. S.-I.P. Khalid Taggar P.W.8, Muhammad Uris Tapedar P.W.9 and S.-I.P. Ashique Ali P.W. 10. 5. The points for determination in this case are :-- (1) Whether deceased Muhib Ali and others died unnatural death as a result of fire-arm wounds? (2) Whether the appellants alongwith others committed the aforesaid murders as alleged ? 6. We have heard learned counsel for the appellants and the Assistant Advocate-General on behalf of State and with their assistance gone through the relevant evidence on record. Point No. 1. 7. Unnatural death as a result of fire-arm injuries on the persons of the deceased is conclusively established beyond doubt by medical evidence on record and is beyond the pale of any controversy. The point is, therefore, answered in affirmative. Point No. 2 8. Prosecution case rests on (i) ocular evidence, (ii) motive and (iii) identification parade of the appellants except appellant Zahroo. 9. According to the contents of F.I.R. recorded after about 17-1/2 hours of the incident, witnesses Jan Muhammad, Mohib Ali, Muhammad Sadiq, Ghulam Shabbir, Najam and Allah Bux had witnessed the occurrence. Out of six persons cited in the F.I.R. at the trial prosecution examined only first informant Jan Muhammad and P.Ws. Mohib Ali and Muhammad Sadiq. While Ghulam Shabbir was given up at the trial, ocular witnesses Najam and Allah Bux though cited in the F.I.R., their names were not mentioned in the calendar of the witnesses filed alongwith the chargesheet. Irrespective of the circumstance whether the witnesses examined at the trial have given true account of the incident and whether their evidence meets the normal standards of acceptance of their testimony for basing a conviction on a capital charge, non-examination of three more witnesses cannot be said to be without any material consequences. From the record it seems that P.W. Ghulam Shabbir was given up by the State Counsel for the reason that his evidence was identical to that of other eye-witnesses who were already examined. We should have no reasons to doubt the bona fides of the statement filed by the State Counsel for giving up this witness but at the same time an adverse presumption may be raised that had this witness been examined, his evidence would have been unfavourable to the prosecution. It is not apparent on the face of record whether this witness was in attendance before Special Court on 7 3-1993 when he was given up. The fact of the matter is that the evidence of remaining three witnesses examined that the trial was concluded on 30-10-1993. In the circumstances it is hardly possible to subscribe to the view of the learned State Counsel that he had given up P.W. Ghulam Shabbir for the reason that other witnesses who were examined on identical facts hi s supported the prosecution case. At any rate, there is absolutely no explanation for non-examination of P.Ws. Najam and Allah Bux whose names transpired in the F.I.R. as ocular witnesses. In the absence of any plausible circumstance to indicate the contrary it cannot be justifiably inferred that such witnesses if examined, might not have corroborated the prosecution u,. ; • j. In any event this circumstance cannot be lightly ignored and the prosecution owes an explanation to this Court for not examining material witness whose evidence would be otherwise material and admissible in order to arrive at a just and correct conclusion. 10. Adverting to the ocular evidence, we find that P.W. Jan Muhammad in his evidence at the trial did not name the appellants having fired at the deceased persons. According to him after being released by criminals he and other witnesses had covered some distance when they heard bursts of Klashnikov. On his own showing all of them concealed themselves but after sometime they saw dead bodies of their relatives at a distance of about 70/80 feet away frpm the place of concealment. However, in Court he was able to identify all the appellants and named Ghulam Hussain and Zahroo. On his part P.W. Muhammad Sadiq who had not named the appellants in his statement before Investigating Officer under section 161, Cr.P.C. at the trial attempted to give an impression that he had seen the present appellants duly armed with klashnikovs and rifles firing bursts at the deceased and killing them in his presence. From his crossexamination it transpires that he had not mentioned the exact features of the criminals/appellants before police during the course of investigation. To the same effect is the evidence of P.W. Mohib who claimed to have identified the appellants on moonlit night. Obviously he had not named the appellants in his previous statement before the Investigating Officer and admittedly he did not mention their exact features in his initial statement before the Investigating Officer. From the evidence on record we are thus convinced that these witnesses cannot be said to be eye-witnesses and their statements are not free from a reasonable doubt. At any rate, it is difficult to accept their evidence as ocular evidence as unimpeachable or reliable. It is for this reason that it was all the more necessary and incumbent upon the prosecution to examine remaining eye-witnesses who were not adduced at the trial. It may be observed that P.Ws. Najam and Allah Bux are said to be persons of tender age but this circumstance by itself would not lean in favour of the prosecution for withholding such evidence. On the contrary experience shows that witnesses of tender age if intelligent enough do not ordinarily speak lies and their evidence carries higher value than ordinary witnesses. The reason for this assumption precisely is that persons of tender age are generally considered to be innocent and oblivious of motives and evil considerations. 11. As to the motive for the commission of the crime, the sole circumstance given out by the first informant in the F.I.R. as well as his evidence is that the criminals while firing at the deceased persons after holding them as captive said that they were avenging the murder of their companion Jalal Khoso who had been allegedly killed at the hands of people of Khushk caste. Be that s it may, in the first instance motive by itself is not adequate enough to base a conviction on a capital charge but a strong 0 motive, if established may serve as corroboration to the remaining evidence provided such evidence is trustworthy and unassailable for recording a finding of guilt. We are unable to find from the evidence on record as to when was Jalal Khoso murdered and if so by whom and whether the persons responsible for commission of his murder have any close relationship with the present appellants. It is not established even remotely as to how the murder of deceased Jalal Khoso was a consideration relevant for the commission of murder in this case at the hands of the appellants against whom the evidence is scanty and not free from a reasonable doubt. It is true that in all criminal cases it is not necessary to establish motive for the commission of the crime as motiveless crime do occur in the present day society. The fact however, remains that once a motive is alleged for the commission of a crime on the part of a person it is always necessary to prove such motive which may otherwise reflect upon the truth and bona fides of the prosecution version. In the case in hand there is not enough material on record to warrant a finding that the appellants had a strong motive and as good reason for holding the deceased persons as captives and to commit their murders as alleged. After all the eye-witnesses examined at the trial are also Khushk by caste and in case the appellants had any grievance against the persons of Khushk caste there is no sound reason for releasing the present witnesses as Well as the witnesses not examined by the prosecution in support of its case. 12. Lastly as to the identification parade suffice to say appellant Ghulam Hussain was arrested on 26-6-1992 by S.H.O. Muhammad Yousuf as a suspect and taken to Police Station Matiari but all the witnesses through whom this appellant was put to identification, had been to police station the same day when he directed them to attend the Court of Mukhtiarkar and First Class Magistrate on the next day for identification purpose. The presence of this appellant as well as the witnesses at the police station prima facie does not rule out the chance of the appellant having been seen by the witnesses. It is also not unusual that such witnesses are confronted with the arrested accused to facilitate his identification to be held under the supervision of an Executive Magistrate. No doubt the evidence of the S.H.O. Muhammad Yousuf, Mukhtiarkar Taj Muhammad and these witnesses tend to show that the witnesses correctly identified this appellant who was made to stand alongwith nine dummies, the fact of the matter is that this circumstance alone is not per se sufficient and adequate enough to hold him guilty of the offence charged. 13. As regards the identification in respect of remaining appellants with the exception of appellant Zahroo, they were arrested by the same Investigating Officer on 6-4-1993 i.e. after about the passage of nearly one year whereas their identification under the supervision of P.W. Raees Ahmed, Assistant Mukhtiarkar and First Class Magistrate Matiari was arranged after 11 days i.e. on 17-4-1993. We are least impressed by the circumstantial evidence reflecting the identification of these appellants for the reasons firstly that the delay of 11 days in arranging identification parade has not at all been explained, secondly that the appellants as well as the witnesses were taken to the office of the'Magistrate together; and lastly four appellants were mixed up with nine dummies which proportion is far from satisfactoiy. Admittedly the witnesses were not summoned by the Magistrate supervising the parade and the circumstance that they were produced by local police alongwith appellants leaves no room for taking the view that the appellants were already shown to them well in advance of the parade. This circumstance is fatal to the prosecution case which is inherently weak and full of material defects, inconsistencies and infirmities. It is, therefore, of veiy little assistance to the prosecution. Reliance is placed on uhammad Ameer v. State PLD 1977 Kar. 695 and Lai Pasand v. State PLD 1981 SC 142. 14. There is another aspect of the case brought to our notice by the learned counsel appearing for the appellants. According to the first informant namely Jan Muhammad unfortunate cold blooded murder took place at about 7-30 p.m. on 20-4-1992 whereas he lodged F.I.R. at Police Station Matiari on the next day at about 1-00 p.m. From the evidence of S.H.O. Muhammad Yousuf it transpires that he came across the first informant just after the occurrence and was taken to the first place where the witnesses and the deceased persons were made captives and to sit in ditches and the second place where the deceased persons were done to death by brutal use of automatic weapons. According to the Investigating Officer it took him about four hours in completing all formalities whereafter the first informant went to lodge report at the police station. According to the first informant dead bodies of the deceased persons were handed over to him at about 1-30 a.m. on 21-4-1992 and the burial took place at about 12 noon or 1-00 p.m. whereas the evidence of Dr. Zahiruddm Ahmed suggests that he received dead bodies for post-mortem examination at 2-10 a.m., he started post-mortem examination at 2-15 a.m. and finished the same at about 2 p.m. the same day. Such discrepancies in the evidence remain unexplained and it is not possible to reconcile the two versions. At least one thing is clear that the F.I.R. recorded after detailed investigation in relation to the crime and dead bodies were returned to the witnesses at a time when these were not handed over to the Medical Officer. It is difficult to grasp such shrouded ) ' ,stery which creates a reasonable suspicion about the truth of prosecution version which as observed earlier is not at all free from a reasonable doubt and capable of being safely relied upon. Reference is made to Muhammad Nawaz v. State 1991 PCr. LJ 133, Muhammad Ameer v. State PLD 1977 Kar. 695 and Lai Pasand v. State PLD 1981 SC 142. 15. Taking up the case of appellant Zahroo, no doubt his name transpires in the belated F.I.R., there is hardly and evidence to hold him guilty of the charge. Even the author of the F.I.R. was unable to name him in his evidence at the trial except a general statement to the effect that all the six appellants present in Court committed the crime. Since we are not inclined to accept the evidence on record as against the remaining appellants it would neither be proper nor legal to accept it against this appellant for the sole reason that his name was disclosed in the F.I.R. alongwith many others. The fact of the matter is that the whole case F.I.R. alongwith many others. The fact of the matter is that the whole case appears to have been set up after long deliberations and investigation into it was virtually completed even before recording of the F.I.R. In the absence of any other strong circumstance to distinguish the case of this appellant, it is neither just nor proper to uphold the conviction in his case. 16. For the aforesaid facts and reasons, these appeals are allowed and sentences and convictions are set aside. Appellants shall be released forthwith unless required to be detained for any other cause. (K.A.B.) . Appeals accepted

PLJ 1998 Cr, C PLJ 1998 Cr, C. ( Lahore ) 475 Present: RAJA MUHAMMAD KHURSHID, J. ALI HUSSAIN and 2 others-Petitioners versus STATE-Respondent Criminal Revision No, 79 of 1997, decided on 4-4-1997. „ Criminal Procedure Code, 1898 (V of 1898)- —-Ss. 540 & 439-Pakistan Penal Code (XLV of 1860), S. 302/34- Summoning of given up prosecution witnesses as Court-witnesses- Status-Eye-witnesses who had been given up by prosecution on the ground of having been won over were basically prosecution witnesses and prosecution in such a situation could not be forced to examine them- Rule of prudence required that such type of witnesses need not be examined as Court-witnesses on account of their credibility intrinsically having become doubtful-Keenness of defence to examine such won-over witnesses had further made their testimony partisan and interested- Provisions of S, 540, Cr.P.C, should not be invoked in such-like cases lest it should introduce perversity in the system of criminal administration of justice-No patent or latent defect having been found in the order of Trial Court refusing to summon said prosecution witnesses as Court-witnesses, it did not warrant interference in revjsional jurisdiction of High Court- Revision petition was dismissed in limine accordingly-[Witness]. [P. 476] A&B 1989 PCr, W 1518 and 1989 PCr. LJ 2631 ref. Mian Abdul Qadoos, Advocate for Petitioner. order The petitioners are facing trial in a case registered under section 302/34, P.P.C. vide P.I.R. No, 351 of 1994, dated 1-9-1994 for the murder of one Faqir Hussain son of Shah Muhammad. During the trial two eye­ witnesses namely Muhammad Aslam and Shaukat Ali were given up by the prosecution at the written request of the complainant Mst. Ghulam Fatima tha" they have been won-over. The petitioners moved an application under section 540, Cr.P.C, in the Court below that the aforesaid given up witnesses be summoned and examined as prosecution witnesses. The learned trial Court dismissed the aforesaid application on 24-11-1996 whereupon the petitioners moved another application under section 540, Cr.P.C. for the summoning of those witnesses as Court-witnesses. That application was also dismissed by the learned trial Court vide order, dated 4-3-1997 which has been impugned in this revision petition on the ground that it is arbitrary and against all the fair canons of justice. Learned counsel for the petitioners has submitted that all the material evidence should be brought before the Court to meet the ends of justice. In the instant case, both the given up witnesses were admittedly eye-witnesses and as such their examination was essential to arrive at a correct decision. The mere fact that they were given up by the prosecution as having been won-over would have not pursuaded the learned trial Court to refuse their examination as Court-witnesses. In fact their examination would have provided an opportunity to both sides to crossexamine them, thereby, helping truth to come to light. Finally, it was contended that the discretion vested in the Court under section 540, Cr.P.C. should be liberally exercised to promote the ends of justice. In support, reliance was placed on PLD 1979 Lah. 691, 1987 PCr. LJ 244 Lahore , 1989 PCr. LJ 1518 and 1989 PCr. LJ 2631 Lahore . 2. I have considered the foregoing facts and find that the complainant in this case is the mother of the deceased and at her request, the two eye-witnesses named above were given up on the ground that they had been _won-over. In the first instance, the accused wanted to examine them as prosecution witnesses, for which they had moved an application under section 540, Cr.P.C. which was dismissed on 24-1-1996. Thereafter, the present application was moved to examine those witnesses as Courtwitnesses. However, that application was also dismissed, hence this revision petition. 3. Admittedly , the given up P.Ws. were basically prosecution witnesses. They were given up having been won-over. In such a situation, the prosecution could not be forced to examine them. The rule of prudence would require that such type of witnesses need not be examined as Courtwitnesses because their credibility intrinsically become doubtful. The keenness of the defence to examine such won-over witnesses further makes their testimony partisan and interested. Hence the provisions contained in section 540, Cr.P.C. should not be invoked in such like cases lest it may introduce perversity in the system of criminal administration of justice. 4. In view of my above discussion, I do not find any patent or latent defect with impugned order, so as to call for interference in the revisional jurisdiction of this Court. The revision petition being meritless is dismissed in limine. (K.A.B.) Revision petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 477 Present: ABDUL HAMEED dogar, J. AJMAL and another-Applicants versus STATE-Respondent Crl. Bail Application No. 257 of 1996, decided on 31.10.1996. Criminal Procedure Code, 1898 (V of 1898)-- __._S. 497-Bail-Grant of-Prayer for-Offence u/S. 302/34 of Pakistan Penal Code, 1860-Ten co-accused had been found innocent during investigation simply on the basis of confessional statements made by accused-Eye­ witnesses including complainant had specifically attributed role of killing two deceased to accused-Accused had admitted to have committed offence to avenge old enmity—Validity, legality and correctness of the confessions made by accused could not be gone into at bail stage which involved deeper appreciation of evidence not permissible under the law while considering bail matter-Accused, prima facie, were connected wiv.h offence and reasonable grounds were available to believe that they had committed the offence punishable with death, imprisonment for life or imprisonment for ten years-Bail eclined. [Pp. 479 & 480] A, B & C 1995 SCMR 1178 and 1996 PCr. LJ 783 ref. Abdul Fateh Malik, Advocate for Applicants. Abdul Ghani Shaikh, Add. A.-G. order Applicants Ajmal and Mitho alias Muhammad Ismail seek bail in Crime No. 104/95 of P.S. Daharki registered under sections 302 and 34, P.P.C. The relevant facts of this application are that on 1-8-199;' complainant Khuda Bux lodged F.I.R. stating therein that he owns some agricultural land which he cultivates himself. About 7-8 months back Foujan alias Afzal Sher and others were murdered in which Barkat Ali and Bakhit Ali Pitafi were challaned. Shares suspected the complainant party to be invoked in the said murder. On the night of the incident at about 8-00 p.m. complainant's nephews Akram and Riaz alias Qaiser were going from Daharki towards their village on donkey cart whereas complainant his nephew Aziz, cousin Allah Dito and aunt's husband Qalandar Bux were following them on another donkey cart and when they reached at Jholay Lai Cotton Factory immediately there came fires from left side of the road. Complainant party identified them on the electric light to be applicants Ajmal son of Agan, Mitho alias Muhammad Ismail son of Quindo and co-accused Anwar, Mitho son of Agan, Hamzo, Bakhtoo, Gono, Akmal, Sahib Dino, Sharif, Papu and Rasheed. Out of them applicant Ajmal was armed with rifle, applicant Mitho with gun the weapons of some of them could not be identified as not clearly seen and some one were empty-handed, whereas co-accused Bakhto, Mitho, Papu and Rashid had guns. Applicant and the other accused armed with weapons started firing upon them which hit complainant's nephews Karam and Riaz alias Qaisar. Complainant party stopped the carts and went running towards the injured and saw both of them had sustained fire-arm injuries in their legs and were bleeding and were struggline for life within their sight. They were removed for immediate treatment and injured Karam died on the way whereas injured Riaz alias Qaisar expired in the hospital. Leaving the P.Ws. over the dead bodies complainant went to lodge F.I.R. that about 7-8 months prior Foujo (sic) all six persons were murdered in which case their relatives were challaned and Share were under impression that Pitafies have killed them and in order to avenge the same they have killed Karam and Riaz alias Qaisar. Mr. Abdul Fateh Malik for applicants and Mr. Abdul Ghani Shaikh, Addl. A.-G. for State have been heard at length. It is contended by Mr. Malik that credibility of F.I.R. is shaken particularly when 10 out of the 12 persons nominated in the F.I.R. are found innocent and have been left off by the police and their names have been kept in Column 2 of the challan and the benefit of which also goes in favour of the applicants as majority of the accused are found falsely implicated. He next argues that co-accused Papu alias Saeed Ahmed, Rasheed Ahmed, Muhammad, Shareef, Sahibdino, Muhammad, Mithal, Bakhtoo alias Bakhit Ali, Akmal Hussano alias Ali Hassan, Muhammad Anwar and applicants Ajmal and Mitho were arrested on 2-9-1995. Applicants allegedly confessed their guilty and their confessional statements were recorded on 3-9-1995 at 10-00 a.m. before the Mukhtiarkar & F.C.M., Daharki in which they confess­ ed that they alone, have committed the offence and it is on the basis of their confessional statements remaining accused were left off. Learned counsel argues that confessional statement is defective and cannot be relied upon as the learned Magistrate after recording the same handed over the custody of applicants to the police and police made recoveries of rifle from applicant Ajmal and gun from applicant Mitho alias Muhammad Ismail. He lastly submits that the recoveries of rifle and gun are foisted against the applicants. He places reliance on the case-law reported in 1982 SCMR 955, 1993 SCMR 1822, 1994 PCr. LJ 2139, 1995 SCMR 1178 and 1996 PCr. LJ 783. On the other hand Mr. Abdul Shaikh learned Addl. A.-G. vehemently opposes the arguments advanced by the applicants' counsel and urges that every criminal case is to be decided on its own facts, and it is hardly possible that the facts of one case coincide with the facts of other case. He argues that the applicants in their confessional statements have admitted the guilt and have stated that they have murdered the deceased of this case therefore they cannot deserve to be released on bail. He further argues that not only complainant but all the eye-witnesses in their 161, Cr.P.C. statement have fully implicated the applicants and the let off accused, with the commission of the offence therefore above left off accused have been wrongly termed to be innocent by the Investigating Officer. He lastly argues that the rifle from applicant Ajmal, gun from Mitho have been secured during investigation. Since recoveries have been effected from the accused so there is sufficient evidence against applicants, therefore they do not deserve to be enlarged on bail. Not only applicants but 10 other co-accused are nominated in the F.I.R. with specific role of causing rifle and gunshot injuries to deceased Karam and Riaz alias Qaisar. It is pertinent to note that co-accused Hussano, Anwar, Muhammad, Bakhtoo, Gono, Akmal, Sahibdino, Muhammad Sharif, Rasheed and Papu are found innocent and their names have been kept in column No. 2 of the challan by Investigating Officers M/s A.S.-I. Fida Hussain Awan and S.I./S.H.O. Ayaz Danwar of P.S. Daharki only on the basis of confessional statements of applicants Ajmal and Mitho which in any case is not the requirement of the law. In this case P.Ws eye­ witnesses Qalandar Bux, Aziz, Allahdito have fully supported the version of complainant narrated in the F.I.R. specifying the applicants as well as the coaccused let off later on with specific role of firing from respective weapons upon deceased Karam and Riaz. In order to ascertain this position A.S.-I. Fida Hussain Awan and SHO Ayaz Danwar of P.S. Daharki were called in Court who in presence of Mr. Abdul Fateh Malik counsel for applicants Mr. Abdul Ghani Shaikh learned Addl. A.-G. openly admitted that they have let off co-accused Hussano, Anwar, Muhammad, Bakhtoo, Gono, Akmal, Sahibdino, Muhammad Sharif, Rasheed and Papu and released them under section 497 Cr.P.C. finding them innocent only on the confessional statements of applicants Ajmal and Mitho, A.S.-I. Fida Hussain Awan stated that he had simply recorded F.I.R., Mashirnama of the dead bodies, inquest report and final opinion in the matter was given by S.H.O. Ayaz Danwar. Not only this biit Investigating Officer has further spoiled the case of the prosecution by making recoveries of rifle and gun on 3-9-1995 at 2-00 p.m. i alleged weapons of the offence) after confessional statement of the applicant was recorded on the same date at 10-00 a.m by the Mukhtiarkar and F.C.M. This is a serious case in which two persons have lost lives and the complainant and the abovementioned witnesses have specifically attributed the role of killing the deceased to them and they also have admitted to have A committed the offence to avenge old enmity and have killed the deceased Karam and Riaz alias Qaisar. The case-law referred by applicants' counsel is not applicable with the facts of the present case and is entirely on different facts and circumstances. The case of State v. Muhammad Nasser 1993 SCMR 1822 is on the final decision of the case in which the confession was retracted and was made basis for conviction. In case of Arnjad Ali and others v. The State 1982 SCMR 955 the bail is granted to the accused only on the ground that they had caused one injury on the leg which was not fatal. In the case of Haider Ali Shah v. The, State 1994 PCr. LJ 2139 bail was granted mainly on the ground that judicial confession retracted was recorded 15 days after the arrest of accused and recovery of pistol was not from exclusive possession of the accused. In case of Muhammad Javed and another v. The State 1995 SCMR 1178 the bail was granted by the Hon'ble Supreme Court only on the ground that complainant in his subsequent statement recorded under section 164, Cr.P.C. had given materially different version from the facts given in F.I.R. The case of Shamoon Jatoi v. The State 1996 PCr. LJ 783 is absolutely of no help as the bail in this case was granted on the ground of statutory delay in the disposal of case. For the purpose of grant of bail a tentative assessment of evidence on record is to be made and deeper appreciation is to be avoided. Determining the validity, legality and correctness of confession of applicants at this stage will be a deeper appreciation of evidence which is not permissible under the law. The upshot of the above discussion without prejudice to the merits or demerits of the prosecution case is that there is prima facie case against applicants connecting them with the offence and there are reasonable grounds to believe that they have committed offence punishable with death or imprisonment of life or with 10 years and are therefore not entitled to the concession of bail. Their application is dismissed. In my view the Investigating Officers have not undertaken the investigation fairly for the reason best known to them. Copy of this order be forwarded to the D.I.-G. Sukkur Range and I.-G. Sindh at Karachi for directing further investigation and appropriate action which ever they deem necessaiy. (K.A.B.) Bail refused

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 480 Present: ABDUL HAMEED do<;ar, J. Haji JAVED AHMAD and another-Applicants versus THE STATE-Respondent Crl. Bail Applications Nos. 279 and 280 of 1996, decided 011 10-11-1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 (1), third proviso-Bail-Grant of-Prayer for-Statutory delay- Ground of-Offence u/Ss. 409/161/224/328 read with Prevention of Corruption Act (II of 1947), S. 5(2)-Accused were in continuous detention for more than 2-1/2 years and their trial had not yet concluded- Delay in conclusion of trial had not been occasioned by accused alone but prosecution and Court were also equally responsible for the same, benefit of which must go to accused-Bail allowed. [Pp. 484] A, B & E (ii) Criminal Procedure Code, 1898 (V of 1898)- —-S. 497(1), third proviso-Bail-Adjournments during proceedings-Effect- Court is obliged to consider cumulative effect of adjournment being sought in the case and find out root cause of delay and should not feel content merely with probing into the matter as to which of parties is seeking adjournment. [P. 485] C 1995 PCr. LJ 1682 ref. (iii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(1), third proviso-Bail on the ground of statutory delay-Status- Statutory right cannot be denied under discretionary power-Right of an accused to be enlarged on bail under third proviso to S. 497(1), Cr.P.C. is a statutory right which cannot be denied under discretionaiy power of Court. [P. 485] D S. Ali Aslam Jafferi, Advocate for Applicants. AC. Sheikh, Addl.A.-G. order By a common order I propose to dispose of Cr.B.As. Nos. 279 and 280 of 1996, filed by applicants Haji Javed Ahmed and Qamaruddin in Crime No. 69 of 1994 of P.S. 'A' Section, Sukkur, registered for offence under - sections 409, 161, 224, 328 P.P.C. read with section 5(2) of the Prevention^ Corruption Act, 1947, exclusively on the ground of statutory delay in the conclusion of the trial. The facts forming of these applications are that complainant Agha Nisar Ahmed SDPO, Sukkur received information that applicant Javed Ahmed Jatoi the then SHO, A Section P.S., Sukkur accompanied by subordinate staff including applicant P.C. Qamaruddin, P.C. Allauddin, P.C. Amanullah, P.C. Sadam, P.C. Ghulam Sarwar, P.C. Shah Zaman, Lady Constable Farzana, Lady Constable Shabana and Lady Constable Zubeda had raided the house of one Iqbal Memon Kathyawari at Miani Road, Sukkur on the night between 22nd and 23rd of May, 1994 and recovered Indian currency notes worth Rs. 1,50,00,000 (one crore and fifty lacs) and arrested him and the others and were brought to P.S. alongwith currency notes. On 24-5-1994 applicant Javed Ahmed registered the case as Crime N,,, «8 of 1994 on behalf of State against said Iqbal and others under sections 156 and 89 of Custom Act, showing the recovery of amount of Indian currency of Rs. 2,00,000 only by preparing a false Mashirnama. Prosecution case further is that the applicant after receiving bribe of Rs. 3,50,000 Pakistan Currency, released Iqbal Ahmed illegally. It is alleged that with the help of his younger brother P.C. Allauddin and applicant P.C. Qamaruddin, he embezzled the remaining Indian Currency wroth Rs. 1,48,00,000 and thus committed the offence punishable under section 5(2) of the Prevention of Corruption Act (II of 1947) and sections 409, 161, 224, 328, P.P.C. Applicant Jawed Ahmed was arrested on 26-5-1994, whereas applicant Qamaruddin was arrested on 4-6-1994. It is the case of the prosecution that on 31-5-1994 an amount of Rs. 2,00,000 Pakistan Currency was recovered from the house of applicant Jawed Ahmed out of the abovementioned amount of illegal gratification. The applicants had earlier moved applications for grant of bail on merits before this Court, which were dismissed as withdrawn. Thereafter they moved applications on the ground of statutory delay before the trial Court, which were too dismissed on 17-4-1996. Hence these applications. Mr. Jafferi learned counsel for the applicants and Mr. A.G. Shaikh learned Additional A.-G., Sindh for State have been heard at length. Mr. Jafferi contends that the applicant Haji Jawed Ahmed was arrested on 26-5-1994 and applicant Qamaruddin was arrested on 4-6-1994 and are in continuous detention and their case is not yet concluded. He argues that charge in the case was framed on 4-9-1994 and P.Ws. Mxihammad Ismail and Shah Zaman appeared for the first time before the trial Court on 10-11-1994, on which date P.I. was not present, therefore, the request of adjournment made by applicants, cannot he considered. He next argues that the case could not proceed mainly because either the applicants were not being produced by the jail authorities or property was not available before the Court. On 1-12-1994 Mr. M. A. Rasheed, Advocate moved an application to call for papers of enquiry conducted by F.I.A. in the matter and to stay further trial and the trial Court passed an order dated 12-12-1995 discharging the attendance of P.Ws rinding the request justified. Mr. Jafferi further states that'it was for the first time on 2-2-1995 the 164, Cr.P.C. statements of P.Ws. were called and on 20-11-1995 examination-iii-chief of P.W. Muhammad Iqbal was reserved on the application of P.I. for want of case Property and it was finally in September, 1996, the case property was produced before the trial Court, therefore, even if the defence counsel has sought the adjournment yet the case could not have proceeded for the above reasons attributable to the prosecution and applicants can hardly be made to suffer for the above reasons. He further argues that the adjournments sought by the defence counsel on 14-3-1995, 1-8-1995 and 5-10-1995 were only on genuine ground that M/s. Samiullah Qureshi, Ghulam Kadir Jatoi and S. All Aslam Jafferi filed their powers for applicants and requested or time to prepare defence, and from 18-1-1996 to 31-7-1996 trial Court was lying vacant. He places his reliance on the case-law reported in 1996 MLD 157. 1995 PCr. LJ 1682 and PLD 1995 SC 49 and suhmits that the applicants have completed a period of more than 1 year in continuous detention and their case is not yet concluded, therefore, they have earned the ground of enlargement on bail under Illrd Proviso to section 497(1), Cr.P.C. On the other hand Mr. A.-G., Shaikh, Additional A.-G. Sindh vehemently opposes the grant of bail an states that it was mainly because of the request made by the applicants' counsel, the case was being adjourned and the prosecution cannot be held responsible for delaying the trial beyond stipulated period. He however, admits that the case property for the first time was produced before the trial Court in September, 1996 as stated by Mr. Akber Ali Arain PDSP Incharge of the case present in Court. He lastly argues that he undertakes to conclude the trial within 2 months if further time is allowed. Admittedly the applicants Haji Jawed Ahmed and Qamaruddin have been arrested by the police in this case on 26-5-1994 and 4-6-1994 respectively and since then they are in continuous detention and their trial is not yet concluded. From the perusal of diaries placed on record the charge seems to have been framed on 4-9-1994 and it was for the first time two P.Ws. appeared on 10-11-1994 on which irrespective of request made for . adjournment by applicant Haji Jawed Ahmed, P.I., too was not present, therefore, applicants cannot be said to be wholly and solely responsible for seeking the adjournment. Again on 1-12-1994 though P.Ws. were present but Mr. M.A. Rasheed, Advocate moved an application for calling the record of investigation conducted by FIA alongwith a further request to stay the further proceedings and his request was acceded to and the attendance of witnesses was discharged. On 2-2-1995 it was for the first time that Court called 164, Cr.P.C. statements of P.Ws. Muhammad Haroon and Muhammad Iqbal, which fact shows that by this time the trial was immature. Thereafter on many dates either applicants were not produced from jail custody or P.Ws. were not present. Only on 3 dates viz. 14-3-1995, 1-8-1995 and 5-10-1995, the request for adjournment was made by M/s. Samiullah Qureshi, Ghulam Kadir Jatoi and S. Ali Salam Jafferi, Advocates who filed their powers in the matter respectively on the ground to prepare the defence. Apparently the trial was immature and could not proceed for the reasons that it was for the first time during the September, 1996 the case property was produced by the prosecution before the trial Court which fact was admitted by Mr. Akbar Ali Arian, PDSP conducting the case on behalf of State before the trial Court. This fact is further confirmed from the diary dated 20-11-1995 on which date examination-in-chief of P.W. Iqbal was reserved for want of property. In the case of Amir v. The State 1991 PCr. LJ 534. this Court has held that adjournment can be sought, by or on behalf of accused and same should be granted for valid reasons and any legitimate reasons for an adjournment will not be a bar to invoking a proviso. In this citation it is further held that accused would not be penalized due to illness of his cou^el or his pre-occupation in superior Courts. Here in this case the ground of adjournment sought by the counsel too was genuine. Irrespective of this in my opinion trial was immature till September, 1996, the property was for the first time produced before the trial Court, therefore adjournments if obtained on behalf of the applicants before this date cannot be counted towards causing delay in the disposal of the case, as even otherwise, the case could not have proceeded for the reasons attributable with death, therefore, there was absolutely no bar for the trial Court to proceed with the case even if the counsel for the applicants was not present. This bar is only in the cases punishable with death where if the accused is not being represented by the counsel as pauper advocate on the State expenses shall be provided to him. In these above circumstances of the case the trial Court is equally responsible for delaying the proceedings. When it becomes apparent that delay in the conclusion of trial has not been occasioned by the accused alone but the prosecution and Court are also equally responsible, the benefit of which must go in favour of accused. The essential conditions to be fulfilled by an undertrial prisoner under Illrd Proviso to subsection (1) of section 497, Cr.P.C. are that he must have been in detention for the specified period pending his trial and that delay in the finalization of the trial was not attributable to him. If these conditions are fulfilled and his case is not covered under IVth Proviso to subsection (1) of section 497, Cr.P.C. he becomes entitled for grant of bail on the ground of statutory delay. In the present case applicants have completed more than 2-1/2 years in continuous detention and their trial is not yet concluded so much so that the examination-in-chief of P.W. Iqbal was reserved on 20-11-1995 for want of property which still continuous and is not yet finalized. The contention of learned Additional A.-G. that he undertakes o to con-elude trial within 2 months is not possible as according to the applicants' counsel there are in all 12 witnesses showing in the case and the final conclusion of the trial will take sufficient time. The intention of the Legislature to introduce Illrd Proviso to subsection (1) of section 497, Cr.P.C. is not to keep the prisoners in custody for indefinite period as undertrial prisoner. Illrd Proviso to subsection (i) of section 497, Cr.P.C. is introduced the Legislature with the intention not to keep undertrial prisoner is custody for an indefinite period and to curtail the protracted trials. Even lefore coming in existence of above provision of law superior Courts consider an inordinate delay in the disposal of the case a valid reason for the grant of lail. In the case of Qaiser Mahmood v. The State 1996 MLD 157 Lahore High Court granted bail on statutory ground to the accused though he had obtained adjournments in terms of time amounted to 4 months and 12 days. It is further held in the above citation that if the above period of delay in conclusion of the trial is deducted from the statutory period of 2 years, then the remaining period of 21 months and 7 days brings his case within the ambit of Illrd Proviso to subsection (1) of section 497, Cr.P.C. In the case of Shahbaz and another v. The State 1995 PCr. LJ 1682 while allowing bail to the accused it has held that even if the defence counsel had sought the adjournments and yet if the case could not have proceeded for the reasons attributable to the prosecution, accused could not be made to suffer for such reasons. It is also held in the above situation that, it is the duty of the Court to consider the cumulative effect of adjournments being sought in the matter and find out the root cause of the delay and should not feel content merely with probing into the matter as to which of the parties is seeking adjournment. In the last-referred case of Zahid Hussain Shah v. The State PLD 1995 SC 49, Honourable Supreme Court has held that the right of an accused to be enlarged on bail under the Illrd Proviso to section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail under the Illrd Proviso of section 497(1), Cr.P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the Illrd Proviso to section 497(1), Cr.P.C. can be refused to an accused by the Court only on the ground'that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the Illrd Proviso to section 497(1), Cr.P.C. can also be refused by the Court if the case of the accused fell under the IVth Proviso to section 497(1), Cr.P.C. In all other cases the Court must grant bail. In view of the a 1 ve discussed legal position, I allow these bail applications and grant bail to the applicants. They may be released on furnished two sureties each in the sum of Rs. 2,50,000 (Rupees two lacs fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court, < AAJS) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 485 (DB) Present : SH. MUHAMMAD ZUBAIR AND MUHAMMAD NASEEM CHAUDHRI, JJ. THE STATE-Appellant versus MUHAMMAD ABID and 4 others-Respondents Criminal Appeal No. 891 of 1991, heard on 8-12-1996. (i) Criminal trial- —-Appreciation of evidence-Court after having put both prosecution version and defence version in juxtaposition has to see which version is more probable and near to truth on the basis of evidence brought on record, subject to qualification that onus of proof always remains on prosecution and benefit of doubt, if any, always goes to accused. [P. 491] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- -—Ss. 304, Part I, 324 & 302/34 read with Criminal Procedure Code (V of 1898), S. 417-Acquittal-Appeal against-Complainant although was father of deceased, yet his presence at the scene of occurrence was established by promptly lodged F.I.R.-No previous animosity-­ Occurrence having taken place in broad daylight, possibility of mistaken identity of accused stood eliminated-Ocular version of occurrence was corroborated by medical evidence as well as by recovery of crime weapons at instance of accused which had been found stained with human blood-- Defence plea was not supported by any direct or circumstantial evidence and was not tenable-Accused had a motive for occurrence and they in furtherance of their common intention had made a premeditated attack on deceased causing injuries on most vital part of his body with daggers having nine inches blade which proved fatal—Accused were consequently convicted under S. 302/34, P.P.C. but since they had been given expectancy of life they were sentenced to undergo imprisonment for life each with fine. [Pp. 492, 493 & 494] B, C, D & E S.D. Qurcshi, Advocate for the State. Mian Nusratullah, Advocate for Respondents. Date of hearing : 8-12-1996. judgment Sh. Muhammad Zubair, J.-Five persons namely Muhammad Abid, Muhammad Asif, Muhammad Arif, Shabbir Ahmad alias Dhillun and Faqir Hussain were tried under section 302/148/149, P.P.C. by the learned Additional Sessions Judge, Faisalabad for the murder of Zafar Ikhlaq deceased. The learned trial Judge vide his judgment dated 3-4-1991 acquitted Faqir Hussain and Shabbir Ahmad alias Dhillun of the charge but convicted Muhammad Abid, Muhammad Asif and Muhammad Arif appellant as \mder :-- Under section 324, P.P.C. Muhammad Abid and Muhammad Asif were sentenced to one year R.I. plus fine of Rs. 5,000 or in default thereof 3 months' R.I. each. Under Section 304, Part 1, P.P.C. Muhammad Arif appellant was sentenced to imprisonment for life plus fine of Rs. 20,000 or in default thereof 2 years' R.I. The fine, if recovered, half shall be paid to the legal heirs of the deceased. The appellant/accused were given benefit of section 382-B, Cr.P.C. The State has filed Criminal Appeal No. 891 of 1991 under section 417, Cr.P.C. against the conviction of Muhammad Arif appellant, Muhammad Abid and Muhammad Asif and acquittal of Shabbir Ahmad alias Dhillun and Faqir Hussain and this appeal vide order of Division Bench of this Court dated 8-12-1991 was dismissed qua Shabbir Ahmad alias Dhillun and Faqir Hussain but qua Muhammad Abid, Muhammad Asif and Muhammad Arif respondents under section 302/34, P.P.C. was admitted. Muhammad Arif appellant filed Criminal Appeal No. 550 of 1991 under section 410, Cr.P.C. against his sentence and conviction whereas Hakim Ali complainant filed Criminal Revision No. 242 of 1991 under section 435 read with section 439, Cr.P.C. against Muhammad Arif appellant, Muhammad Abid and Muhammad Asif for awarding the compensation to the legal heirs of the deceased. We propose to dispose of all the three matters by this judgment. 2, The facts as disclosed in the F.I.R. Exh. PF recorded on the statement of Hakim Ali complainant P.W. 9 are that he is residing in Gali No. 22 Abdullahpur with his family and has installed a Soda Water Factory. His son Zafar Ikhlaq deceased alias Jujji was working as Designer of cloth. On 22-12-1989 at 2-30 p.m. the deceased went to take curd at the shop of Muhammad Abid accused situated in Gali No. 9/15, Abdullahpur. The curd was sour and Zafar Ikhlaq w^vl back to the shop to return the curd which was not taken back by Muhammad Abid, who grappled with Zafar Ikhlaq deceased and abused him. Mohallahdars intervened and matter was finished. Muhammad Abid extended threats to Zafar Ikhlaq and the deceased came back to the house. After some time after Assar Prayer, Hakim Ali complainant came back from the mosque alongwith Mukhtar Hussain i won over) and at about 4-00 pm. they sat with Azhar Zahidi P.W. 10 at his flour Chakki in Gali No. 9/15, Abdullahpur. The deceased was already sitting outside the shop reading newspaper. In the meanwhile, Muhammad Arif appellant. Muhammad Abid and Muhammad Asif sons of Ghulam Muhammad armed with daggers, Shabbir Hussain alias Dhillun armed with rifle and Faqir Hussain alias Faqiria empty-handed, came there Muhammad Abid raised Lalkara to teach a lesson to Zafar Ikhlaq deceased of disgracing him at the shop and exhorted to'kill him. Faqir Hussain accused caught hold of Zafar Ikhlaq, when Muhammad Arif appellant gave a dagger blow which hit at the right side of his chest, Muhammad Abid then caused a dagger blow to the deceased below the left arm-pit. Muhammad Asif gave dagger blow on right thigh to Zafar Ikhlaq, who fell down. When the complainant alongwith Mukhtar Hussain Shah and Muhammad Zafar Zaidi tried to rescue Zafar Ikhlaq, Shabbir Ahmad a//as Dhillun resorted to firing. The occurrence was seen by Nazeer Ahmad, Muhammad Azhar Zaidi, Mukhtar Hussain and the complainant. On their house and cry, the accused ran away. Zaffar Ikhlaq injured was taken to Civil Hospital, Faisalabad for medical aid where he succumbed to the injuries. 3. Abdul Razzaq, S.I. P.W. 14 recorded the F.I.R. Exh. PF on the statement of Hakim Ali complainant P.W. 9 on 22-12-1989 at 5-30 p.m. Then he went to the Civil Hospital where the dead body of Zafar Ikhlaq deceased was lying on a stature in the lawn of hospital. He prepared injuries statement Exh. PA and inquest report Exh. PA/1 and sent the dead body for post-mortem examination through Ali Ahmad, F.C. P.W. 2 and himself came to the place of occurrence. He inspected the spot and prepared rough site plan of the place of occurrence Exh. PK and recorded the statement of P.Ws. on 23-12-1989 Ali Ahmad P.W. 2 handed over last worn clothes of the deceased, all blood-stained, Shalwar P.I., kameez P. 2 and Bunyan P. 3 which were taken into possession vide memo. Exh. P.C. 4. Muhammad Tariq, Inspector P.W. 15 started investigation on 25-12-1989, He got the site plan Exh. PJ and copy thereof Exh. PJ/1 prepared from Aurangzeb Draftsman P.W. 12. He arrested all the accused, while in police custody, Muhammad Arif appellant got recovered dagger P. 5 near the western wall of Jamia Masjid Usmania which was taken into possession vide memo. Exh. PE. Shabbir Ahmad got recovered rifle P. 4 from the Nawar of his bed which was taken into possession vide memo. Exh. PD. On 10-1-1990 Muhammad Asif and Muhammad Abid accused were interrogated. Muhammad Asif led to the recoveiy of dagger P. 6 near the boundary wall of graveyard Waheed Park, Abdxillahpur which was blood­ stained and took into possession vide memo. Exh. PH. Muhammad Abid got recovered dagger P. 7 from the same wall which was also blood-stained and took into possession vide memo. Exh. PI. Rough sketches of place of recoveries Exh. PE/1, Exh. PD/1, Exh. PH/1 and Exh. PI/1 were made by him respectively. He also recorded the statements of witnesses of recovery and handed over the parcels for safe custody. Muhammad Akram A.S.I. P.W. 13 arrested Faqir Hussain after his bail was rejected by the Sessions Court, after the completion of the investigation, the challan was submitted in the Court. 5. Dr. Rashid Maqbool P.W.I on 23-12-1989 at 11-30 at a.m. conducted the post-mortem examination on the dead body of Zaffar Ikhlaq deceased and found three injuries of stab wounds on his person. In his opinion, the cause of death was haemorrhage, and shock due to injury No. 1. The injury was ante-mortem in nature, grievous and sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 and 3 were simple in nature. All the injuries were caused by sharp-edged pointed weapon. Time between injuries and death was few minutes while between death and post-mortem examination was about 18-24 hours. 6. The statements of the accused under section 342, Cr.P.C. were recorded. All the accused denied the allegations against them. They also denied the recoveries have been affected from them and all of them pleaded innocence. They deposed that the case against them was due to enmity and the P.Ws. also deposed against them due to malice. Muhammad Abid replied to question No. 8 as under in his own words :-- "The actual facts are that in the afternoon, the deceased took some curd from me and then brought, it back which I refused to take. He abused me and I also did the same. He grappled me, I pushed him whereupon he fell down. He caught hold of my testicles and pressed them. I asked him to leave but he pressed further and I picked up a bread knife from my shop and gave him 2/3 blows under stress. None of the P.Ws. or the co-accused was present at that time. Azhar Shah P.W., bears a constant grudge against us because the refuse from him machine spoils our milk and there has been a backering and quarrels with us many times. He has become a false witness and in league with the P.Ws. have made out a distorted and exaggerated account of the occurrence. I remained in pain for several days even after my arrest and in police lock-up, I was provided a brick bat, heated foment the influential of my testies. Akram, A.S.I, has been kind to me in this respect." All the accused did not want to appear to state on oath as witnesses nor they produced any defence except Muhammad Abid, who produced a copy of School Leaving Certificate Exh. DB. 7. Placing reliance on the ocular evidence mentioned above corroborated by the recoveries of the crime weapons at the instance of respondents Nos. 1 to 3 in the State Appeal. The learned trial Judge convicted Muhammad Arif respondent No. 3 under section 304, Part I, P.P.C. and sentenced him to imprisonment for life plus fine of Rs. 20,000 mentioned above whereas convicted respondents Nos. 1 and 2 under section 324, P.P.C. and sentenced them to undergo one year R.I. under fine of Rs. 5,000, against which, the State has filed the aforementioned appeal. 8. Learned counsel for the State appearing in the State Appeal submitted that as there was one occurrence which culminated into the death of Zafar Ikhlaq deceased and all the respondents are brothers inter se and they had common intention to cause the death of the deceased, they inflicted injuries on the deceased which ultimately proved fatal. In the circumstances, the acquittal of Muhammad Abid and Muhammad Asif is erroneous in law and has resulted into miscarriage of justice, as the learned trial Judge after believing the prosecution evidence erroneously held that these two respondents i.e. Muhammad Abid and Muhammad Asif are liable to be convicted under section 324, P.P.C., not under section 302/34, P.P.C. Similarly, the findings of the learned trial Judge with respect to the conviction of Muhammad Arif under section 304, Part I, P.P.C. is not sustainable in the eye of law because the learned trial Judge did not keep in view the principle of law which says that the exception 4 to section 300, P.P.C. would be applicable, if culpable homicide is not murder, if it is committed without, premeditation in a sudden tight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. According to the learned counsel for the State, the prosecution evidence fully proves that they had the motive to commit the crime due to the previous incident which took place at 2-30 p.m. on the same day, whereas the murder took place in pursuance of that motive at 4-00 p.m. He further submitted that all the eye-witnesses are independent witnesses and beside that they are natural and probable witnesses of the occurrence being the resident and inhabitant of the same vicinity. Muhammad Azhar Zaidi P W. 10 < eye-witness) is a quite independent witness, neither he is related to the complainant party nor he has any animosity against the accused, as neither any animosity was suggested nor proved. The acquittal of two persons would not damage the case of the prosecution. Those persons were given benefit of doubt by way of abundant caution while deciding the case The F.I.R. was lodged promptly in this case and even there is no background of enmity between the complainant and the accused persons and the occurrence took place due to petty dispute over the curd which resulted into his unfortunate incident. The learned trial Judge erroneously held that with respect to the previous incident, no witness was examined whereas the evidence of Muhammad Azhar Zaidi P.W. 10 is clear on this point. The findings of the learned trial Court that one occurrence has been bifurcated into two occurrences in order to make the case of murder is fallacious and based upon misreading of the record. From the site plan Exh. PJ, it is clear that the occurrence took place in the manner as deposed by the prosecution witnesses: hence he prayed that while accepting the State appeal, the respondents mentioned above be awarded punishment under section 302/34, P.P.C. 9. Learned counsel for the appellant submitted that the eye­ witnesses were not present at the scene of occurrence and the incident is one which took place at 2-30 p.m. when the deceased went to the shop of Muhammad Abid co-accused of Muhammad Arif to lodge protest with him with respect to the defect in the curd, even this fact is admitted by Muhammad Abid in his statement under section 342, Cr.P.C., which is his defence plea. The learned trial Judge after proper appreciation of the evidence believed this part of the defence story; hence his order is not open to any legal exception. He next contended that the learned trial Judge has not properly appreciated and comprehended the defence plea of Muhammad Abid accused that it was he who caused three injuries on the person of Zafar Ikhlaq deceased in self-defence and his co-accused were not present there. The statement of Muhammad Azhar Zaidi P.W. 10 under section 161, Cr.P.C. proves that he was not present at the spot. The other prosecution witnesses had the motive to falsely implicate appellant and his co-accused of Abid and Asif, who are incidentally his real brothers. The learned trial Judge erred in law while deciding the case on the plea that the onus of proof was on Muhammad Abid accused to prove this defence to the hilt whereas law requires that the prosecution case would fail, if the defence is able to create the dent and doubt in the prosecution case, as onus of proof always remains on the prosecution. He submitted that in the presence of these infirmities, the prosecution has failed to prove its case against the appellant and if at all any offence is made out that too under section 304, Part I, P.P.C. he too deserves leniency in the imposition of the sentence and placed reliance on 1973 SCMR 69, 1979 PCr. LJ 536; 1971 SCMR 476, 1994 SCMR 1212 and 1995 SCMR 173. 10. Learned counsel for the complainant who has filed Criminal Revision No. 242 of 1991 while supporting the arguments of the learned counsel for the State in the State Appeal, further submitted that it is the requirement of law under section 544-A, Cr.P.C. the Court is bound to pass the separate order regarding the compensation to be paid to the legal heirs of the deceased, as the learned trial Judge has not passed any separate order, so this Court after accepting the Revision may pass separate order under section 544-A, Cr.P.C. and place reliance on 1991 SCMR 1408. 11. We have heard the learned counsel for the parties and have perused the record carefully with their able assistance. We have critically examined the respective submissions of the learned counsel. 12. Admittedly, this is a case of two versions, one version had been advanced by the prosecution, being supported by Hakim Ali complainant P.W. 9, Muhammad Azhar Zaidi P.W. 10 and Nazeer Ahmad P.W. 11 whereas other version had been put forth by Muhammad Abid respondent before the trial Court, as mentioned above in extenso. 13. The salutary principle of law for the just decision of the case off twn versions^ isjMs_ that, hath thp^yprsians avp nut in hixtanositian then thpl two versions is this that both the versions arej)iit injuxtafiosition, then th& . the prosecution version that doubt musfbe resolved Vn favour of \\e accused. 14. Applying the aforesaid principle of law to the facts of this case, we find that, the prosecution version is being supported by Hakim Ali complainant P.W.9 and Muhammad Azhar Zaidi P.W. 10. No. doubt. P.W. 9 is the father of the deceased but his presence is established from the fact that in this case, the matter was reported to the police with great promptitude. Even Hakim Ali had no previous animosity with the accused party which could pursuade or motivate him to depose falsely in this case. The occurrence took place in the broad daylight which eliminates the possibility of mistaken identity of the accused. The ocular version furnished by the eye­ witnesses is getting ample corroboration from the medical evidence as well as from the recovery of the crime weapons at the instance of the accused/respondents in the State appeal, which were found stained with human blood vide Serologist Report, Exh. PO. 14. The prosecution version is that the occurrence took place due to the quarrel between Muhammad Abid and the deceased over the curd which was sour, which Muhammad Abid respondent in State appeal refused to take back at 2-30 p.m. is getting corroboration from this fact, that the deceased met his death at point No. 1 of the site plan Exh. PJ which is at a distance of 30/32 feet from the shop of Muhammad Abid and other respondents in the State Appeal. The time of occurrence is getting direct support from the evidence of Muhammad Azhar Zaidi P.W. 10, who deposed that on 22-12-1989 at 2-30 p.m. Zafar Ikhlaq deceased brought curd from the shop of Abid which was sour and he wanted to return the curd, over which, a dispute and quarrel took place which ultimately led to the murder of Zafar Ikhlaq at 4-00. p.m. He was extensively cross-examined by the learned defence counsel but not a single suggestion was put to this witness that he had any enmity to falsely implicate the respondents and had not witnessed both the occurrences. On the contrary, evasive suggestion was put to him that due to ginning cotton factory, the cotton goes to the shop of Muhammad Abid, due to this fact, they had strained relations with each other. Not a single suggestion was put to this witness that the occurrence did not take place at 4-00 p.m. on 22-12-1989 but took place at 2-30 p.m. as deposed by lim. This evidence is also getting corroboration from the recovery of crime weapons at the instance of the accused which were later on found stained with human blood as well as by point No. 1 of the site plan Exh. PJ from where blood-stained earth was taken by the police, where the deceased lost lis life, which is at a distance of 30/32 feet from the shop of the accused. The defence version is only being supported by the defence plea taken by Muhammad Abid in his statement under section 342, Cr.P.C. and none else. The defence plea of Muhammad Abid is belied by the recovery of blood­ stained earth at point No. 1 which is not disputed by the defence. According o Muhammad Abid, the occurrence took in the shop over a curd dispute, •vhere he grappled with the deceased, and pushed him, he fell down and he aught his testicles and pressed them, this defence plea is negated by the •ecovery of blood-stained earth from point No, 1 as mentioned above. Had his defence plea been correct, the blood would have been recovered from the ;hop not from point No. 1. According to the defence plea, Muhammad Akram, A.S.I., P.W. 13 gave brick bat, heated and fomented to Abid to nurse its injury which he sustained on testicles was not asked about this defence plea, when he appeared as P.W.13 in this case, which shows this plea is afterthought and false. The other argument of the learned counsel is that Zafar Ikhlaq was reading newspaper. Learned counsel next contended that the presence of deceased in the front of shop of Abid respondent suggests that it was a one occurrence, as deceased had no business to remain sitting in front of his shop for more than 1-1/2 hours after occurrence at 2-30 p.m. we find no force in this contention, as the deceased was the resident of same Mohallah and he was sitting in the Gali in front of his house, when all the respondents made concerted attack upon him at 4-00 p.m. due to the motive of incident at 2-30 p.m. on 22-12-1989. Learned counsel also urged that if we read the statement of Azhar Zaidi P.W. 10 carefully, he had not deposed anything in his statement about the occurrence of 2-30 p.m. We are afraid this argument can only be accepted, if we do not read his statement as £ whole, in fact in his statement under section 161, Cr.P.C. he first narrated about the rrence pertaining to murder; thereafter he mentioned the occurrence at 2-30 p.m. witnessed by him which led to the murder According to the law that portion of the statement under section 161, Cr.P.C of the witnesses is admissible which is confronted in accordance with law in the Court. In the present case, a suggestion was put to Azhar Zaidi P.W. 10, "I got it recorded in my statement before the police Exh. D.A. that I wai _ present alongwith others, who got Abid and Zafar Ikhlaq separated during first occurrence, (confronted with Exh. DA where it is not specifically so recorded)." The inference drawn by the learned counsel for the defence which is the main plank of his contention is devoid of force as mentioned above because reading of Exh. DA proves that there were two occurrences, one at 2-30 p.m. with respect to the dispute over curd, other at 4-00 p.m. which led to the murder of Zafar Ikhlaq by all the respondents in furtherance of their common intention. 15. In view of the above discussion, we find that the defence plea is not tenable and without, any force, as it is not getting any corroboration either from the direct or from the circumstantial evidence. Now it brings us to the question of the sentence which should be imposed upon the respondents in the State appeal and what should be the section of Pakistan Penal Code which would be appliable to the facts of thi case. Learned counsel has placed reliance on 1979 PCr. LJ 536. In that case, the sentence was altered from 302, P.P.C. to 304, Part I, P.P.C. on the ground that there was no premeditation or any enmity and the fight was all of a sudden. But in the present case, as discussed above, all the respondents made attack on the deceased with premeditation and in furtherance of their common intention due to the motive quarrelled over the curd: hence they are liable to be convicted under section 302/34, P.P.C. because of the fact that they caused injuries to the deceased with daggers having 9 inches blade; hence the State appeal is accepted and their acquittal under section 302/34, P.P.C. is set aside. The recovery of blood-stained daggers at the instance of the respondents in the State appeal further strengthened the prosecution case against them. The injuries were caused on most vital part of the body which proved fatal; hence the application of section 302/34, P.P.C. is made out. 16. The case-law cited by the learned counsel for the complainant is fully applicable to the facts of this case. 17. We have given our anxious consideration to this aspect of the case what should be the sentence in the circumstances of this case. We find, no doubt all the three brothers had common intention to cause death of Zafar Ikhlaq deceased that fatal injury was attributed to Muhammad Arif, who was convicted under section 304, Part I, P.P.C. and other respondents were convicted under section 324, P.P.C. Applying the principle of expectancy of life, we refrain from imposing death sentence upon the respondents which is the normal penalty under the law. Anyhow, we convict all the respondents in the State Appeal namely Muhammad Arif, Muhammad Abid and Muhammad Asif to imprisonment for life plus fine of Rs. 10,000 or in default thereof two years' R.I. under section 302/34, P.P.C~ which would meet the ends of justice. 18. As respondents Nos. 1 and 2 namely Muhammad Abid and Muhammad Asif respectively are on bail to the satisfaction of D.M., Faisalabad, they should surrender to thrir bail bonds, we direct that they shall be taken into custody immediately to serve the remaining portion of their sentences imposed by this Court under section 302/34, P.P.C. and be send to Jail. Muhammad Arif respondent No. 3/appellant/Criminal Appeal No. 550 of 1991 is already in Jail in pursuance of the order of learned trial Court while undergoing imprisonment for life which is maintained but his fine is reduced to Rs. 10,000 or in default thereof 2 years' R.I. We reject the Criminal Appeal filed by Muhammad Arif appellant. We accept Criminal Revision No. 242 of 1991 filed by the complainant and direct that respondents Nos. 1 to 3 namely Muhammad Arif, Muhammad Abid and Muhammad Asif sons of Ghulam Hussain to pay Rs. 10,000 each (total Rs. 30,000) to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. or in default thereof 6 months' S.I. each. (K.A.Bj Ordei accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 495 Present: SHAH JEHAN KHAN YOUSUFZAI, J AMANULLAH and another-Petitioners versus STATE--Respondent Crl. Revision No. 21 of 1997, decided on 2.7.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 514 & 439--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14 read with Pakistan Penal Code (XLV of 1860), S. 379/411--Forfeiture of surety bonds-Reduction in penalty- Petitioner had stood surety for accused not for any financial benefit but due to his close relationship as accused was his real son-Other petitioner had stood surety for sake of aforesaid petitioner on humanitarian ground as both of them resided in the same Mohallah— Petitioners were poor labourers who hardly earned their livelihood to feed their families— Although petitioners were liable to pay forfeited amount, yet in view of aforesaid circumstances impugned order passed by Trial Court directing forfeiture of entire amount of Rs. 1,00,000 each was veiy harsh—Order of forfeiture as consequently maintained but same was reduced to l/10th of the total bail bonds directing petitioners to pay Rs. 10,000 each—Revision petition was disposed of accordingly. [P. 496, 497 & 498] A, B, C & D 1986 PCr.LJ 2028; 1988 PCr.LJ 447 and 1994 PCr.LJ 2316 re.f. Shahabuddin Buraq, Adovcate for Petitioners. Abdul RaufKhan Gandapur, Adovcate for the State. Date of hearing: 2.6.1997. judgment This criminal revision is directed against the order, dated 16.2.1997 whereby the petitioners Amanullah and Tajeer Gul were directed to deposit the forfeited amount of Rs. 1,00,000 each within a period of one month. 2. The petitioners stood sureties for accused Sanaullah charged alongwith others under section 379/411, P.P.C. read with section 14 of the Offences Against Property Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No. 914, dated 11.10.1994 registered at Police Station "B" Division, Mardan. After completion of investigation in the case challan was submitted to the Court of Sessions for trial. The learned Additional Sessions Judge, Mardan, summoned the accused Muzaffar, Asif, Ahdul Wahab, Ali Gohar and Sanaullah. All the four accused attended the Court except Sanaullah accused who was reported to have absconded in another case of Qatl-e-Amd registered against him during the investigation of the instant case. He was, therefore, proceeded under section 512, Cr.P.C. The petitioners/sureties were served with show-cause notices as provided under section 514, Cr.P.C. Both the petitioners/sureties submitted their reply. The petitioner Amanullah in his reply submitted that accused Sanaullah is his real son and he stood surety due to his close relationship; that he did not stand surety for the accused for financial benefit and nor the accused absconded with his connivance; and that the complainant in the case has pardoned the accused and all other accused who faced the trial were acquitted. The petitioner A Tajeer Gul in his reply took the stance that petitioner Amanullah is the father of the accused Sanaullah and that he stood surety for the sake of Amanullah petitioner; that he stood surety on humanitarian grounds as both the petitioners resided in the same Mohallah. The learned Additional Sessions Judge, as stated above, ordered the forfeiture of the entire to be deposited in equal by the petitioners. 3. The learned counsel for the petitioners contended before me that the impugned order is very harsh and the learned trial Court has not considered at all the explanation furnished by the petitioners in their reply. He also contended that accused Sanaullah did not abscond in the instant case but he did in some other case during the investigation of the present case. He further, contended that even his abscondence in the subsequently registered case is due to fear although he is too innocent in the subsequent case. The learned counsel submitted that both the petitioners are poor labourers and hardly earn their livelihood and feed their families; that they stood sureties for the sake of close relationship of father and son between petitioner Amanullah and accused Sanaullah; and while petitioner Tajeer Gul stood surety for the sake of Amanullah; that even the burden to pay the forfeited amount shall also be borne by the petitioner Amanullah. The learned counsel lastly contended that had the accused Sanaullah either not been charged in the subsequent case of Qatl-e-Amd or had he been in the control of the sureties he must have been produced because there was no likelihood of his conviction in the case as the complainant had pardoned his co-accused in the case and since co-accused of Sanaullah have already been acquitted by the learned trial Court, he must have been acquitted. 4. The learned counsel appearing on behalf of the State did not object to the reduction of penalty imposed on the petitioners. However, he supported the impugned order to the extent of fixing liability on the petitioners. 5. After hearing the learned counsel for the parties and going through the record I have come to the conclusion that though the petitioners were liable to pay the forfeited amount but keeping in view tfce circumstances of the case the learned trial Court had exceeded while ordering the forfeiture of the entire amount of Rs. 1,00,000 each. With regard to quantum of amount to he forfeited the Court has to look in certain facts and as held by their lordships of the Supreme Court in the case reported as Dildar and another v. The State PLD 1963 SC 47 that balance is to be kept between undue leniency and undue severity. The relevant portion of the cited judgment is reproduced belo.w:- "Where, however, we find defect in the proceedings taken against the appellants is in this, namely, that no effort appears to have been mad by the Courts below to enquire into the relevant matters affecting the degree of their responsibility. Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose, of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing overcrowding in the available spaces of imprisonment. Therefore, in dealing with cases of sureties who are in default, a balance has to be held between undue leniency which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing, to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly though fit to question the two sureties ourselves on these points." 6. The blood relation with the accused and the financial position of the sureties is also a relevant factor for determination of quantum 'of forfeiture. Reference in this connection is made to the case of Bahadur Khan v. The. State- 1976 PCr.LJ 1283 wherein his Lordship of the Lahore High Court observed as under:- "1 am, however, inclined to agree with the petitioner's prayer that a lenient view of the matter should be taken because he (Bahadur Khan petitioner) had stood surety for his real son and that he is only a peon in the Tehsil with a normal salary. It has been held in Dildar v. State PLD 1963 SC 49 that in such cases a balance be kept between undue leniency and undue severity and assessing as to what extent the bond should be forfeited. The Court should have regarded in such matters as to whether the surety is acting through mere benevolence on behalf of the accused and where they have shown their best to secure his attendance. In the present case the petitioner had stood surety for his own real son. There is nothing on the record to show that he had himself connived at his absence from the Court. As a matter of fact he tried his best to produce his son." Yet in another case reported as Muhammad Khan v. The State 1986 PCr.LJ 2028 it was held that since the petitioner had stood surety not for monetaiy benefit, therefore, there was no connivance about the disappearance of the accused alleged against the surety. The amount to be confiscated in favour of the State was, therefore, reduced from rupees fifty thousand to that of rupees five thousand only. Similarly in Sardar Khan and another v. The State 1988 PCr.LJ 447 his Lordship has reduced the forfeiture amount of the bonds from rupees ten thousand to rupees three thousand only, although the accused had escaped to the tribal territory after being charged in the murder case but there was no conviance of. suretypetitioner. In the case of Muhammad Shah and others v. The State 1994 PCr.LJ 2316 it was observed that as per facts available on record there is nothing to suggest that the surety had any other consideration except the benevolence of the accused and, therefore, the forfeited amount was reduced from rupees five thousand to rupees five hundred only. .. 7. In view of the foregoing discussion, I have no hesitation in maintaining the order of forfeiture but to reduce the same to l/10th of the total bail bonds. The petitioners shall be liable to pay Rs. 10,000 each. With P this modification in the order of forfeiture of bonds, this revision petition fails and is hereby dismissed alongwith Criminal Miscellaneous No. 12 of 1997. (K.K.F.) Order accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 499 (DB) Present: mian MUHAMMAD AJMAL AND shah jehan khan yousufzai, JJ. • HABIBUR REHMAN-Appellant versus THE STATE-Respondent Criminal Appeal No. 49 of 1995, decided on 12.6.1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 412--Whether appeal justified when accused had pleaded guilty at the time of framing charge-Question of-Even in a case where accused had pleaded guilty at the time of framing charge legality of sentence could validly be challenged in appeal. [P. 502] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- -—S. 265-E(2)-Whether Court is under obligation to convict an accused if he pleads guilty-Question of-Not mandatory for the Court to pass an order of conviction where accused pleads guilty and even then Court can summon prosecution witnesses. [P. 503] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- ----S. 265-E(2)-Plea of guilt-Whether conviction justified in all cases-­ Question of-Court in the case of a charge carrying minor punishment may. on plea of guilt of accused, convict him there and then, but where charges of an offence carrying capital punishment of death or transportation for life, Court is required to examine prosecution evidence even if guilt is admitted in response to charge. [P. 503] C 1976 PCr.LJ 204 ref. ( ivi Criminal Procedure Code, 1898 (V of 1898)-- —5. 342-Accused after pleading not guilty can only be allowed to accept charge in his statement under S. 342, Cr.P.C. [P. 504] D iv) Pakistan Penal Code, 1860 (XLV of 1860)-- 302-Criminal Procedure Code (V of 1898), Ss. 265-E & 265-F-Oaths Act (X of 1873), S. 5-Court after recording some prosecution evidence and granting a few adjournments for different reasons framed a formal charge for second time to which accused pleaded guilty-Court, no doubt, could alter charge subsequently but had no legal authority to frame charge for second time-Conviction and sentence of accused based on ple;I of guilt in response to second charge were illegal and against prescribed rocedure-Trial Court had also not only recorded statement of accused on oath in disregard of S. 5 of the Oaths Act, 1873 and S. 340(2), Cr.P.C. hut had also attested/certified same under S. 364, Cr.P.C. for which it was not competent-Conviction and sentence of accused were set aside in circumstances and case was remanded to Trial Court for proceeding with it strictly in accordance with law from the stage when prosecution witnesses were examined. [P- 504] E, F, G & H Ishtiaq Ibrahim, Advocate for Appellant. Kh. Azhar Rashid, A.A.G. for the State. Date of hearing: 12.6.1997. judgment Shah Jehan Khan Yousufzai, J.--Accused-appellant Habibur Rehman was tried by a learned Sessions Judge/Zila Qazi, Dir at Timargera and on conviction under section 302, P.P.C. was sentenced to imprisonment for life with a fine of Rs. 20,000 payable to legal heirs of the deceased byway of compensation under section 544-A, Cr.P.C. or in default thereof to suffer further imprisonment for six months. The appellant was, however, extended the benefit under section 382-B, Cr.P.C. Feeling aggrieved the appellant has filed this appeal through Jail against his conviction and sentence as aforesaid. 2. The prosecution case in brief is that on 3.5.1990 at 7.00 hours Ghaniur Rehman complainant made a report to Mohabat Khan, S.H.O,, Police Station Khali at Village Kamar Tall, District Dir to the effect that on 30.4.1990 at 9.00 his first cousin Zahirullah was sitting on a Kacha Road near the graveyard of Village Kamar Tall. Meanwhile, Habibur Rehman, accused-appellant, armed with a klashnikov emerged and fired at Zahirullah, as a result of which he was hit on his head and back and died on the spot instantaneously. The accused decamped from the spot. As per custom prevailed in the area, the deceased was buried in the graveyard of Village Kamal Tall without post-mortem/medical examination. The motive disclosed in the F.I.R. was that 4/5 years back the accused had suspected his other first cousin Inayatullah for having illicit relation with his wife. The said Inayatullah was alleged to have gone to Raiyad for the substitution of the former. The delay in lodging the report was stated to be unawareness of law. The occurrence was allegedly witnessed by one Shad Muhammad apart from the complainant. 3. The Investigating Officer allegedly recovered two empties of klashnikov, took blood-stained earth from the spot, prepared the injurysheet, death report of the deceased and the site plan, recorded the statements of the P.Ws. and conducted house search of the accused as preliminary investigation. Subsequently he produced the eye-witnesses for recording their statements under section 164, Cr.P.C. Proceedings under sections .97 and 204. Cr.P.C. were initiated against the accused-appellant. The accused-appellant was arrested from his house on 20.7.1990 and was produced for recording his confessional statement before the Magistrate First Class on 24.7.1990 and thereafter, he was remanded to judicial lock-up. On completion of investigation challan under section 173, Cr.P.C. was submitted to the Court of Magistrate 1st Class exercising the powers under the P.A.T.A. Regulation, 1975 on 31.5.1994. The case was then received by the Court of Sessions Judge, Dir on the same date. The accused-appellant was summoned by the Court for framing of charge on 31.10.1994 on which date the charge was framed to which he pleaded guilty and admitted his crime. The accused neither engaged a private counsel to defend him nor acceded to the assistance of any counsel at the State expenses but opted to defend himself his case. On 17.7.1994 some of the P.Ws. were examined while some of them were abandoned and the remaining witnesses were summoned for 25.8.1994 on which date the Presiding Officer was on leave and thereafter, the case was continuously adjourned for one reason or the other till 31.10.1994 when formal charge for the second time was framed. On this date, not only the accused pleaded guilty but had also admitted his crime contrary to his earlier stand on 5.7.1994 when he pleaded not guilty and claimed trial. The accused was then kept in judicial custody till 3.11.1994 when his confessional statement was recorded and one another opportunity for thinking about the confessional statement was again provided. Thereafter, the case was adjourned for four times and, as stated earlier, ultimately on 18.1.1995 the impugned judgment/order was passed whereby the accused-appellant was convicted and sentenced. 4. The learned counsel appearing for the appellant contended, firstly, that under the law an accused person cannot be charged twice and in the instant case the first charge was framed against the accused-appellant on 5.7.1994 to which he pleaded not guilty and then formal charge was framed on 31.10.1994 for the second time, therefore, the learned trial Court was not competent to again frame formal charge. In support of his contention reliance was placed on Faiz Muhammad v. The State 1986 PCr.LJ 2250 and The State u. Muhammad Iqbal 1986 PCr.LJ 2730 and secondly, that a concessional statement cannot be recorded on oath under section 5 of the Oaths Act, 1873. In support of this submission the learned counsel has placed reliance on (i) Muhammad Bukhsh v. The State PLD 1956 SC 420, (ii) Gulab Khan and another v. The State PLD 1971 Kar. 299 and (iii) Manzur v. The State PLD 1973 Lah. 714. 5. The learned Assistant Advocate-General objected to the maintainability of this appeal and argued that since the accused/appellant has pleaded guilty to the charge before the learned trial Court, therefore, he cannot file an appeal against his conviction questioning the legality or the quantum of sentence. The learned Assistant Advocate-General pointed out that the convict-appellant has confessed his guilt at three different dates, firstly during the investigation before a Magistrate 1st Class on 24.7.1990, secondly, on 31.10.1994 when his admission of guilt was recorded on oath and; thirdly, on 3.11.1994 when his detailed confessional statement was recorded. In these circumstances, the learned Assistant Advocate-General supported the impugned judgment. 6. We have heard the learned counsel for the appellant and the learned Assistant Advocate-General at the Bar and given our anxious consideration to their respective contentions. 7. In so far as the maintainability of this appeal is concerned, suffice it to say that even in a case where accused pleaded guilty at the time of framing the charge the legality of the sentence can validly be challenged in ppeal. After considering the aforesaid two legal submissions of the learned counsel for the appellant in the light of the relevant provisions of the law and the judgment cited at the Bar we find that it would appropriate to reproduce below section 265-D, Cr.P.C.:- "If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused." Section 265-E(l) of the Criminal Procedure Code, 1898 reads as under:- "The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. (2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon." If the accused did not plead guilty the Court to proceed further under section 265-F, Cr.P.C. which reads as under:- "If the accused does not plead pnilty or the Court in its discretion does nt>t convict him on his plea, the Court shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Court shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Court shall ascertain from the Public Prosecutor or, as the case may be, from the complainant, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. 13> The Court may refuse to summon any such witness, if it is of opinion that such witness is being called for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing. (4) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence. (5) If the accused puts in any written statement, the Court shall file it with the record. (6) If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence. (7) If the accused, or any -one of several accused, after entering on his defence applies to the Court to issue any process for compelling the attendance of any witness for examination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by the Court in writing." A bare reading the above referred sections would reveal that the trial Court after the perusal of the police report or complaint shall come to the conclusion that the materials placed before it are sufficient to proceed with the trial by the accused, it shall frame the charge against the accused, and after recording the charge before the accused and explaining to him it shall ask the accused in writing, whether he admits the charge by pleading guilty or offers some defence to the charge levelled against him? If the accused accepted the charge and pleaded guilty it shall be recorded into writing, and the Coun in its discretion may convict the accused there and then. Even in case of pleading guilty by the accused it is not mandatoiy for the Court to pass an order of conviction, and the Court even then can summon the prosecution witnesses. There is wisdom behind the use of word "may" in section 265-E(2), Cr.P.C. instead of "shall" because the facts and circumstances differ from the case to case, and keeping in view the circumstances of the case the Court may convict the accused on plea of guilty or may call for the prosecution evidence. 8. The discretion in recording conviction on plea of guilty has also got nexus to the punishment. In case of a charge of carrying minor punishment the Court may on the plea of guilty by the accused convict him there and then but where the charge is of an offence cariying capital punishment of death or transportation of life, the Court is required to examine the prosecution evidence even if the guilty is admitted by the accused in response to a charge, as discussed in the case of Loung v. The State 1976 PCr.LJ 204. After complying with section 265-E, Cr.P.C., and when the accused did not plead guilty and claimed trial, there is no other way for the Court but to call for the prosecution evidence in support of the charge from the stage when the charge was charged and answered by the accused till the statement of the accused under section 342, Cr.P.C. and the conclusion of the prosecution evidence. There is no other stage or section of law enabling the Court to ask the accused of the charge levelled against him. 0 After pleading not guilty the accused can only be allowed to accept the charge in his statement under section 342 Cr.P.C. 9. In the present case, the charge against the convict-appellant was framed on 5.7.1994 to which he pleaded not guilty, and the Court rightly issued summons against the prosecution witnesses. Three prosecution witnesses formal in nature were duly examined on 17.7.1994, some of the witnesses were abandoned and some of them though present could not be examined for the reason that proceedings were adjourned to 25.8.1994 and fresh summons were ordered to be issued to the remaining prosecution witnesses. Thereafter, few adjournments were granted for different reasons and on 31.10.1994 formal charge was framed for the second time without any legal authority, to which the convict-appellant pleaded guilty. The Court can alter the charge subsequently, but could not frame the charge for second time. The conviction and sentence of the accused-appellant based on the plea of guilt in response to the second charge are illegal and against the prescribed procedure. The judgments cited by the learned counsel for the convict-appellant also support the aforesaid conclusion. 10. As far as the second contention of the learned counsel for the accused-appellant is concerned, the same is also based on facts. The statement of the convict-appellant was taken on oath which is prohibited under section 5 of the Oaths Act, 1873. The accused may be examined as his own witness on oath under section 340(2), Cr.P.C. but not in case of pleading guilty. An accused can only give a statement on oath in his defence and will also be cross-examined. In the instant case, the statement of the accused was not only recorded on oath in disregard of section 5 of the Oaths Act, 1873 and section 340(2), Cr.P.C. but his statement was also attested/certified under section 364, Cr.P.C. The statement of the accused can be recorded under section 164, Cr.P.C. and certified under section 364, Cr.P.C. at the stage of investigation. The learned trial Court was, therefore, not competent to record the statement in a manner attested/certified under section 364, Cr.P.C. 11. For the reasons stated above, we would allow this jail criminal appeal, set aside the conviction recorded and the sentence imposed upon the accused-appellant and would remand the case back to the learned trial Court for proceeding with it from the stage of recording the order-sheet, dated 17.7.1994 strictly in ccordance with law and the observations made above. The accused-appellant shall be treated as under-trial prisoner with no nefit of the order of remand by us. The learned trial Court shall conclude the trial of the accused-appellant within a period of three months on day-to­ day hearing basis. (K.K.F.) Case remanded.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 505 (DB) Present: mian muhammad AJMAL and shah jehan khan yousufzai, JJ. SARFRAZ KHAN and another-Appellants versus STATE and 2 others-Respondents Crl. Appeal No. 341 of 1996, decided on 21.4.1997. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 324, 427 & 311-Criminal Procedure Code, 1898 (V of 1898), S. 439- Appreciation of evidence-Ocular account was supported by the incriminating recoveries, Chemical Examiner's Report etc.-Accused had remained in abscondence-Trial Court despite having acquitted accused on account of compromise effected between them and legal heirs of deceased and injured witnesses, had rightly convicted accused in view of aforesaid direct and circumstantial evidence under Ss. 324 & 427, P.P.C. which was maintained-Trial Court had not given reason for awarding lesser punishment to accused under S. 324, P.P.C. who could also be held responsible for committing "Fasad-fil-Arz" under S. 311, P.P.C.-Sentence of five years' R.I. awarded to accused under S. 324, P.P.C. was enhanced to seven years' R.I. under the circumstances in the revision petition filed by the aggrieved person. [Pp. 511 & 513] A, C & D (ii) Pakistan Penal Code, 1860 (XLV of I860)-- —-Ss. 302 & 324-Criminal Procedure Code (V of 1898), S. 345-Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Preamble- Offences under Ss. 302 & 324, P.P.C. whether compoundable or noncompoundable-Murder or an attempt to commit murder is a compoundable offence irrespective of making any amending provision in the Suppression of Terrorist Activities (Special Courts) Act, 1975. [P. 512] B Muhammad Asif Khan, Advocate for Appellants. A RaufKhan Gandapur, Advocate for the State. Saleem Dil Khan, Advocate for the Complainant. Date of hearing: 21.4.1997. judgment Shah Jehan Khan Yousufzai, J.--By a judgment, dated 24.11.1996 of the learned Judge Special Court , Karak, Sarfaraz Khan and Anwar Badshah, accused-appellants herein, were convinced under section 324, P.P.C. and sentenced to imprisonment for five .years each with a fine of Rs. 50,000 each or in default to undergo further rigorous imprisonment for one year each. They were also convicted under section 427, P.P.C. for causing damage to the pick-up Datsun and sentenced each of them to undergo one year. Out of the fine imposed upon the appellants under section 324, P.P.C., on realization, a sum. of R. 70,000 was directed to be paid to P.W. Shah Nazar by way of compensation for causing damage to his vehicle while the remaining sum of Rs. 30,000 was to be paid to P.W. Khalil-ur-Rehman as compensation. The appellants were, however, extended the benefit under section 382-B, Cr.P.C. The sentences were ordered to run concurrently. The appellants feeling aggrieved of above judgment filed in this Court Criminal Appeal No. 341 of 1996 whereas Shah Nazar and Khalilur Rehman, petitioners herein, filed Criminal Revision No. 36 of 1997 for enhancement of sentences of the appellants to imprisonment for life and for raising the amount of fine and compensation. 2. Since both the appeal and the revision have been filed against the one and the same judgment of the learned Judge Special Court, therefore, we propose to dispose them of by this single judgment. 3. The prosecution case, briefly stated, is that on 15.7.1993 Nadeem Ahmad Khan complainant brought the dead body of his uncle Haji Sher Nawab at Police Station Latambar and lodged the report at 13.00 hours on the same day alleging that he alongwith his uncle Haji Sher Nawab, Khalilur-Rehman, Muhammad Farooq, Muhammad Noor Shah and Khiyal Badshsh alongwith other passengers was travelling in pick-up Datsun No. 6925-BUB which was being driven by Shah Nazar, Driver. Khalil-ur- Rehman and Haji Sher Nawab, who were both sitting in the front seat with the driver, were towards the window and driver's side respectively. It is also alleged that he was on the roof of the Datsun while the other passengers were sitting inside the Datsun and on reaching the place of occurrence situated on a Kacha Road near Dabar Banda, he saw accused Sarfraz, Anar Badshah and Niaz Wali (absconding accused) duly armed with klashnikovs. Accused Sarfraz signalled to stop the pick-up which was stopped by the driver and he fired shots with his klashnikov at the front seat as a result of which Sher Nawab got injured. Similarly accused Anar Badshah also fired shots at the front seat hitting Sher Nawab who died on the spot. Co-accused Niaz Wali fired shots on the person sitting in the rear body of the Datsun as a result of which Muhammad Farooq, Muhammad Noor Shah and Khiyal Badshah ustained injuries. The motive disclosed in he First Information Report for the occurrence was that accused Sarfaraz was on inimical terms with Khalilur-Rehman P.W. The accused aimed to kill Khalil-ur-Rehman which resulted in the death of Sher Nawab Khan and injuries to Muhammad Farooq, Muhammad Noor Shah and Khiyal Badshah. The pick-up Datsun was also severally damaged. After the commission of the offence all the accused went into hiding, therefore, proceedings under sections 87 and 204, Cr.P.C. were initiated against them. Their case was then sent to the Court concerned for trial after the completion of formal investigation. 4. Dr. Riaz Ahmad, Medical Officer, D.H.Q., Hospital, Bannu, examined Muhammad Noor Shah son of Haji Karim Shah aged about 45 years on 15-7-1993 at 2-15 p.m. and found the following:- (1) Two large wounds which were irregular each of about 3" in diameter in the largest diameter and were separated by stripe of skin of about 2-1/2" width. Muscles tendon and bone exposed and bleeding on anterior surface of right ankle joint. (2) Two small wounds of about 1" x 4" in diameter in middle of same leg on it Irontal surface. On the same day and time the doctor examined Khiyal Badshah son of Afzal Muhammad aged about 50 years and found the following:-- Two small circular wounds in the midd'e of left leg about 3-1/2" apart, one on medial and the other on lateral side. Clotted blood all over his leg. On the same day at 2-45 p.m. the doctor examined Muhammad Farooq son of Muhammad Hayat aged about 24 years and found the following:-- One small bleeding wound in the middle of outer border of left foot. Swollen and tendon. The nature of injuries of the above injured was found simple, use of kind of weapon was fire-arm and probable duration was three to four hours. On the same day at 3-30 p.m. the doctor conducted the post-mortem examination on the dead body of Haji Sher Navvab son of Saadullah Khan aged about 60 years and found the following: — External examination (1) A small entry wound of about 1/2" in diameter on left side of skull below occiput, edges irregular inverted, surrounded by bluish staining. (2) An irregular large wound of about 4" in diameter blowing away right angle of mendible teeth etc. Internal examination Skull bone was found fractured. Right mendible fractured. Membran and brain matter was damaged. Mouth and phrynx was found injured while stomach was foufand healthy. In the opinion of the doctor, the deceased had died due to damage to the brain and the death was instantaneous. The probable time between injuries and death was instantaneous and that between death and post-mortem examination was four to five hours. 5. The prosecution, in addition to above witness, produced as many as 11 witnesses in support of its case. Of them, Umar Sadiq, A.S.-I. (P.W.10), who was then posted at Police Station Latambar, recorded the Murasila which was reduced into writing vide F.I.R. Exh.P.A. He prepared the injury sheet Exh.P.W.10/1 and the inquest report Exh.P.W. 10/2 and despatched the same to the mortuary for autopsy. He also prepared injury sheets Exh.P.W.10/3 to Exh.P.W.10/6 in respect of injured Muhammad Noor Shah, Khiyal Badshah, Muhammad Farooq and Mst. Deli Begum who were brought to the police station. The injured were then sent for treatment under the escort of Mir Qadam F.C. He recorded the statements of the injured P.Ws. and then left for the spot where he prepared the site plan Exh.P.B. at the instance of the P.Ws. Shah Nazar and Khalil-ur-Rehman. He recovered five empties of 7.62 bore from the place of Sarfaraz accused, two empties of 7.62 bore from the place of accused Anar Badshah and five empties of 7.62 bore from the place of absconding accused Niaz Wali which were giving smell of fresh discharge. He also took into possession one spent bullet vide memo. Exh.P.C./2. He also went to the house of P.W. Shah Nazar where from he took into possession pick-up Datsun which bore seven bullet marks on the roof in the rear. A spare wheel was also taken into possession. He took into possession spent bullets from the place near the accelerator from the body of the pick-up and a piece of cloth with blood-stained from the front seat vide memo. Exh.P.C/3. The clothes consisting of shirt Exh.P.l, Shalwar Exh.P.2, cap Exh.P.3, handkerchief Exh.P.4 all with blood­ stained sent by the doctor through Raham Dad F.C. were taken into possession by the Investigating Officer who then sent the above articles to the Laboratory for necessary test and the result of Laboratory test is Exh.P.W.10/7. He took photographs of the pick-up vide Exh.P.W.10/8 to Exh.P.W. 10/16 and recorded the statements of P.Ws. Khalil-ur-Rehman and Shah Nazar under section 64, Cr.P.C. The pick-up was examined through a mechanic whose report is Exh.P.W.10/17. Hafizur Rehman F.C. (P.W.11) carried out proceedings under section 204, Cr.P.C. He submitted his reports on the warrants Exh.P.W.I 1/1 and Exh.P.W.I 1/2 and proclamation notices Exh.P.W.I 1/3 and Exh.P.W.I 1/4. zizullah Mechanic (P.W. 12) examined the damaged pick-up and gave his report Exh.P.W. 10/17. P.Ws. Nadeem Ahmad, Khalil-ur-Rehman and Shah Nazar (driver) have furnished eye-witness account of the occurrence and rest of the witnesses are formal in nature. 6. The accused-appellants in their statements under section 342, Cr.P.C. pleaded guilty to the charge and stated that they were innocent and falsely implicated in the case. The appellants further deposed that they neither want to - produce defence nor they want to be examined under section 340(2), Cr.P.C. They also relied upon the affidavits filed by the heirs of the deceased and the injured P.Ws. 7. It may be pertinent to mention here that the accused-appellants were arrested on 30-9-1995 after more than two years of the occurrence. At the conclusion of the trial on 3-10-1995 Nadeem Ahmad complainant, the legal heirs of Haji Sher Nawab deceased and the injured P.Ws., namely, Haji Karim Shah, Muhammad Farooq, Khiyal Badshah submitted their statements in writing alongwith affidavits duly verified by the Magistrate 1st Class regarding compromise with the accused-appellants before us. Excepting Mst. Deli Begum real sister of accused Sarfaraz Khan who happened to be one of the passengers in the pick-up and who received injury but neither appeared before the police nor gave her statement in the Court, the complainant, father and other heirs of the deceased Haji Sher Nawab and the injured P.Ws. cited above have pardoned the accused-appellants and prayed for their release in view of the compromise. The learned trial Court had no alternative but to acquit the accused-appellants of the charge of murder and injuries to the P.Ws. and, as stated earlier, while taking into consideration the above documents in respect of compromise acquitted them but in view of direct evidence of Khalil-ur-Rehman and Shah Nazar corroborated by circumstantial evidence in the shape of bullet marks and damage to the pick­ up by firing, photographs in respect of vehicle available on the record and severe damage -to the vehicle and stamps of occurrence on its body, convicted the accused-appellants and sentenced as above. 8. The learned counsel for the appellants contended that since compromise has been effected between the complainant, the father and legal heirs of Haji Sher Nawab deceased and the injured P.Ws. with the accused-appellants, the learned trial Court has illegal convicted and sentenced them. In this respect he referred to the cross-examination of Nadeem Ahmad complainant who appeared as P..W.5 at the trial and admitted that the accused had muffled their faces except their eyes and that there was a dust storm, due to which darkness had prevailed and the identification of a person was difficult. The witness also admitted that there was a marriage ceremony and the inmates of the said ceremony were busy at that time in aerial firing. The witness further deposed that the appellants were charged on suspicion. According to the learned counsel for the appellants, there ere material contradictions between the statements of the eye-witnesses of the occurrence and the medico-legal report was also not in line with the ocular testimony furnished by the P.Ws. He, therefore, prayed for acquittal of the accused-appellants. 9. On the other hand, the learned counsel appearing on behalf of the petitioners in the contended Criminal Revision No.36 of 1997 contended that the accused-appellants had been tried under the Suppression of Terrorist Activities Special Courts) Act, 1975 and under section 10 thereof, the provisions of the Act have been given an overriding effect on the Criminal Procedure Code or any •Jther law for the time being in force. He vehemently contended that the offence of murder and attempted murder was made compoundable under the Qisas and Diyat Ordinance and Diyat Ordinance and section 345, Cr.P.C. was amended to the effect that an offence under section 302, P.P.C. was made compoundable by the heir of the victim but no such amendment was brought in the provisions of the Suppression of Terrorist Activities Act (Special Courts) Act, 1975 and, therefore, the amendment in section 345, Cr.P.C. was wrongly acted upon by the trial Court and thus the accusedappellants were illegally acquitted of the charge of murder. To bstantiate his argument, he divided the offence into two categories: (i) the offence against person and (ii) the offence against society. He emphasised that, while troducing Qisas and Diyat Ordinance, the offence against a person wherein murder is committed was made compoundable but in the instant case the accused-appellants were charged for indiscriminate firing at the pick-up Datsun wherein innocent passengers were sitting and as a result of firing of the accused, Haji Sher Nawab got injured and died on the spot against whom the accusedappellants had no ill-will at all. Likewise Khiyal Badshah, Muhammad Noor Shah, Muhammad Farooq and Mst. Deli Begum who happened to be the real sister of accused Sarfaraz Khan also sustained injuries without any cause. The accused-appellants were, therefore, guilty of an offence against society and even if the simple murder has been made compoundable by the legislation, it will have no effect on the present case where the accused were charged for indiscriminate firing at the innocent persons. He also contended that under section 308(2) read with section 311, P.P.C. the Court was competent to award punishment as Tazir even if they had effected a genuine compromise with the heirs of the deceased and the injured P.Ws. The learned counsel argued that the accused could be punished under section 308(2) read with section 311, P.P.C. which may extend to 14 years as Tazir. He also objected to the disbursement of fine as compensation in between the two petitioners and contended that fine cannot be disbursed as compensation which is awarded under section 544-A, • Cr.P.C. independently of any fine. In this view of the matter, he prayed for enhancement of the punishment and award of compensation independent of fine imposed upon them by the trial Court. 10. The learned counsel for the State supported the impugned judgment of the learned Judges Special Court and maintained that no appeal has been filed by the State against acquittal of the accused-appellants and thus the acquittal based on compromise with the legal heirs of the deceased and the injured P.Ws. cannot be interfered with. He referred to section 6 of the Suppression of Terrorist Activities Act, 1975 and contended that the trial Court under the Act was having all the powers conferred by the Code on the Court of Sessions exercising the original jurisdiction, therefore, the trial Court has rightly acted upon the genuine compromise which took place between the accused and the victim of aggression. The trial Court has rightly convicted the accused for attempting at the lives of the petitioners in revision and both of them have been granted proper compensation. 11. We have gone through the record of the case carefully and considered the contentions raised by the learned counsel for the parties at the Bar. The prosscution has successfully established that the accused-appellants had indiscriminately fired at the pick-up wherein innocent person lost his life and 4 other passengers including the real sister of accused Sarfaraz Khan sustained injuries. It is an established principle of administration of justice in criminal law that grain is to be sifted from the chaff. The statement of Nadeem Ahmad complainant could easily be taken out of consideration for the simple reason that he has contradicted his own version in his cross-examination. The concession to the appellants was made in view of the compromise, which fact was admitted in his said statement and he has also filed an affidavit to this effect which was marked as Exh.D.W.3 in his statement recorded under section 342, Cr.P.C. Excluding the said concessional statement of P.W.5 prosecution has proved the cases against the accused-appellants without any shadow of doubts. The prosecution story suffers from no infirmity. According to the statements of Khalil-ur-Rehman and Shah Nazar (P.Ws.6 and 7) who were present in the pick­up, the former was sitting in between Haji Sher Nawab deceased and Shah Nazar in the front seat of the- vehicle while accused Sarfaraz, who is said to be the uncle of Niaz Wali absconding accused and a friend of Anwar Badshah, accusedappellant has got an ill-will with the said Khalil-ur-Rehman. The accused-party had aimed to commit the murder of Khalil-ur-Rehman but since Haji Sher Nawab was sitting towards the window side received the same bullet which was fired at for the murder of Khalil-ur-Rehman. P.W. Khalil-ur-Rehman has explained the motive in his Court statement that two years prior to the occurrence a theft was committed in his house for which he charged accused Sarfaraz and there was a quarrel between the boys of his house and those of the accused-party some 2/3 months prior to the present occurrence. This part of the statement of P.W. Khalil-ur-Rehman has not been objected to in cross-examination which amounts to an admission on the part of the accusedappellants. The eye version account of P.Ws. Shah Nazar and Khalil-ur-Rehman has got support from the circumstantial evidence in the shape of blood-stained piece of cloth from the front seat of Datsun pick-up Exh.P.12, recoveries of 5 empties of 7.62 bore from the place where accused Sarfaraz was shown present at the time of occurrence, 2 empties of 7.62 bore from the place of Anar Badhsah accused, five empties of 7.62 bore from the place of Niaz Wali absconding accused, one spent bullet Exh.P.8 from the spot, two spent bullets Exh.P.10 and Exh.P. 11 from the body of pick-up Datsun, three bullet marks on the steering board of the pick-up, the vehicle damaged report Exh.P.W. 10/17, Chemical Examiner Report Exh.P.W. 10/7, Medico-legal Reports Exh.P.W.8/1, E.\h.P.W.3/l, Exh.P.W.3/2, Exh.P.W.3/3 and the post-mortem report Exh.P.M. and photographs of the damaged Datsun Exh.P.W. 10/8 to Exh.P.W. 10/16. Apart from that, both the accused remained in abscondence for •'"ore than two years and in view of abscondence of the accused-appellants proclamation notices under section 87, Cr.P.C. and warrants under section 204, r.P.C. were issued against them. All these facts conjointly prove that the accused-appellants alongwith his absconding accused fired indiscriminately at the pick-up Datsun to commit the murder of Khalil-ur-Rehman P.W./petitioner in the revision which resulted in the death of Haji Sher Nawab deceased and injuries to Khiyal Badshah, Muhammad Moor Shah, Muhammad Farooq and Mst. Deli Begum but since the legal heirs of Haji Sher Nawab deceased and the injured persons, Khiyal Badshah, Muhammad Noor Shah and Muhammad Farooq have patched up the matter with the accused-appellants and the injured Mst. Deli Begum had neither charged the accused-appellants nor made any statement in the case either at the stage of investigation or at the trial, therefore, the learned trial Court has rightly acquitted them. It is also a fact that the accused-appellants were arrested on 30-9-1995 and the affidavit statements duly attested by a Magistrate of the 1st Class produced at the trial as Exh.D.l to Exh.D.4 were recorded on 3-10-1995 only after three days of their arrest by the police, meaning thereby that they remained in abscondence till succeeded in inforcing a settlement on the heirs of deceased and the injured victims. Since there is no appeal against the acquittal of the accused-appellants, it has rightly been urged by the learned counsel for the State that their acquittal cannot be interfered and converted into conviction. 12. As far as the objection of the learned counsel for the petitioners in revision regarding compoundability of an offence in a case tried under the Suppression of Terrorist Activities (Special Courts) Act, 1975, suffice it to say that by making Article 2-A as integral part of the Constitution the hurt and murder cases were made compoundable under the Qisas and Diyat Ordinance, 1990 and the relevant sections of P.P.C. and Cr.P.C. were amended in accordance with the Injunctions of Islam. A Qura'nic verse can advantageously be reproduced here:-- (The murder or an attempt to commit murder is by now a compoundable offence irrespective of making any amending provision in the Suppression of the '(Terrorist Activities (Special Courts) Act, 1975. Even under the Suppression of the Terrorist Activities (Special Courts) Act, 1975 the Court derives powers to convict an accused under the P.P.C. and Cr.P.C. as envisaged in section 6 of the Act. Under the principles of Islamic Law in spite of composition of an offence of Qatl-e-Amd where right of Qisas is waived off by Walis of deceased the Court has been given the powers to award punishment, as Tazir under section 311, P.P.C. having regard to the facts and circumstances of the case and if in the opinion of a Court it is found that an accused is guilty of commission Fasad-fil-Arz in spite of composition of Qisas and Diyat he may be awarded punishment upto 14 years as Tazir. 13. The submission of the learned counsel for the petitioners in the revision petition with regard to the quantum of sentences awarded to the accusedappellants has got some force. The trial Court has not awarded exemplary punishment and without giving reasons for awarding lessor punishment to the accused-appellants who were found guilty under section 324, P.P.C. for attempting at the lives of P.W. Khaljl-ur-Rehman and P.W. Shah Nazar. But the appellants can also be held responsible for committing Fasad-fil-Arz. Section 31.1, P.P.C. can advantageously be reproduced below:- "311. Ta'zir after waiver or compounding of right of Qisas in Qatl-i-Amd. — Notwithstanding anything contained in section 309 or section 310 where all the Wali do not waive or compounded the right .of Qisas or keeping in view the principle of Fasad-fil-Arz the Court may, in its discretion having regard to the facts and circumstances of the case punish an offender against whom the right of Qisas has been waived or compounded with imprisonment of either description for a term which is extended to fourteen years as Ta'zir. Explanation.— For the purpose of this section, the expression Fasadfil-Arz shaft include the past conduct of the offender as being a previous convict, habitual or professional criminal and the brutal manner in which the offence is committed." 14. In view of the facts and circumstances of the case and for the reasons stated above, Criminal Appeal No. 341 of 1996 is dismissed and, while on the acceptance of Criminal Revision No. 36 of 1997 the sentence under section 324, P.P.C. imposed upon the accused-appellants Sarfraz and Anar Badshah is enhanced from 5 years' R.I. to 7 years' R.I. with a fine of Rs.50,000 each in default whereof to undergo one year's R.I. each. They shall also pay compensation of Rs.70,000 to Shah Nazar and Rs.30,000 to Khalil-ur-Rehman under section 544-A of the Cr.P.C. or in default o suffer 6 months' S.I. each. Above are the reasons for our short order, dated 21-4-1997. • K.K.F.) Order accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 514 (DB) Present: ali muhammad baloch and zakir mirza, JJ. GHULAM HUSSAIN and 2 others-Appellants versus STATE-Respondent Crl. Appeal No. 108 of 1996, decided on 4.7.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302(b) & 302(c) [as amended by Criminal Law (Second Amendment) Ordinance (VII of 1990)]-Sentence awarded under the amended S. 302 (b) & (c), P.P.C. for the occurrence having taken place prior to such amendment-Status-Amendments brought in Pakistan Penal Code by an Ordinance were of substantive nature and it being a substantive law was to take effect prospectively-Because difference existing in awarding of sentences under two different laws, accused had been prejudiced by having been sentenced under amended law-Convictions and sentences of accused were consequently set aside and case was remanded to Trial Court for rewriting judgment keeping in view provisions of Pakistan Penal Code prevalent before amendment. [P. 516] A & B A Q. Halepota, Advocate for Appellants. Muhammad Saleern Samo, A.A.G. for the State. Dates of hearing: 5, 6, 9, 10 and 12.6.1997. judgment Ali Muhammad Baloch, J.-Appellants Ghulam Hussain, Behram, Ali Hassan and Allah Dito were convicted by learned Additional Sessions Judge, Shahdadpur on 31.8.1996. Appellant Behram was sentenced to undergo imprisonment for life under section 302(b), P.P.C. (as amended by Qisas and Diyat Ordinance) as Tazir, while the remaining appellants were sentenced to undergo imprisonment for 10 years each under section 302(c), P.P.C. (as amended by Qisas and Diyat Ordinance). The appellants were also directed to pay compensation of Rs. 25,000 each payable to the legal heirs of the deceased and in case of failure they were to undergo simple imprisonment for 2 years more. The benefit under section 382-B, Cr.P.C. had also been awarded to them. 2. All the four appellants by this joint appeal have challenged the judgment passed against them and have also challenged the sentences recorded against, them. 3. The learned counsel for the appellants at the veiy outset of his arguments by way of a preliminary point challenged the legal aspect of the sentence as, in the judgment of the lower Court it is clearly mentioned that the sentence was considered under the provisions of Qisas and Diyat Ordinance and this was clear from the fact that while awarding sentence for imprisonment for life, section 302(b) has heen mentioned and in addition, the word "Tazir" was also mentioned. Similarly, while awarding sentences to the remaining three appellants section 302(c) was mentioned. The learned counsel for the appellants contended that the judgment shows that the learned trial Judge at the time of awarding the sentence had consciously mentioned the provisions of Qisas and Diyat Ordinance and had awarded the sentence keeping in view the provisions of that law. 4. The learned counsel for the appellants pointed out that for the first time Qisas and Diyat Ordinance (Ordinance No. VII of 1990), under which the conviction is recorded, was promulgated on 5.9.1990 and that it being a substantive law was prospective in nature. The offences committed prior to the date of promulgation of this Ordinance were to be decided under the provisions of substantive law prevalent on the date of occurrence of the offence. The present occurrence had admittedly taken place on 24th of August, 1990, on which date the same was punishable under the provisions of Pakistan Penal Code as it stood on that date and was not amended by Qisas and Diyat Ordinance (Ordinance No. VII of 1990). It was argued that therefore, the writing of the judgment and awarding of the sentence under the provisions of Qisas and Diyat Ordinance by the trial Court was in violation of the provisions of law and that the sentences awarded to the appellants under the provisions of law, which was not prevalent at the time of occurrence, had caused substantial prejudice to the accused. The prayer of the learned counsel for the appellant, therefore, was that before deciding the appeal on merits, it should be remanded after setting aside the judgment and sentence passed by the trial Court, for rewriting of the judgment afresh keeping in view the provisions of P.P.C. i.e. the law prevalent at the relevant time. 5. The learned A.A.G. who, apart from arguing the matter orally, had submitted his written arguments, conceded to the prayer of the learned counsel for the appellants and himself relied on earlier decisions on this point and contended that under the circumstances the judgment and sentence passed by the trial Court could not be sustained and he has prayed for remanding the case to the trial Court for fresh decision keeping in view the provisions of section 302, P.P.C. and other relevant provisions of P.P.C. as they stood on the date of commission of the offence. 6. I have given due consideration to the preliminary point raised by the learned counsel for the appellants and have given due consideration to he arguments of the learned counsel for the parties on that point. 7. Although the appeal was argued in detail on merits also but I feel chat in view of my having arrived at a conclusion that the preliminary point raised by the learned counsel for the appellants was correctly taken, and the matter ought to be remanded to the trial Court for re-writing of the judgment, I have not considered the merits and demerits of the evidence recorded by the trial Court and have not considered the other points raised in the appeal. 8. As regards the proposition that the judgment has not been written keeping in view the provisions of relevant law prevalent at the relevant time, .there are earlier decisions on the point, which have been referred. One of such decision is of a Division Bench of this Court in Criminal Appeal No. 101 of 1995, connected with Confirmation Case No. 5 of 995. That appeal was decided on 16.1.1997 and it was held that the date of occurrence in that case was 7.6.1989, whereas the judgment in that case was passed on 6.6.1995, showing therein that the sentence was being passed f under the provisions of Qisas and Diyat Ordinance. The judgment and sentence in the above appeal was set aside and the case was remanded to the trial Court for re-writing of the judgment as it as held that, Ordinance VII of 1990, known as Qisas and Diyat Ordinance, was promulgated for the first time on 5.9.1990. The decision in the above appeal was based on earlier decision viz. Criminal Appeal No. 61 of 1993, decided on 30.9.1993 and the case reported in 1990 PCr.LJ 317. 9. After giving the consideration to the arguments of the learned counsel and having considered the legal position, I fully agree with the contention of the learned counsel for the appellants as well as the learned A.A.G. that since the date of incident in the present case was prior to the date of promulgation of Qisas and Diyat Ordinance, under which the judgment and sentence were passed by the trial Court, I hold that it is a fit case where the judgment and sentence passed by the trial Court be set aside nd the case be remanded to the trial Court for re-writing of the judgment. It is needless to point out that Qisas and Diyat Ordinance has brought amendment in substantial nature to the provisions of P.P.C. and that it is substantive law, which takes effect prospectively. Since the committed when the substantive law in force was P.P.C., and there is difference in awarding of the sentences under the two different laws, I hold that the appellants have been prejudice by passing of the sentences under the amended law. 10. Consequently, under the above described circumstances, the case is remanded to the trial Court with the direction that the judgment be re-written after due notice of hearing to the parties and provisions of P.P.C., as it was prevalent at the time of incident, be considered instead of provisions of Qisas and Diyat Ordinance. The trial Court is directed to decide this case on remand within two months from the date of receipt of the copy of this order and the R&P of the case. The office is directed to send the R&P of the case without any delay. (K.K.F.) Case remanded.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 517 Present: raja muhammad khurshid, J. SHAUKAT-Petitioner versus STATE-Respondents Cr. Revision No. 47 and Criminal Miscellaneous No. 332-M of 1997, decided on 7.5.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 540 & 439-Qanun-e-Shahadat (10 of 1984), Art. 133(3)-Pakistan Penal Code (XLV of 1860), S. 302/34-Resummoning of prosecution witness (a medical officer)-Doctor who had conducted post-mortem examination on dead body of deceased had neither in his post-mortem report nor in his examination-in-chief at trial stated as to whether or not injuries suffered by deceased were sufficient to cause death in ordinary course of nature-Said omission in medical evidence appeared to be a bona fide one which needed clarification in order to determine nature of offence committed by accused-Discretion exercised by Trial Court for reexamination of Medical Officer was in no way offensive either to provisions contained in Art. 133 of Qanun-e-Shahadat, Order, 1984 or to the principle laid down in S. 540, Cr.P.C., rather same had been exercised in a judicious manner in order to determine real question regarding nature of offence-Impugned order was neither unjust nor fanciful or beyond the jurisdiction of the Trial Court-Revision petition was dismissed in limine accordingly. [P. 518] A Malik Muhammad Nawaz Khan, Advocate. order This criminal revision is filed against the order, dated 11.4.1997 passed by Mr. Akhtar Khan, learned Additional Sessions Judge, Rawalpindi , whereby, he allowed an application moved under section 540, Cr.P.C. for the re-examination of Dr. Arshad Ali who had appeared at the trial of a Sessions case as P.W. 9. It was contended in the application that the re-examination of the said P.W. was necessitated because it could not be asked from the doctor whether or not the injuries suffered by the deceased were sufficient to cause death in the Ordinary course of nature. Thus, the re-examination was allegedly essential to promote the ends of justice. The petitioner was opposed in the Court below that re-examination of a witness could only be allowed in view of the provisions contained in clause (3) of Article 133 of the Qanun-e- Shahadat. 1984. The aforesaid clause laid down that the re-examination of a witness shall be directed to the explanation of the matters referred to in cross-examination, and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-exmaine on that matter. In the instant case, since no explanation was required regarding a matter referred to in the cross-examination, therefore, there was no necessity to re-examine the Medical Officer, which if examined would allegedly prejudice the accused in their trial and would also grant undeserved permission to the prosecution over the defence. To put the aforesaid question to the doctor was a clear omission on the part of the prosecution and since it amounted to negligence, therefore, they did not deserve any indulgence for the re-examination of the Medical Officer in respect of the matter in issue. 2. The learned trial Court did not agree with the above points and decided the petition in favour of the complainant/prosecutor to allow him to re-examine the Medical Officer to put a question whether or not the injuries on the person of the deceased were sufficient to cause death in ordinary course of nature. According to the learned trial Judge, it would help in arriving at the just and proper decision rather to help any side. 3. The same points have been raised in this revision petition with the plea that the conclusion arrived at by the learned trial Court in allowing the application was erroneous and bad in the eyes of law. It was allegedly an abuse of the discretion vested under section 540, Cr.P.C. which ought to have been exercised judiciously instead of arbitrarily. Since the matter was allegedly determined by the learned trial Judge in arbitrary manner and in total disregard of the provision contained in clause (3) of Article 133 of the Qanun-e-Shahadat, 1984, therefore, the impugned order was alleged to be bad in the eyes of law. 4. I have given my careful attention to the matter in issue and find that the Medical Officer namely Dr. Arshad Ali was examined at the trial as P.W. 9. He had conducted the post-mortem examination on the dead body of the deceased and had prepared the post-mortem report as Exh. P.C. While giving his opinion about the cause of death, he did not State in the report whether or not, the injuries suffered by the deceased were sufficient to cause death in the ordinary course of nature. He also omitted to state so when he was examined as P.W. 9 nor any question to that effect was put in the examination-in-chief. it, therefore, appears that it was a bona fide omission in the medical evidence which needed clarification in order to determine the nature of the offence committed by the offenders in this case. The discretion exercised by the learned trial Court for re-examination of the witness is in no way offensive either to the provisions contained in Article 133 of the Qanune-Shahadat, 1984 or to the principle laid down in section 540, Cr.P.C. Rather it appears that the discretion exercised by the learned trial Court legally vested in it which was exercised in judicious manner in order to determine the real question regarding the nature of offence. In such a situation, the impugned order is neither unjust nor fanciful or beyond the jurisdiction of the learned trial Judge. The revision petition being meritless is dismissed in lirninc. Criminal Miscellaneous No. 332/M of 1997 5. With the disposal of the main petition, this Criminal Miscellaneous also stands disposed of. (K.K.F.) Revision dismissed

PLJ 1998 Cr PLJ 1998 Cr. C. (FSC) 519 Present: ABDUL WAHEED SlDDiqui, J. GULZAR and 3 others-Appellants versus FIDA HUSSAIN SHAH and another-Respondents Crl. Appeal No. 54/1 of 1997, decided on 17-6-1997. Pakistan Penal Code, 1860 (XLV of I860)-- —-Ss. 392 & 458-Criminal Procedure Code, 1898 (V of 1898), S. 222(1)-- Charge framed by Trial Court in the case did not comply with mandatory requirements of S. 222(1), Cr.P.C. which had caused prejudice to accused-Status-Convictions and sentences of accused were set aside in circumstances and case was remanded to Trial Court for de novo trial after framing charge in accordance with law. [P. 521] A Saeed Akhtar Khan, Advocate for Appellants. Azam Khan, A.A.-G., N.-W.F.P. for the State. Date of hearing : 17-6-1997. judgment Appellants have been convicted by Additional Sessions Judge, Haripur on 24-4-1997 under section 392, P.P.C. and have been sentenced to undergo R.I. for 3 years and the imposition of fine of Rs. 5,000 each in default of payment each one to undergo R.I. for one month. They have also been convicted under section 458, P.P.C. and sentenced for a period of 2 years' R.I. Both sentences are ordered to run concurrently with benefit of section 382-B, Cr.P.C. given. 2. Briefly, the facts of the case are that one Fida Hussain Shah moved a complaint (Exh. P.A./l) on 18-2-1994 before S.H.O. Police Station Swabi Maira stating therein that he is an employee in Air Force and his brother Imdad Hussain Shah has died 6/7 years back. His widow and her children are residing in the village. In the night of 2nd and 3rd February, 1994, his Bhabi Mst. Zahida Bibi was sleeping alongwith minor children in her house. Suddenly 3/4 persons entered into the house, but his Bhabi remained silent to save her honour. The culprits took T.V. (Black and White). Doorbeen, Cameras, V.C.R., Tape Recorders, watches, golden ornaments, clothes etc. There was none else in the house except minors, therefore, his Bhabi sent intimation of this incident to him to Rawalpindi. On this intimation he reached the village and investigated and got satisfied that this theft was committed by the appellants etc. On the basis of this complaint an F.I.R. was lodged on 18-2-1994 at 3-30 hours. The appellants were arrested challaned and charged by the trial Court on 13-11-1994. 3. I have heard both the learned counsel for appellants and Statue. At the outset the learned counsel for appellants has made a reference to section 222(1), Cr.P.C. which reads as under :-- "222 Particulars as to time, place and person. -(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged." According to the learned counsel for appellants the charge dated 13-11-1994 neither contains such particulars as to the time and place of alleged offence nor it contains particulars about the things in respect of which offence was committed. Substantial part of the charge is reproduced as below: "That you on the night between 2/3 February, 1994 at unknown time committed lurking house trespass in the house of Mst. Zubaida Bibi located within limits of village Kakotri Police Station Swabi Maira, with intent to commit theft after having made preparation to cause restrain and assault to the inmates of the house and thereby committed an offence punishable under section 458, P.P.C. and within my cognizance. That after the commission of the theft of house hold articles from the house of Mst. Zubaida Bibi, it was recovered from your possession the value of which exceeds Nisab as defined under section 6 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and thereby committed an offence punishable under section 9 of the Order and within my cognizance." According to the counsel for the appellants, the charge makes reference to Article 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for which the punishment is that of the right hand from the wrist as a Hadd according to the impugned judgment the offence of Hadd was not proved and, therefore, it was brought under the purview of the Ta'zir but as Ta'zir the appellants have been punished under section 392, P.P.C. which is robbery and has nexus with Article 17 of the Offences Against, Property (Enforcement of Hudood) Ordinance, 1979 which punishment is higher than theft as it is punishment for Haraba but the appellants were originally charged for theft and not for Haraba. Reliance has been placed on 1991 PCr.LJ 369 in which the principle which has been enunciated is quoted verbatim : —-S. 148/149 read with S. 324--Conviction under S. 148/149, P.P.C.--Appeal against-Appellate Court acquitting them but convicting them under S. 324, P.P.C.-Challenge to-Whether conviction was justified when no charge under S. 324, P.P.C. was framecl-Question of-Petitioners were charged under S! 148/149. P.P.C.-Additional Sessions Judge set aside conviction under these sections and instead, convicted petitioners under S. 324, P.P.C.--Held petitioners who were charged with minor offence under S. 148/149, P.P.C. without charge under this section-Held further : There can be no two opinions that conviction of petitioners by Additional Sessions Judge is bad in law-Petitioners acquitted." Another judgment on which reliance has been placed is that of this Court cited as NLR 1995 SD 585. The principle which has been enunciated is quoted verbatim: "S. 22. Defect in framing of charge would cause prejudice to accused and would be a ground for setting aside conviction/sentence recorded against him with remand .of case for retrial after framing a valid charge." The learned counsel for State has disagreed with the proposal that the case is fit for acquittal, but he has agreed with the proposal that this case in fact, falls within the meaning of the principle laid down in NLR 1995 SD Consequently the conviction and sentences of the appellants are set aside and the case is remanded back to the trial Court with direction that a de novo trial shall be held after giving a proper charge to the appellants which should inter alia disclose as to what offence they had attempted to commit. The requirements of section 222(1), Cr.P.C. are mandatory in nature and, therefore, the charge should be framed in accordance with the provisions of the said section. The appeal is disposed of in the aforesaid terms. (K.A.B.) Appeal remanded.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 522 Present: KHAN RlAZ-UL-DlN AHMAD, J. IQBAL-Appellant versus STATE-Respondent Criminal Appeal No. 662/89, dismissed on 22-9-1997. ] i) Pakistan Penal Code, 1860-- —S. 302/34 and 304-Murder case-Conviction for-Challenge to-Culprit. choose to inflict just one injury to deceased which proved fatal and did not inflict further injury-Whether offence can be converted from S. 302 to 304 Part II-Question of-There is nothing on record to suggest that there was any fight or exchange of hot words between appellant and deceased prior to infliction of said injury which is sin-qua-non for attracting provision of S. 304-Appellant who was armed with inka had given a fatal blow on neck of deceased which was sufficient in ordinary course of nature to cause death, had intention to commit, murder of deceased as he has chosen such a vulnerable part of body, as such his case would squarely fall within ambit of clauses 3rdly and 4thly of S. 300 and he would be liable to be convicted and sentenced under S. 302 PPG. [P. 530] B & C (ii) Witness-Chance-- —Chance witness-Statement of-Testimony of-Reliance--If a chance witness reasonably explains his presence at the spot and renders narration of occurrence in such a way that same inspires confidence and it was further supported by evidence, which materially corroborates such version, then same can be considered alongwith other incriminating evidence. [P. . r

28] A Sardar Khuram LatlfKhosa, Advocate for Appellant. Abdul Rauf Farooqi, Advocate for State. Dates of hearing : 16 to 18.9.1997. judgment Muhammad Iqbal son of Ahman, aged about, 18 years, the appellant was tried by the learned Additional Sessions Judge Faisalabad alongwith Mohabbat and Ahmad Ali co-accused, for offence under Section 302/34 P.P.C. for having committed the murder of Muhammad Mansha, aged about 45 years, brother of Sakhawat complainant. Vide judgment dated 24.7.1989 the learned trial Judge found the appellant guilty of the aforesaid charge and accordingly convicted and sentenced him thereunder to imprisonment for life and a fine of Rs. 10,000/- half of which, in the event of its realisation, was to lie paid to the legal heirs of the deceased. In default of payment, of fine, the appellant was to suffer R.I. for one year. 2. The two co-accuseds of the appellant namely Mohahhat and Ahmad Ali were, however, given benefit of doubt and were acquitted. Augrie%'ed by this judgment the appellant has filed the instant appeal which is being disposed of through this judgment :{. The facts of the case as narrated in the F.I.R. Exh. PD/1 lodged by Sakhawat complainant P.W. 8 with SI Inayat Ali, since dead, in brief are, that on the night of occurrence the complainant Sakhawat alongwith Busarey Khan P.W.9, Mxihammad Khan given up P.W. and Muhammad Mansha deceased were sleeping in the court-yard of their house when at about 3 a.m. the complainant woke-up after hearing the barking of dogs and saw in the light of bulb, Iqbal appellant, accompanied by Mohabbat and Ahmad Ali co-accused standing in their court-yard. Iqbal was armed with Toko Exh. P. 5 and the two others were empty handed. It was within the sight of the complainant that Mohabbat and Ahmad Ali accused caught hold of Muhammad Mansha deceased while Iqbal inflicted Toka blow on the left side of his neck. Alarm raised by the complainant, attracted Basarey Khan PAV.9 and Muhammad Khan given up P.W. at the spot but the accused made good their escape. 4. Muhammad Mansha in an injured condition was being taken to I lie hospital in a tractor-trolley but he succumbed to his injuries at Jagatan bridge where from his dead body was brought back to his house. The complainant then left for reporting the matter to the police. He met SI Inayat Ali, since dead, at, Jhuggi Watoan who recorded the statement Exh. P.D. of the complainant, and sent, the same to the Police Station for formal registration of the case where F.I.R. Exh. PD/1 was prepared by Moharrar HC Muhammad Iqbal PW5. The motive for the alleged occurrence was that. Mohabbat and one Liaqat Ali were carrying on illicit liaison with two sisters of Ahmad Ali accused who was living in the same Ihata, where Muhammad Mansha was putting up alongwith his family. The complainant and the deceased had objected to the visit of the accused which had estranged the relations of the parties, in consequence whereof Mohabbat and Ahmad Ali had fired at Muhammad Mansha deceased and a case of attempt to commit, the murder was registered against them. Mohabbat was, however, allowed bail by the learned Additional Sessions Judge, but Muhammad Mansha deceased had moved for its cancellation. 6. SI Inayat Ali resumed the investigation at the spot. He prepared the injury statement Exh. P.H., inquest, report Exh. PH/1 of the dead body of Muhammad Mansha deceased and secured the blood stained earth vide memo Exh. PE. The dead body was then sent for post mortem examination under the excort of FC MuhammadRafiq PW. 2. The investigation was then taken ove'r by SI Mukhtar Ali PW. 11 who arrested Iqbal accused on 12.7.1988 and got recovered the blood stained Toka Exh. P. 5 at his instance from his Dhari on 17.7.1988 which was sealed into parcel and taken into possession vide memo Exh. P.F. The Toka Exh. P. 5 was then sent to the Chemical Examiner through FC Muhammad Latif PW3 for analysis whereform positive reports Exh. P.I & P.J. of the Chemical Examiner and Exh. P.K & P.L. from Serologist were received. On 2.6.1988 IO/SI Inayat Ali got prepared the site plan of the place of occurrence in duplicate Ex. PA, PA/1 from Draftsman Aurangzeb PW.l. and after the completion of the investigation all the three accused were challaned to Court to face their trial. 7. On 14.6.1988 at 12.30 p.m. (noon) Dr. Muhammad Akram P.W. 4 conducted post mortem examination and found the following injury on the dead body of Muhammad Mansha deceased :-- An incised wound measuring 10 x 6 cm on left side of neck. The underneath bone was also cut. External and internal jugular veins and carotid parly of left side were cut. The first and second cubical vertibrae were cut. All the remaining organs were healthy. On opening the abdomen the stomach was found healthy and it was half filled with food. The small intestine was empty. Urinary bladder was full of urine. Death in his opinion was due to injury described above which caused haemorrhage and shock leading towards the death. The injury was antemoitem and was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injury and death was about 10 to 15 minutes and between death and post-mortem was about 6 hours. After the post mortem examination Latif Muhammad Akram PW4 handed over the Chaddar and Patka to the constable. Me also handed over the original papers and P.M.R. No. 26/88 to the said constable. Exh. PC was the correct carbon copy of the post-mortem report, which was in his hand and bear his signatures. Exh. PC/1 was the of the injury which was also in his hand and signed by him. 8. To substantiate its version at the trial the prosecution examined as many as 11 witnesses. Sakhawat PW. 8 and Basarey Khan PW. 9 furnished the ocular account and have also deposed about, the recovery of the alleged weapon of offence from Iqbal appellant. Dr. Muhammad Akram PW. 4 furnished the medical evidence as he had conducted, the post-mortem examination on the dead body of the deceased. Aurangzeb Draftsman PW.l had prepared the site plan Exh. PA and Exh. PA/1 in duplicate while SI Mukhlar Ali appeared as PW. 11 who deposed about the arrest of Iqbal accused and recovery of weapon of offence at his instance. He also gave the secondary evidence and proved the documents prepared by SI Inayat Ali, since dead, by stating that he had been working with him and was fully conversant with his hand-writing and signatures. The rest of the evidence was of formal in nature. The prosecution also tendered in evidence the reports of the Chemical Examiner Exh. P.I. and P.J. and the Serologist Exh. P.K. & P.L. 9. In their statements under Section 342 Cr.P.C. the appellant as well as his co-accused had denied the prosecution case and had attributed their involvement in the case due to enmity. The appellant as well as his coaccused neither appeared as witnesses of their own nor have produced any D.W. in their defence. Iqbal appellant, however, tendered in defence copy of Jamabandi of Chak No. 273 GB Tehsil Jaranwala Exh. D.A., copy of Khasra Gardawari of Chak No. 273 G.B. Exh. D.B., Copy of Zari Jainabundi of Chak No. 273 GB Exh. D.C., copy of Jamitbandi Ahadi of chak No. 2773 GB Exh. D.D. Copy of order cancelling the bail dated 23-7-1988 Exh. D.E. and had closed his defence evidence. 10. On the basis of the above said evidence learned trial Judge convicted and sentenced the appellant as stated above and acquitted the two co-accused by giving them the benefit of the doubt. 11. Learned counsel for the appellant has vehemently argued that there was a delay of three hours in lodging the FIR; which has not been reasonably explained by the prosecution; that the said inordinate delay had been caused due to the fact, that the occurrence had gone un-witnessed, and the matter was reported after procuring the presence of Sakhawat PW8 and Basaray Khan PW9 from Chak No. 27,'5/GB; that, the said two eye witnesses being brother and cousin of Mansha deceased were interested witnesses and they were closely related to the deceased and were inimical towards the accused; that. Basarey Khan PW. 9 was a chance witness as well, as he was resident of Chak No. 273/GB situate at a distance of about 15/lfi miles away from the place of occurrence and he had no specific purpose to visit the spot a day earlier to the occurrence; as such, his statement' was to be- scrutinized cautiously before placing reliance on it; that the version put forth by the above said two witnesses stand belied by the learned trial court as two coaccused of the appellant have been acquitted by the said court by giving them the benefit of doubt; that the same tainted evidence was believed by the learned trial court to convict the appellant without, seeking any other corroboratory piece of evidence, which was against the interest of justice; that the ocular evidence furnished by the two eye witnesses, being in conflict, with the medical evidence, the same was nor worth reliance; that the alleged recovery of Toka P. 5, the weapon of offence, cannot he considered as a corroboratory piece of evidence to convict, the appellant, as the same.was also effected in the presence of above said two interested eye witnesses. Reliance in this aspect was placed on Irshad c.tc. us. The State (1982 P.Cr.L.J. 1204); that the motive of the occurrence was also dis-believed by the learned trial court, as the two co-accused of the appellant were acquitted from the charge alleged against them; that the appellant had no previous enmity with the deceased nor any motive was attributed to him by the prosecution. Learned counsel further contended that, the appellant had allegedly given a single Toka blow on the person of the deceased and has not repeated it, although he had an opportunity to do the same, therefore, it would be at the most a case of culpable homicide not amounting to murder and the offence would fall in the purview of Section 304 Part II PPC. Reliance in this respect was placed on Ijaz AH alias Jajji vs. The State (1991 P.Cr.L.J. 2233). Lastly it was submitted that the appellant was not, allowed the benefit of Section 382-B Cr.P.C. by the learned trial court which was required by law to have been awarded to the appellant as a matter of right, 12. Learned counsel for the State on the other hand !uu< strenuously defends the impugned judgment by submitting that the FIR Ex. PD/1 was prompt in the given circumstances of the case; that the appellant was named in the said FIR and was attributed the major role of infliction of a Toka blow on the person of the deceased, which was un-armed and was sleeping in his Iliata; that, the two eye witnesses produced by the prosecution namely Sakhawat PW. 8 and Basarey Khan PW. 9 were also named in this promptly lodged FIR and their testimony stand corroborated by the recoveiy of blood stained Toka P. 5, the weapon of offence, which has not been seriously challenged by the defence; that the said two eye witnesses were not interested witnesses as they had no enmity with Iqbal appellant, although they were close relative of Mansha deceased. According to the learned Stale counsel Busarey Khan PW. 9 was on a normal visit to see his relatives a day earlier to the occurrence and was sleeping in the Ihata alongwith Sakhawat PW and Mansha deceased when the occurrence had taken place, as such he cannot be dubbed «;s a chance witness. He further contended that the appellant had inflicted a fatal Toka blow on a sleeping person who was un­ armed, therefore, the offence committed by the appellant would be culpable homicide amounting in murder, punishable under Section 302 PPC. According to the learned counsel Section 304 Part I or II P.P.C. would have been attracted only, if t.ht v e would have been a flight or exchange of abuses and hot words between t.h » accused appellant and the deceased prior to the infliction of Toka blow. Rel had clearly admitted that, the deceased had taken his meals at Marghrab prayer time aid had gone to sleep. According to the learned counsel this fact alone was Min'icienl to discard the testimony of the eye witnesses who had categorically !aU>d (hat the occurrence had taken place at. 3 a.m. in the morning. This inconsistency/controversy although veiy material yet it. could conveniently in K'-nlved by saying that, the contents of (.he stomach cannot be made the r.-i-N fur coming to any conclusion regarding the time of death, as the diL'estive system varies from person to person by the quality and quantify of t»"d which was taken by the deceased, but all these factors were dormant in fin- case as the same was not, enquired from the PWs. Moreover, digestive -v-lein of a sleeping person would work slow as compared to an awakened _md active person. Therefore, it cannot, he said thai the stut.emeiil of Sakhawat PW was in conflict with the medical evidence as he had clearly slated in his statement that after taking his evening meals the deceased bad gone to sleep. It may be for this reasons that the stomach of the deceased was fonnd to have been half filled with food at the time of occurrence. 20. Learned counsel for the appellant in the alternate had laid a great emphasis on the point that the appellant who had no motive, ill-will or any previoxis enmity with the deceased had been attributed a solitary blow on the person of the deceased and the same was not repeated although he had an opportunity to do the same, as such his case would fall within the purview of section 304 Part II PPC, as per observation made in case of Ijaz Ali alias Jqjji vs. The. State (supra) which was on all fours with the facts and circumstances of this case. It was, therefore, prayed that the offence be converted to section 304 Part II PPC and the appellant be sentenced to undergo RI for the period already underdone by him. I have given my anxious consideration to the submission made by the learned counsel and have also gone through the case law cited at the Bar. I do not feel any hesitation to observe that the case law cited by the defence was not applicable to the facts of the case in hand as the appellant had been attributed a solitary Toka blow on the neck of the deceased who was unarmed and was sleeping. There is nothing on record to suggest, that there was any fight or exchange of hot words between the appellant and the deceased prior to the infliction of the said injury which is shi-qua-non for attracting the provision of Sec. 304 PPC. It would be relevant to quote at this stage the observation of the Supreme Court in case of Qurhun Ali us. Slicroo Muchhi and another (1991 SCMR 2339) in which the judgment of the High Court, converting the offence from Section 302 to 304 Part, II PPC- was reversed by observing, "We are unable to appreciate as to how without recording any finding that the case of the respondent fell under one of the exceptions prescribed by Section 300 PPC, it could be held that the offence committed fell within Part II of Sec. 304 PPC. We cannot agree.that merely because the culprit choose to inflict just one injury to the deceased which proved fatal and did not inflict further injuiy, for the reasons best known to him or may be in order to escape from the scene which was on a public mad, it, can be held that he had no intention to cause death of the deceased or to cause such bodily injuiy with the knowledge that it was likely to cause death or sufficient in the ordinary course of nature to cause death of the deceased." Having been fortified by the said observation, I am of the view that the appellant, who was armed with Toka P. 5 had given a fatal blow on the neck of the deceased which was sufficient, in the ordinaiy course of nature to cause death, had the intention to commit the murder of the deceased as he has chosen such a vulnerable part of the body, us such his case would squarely fall within the ambit, of clauses 3rdly and 4thly of Section 300 PPC and be would be liable to be convicted and sentenced under Section 302 PPC. Tin- absence of the motive and previous enmity of the appellant, with the deceased has already been considered as an extenuating circumstance by the it-ji ned rnal Court for awarding lesser punishment of life imprisonment to the appellant. Hence no case for interference by this Court is made out. 21. The upshot of the above discussion is that the prosecution has pi ived its case against the appellant beyond any shadow of doubt. Therefore, the appeal merits dismissal, which is accordingly dismissed. The line imposed by the learned trial Court and sentence in default thereof and direct ion cif payment, of fine to the legal heirs of the deceased are maintained. Thf appellant, shall, however, be entitled to the benefit of Section 382-B Cr.P.C. iK.A.H.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. (Queita) 531 (DB) f'resent : IFTIKHAR MUHAMMAD CHAIIDHARY AND RAJA FAYYAZ AHMED, J J. • STATE-Petitioner versus ABDUL QADIR-Respondent Oil Appeals No. 15 and 245 of 1997 decided on 30-10-1997. Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975)-- —-Ss. 2, 3, 5, 6 and 7-Criminal Procedure ('ode, 1898 Ss. 9, 31, 173, 249-A, 265-K and 374—Murder—Offence of—Conviction for—Appeal against-- Whether special court functioning under Act-XV of 1975, can competently send reference to High Court, for confirmation an or nlherwise of death sentence, in terms of Section 374 ('r.P.C.-Question -K 381 and 382-B Gr.P.G. shall remain available to accused Moreover, if convict, submits an appeal against sentence to High Court, that would be disposed of in accordance with law-Appeal filed by convict accepted because permission accorded to parties to compound offence. [Pp. 533, 535, 536, 537, 538, 539 & 540) A to L PLI) 1957 SG, India 381, PLD 1990 Kar 250, AIR 1965 SC 202, PLD 1996 SC 168 rcf. Mr. Muhammad Aslam Chishti, Advocate for Appellant. Mr, Noor Muhammad Arhakzai, Acldl. A.CJ. for State. Dates of hearing : 6-10-1997 and 21-10-1997. judgment Iftikhar Muhammad Chaudhaiy, J.--By this judgment we intend to dispose of Murder Reference No. 15/1997 received front Special .Judge Suppression of Terrorist Activities Kalat at Mastuug, whereby Abdul Qadir son of Muhammad Ibrahim has been convicted and sentenced under Section 302 PPG to death as well as Criminal Appeal No. 245/1997, filed by convict challenging his conviction/sentence awarded to him by the Special Court, vide judgment dated 13th September, 1997. Facts of the prosecution case are that on Kith October, 1994 at the time of 'maghrib' prayer deceases! Gu! Muhammad and acquitted accused Khuda Rakhsh quarrelled with each other. Subsequently convict Abdul Qadir, opened lire upon hirn with kalashinkove at Jewa which resulted in his death. Accordingly PW-Abdul Relunan reported the matter to Naih Trliftildur Sorab who registered a ease vide FIR Ex. P/5-A on 3rd October, 1994 at 10.50 a.m. Investigation of the case was commenced by PW-Syed Jumal Shah, as such he alongwith Doctor proceeded to place of incident, from where he took into possession lour empties of kalashinkove, in presence of witnesses vide Recovery Memo Ex. P/3-A. It may be noted that at the time when Naib Tclisildar alougwith the Doctor readied at the spot, dead body of deceased (Jul Muhammad had already been hurried. Therefore, it was not examined. Reportedly convict Abdui Qadir could not be arrested as he absconded towards Larkana from where, he was arrested through SI K), I'.S. Nasirabad, District Larkana and was brought, to Sorab on 7th February, 1995. On completion of investigations, appellant alongwith co-accused Khuda Hakhsli was sent up to answer the charge before the Special Court, STA, constituted under the Suppression of Terrorist. Activities (Special Courts) Act. 1975 (hereinafter referred to as The Act of 1975'). Convict did not plead guilty and claimed trial. It may be noted that co-accused Khuda Bakhsh, brother of convict, could not be arrested. ihcietiire. trial court decided to proceed against, him in absentia under -cLiion . r i-A(4) of the Act of 1975. Prosecution to prove the charge, led evidence of PWs Slier Muhammad, Muhammad, Alain, Muhammad Anwar, M.sV. Zainah, Abdul Relnnun and Syed Jamal Shah. The statement of convict under section 342 Cr. P.C. as well as on oath under section 340(2) Cr.P.C. were recorded, in which, he denied the prosecution case. Two witnesses namely Din Muhammad and Kamisa alias Piara were produced by him in defence as DVVs 1 and 2. Learned Special Court, on completion of trial, found the convict, guilty under section 302 PPC and awarded him death penalty, subject to confirmation by this Court, vide impugned Judgment dated 13th September, 1997. The appellant had also challenged the conviction by filing separate appeal. Mr. Aslam Chishti, learned Counsel, appeared on behalf of convictappellant, whereas Mr. Noor Muhammad Achakzai, learned Additional Advocate General, represented the State. It is to be noted that learned Special Court, constituted under the Act, of 1975, functioning at different Session divisions, had sent. Reference for confirmation or otherwise, of the death sentences, awarded to the convicts. In most of those matters, major penalty was awarded to the culprits in absentia. During hearing of those cases, question cropped up for consideration; whether the Special Court functioning under the Act,-XV of 1975, can competently send Reference to the High Court for confirmation or otherwise of death sentence, in terms of section 374 Cr.P.C/. 7 when we admitted the instant Reference, it was deemed proper to dilate upon this aspect of the case thoroughly, because Mr. Aslam Chishti, learned Senior Counsel appearing on behalf of the accused was of the view that, it is mandatory for Special Court, where it awards death sentence to accused, to foi-ward reference to the high court for confirmation of such sentence as remiired under section 374 Cr.P.C. Mr. Aslam Chishti, learned counsel to elaborate his point convussed that the provisions of Code of Criminal Procedure are applicable to the trial of offence by Special Court mutatis mutandis save to the extent of inconsistency and to substantiate his contention, the learned counsel made reference to Section 6 and 9 of Code of Criminal Procedure Code, Section f? thereof defines various classes of criminal courts, including the court of Session, whereas; Section 9 deals in respect of establishment, of Court, of Session for eveiy Session Division by Provincial Government and to appoint a Judge for such court; with powers to try offences and to award sentences to accused for the offence to which he/they are found guilty and cognizable by such Sessions Court. Accordingly the learned counsel submitted that under section (i of Act XV of 1975 a Special Court may pass any sentence against accused and authorised by law and the Special Court shall have all the powers as are conferred and exercisable by a court of Session exercising original Jurisdiction and as such according to Mr. M.A. Chishti for awarding sentence by Special Court in exercise of its powers under section 6 of Act XV of 1975 would be the same as a Sessions Judge could exercise while passing a sentence. Thus attending to the crucial issue, he in order to further supplement his contention, made reference to the provisions of sub-section (2) of Section 31 of the Code of Criminal Procedure whereby a Sessions Judge or Additional Sessions is competent to pass any sentence authorised by law provided that any sentence of death passed by any such Judge, shall he subject to confirmation by the High Court and therefore, the learned counsel emphasised that notwithstanding to the provisions of Sec. 5-A of the Act-XV of 1975 about the competence of Special Court to regulate its own procedure, any sentence of death passed by Special Court shall be equally subject to confirmation by the High Court, as if passed by a Sessions Judge or Additional Session's Judge, as provided U/S. 374 of the Code of Criminal Procedure. For sake of convenience the Code of Criminal Procedure and Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) hereinafter would be referred as Code and Act, respectively. Lastly, the learned counsel contended that if it is held by the court that death sentence passed by Special Court is not required to be confirmed by the High Court, it. would amount to exclude impliedly the procedural and other remedial provisions of the Code; including the one by which the accused gets benefit of Section 382-B of the Code stands extended. The learned amicus curiar Raja M. Afsar strively submitted that, penalty of death passed by a Special Court under the Act does not require confirmation by the High Court under Section 374 of Cr.P.C. because Act-XV of 1975 was primarily enacted by the Legislature to curb the acts of sabotage, subversion and terrorism and to provide speedy trial of offences committed in furtherance of or in connection with such acts. According to the learned aniicus curiac., such objective and intent, of the Legislature is manifest and reflects from the preamble and from the peculiar provisions of the Act itself which being a special law in its context, nature of its letter and spirt, entails its own peculiar distinctive procedure for trial of scheduled offences and awarding of sentences. To elaborate and advance his argument, he made reference to Section 5 of the ('ode (Cr.P.C..) which deals with two categories of offences. Its sub-section (1) deals with trial of offences under Pakistan Penal Code, which provides that all offences under Pakistan Penal (/ode shall be investigated, inquired into, tried and otherwise to be dealt with according to the provisions hereinafter contained. Whereas; its sub-section (2) deals with the trial of offences against other laws, according to which, all offences under any other law shall be investigated, inquired into, tried and otherwise to be dealt with according to the provisions of the Code but. subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences. He further contended that the offences described in the schedule to the Act, inclusive of Section 302 PPC if committed with, prohibited automatic Hi >emi-automatic weapon, such as Klashinkov, G-3 Rifle shall be deemed to ho sdioduled offence and exclusively triable under Act XV of 197. r ), and therefore. Special Court constituted under Section 3 U)(b) of Act XV of 197. r

will exercise powers under Section 6 of the Act and as far as the exercise of power of Session Judge are concerned do not withstand to the fact, whether the Special Court is presided over by the sitting Judge of the High Court, retired Judge of High Court or an Advocate who can be appointed as Judge of f ligh Court or headed by the Sessions Judge or Additional Sessions Judge. According to the learned counsel, the powers of Sessions Judge under the Code of Criminal Procedure have been defined by Section 31(2) which provides that a Session Judge or Addl: Session Judge may pass any sentence authorised by law; but sentence of death passed by any such Judge shall be subject to confirmation by High Court and the later part of this sub-section, according to the learned counsel would not be applicable to special court otherwise the Legislature had no prohibition to provide that the sentence of death passed by a Special Court shall be subject to confirmation by High Court. To further emphasize the proposition yet from an other angle; according to learned amicus curiac., the reference for confirmation of death .sentence under section 374 Cr.P.C. is required to be submitted before High Court but if the Presiding Officer of Special Court happens to be Judge of High Court; the question would be to whom such reference to be submitted, so l.o avoid such anomalous situation, the confirmation of death sentence passed by Special Court has not been made subject to confirmation by High Court. Mr. Noor Muhammad Achakzai, learned Addl: A.(J. contended that no confirmation, of death sentence passed by Special Court, is required to be done by High Court because it would frustrate instead to advance the object, of the Act XV of 1975 for speedy disposal of the cases in respect of the scheduled offences. According to him if the procedure in respect of confirmation of death sentence provided in Section 374 Cr.P.C. to he followed, would render the object of Special Law as redundant and superfluous. He placed reliance on PLD 1957 SC (India) 381, AIR 1962 SC 1239 and AIR 1965 SC 202. We have heard the learned counsel for the parties and the learned (iniicufi curiac at length and perused the relevant provisions of the Act. (Act XV, 1975) objectively with reference to its context and considered to explore the aim and object of enacting the law, as well as the scope in respect of offences which can be tried by Special Court to meet with the expediency for which Act XV of 1975 has been enacted. Preamble of the Act manifestly lays emphasis for enacting the Special Provisions to be expedient for the purposes of suppressing acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with .such acts. Sub-S. 2(b) of the Acts defines schedule offences i.e. offences specified in the schedule to the Act, which contain and enumerate a number of offences of PPC, Arms Act, Pakistan Arms Ordinance 1965 Explosive Substances Act, Railways Act, Telegraph Act etc. On perusal of the schedule it can he conveniently inferred that Special Court were not. established only to t,ry the offences of PPG hut also the other offences falling under different laws referred to in the schedule to the Act. It is substantially important to note that sub-section (1) of Section 3 of the Act, 1975 empowers Federal Government to establish/constitute special courts by notification, consisting of a person who has been or is qualified for appointment as Judge of High Court or is lor a period of not less than three years exercised, whether continuously or not, the powers under the Code (Cr.P.C) of a Sessions .Judge or an Additional Sessions Judge. The plain and analytical approach to this provision of the Act, makes it abundantly clear that besides Sessions Judge or Additional Sessions Judge, a person who has been or is qualified for appointment as Judge of High Court, can be appointed as Presiding Officer of Special Court. Similarly any judicial officer having experience of not less than three years, either as a Sessions Judge or Additional Sessions Judge can be appointed as Presiding Officer of the Special Court,. Section 5 of the Act XV of 1975 provides the procedure of taking cognizance of offence which varies to the procedure provided in section 190 Cr.P.C. for taking cognizance of offence. Under the Special procedure of the Act in terms of Section 5, the Officer incharge of Police Station after completion of investigation of the case has directly to forward challan to Special Court, in respect, of any schedule offence, under section 173 Cr.P.C. within 14 days in as much as; a Special Court, can directly take cognizance of a scheduled offence and without such case being sent to it under Section 190 Cr.P.C. The Special mode of taking cognizance was deliberately and purposely intrortncted, in order to ensure speedy disposal of cases triable under the Act. Likewise section (5-A) makes it obligatory for the Presiding Officer of Special Court to proceed with the trial of the case day to day and to decide the case speedily, without adjourning the proceedings for any purpose, unless such adjournment is in its opinion necessary in the interest of justice which shall not be for more than two days. Sub-section (4) of Section 5 of the Act authorities the Presiding Officers of such court to hold trial of accused in uhscntui as well, by appointing an Advocate on behalf of the accused and in such case if conviction has been recorded a right has been given to the accused to question before the same court, within sixty days from the date of passing of the order, if the appears himself voluntarily or apprehended and brought before the Special Court, and he satisfies it, that his absence was not intentional, the Special Court, itself shall set aside the conviction and proceed to try him for the offence, for which, he is charged; and such is an additional facility provided to accused who has been convicted by Special Court in absentia, with exceptional powers conferred on the court, to set. aside such findings and conviction recorded by it. It is to be observed that different, provisions embodied in this section are meant to promote and advance the object of the law for which it was enacted. It is pertinent to note that no such procedure has been introduced in the code for the disposal of criminal cases. As far as section 6(1) of the Act is concerned, it deals with powers of Special Court, in respect of passing of sentences authorised by law; provisions whereof appear to have been borrowed from sub-section (2) Section ,'{1 of the ('ode. Comparison of the words employed in both these provisions clearly suggest that in the former provision, special court is empowered and invested with all the authority and competence to pass any sentence authorised by law and shall have the same powers'conferred by the Code on a Court of Session exercising original jurisdiction whereas; by virtue of later provision, Sessions Judge or Addl: Session Judge, may pass any sentence authorised by law, but any sentence of death passed by any such Judge, shall be subject to confirmation by the High Court. As far as latter provision relating to confirmation of death sentence is concerned, those have been intentionally omitted from the former provision, because for instance, if special court is presided over by a Judge of the High Court; who obviously being not a Session Judge would not. make reference for confirmation of death sentence to its own High Court, and if such reference for confirmal.ion of death sentence is sent to High Court; it would be against the let.ter and spirit of Section .'574 of the Code, as well as amount to defeating the object, of the Act and its provisions relating to the speedy trial of offences. It may be noted that the object of making reference to High Court, for confirmal.ion of dealh sentence under Section 374 Cr.P.C. is not aimless but. mount for re­ appraisal and re-assessment, of entire facts of the case in the light of t.he law, so as the High Court should satisfy itself about the quilt or innocence of l.he accused persons, as it has been held in Jumari and othe.ru vn. The State of Punjab (PLD 1957 SC. India 381) Similarly in AIR 1965-SC 202, the Hon'ble Supreme Court of India held that in a murder trial, when an accused person stands charged with the commission of offence, punishable under section .'!02, he stands the risk of being subjected to the highest: penalty, prescribed by Indian Penal Code and naturally judicial approach in dealing with such cases is to be cautious, circumvent and careful. In dealing with such offences or Reference proceedings, where the question of Death sentence is involved, l.he High Court, has to deal with the matter carefully and to examine all relevant and material facts and circumstances before upholding l.he conviction and confirming the sentence of death. In view of these two principles, it is to he examined; whether the enactment, (Act XV of 1975) has provided all safeguard to an accused who is charged for any of the offences lalliug within the mischief of schedule, including Section 302 PPC, t.he Special Court, would apply all care and caution to ensure that major penalty d| death awarded to accused is strictly in accordance with t.he settled principles of criminal administration of justice based upon (.lie material available on record and not for any other extraneous or arbitrary consideration or reason. Answer to this question can be conveniently found in t.he enactment itself which has prescribed the qualification for appointment of Presiding Officer of Special Court, under section 3, wherein it. has been provided that he has been or is qualified for appointment, as Judge of High Court or has experience of not less than three years at bis credit of having exercised the powers of Sessions Judge or Addl: Sessions Judge and such provision is meant, to ensure that. Sessions Judge or Additional Sessions .Fudge to be appointed as Presiding Officer of the Special Court, is an experienced person in the field. Therefore, he would he competent enough in disposing the matters not only speedily hut with due care and caution, otherwise the law could have declared that any Sessions Judge or Addl: Sessions Judge to be eligible to such appointment, without the condition of prescribed tenure about exercise of powers. As far as the procedural and remedial provisions of the Code are concerned, including the acquittal of accused at any stage of the proceedings under Section 249-A, or 265-K or execution of sentence under section 381 Cr.P.C. as well as the extention of benefit to accused of the period for which he remained in custody as under trial prisoner is concerned, those provisions shall remain available to accused under Section 382-B Cr.P.C 1 .., even if lie is tried by Special Court, because in the interest of justice the principles of Code of Criminal Procedure would remain conveniently operative but as regards sending of reference to High Court by Special Court is concerned where Death Sentence has been awarded to accused by such court; would not be permissable in view of the object and purpose for which Act XV of 1959 was enacted and the scheme of the law itself provides that the Special Court, has to adopt special procedure to ensure that the offences falling within the perview of the schedule to the Act; are required to be disposed of expeditiously. As above discussed preamble of the statute is its prefatory statement following the title and precedes the enacting clauses; thereby declaring the reasons or motives for and the object sought to be achieved by the enactment of the statute. Patently and by any stretch of judicial interpretation of stiit.utes; Special enactment cannot be equated to a General Law on the subject, which obviously does not, deal with a particular subject, as is embraced in its folds by a special law under its own substantive, regulatory J and procedural provisions. Special statute inherently by its provisions is a departure and contrast to a general law containing provisions relating to such subject; for which a special statute is made operative; the veiy objective of enforcing a Special Law is to by pass the provisions of general law and it, is on account of such express legislative intent that general law always lean favourably to special law except to the unpermissable extent under .the provisions of such statute and save to the extent of applicability of remedial or beneficial provisions of general law and not inconsistent to the provisions of special law. At this juncture, it may also be noted that, a Criminal Court, constituted under sections 6 and 9 of the Code of Criminal Procedure, if is ceased with a case which entails punishment for Death, makes reference to the High Court, under section 374 Cr.P.C. for purpose of confirmation of Death Sentence, because said Court is subordinate to the High Court, hut a Special Court, under the Act of 1975, being not sub-ordinat.e to High Court, is not, bound to make reference. This aspect, of the case can also he viewed from another angle i.e. if an order has been passed by the Special Court; whether t hat is revisable by High Court under section 439 Cr.P.C. or under Article 20;5 of Constitutional of Islamic Republic of Pakistan ? Answer to this proposition necessarily would be that as Special Court is not subordinate to High Court, therefore, no order passed by it. is revisable under section 439 Cr.P.C. In forming this view we are relying on the Judgement reported in Muhammad Ibrahim vs. The State (PLD 1990 Karachi 250) and Abdul Khaliquf vs. The State (p-448 same volume). The principle discussed in the last mentioned authority has been approved by Hon'ble Supreme Court in the case of Sheikh Rashid Ahmad vs. The State (PLD 199fi SC 168). In this very context reference to the judgment delivered in the case of Ifabib Hunk Limited vs. The State, and 6 others (PLD 1988 Karachi 49) would also not be out of place, because in this report, concerning to the Orders passed by a Special Court, constitiited under the Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), the Division Bench of Karachi High Court, on the same analogy examined that notwithstanding the fact that a special court was to follow procedure prescribed by Criminal Procedure ('ode for I rial of cases by Magistrate in matters with respect to which, no procedure has been prescribed by Ordinance of 1984, or fact that appeal was provided to High Court in terms of subsection (1) of section 10 of the Ordinance of 19H4. but the subordinate court would not be an inferior court to the High Court for purpose of section 435 or 439 Cr.P.C. Thus for the foregoing reasons, we are inclined to hold that, on awarding of Death sentence by the Special Court, constituted under the Act. of 197fi, no reference for the purpose of confirmation of the sentence, shall be competent before the High Court, in accordance with the provision of section ,574 Cr.P.C. However, if convict submits an appeal against the sentence to High Court, within the prescribed limitation, that would be disposed of, in accordance with law. Now turning towards the merits of case. After hearing of appeal as well as the Reference, we reserved the Judgement and before it could be announced on 17th October, 1997, Mr. Aslam Chishti, learned counsel for convict Abdul Qadir, submitted an application alongwith compromise, which has been effected between the parties. Request was made by him to accord permission to compound the offence and thereby acquitting the convict, of I he charge. To ascertain the contents of compromise, legal heirs of deceased Gul Muhammad were directed to be produced in Court. In pursuance of our order, Mst. Zainab widow of deceased and Messrs Yar Muhammad and Faiz Muhammad, brothers of deceased appeared in court and stated that besides them, deceased is not survived by any other legal heirs and they also testified to the contents of compromise. Their statements were duly recorded on Oath. On recording of statements, we are satisfied that the legal heirs of deceased, named herein-above have entered into compromise with the convict, in accordance with law, therefore, permission is accorded to compound the offence. Consequently, conviction/sentence of Death awarded to Abdul Qadir son of Muhammad Ibraheem under Section 302 PPC by Sessions Judge, Kalat at Mastung, vide, judgment dated 13th September, 1997 is set aside. He bet set at. liberty, if not required in any other case. In view of the reasons and discussion made hereinabove it is held that reference under Section 374 Cr.P.C. will not be competent, before High Court if the sentence of death has been awarded by the Special Court . As far as appeal filed by the convict Abdul Qaclir is concerned it is accepted because permission has been accorded to parties to compound the offence. Before parting with the judgment, we would like to place our thanks on record for Raja M. Afsar Senior Advocate who has assisted us to the best of his abilities in the instant case. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 540 Present: dr. khalid ranjha, J. MANZOOR HUSSAIN-Petitioner versus STATE-Respondent CM. Revision No. 335 of 1997, accepted on 25-11-1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 439, 249-A, 265-K, 369 & 403-Pakistan Penal (-ode Ss. 420/468/471/218/34-Constitution of Pakistan, 1973, Art. 13-Acquittal of petitioner u/s 249-A read with S. 265-K Cr.P.C. by trial Court-High Court in a criminal Revision declared said judge (trial Court,) as to be disqualified to be a special Judge Anti-Corruption-New special judge recalled petitioners acquittal order—Application for withdrawal of order for fresh trial—Rejection of—Revision against—No appeal or revision was filed against acquittal order of petitioner-It, had thus become final and constitutional protection against prosecution over again was fully attracted-Unless his acquittal was set aside by a higher forum, issuance of process for re-trial by same court offended against petitioner's right of immunity from double prosecution or punishment—High Court judgment in criminal revision for disqualification of special judge was at best a finding in collateral proceedings and thus had no binding legal authority about it-In absence of a direct attack on a person's right to hold an office, their acts should not be invalidated merely because they could have be disqualified from continuing as holders of such office-Trial Court, while passing impugned order failed to note that High Court's judgment had hearing on cases pending and not those already decided-Once a court passes an order of acquittal or conviction, it becomes fitnctnN of'ficio qua accused-Held, issuance of process for retrial of petitioner was hit by section 369 Cr.P.C. also and was unwarranted in law-Impugned order declared without lawful authority and set aside—Petition accepted. [Pp. 543, 544, 548, 549 & 550] A, B, I) to (I PLD 1993 SO 247, PLD 1996 SC 324, PLD 1970 SO 98 rcf. (ii) Words and Phrases— — •l)c facto doctriiic-A judge or a member of a Tribunal, who holds office under colour of lawful authority and not as a mere intruder or usurper, (hough his appointment may be defective is a de-facto judge—His judgments, orders, actions have same effect as of a judge dejurc and same are saved by de facto doctrine as a matter of necessity and of public policy in order to avert chaos and confusion." [P. 545| O PLD 1990 Kar. 362, 375, AIR 1981 SO 1473, PLD 1970 SC! 98 rcf. Syrd Kalcc.ni Ahmed Khurshe.e.d, Advocate for Petitioner. Nuvecd Rasul Mirza, AAG for State. Date of hearing : 25-11-1997. judgment This Crl. Revision is directed essentially against an order dated 17.1 1.1996 whereby learned Special Judge Anti Corruption, Lahore recalled petitioners acquittal order dated 2.7.1995 passed in his favour by Syed Ijaz Hussain Rizvi, the then Special Judge Anti-Corruption, Lahore. 2. The brief facts are that the petitioner is a Patwuri. He alongwith others was facting trail u/S. 420/468/471/218/34 PPC read with section 5(2) POA 1947. The charge against them was that acting in collusion with each other, they had forged an allotment order and attested mutation No. 15687 in favour of fictitious persons. As for the petitioner, he was arraigned for having entered the alleged bogus mutation by using bis office as Patwari. 3. After the recording of the evidence of some of the witnesses an application was submitted u/S. 249-A/265-K Cr.P.C!. on behalf of the petitioner and one Munawar AH Shah seeking therein that, the charge i/iki them was groundless and even if the entire evidence were to be recorded, I here was no possibility of the case being established against, them. 4. The then learned Special Judge Anti-Corruption Lahore (Syed Ija/. Hussain Rizvi) vide, his order dated 2.7.1995 dismissed the above application vis-a-vis Munawar Ali Shah. However, as for petitioner the learned .Judge held that there being no incriminating material available on the record against him, recording of further evidence would not in any manner advance the prosecution case against him. Petitioner was, thus acquitted u/S. 249-A Cr.P.C. without prejudice to the trial of the co-accused. 5. While sitting in revision over a certain interim order passed by Syed Ijaz Hussain Rizvi on 1.10.1995 held that all the proceedings before the said Judge (Syed Ijaz Hussain Rizvi) were without lawful authority as he was not duly qualified to hold the office of Special Judge Anti-Corruption. The roceedings in that case were thus ordered to be held afresh. Muhammad Riaz us. State (Crl. R. No. 215/95). Treating the above order of the High Court as a judgment in rent, the incumbent Special Judge, reckoned that petitioners acquittal order dated 2.7.1995, was also without lawful authority in view of the High Court order dated 1.10.1995. He, thus, issued process against, the petitioner on 17.12.1996, to face his trial afresh, regardless that he had been acquitted on 2.7.1995 much before the above judgment of the High Court. . The petitioner made an application to the learned trial court seeking withdrawal of the ahove order for fresh trial, on the ground that he had been acquitted by his predecessor (Syed Ijaz Hussain Rizvi) on 2.7.1995. His acquittal had not been challenged by way of an appeal or revision. The same, as such, had attained finality and in no way could be styled as a pending matter. Recalling the order of his acquittal was also not permissible in view of the provisions of section 369 Cr.P.C. The learned Special Judge rejected petitioner's application on 10.10.1997 holding that as the Lahore High Court, through its judgment dated 1.10.1995 in Crl. Revision No. 215/95 had held that Syed Ijaz Hussain Rizvi suffered from a disqualification in the matter of his appointment as Special Judge Anti-Corruption; "all proceedings conducted by him in criminal cases pending before him were without lawful jurisdiction". Basing his order on the findings of the High Court, the learned Special Judge observed that, as the "very appointment" of the Presiding Officer, Syed Ijaz Hussain Rizvi, "was illegal then all orders and judgments passed by him were also illegal and those orders and judgments" were, in no way protected by section 369 Cr.P.C. 7. This revision is directed against both orders dated 17.11.1996 as well as order dated 10.10.1997 passed by the learned Special Judge, Auti Corruption, Lahore. 8. Syed Muhammad Kaleem Ahmed Khurshid, Advocate learned counsel for the petitioner submits that both the impugned orders offended against petitioners fundamental rights set out in Article 13 of the Constitution of Islamic Republic of Pakistan 1973 which provide that no person shall be prosecuted or punished for the same offence more than once. Amongst others, on this point reliance was placed upon judgment of this Court in Crl. A. No. 117/95. It was further added by him that the judgment in Criminal Revision No. 215/95 decided only a specific /;'.s- raised before it. Being relatahle only to the facts of a particular case it, did not qualify for being treated as a judgment //; rein. The order of acquittal of the petitioner passed on 2.7.1995, was not in issue before the High Court, in the adjudication of Criminal Revision No. 215/95. The observation therein made by the learned Judge, that, "all proceedings conducted by him (Syed Ijaz Hussain Rizvi) in criminal cases pending before him were without lawful jurisdiction" amounted to just an Obiter Dicta and could not have been used by the trial court to undo the acquittal earned by the present petitioner. It was further argued that de facto doctrine was an established part, ol our 'corpus juris.'' A subsequent discoveiy of disqualification in appointment of a Presiding Officer did not affect the cases already decided by him. It goes without saying, he maintained, that the judgment in Crl. Revision No. 215/95 could not be given retrospective effect. 9. Mr. Naveed Rasool Mirza, learned Addl: Advocate General submitted that he had no cavil with proposition of law as propounded by the learned counsel for the petitioner but maintained that he would not attribute any impropriety to the learned Special Judge Anti-Corruption, Lahore. Error if any had crept in, on account of the observations of this Court in Crl. Revision No. 215/95 to the effect all proceedings conducted by Syed Ijaz Hussain Rizvi in all criminal cases before him were without jurisdiction and lawful authority. 10. I have attended with care, to the submissions made at the bar. Undoubtedly, an order of acquittal was passed on 2.7.1995 in favour of the petitioner, and no appeal or revision was filed against in this behalf. It had thus become final and Constitutional protection against prosecution over again was fully attracted. Article 13 of the Constitution spells out a fundamental right that no person can be retired or punished twice for the same offence. It provides as follows-: 13. Protection against double punishment and selfmcrimination. No person-- fa) Shall be prosecuted or punished for the same offence more than once; or Simil protection is provided for in section 403 Cr.P.C. read with section 2fi of the General Clauses Act, but the same offers a purely procedural shield. Article 13 of the Constitution on the other hand, has translated this procedural check into a Constitutional guarantee which cannot be taken away or whittled down even through a legislative measure. It is difficult to countenance that an Obiter Dicta of this Court, in a different case substantive right provided for by the Constitution itself. The scope and parameters of Article 13 have been discussed by me in detail in another case Crl. A. 117/95, 11. If one were to look for precedents dealing with a situation close to the one in hand; Sherin Bacha us. Narnood Iqbal (PLT) 19915 S.C. 247) provides an answer. In this case, the respondents had filed a complaint, u/s 447 PPC alleging that after delivery of possession the appellants had tried to dispossess them. This complaint on being found to be false, was ordered to be filed, the same was, some how, got revived and fresh inquiry/trial commenced. The Govt. however on receipt of a revision application set aside the order of revival of the complaint, holding that possession having been delivered by the Tribal Affairs Department, there was no occasion for fresh trial. Govt's, decision was challenged before the High Court in its Constitutional jurisdiction. The High Court held that as the complaint u/s 447 P.P.C. had not been dealt with properly; it required to be reinvestigated/re-tried and the case was, consequently sent back to the trial court for fresh proceedings. The accused/appellant moved the Supreme Court, and agitated the principle of autre-fois acquit, (protection of Article III of the Constitution read with section 403 Cr.P.C). It was submitted that they had been tried already on the same facts in a police case by E.A.C. Mulukund and acquitted them on 13.3.1989. Their acquittal had remained unchallenged until t.he above referred decision of the High Court in writ jurisdiction was passed on 177.4.1990. The Supreme Court of Pakistan held that the verdict of acquittal having not been challenged before any higher forum, neither the constitution, nor the Code of Criminal Procedure read with General Clauses Act permitted retrial of an offence. It was held that a person having once been tried as an accused and finally acquitted, he acquired a vested right and constitutional protection against a second trial for the same offence. 1, thus find myself in agreement with the learned counsel for the petitioner, that as n the petitioner stood acquitted u/s 249-A Cr.P.C. unless his acquittal was set aside by a higher forum, the issuance of process for re-trial by the same court, offended against petitioners fundamental right of immunity from double prosecution or punishment. 12. While issuing process for fresh trial of the petitioner on the ground that the court which tried him lacked the requisite qualifications for the office of Special Judge Anti-Corruption, the learned Judge lost sight of the famous 2()th of March 1996 Apex Courts, judgment, popularly known as Judges Cases. Al-Jchad Trust through Raeesul Mujahidecii Habib-til-Wahab Khairi <tt others vs. Federation of Pakistan <tt others (PLI) I99(i S.C. 324). In this case after the Supreme Court, etermined the criteria for eligibility for appointment, of High Court Judges; quite a few of them had to be laid off as they did not qualify for appointment. The denotification of such Judges however did not in any manner affect, the uires of the orders/judgments issued by them. Mr. Naveed Rasul Mirza learned Addl : Advocate General has rendered good assistance and drew my attention to the fact that tic facto doctrine ably canvassed by the petitioners learned on the strength of judgments from foreign jurisdiction is well recognized hy our own Courts also. He made reference with advantage to Sindh High Court dictum in Atlas Autos Ltd. & 5 others us. N.I.R.C. Islamabad & Hi others reported as (1'LI) 1990 Kar. ;5fi2, 375). The relevant, portion reads as follows : "A Judge or a memher of a Tribunal, who holds office under colour of lawful authority and not as a mere intruder or usurper, though his appointment may he defective, is a defacto Judge or a member of a Tribunal. His judgments/ orders/actions, have the same effect as of a judge or a member of Tribunal, dejure and that the same are-saved by the de facto doctrine as a matter of necessity and of public policy in order to avert; chaos and confusion." 13. In other case from Karachi were the decrees passed by Judge Special Banking Court were called into question; on the ground that being a Judge he did not hold the requisite qualification for the purpose of appointment as Special Judge. The Division Bench of Sindh High Court dismissed the same and by holding : "In any case the orders, judgments and decrees passed by Mr. Qureshi are saved by de facto doctrine. This doctrine gives validity to acts of Judges de facto whatever defects there may be in the legality of their appointment. The doctrine is founded upon considerations of public policy and necessity for the protection of public and individuals whose interests may be effected thereby and to prevent, needless confusion and endless mischief. Abdul Salarn Qureshi & another us. Judge Special Court of Banking for Sindh & another (PLD 1984 Karachi 4H2). 14. The issue ofdc-facto doctrine also came up before the Supreme Court, of India, and of course, settled in a case reported as (lokarqjit Rungaraju vs. State of Ahnndra (AIR 1981 S.C 1473). After tin- Indian Supreme Court, had declared the appointment, of an Addl: Sessions Judge as invalid; issue arose as to what would be the effect of the Supreme Court pronouncement on the validity of the judgments passed by him. To resolve this point the Supreme Court, of India also fell back on the de facto doctrine and observed : "The acts of the Officers dc facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as v did and binding, as if they were the acts of officers de jure." The doctrine is founded on good sense, sound policy and practical experience. It is aimed a! the prevention of public and private mis chief and the protection of public and private interest. It avoids endless confusion and needless choas. An illegal appointment may be set aside, and proper appointment, may he made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequel if attempted to be undone." 15. The dp facto doctrine is essentially a doctrine of necessity intended, to bring an and the legal infirmities to prevent confusion in the of public business and, to promote security of private life. Our Supreme Court, recognized this doctrine much earlier, in the case of Lt. Col. Farzand Ali us. Province of West Pakistan (1970 S.C. 98). Constitutional amendment was sought to be struck down on the ground that it had been voted upon by members who therwise were not qualified. The Constitutional amendment. was held to be un-assailable as, at any rate, the allegedly disqualified persons had acted as de facto embers. They bad acted under bona fide plea that they were entitled to so act and had atleast, fair colour of title and they had also performed their duties with public acquiescence. In law they were treated as good members as other de jure members of the National Assembly. 16. The British Courts recognized de facto doctrine way back in the 18th Century in Milward vs. Thatcher (1787 2 TR 81 at page 87). It was observed as follows : "The question whether the Judges below be properly .Judges or not, can never be determined, it is sufficient if they be Judges de facto. Suppose a person were even criminally convicted in a Court of Record, and the Recorder of such Court were not; duly elected, the conviction would still be good in law, he being the Judge dc facto." 17. Similarly She Lord Chancellor in Scudding V. Lomnt <18fil) ;$ HLC4I8. held: "With regard to the competency of the vest, men, who were vestry men dc facto, hut not vestry men dc jure, to make the rate, your Lordship will see at once the importance of that objection, when you consider how many public officers and persons there are who were charged with very important duties and who title to the office on the part the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, so consequences of the most destruction kind. It would create uncertainty with respect to obedience to public officers and it might also lead to persons, instead of restoring the ordinary legal remedy to set right anything done by the officers, taking the law into their own hands." 18. The dc. facto doctrine is equally recogni/.ed in the United Status of America from as far back as the end of the 19th Century. It was obsei-ved by Field. J, in Norton V. Sheiby Country as follows : "The doctrine which gives validity to acts of Officers de facto whatever defect there may be in the legality of their appointment, or election is founded upon considerations of public policy and necessity, for the protection of the public and individuals whose interests may be affected thereby, Offices are create for the benefit of the public, and the private parties are not permitted to enquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions for the good order and peace of society. Their authority is to be respected and obeyed until in some regular mode prescribed by law their title is investigated and determined. It is manifest that endless confusion would result, if in every proceeding before such officers their title could be called in question." 19. The same principle was re-observed by Bradbury, J in Stale of Ohio v. Gardner in the following terms : "We think that principle of public police declared by the English Courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which Officers are to be known, who have acted under a slat.ul.i- thai has subsetraently been declared un-constitutional, though such Officers might aptly be called dc facto Officers.". <189(i S.C. Ohio 54 Ohio St. 24) (Cases on Constitutional I^iw by MC. Gonvcy & Howard, P. 102). 20. The learned counsel for the petitioner submitted that the trial court hud erred in holding that, the High Court judgment in Cr. Revision No. 215/95 also rendered the petitioners acquittal as well of no consequence. That Criminal Revision was directed against dismissal of an application seeking separate trial in all together a different. The issue in said Criminal Revision essentially was whether the charge had been framed in violation of section 222 Cr.P.C but a collateral argument was also advanced that as Syed Ija/. Ilussain Rizvi, the learned Special Judge suffered disqualification, in respect his appointment as Special Judge and on that score alone his decision merit to be set aside being without jurisdiction. The learned Judge in chambers instead of .adverting to the legal/factual controversy relatable to section 222 Cr.P.C. and the allied provision, confined himself rather to the question of qualification for the appointment of a Special Judge and set. aside, the order under revision solely on the ground that. Syed Ijaz Hussain Rizvi was not legally qualified to hold the post of Special .Judge Anti- Corruption. This decision it was rightly submitted, carried no weight as it. was not passed in a writ of Qua-Wurranto and nor was Syed Ijaz Hussain Rizvi a party to the liti before the High Court. I agree with the submission thai, it was, at best, a findings in collateral proceedings and thus had no binding legal authority about it. Reference in this behalf was also made to the decision of Supreme Court of Pakistan in the Li. Col. Farzand Ali's case (PLD 1970 S.C. 98) where in collateral attack on status of holder a public office has been held to be not permissible at all. It. was observed, that to do so collaterally in proceedings not taken to test, the validity of their title Directly, would lead to serious inconvenience to the public and those individuals whose interest may have been affected. In the absence of a direct attack on a persons's right to hold an office it. was opined that their acts should not. be invalidated merely because they could have, in a proper proceedings in the nature of writ of Quo-warranto be disqualified from continuing, as holders of such office. 21. This view of the Supreme Court prohibiting attack on title to hold office in Collateral Proceedings finds support from foreign jurisdiction as well. After taking into account large number of decisions from American and English jurisdiction, in case of office of a Judge, the Supreme Court of Canada, came to the conclusion :-- "that it, is not open to attack, in a collateral proceedings, the status of de facto Judge, having at. least a colourable title {at the office, and that, his acts are valid, is clear, I think, on principle and on authority and it is also clear that the proper proceeding to question his right to the office is by quo u'arranto information." (Re: Toronto R. Co. and City of Toronto 10E.R 164). COLLEY in his book on Constitutional Limitation Eighth Edition, Volume 2, page 1357 states as follows : "The acts of officers de facto are not. suffered to be questioned because of the want, of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure." Needless to add that the term "Collateral Proceedings" as opposed to "Direct Proceeding" entailing challenge to judge or tribunal, has to be given a broad meaning, so as to include almost, every proceeding which does not. seek to remove the Judge or officer concerned, including any attack upon the nn itself. Amnon Rubislein, in his book an .the jurisdiction and i!l<' utility, at p. 204. states as follows : » "This principle has been evolved purely upon considerations of public policy and as such collateral proceedings have in this context invariably been given a particularly broad meaning so as to include almost, every proceeding which does not seek to remove the Judge or officer concerned, including any attack upon the decision itself." 22. It seems that the learned Judge in chambers while deciding Crl. . l>l, r )/95 did not, advert to the ex-dxposition of law made by the Supreme Court of Pakistan in Farzand Ali's case (supra). It, was not referred to either in the cases relied upon in the judgment given in Crl. R. 215/95 i.e. Ehsannlldh Khan v. The State (1985 P.Cr.L.J 1125) and The State us. Muhdinnidd Ashraf & others (1986 P.Cr.L.J. 712) which on the reasoning in Mahmood-nl-Hassan case reported as (1984 P.Cr.L.J 1107). With utmost, n-spect, 1 do not find myself in agreement with the pronouncement of my learned brother in Cr. R. 215/95 and nor the decision relied upon therein as they are not in conformity with the law laid down by the Supreme Court of Pakistan in Lt. Col. Farzand Ali's ease (supra). 23. Another contention raised was that the decision, in Crl. R. 2l, r )/9, r ) even if lawful, could not, effect the acquittal of the petitioner as the order of acquittal had been passed long before the pronounce of the High Court in Crl. R. 215/95. There is considerable weight in this contention of the learned counsel. Even if the Crl. R. 215/95 were to be treated as a writ of Quo-imrranto (direct proceedings) the judgment pronounced therein coidd take effect only from the date of pronouncement of such judgment and not from any date anterior thereto. In short, even if the judgment, in the above said Criminal Revision were notionally treated as a Quo-warranto writ, it. could not, have altered the effect, of decisions entailing acquittal of the petitioner (PLI) 1970 S.C 98 at 128). 24. Apparently, the learned trial court, while passing order on 10.10.1997 had taken the High Court's observation in Crl. R. 215/95 rather, out ul' context. He failed to note that High Court's judgment had bearing, if any only on case pending and not, those already decided. Once a Court, passes an order of acquittal or conviction, it becomes fiinctns officio qua the ccused. If such an order is not challenged, by way of an appeal or revision, it. attains finality. In the case in hand the order dated 2.7.1995 acquitting the petitioner, had attained finality qua him, even though the trial of the coaccused was still pending. The observations of this Court, that the Special Judge was disqualified for want, of qualification, having been made in ano'lier case were of no consequence as far as petitioners acquittal is oncerned. At best such observations amount, to just, an Obitcr-Dicla. The issuance of process for retrial of petitioner vide order dated 17.11.1996 was obviously hit by section 369 Cr.P.C. and unwarranted in law. Orders datedZ 17.11.1996 and 10.10.1997 are accordingly declared as without lawful authority and set aside. The Criminal Revision is consequently, accepted. (MYFK) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 550 ( Multan Bench) Present: zafar pasha chaudhry, J. MAQBOOL AHMED and another-Appellants versus STATE-Respondent Crl. Appeal No. 3 of 1997, dismissed on 30-9-1997. (i) Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979-- —S. 10(4)--Offence of Zina Bil-Jabr-Conviction for-Appeal against—Victim Mst. N stated about commission of Zina-bil-Jabr by all accused persons one aftsr other with her-Difference in description of some details is not of much significance and does not in any manner damage prosecution version which is consistent and all witnesses have supported the same- Statements made by all witnesses are also consistent and nothing damaging to prosecution could be elected from any one of them-Their statements are supported by victim, medical evidence, report of chemical examiner and with circumstances of case-It is impossible that the doctor, victim, police and other witnesses would have joined hands to prepare ake swabs not obtained from victim and then result is obtained favourable to prosecution—According to chemical examiner's report swabs were found to be semen stained-A bare perusal of this report reveals that Mst. N was definitely subjected to sexual inter course-She was found naked by eye witnesses and was dressed by women folk from neighbour hood-Had she not been subjected to Zina-bil-Jabr she could not have been found naked-All accused persons came in evening, they pre planned and pre-meditated the scheme and they brought milk with intoxicant-Trial judge has rightly found accused persons guilty u/s 10(4) of Ordinance VII of 1979-Conviction and sentence up held-Appeal dismissed. [Pp. 556, 558, 559 & 560] A, B, F to J, N (ii) Offence of Zina (Enforcement of Hudood) Ord. VII of 1979— —S. 10(4) Zina bil-Jabr-Offence of-Conviction for-Appeal against-Report of chemical examiner-Exhibiting of-Any document can be produced or exhibited in court during trial and its non submission alongwith challan does not effect its genuineness. [P. 557] C (iii) Offence of Zina (Enforcement of Hudood) Ord. VII of 1979-- ----S. 10 (4)--Appreciation of evidence of hostile witness-Evidence of a hostile witness can be taken into account and its intrinsic value should be considered but with care and caution-His evidence cannot be excluded merely for the reason that they were subjected to cross examination by prosecutor. [Pp. 557 & 558] D & E 1979 SCMR 49, PLD 1992 Kar. 39, 1975 SCMR 119 ref. (iv) Offence of Zina (Enforcement of Hudood) Ord. VII of 1979-- -—S. 10(4)--Cr.P.C. Ss. 423 (1)-B and 367 read with S. 20 of Anti Terrorism Act, 1997--Imposition of lesser penalty where circumstances do not warrant for extreme penalty of death-Appellate Court can alter, reduce or reverse any of sentence imposed-Even in cases where death in only sentence and circumstances of case do not warrant imposition of extreme penalty of death then lesser sentence by way of imprisonment for life can be imposed-Accused persons committed offence of Zina-bil-Jabr in furtherance of common intention of all of them-As such each of them would be liable to imposition of extreme penalty of death which under circumstances of case may be too excessive and un-just~Hence, lesser penalty of imprisonment for life, rightly imposed. [Pp. 559 & 560] K to M Ch. Pervaiz Aftab, Advocate for Appellant. Hussain Aziz Bhatti, A.A.G. for State. Date of hearing: 30-9-1997. JUDGMENT This appeal is directed against the judgment dated 17.9.1997 passed by Mr. A.G. Tariq Chaudhry, Judge Anti-Terrorism Court No. II, Multan whereby Maqbool Ahmad Riaz Ahmad and Sajad Hussain were convicted u/s 10(4) Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and were sentenced imprisonment for life with fine of Rs. 10,000/- each in default of payment of fine to undergo R. I for one year. Benefit u/s 382-B Cr.P.C. was extended. 2. Out of the three convicts, the appeal has been filed by only two convicts i.e. Maqbool Ahmad and Riaz Ahmad. The third convict Sajad Hussain has not filed any appeal. No appeal has been filed on behalf of the state as well. 3. The prosecution case in brief as disclosed by Muhammad Ramzan (PW-9) is that his father had died. He alongwith his mother Mst. Noor Sain and his sister Mst. Naseem Begum aged about 16/17 years reside in street No. 7 Mohallah Pir Karrian P.S. Pak Pattan Sharif. Maqbool Ahmad, Riaz Ahmad and Sajad Hussain had previous acquaintance with him. All the three accused visited his house on the preceding evening. They had milk in a shopper bag. They entered into his house and told that they have brought milk from the Bazar and offered the complainant, his mother and sister to drink the same. Resultantly, the three accused made the complainant, his mother and sister Mat. Naseem Begum (victim) to drink the milk. After some time all the three fell sleepy and became almost unconscious. When he woke up at about 8/9 a.m after gaining senses he witnessed that his mother and sister were still lying unconscious. He tried to wake them up. His sister who had gained some consciousness told the complainant that Riaz Ahmad, Maqbool Ahmad and Sajad Hussain committed Zina-bil-jiihr with her one by one. On which the complainant raised alarm which attracted Abdul Khaliq (PW-7), Muhammad Din and Irshad Ahmed (PW-8). Various other neighbours from the vicinity also reached the place of occurrence. They also watched the said victims. It was further disclosed that Riaz Ahmad, Maqbool Ahmad and Sajad Hussain had administered some intoxicant in the milk as a result of which they lost their senses thereafter all the three accused committed Zina-bil-jabr with Mst. Naseem Begum. 4. Statement of Muhammad Ranizan Ex. PA was recorded by Muhammad Aslam Khan A.S.I (PW-11) on the basis of which a formal FIR Ex. PA/1 was recorded u/s 10(3) Offence of Zina (Enforcement of Hudoodl Ordinance VII of 1979 read with section ,'537-J P.P.C. After registration of the case Muhammad Aslarn A.S.I (PW-11) alongwith the complainant, reached the place of occurrence. Rough plan of the spot EX. IM was prepared. He recorded the statements of the PWs i.e. Abdul Khaliq and Muhammad Irshad. Three inmates of the house i.e. M.s7. Naseem Begum, Ms!. Noor Sain and Muhammad Ramzaii were sent to the hospital. After obtaining a certificate from the Doctor that Msl. Naseem Begum and Mftl. Noor Sain were fit to make statements Muhammad Aslam ASI (PW-11) recorded their statements. Case property was deposited with the Moharrar of police station for its safe custody and onward transmission to the office of the Chemical Examiner. On transfer of Muhammad Aslam ASI (PW-11 > the investigation was entrusted to Israr Khalid S.H.O who received three reports of the Chemical Examiner on 3.9.1997. He also recorded the statements of the police witnesses who performed various functions during the investigation. He received the report, regarding swabs obtained from Af.v/. Naseem Begum. On completion of the investigation the appellants were sent, up to face trial in the court of Mr. A.G. Tariq Chaudhiy .Judge Anti- Terrorism Court No. II, Multan. 5. PW-12 Muhammad Amir Abdullah Inspector arrested all the three accused i.e. Sajad Hussain Riaz Ahmad and Maqhool Ahmad. They were sent to the hospital for their potency examination. He also made interrogation from the accused persons and as such partly conducted the investigation. 6. The prosecution in order to prove the guilt of the accused persons examined thirteen witnesses in all. PW-1 is Muhammad Ra/./aq Muharrar/Head Constable who received the case property on various dates from the I.O and retained the same in the Mcilkhcnia. On 27.7.1997 six sealed phails were transmitted to the office of the Chemical Examiner, Lahore. PW- 2 is Lady Doctor Shamim Akhtar who examined M.sY. Naseem Begum victime aged about 16 years on 5.6.1997 and made the following observafions:- "A young girl looking normal with average weight and height. No marks of violence on the body on private parts. Vulva and vagina healthy. Hymen torned with healed margines. Vagina admits one finger easily and two fingers with difficulty. No bleeding per vagina on touch. Cervic and uteres normal. Three vaginal swabs were taken and sent to the Chemical Examiner for the detection of semen. Exact esult about the sexual intercourse will be on the receipt of result of Chemical Examiner." EX.PB is the correct carbon copy of my medico legal report which is in my hand and bear my signatures. I have seen the report of the Chemical Examiner. According to this report, the above swabs wen; stained with semen. Now 1 am of the opinion that, sexual intercourse has been committed ~ with her. EX. PC is the report of the Chemical Examiner. Multan." PW-,5 is Dr. Muhammad Akram C.M.O., DHQ Hospital Pakpattan. He examined all the three accused persons on 15.6.1997 and found thai they weii 1 capable of performing sexual intercourse. PW-4 Dr. Muhammad Y<>iinis liana who examined the complainant Muhammad Ram/an (PW-SM, Mul. N'nor Sain her mother and Mst. Naseem Begum victim (PW-10). He obtained blood and urine specimen. After examining the report of the Chemical Examiner regarding the result, of the chemical examination of the specimen, hi 1 declared that, they contained tranqulliaser and the aforesaid three persons were under effect of tranqulliaser. PW-5 Muhammad Saleem and PW-fi Riaz Constables are formal witnesses. PW-7 Abdul Klialiq is the witness who was attracted to the house of the complainant on bearing some noise emanating from his hojiise. He saw Mst. Noor Sain lying unconscious. He also saw M.st. Naseem Begum victim lying naked on a cot inside the room. She was semi-conscious and could not speak properly. She was made to dress up. On his asking the complainant told that three accused persons had visited his house. They administered some intoxicant or tranquilliasing drug in the milk which was taken by them. PW-8 Irshad Ahmad is second witness from the public. He too heard the noise from the house of the complainant and when he entered his house he saw Af.s7. Naseem Begum lying naked on a cot inside the room. He as well as some others attracted from I lie near by neighbourhood. On enquiry from M.s7. Naseem Begum as to what happened she told that three accused persons who were present in court had committed Zina-bil-jabr with her during the preceding night. PW- 9 is Muhammad Ramzan. He is the complainant on whose complaint the FIR EX PA/1 was recorded. He reiterated the same statement what bad been made by him in his statement. EX. PA. PW-10 Mst. Naseem Begum is the victim. Before making her statement she complained that bout six days prior to her statement the parents of the accused persons went to their house and extended threats that in case she made statement against the accused she will be killed. Thereafter, she proceeded to make her statement, which is in line with the statement, made by the complainant, that all the three accused came to her house in the evening; they had milk in a shopping bag; the same was offered to them which was taken by her, on which she became sense-less. Maqhool Ahmad accused took her inside the room, but. of her clothes and thereafter committed Zina-bil-jabr wit.h her. Thereafter Sajad Hussain accused and then Riaz Ahmad accused committed Zina-bil-jabr with her. She could not raise alarm because she was not in a position to do the same. In the morning when her brother raised alarm, all the accused persons absconded from the place of occurrence. On noise the witnesses came to their house. They called woman from the adjoining house who dressed her up. She had become semi-conscious and was not in a position even to get. up. Police officials came to the place of occurrence and escorted her as well as her mother to the hospital where she was medically examined. Muhammad Aslam ASI (PW-11), Muhammad Amir Abdullah Inspector (PW-12) and Israr Khalid Sub-Inspector S.II.O (PW-13) were examined in court. They deposed with regard to various steps taken by them during the investigation. The functions performed by them during the investigation have been noted above in the preceding paras. On close of the prosecution evidence the learned public prosecxitor tendered in evidence EX. PK, EX. PL and EX. PM reports of the Chemical Examiner pertaining to Mst. Naseem Begum, Mst. Noor Sain and Muhammad Rainzan respectively, and with that he closed the case of the prosecution. 7. All the three accused were examined u/s 342 Cr.P.C. and all the incriminating evidence was put to them. They denied the allegations levelled against them and made almost, similar statements. They stated that report of the Chemical Examiner as well as with regard to swabs and medical report, were in fact fabricated and were procured by the prosecution. They further stated in answer to question "as to why the witnesses deposed against them and whether they wanted to say something else" they replied that witnesses have made false statements as Riaz Ahmad accused had lodged a report, against, the complainant, and his brother about their dealings in narcotics. They were innocent and in fact no eye witness has seen the occurrence. Mat. Naseem Begum was not in a position to make any statement, therefore a false case lias been fabricated by the police to exhibit their efficiency. They however did not adduce any evidence in defence and also did not appear as their own witnesses as envisaged u/s 340(2) Cr.P.C. The learned trial judge framed charge u/s 10(4) of Offence of Ziiut (Enforcement of Hudood) Ordinance VII of 1979 and section 337-J P.P.C. They pleaded not guilty and claimed to be tried. Therefore during the trial aforesaid witnesses were examined by the prosecution. On conclusion of the trial the learned trial Judge acquitted all the three accused persons of the charge u/S. 337-J P.P.C. on the ground that intoxicated milk did not cause any hurt to any of the PWs therefore no sentence could be awarded u/s 337- J P.P.C. However, all the three accused persons including the two appellants were convicted and sentenced u/s 10(4) Offence of Znia (Enforcement of liudood) Ordinance VII of 1979 as detailed above. The learned trial judge however observed that since the accused persons were young therefore a lenient view was taken and they were sentenced to imprisonment for life with a fine of Rs. 1(),000/- each. It may be noted that u/s 10(4) Offence of Zitid (Enforcement of Hudood) Ordinance VII of 1979 only sentence of death lias been prescribed. 9. The learned counsel for the appellants Ch. Pervaiz Aftab, Advocate has argued that there are material discrepancies in the statements made by the prosecution witnesses; that the PWs 9 and 10 especially PW-10 Mst. Naseem Begum who is victim was not in a position to make any statement or even could not identify the offenders; that considering the various dates on which the vaginal swabs were taken and deposited in the Mulklxnia and were ltimately transmitted to the office of the Chemical Examiner, it cannot be held that they remained in the safe custody and were not tampered with; that except the victim all the three PWs were declared hostile by the prosecutor himself therefore no safe reliance can be placed on their testimony; that the medical evidence does not. support the prosecution and it cannot be conclusively determined that all the three accused persons committed Zina-bil-jabr with the victim and as such the prosecution has failed to discharge its onus. The appellants are therefore entitled to lie acquitted. 10. Mr. Hussain Aziz Bhatti, learned A.A.G. appearing on behalf of the slate has however controverted the submissions made by the appellants and submitted that the prosecution has proved its. case against the accused persons beyond any shadow of doubt. The conviction has therefore been rightly recorded. He has however disputed the quantum of sentences awarded by the learned trial judge. According to him only sentence prescribed u/s 10(4) Offence of Zitia Enforcement of Hudood) Ordinance VII of 1979 is death and therefore lesser penalty by way of imprisonment for life cannot be imposed. He however has not been able to explain as to why the State did not file appeal if it was considered that the quantum of sentence was illegal or improper. 11. As regards discrepancies in between the statements of the PWs the learned counsel has gone through the statements made by all the four witnesses relating to incident produced by the prosecution. He has pointed out variations and discrepancies in their statements with regard to their coming to the place of occurrence, the way in which M.it. Naseem Begum was raped and the description given by the witnesses with regard to offering of the milk to the victim. It is true that there are some variations in the statements made by the PWs but none of them can be considered or treated as a material variation from the rosecution version. The prosecution version that all the three accused came to the house of the complainant, they had brought milk and the same was offered for consumption to the inmates of the house i.e. the complainant, his mother and sister Af.s7. Naseem Begum, also that the accused persons stayed on for a night and M.s7. Naseem Begum stated about commission of Zina-bil-Jabr by all tlie accused persons one after the other with her on the preceding night. The difference in the description of some details is not of much significance and does not in any manner damage the prosecution version. The prosecution version is consistent and all the witnesses have supported the same. It is even otherwise a known principle of criminal administration of justice that the main facts in issue are only relevant to determine the guilt or innocence of an accused. Un-necessary details or other extraneous circumstances are not. veiy relevant, for the determination of guilt, or innocence. The witnesses when examined after a lapse of time are bound to differ on the details but, if they are consistent on the main ingredients which constitute offence then their statements cannot be discarded. Mere variations in the details or discrepancies in the narration does not in any manner cast, doubt, on the prosecution story. 12. The learned counsel has been laying much emphasis on the point that the main corroborative evidence is furnished by the reports submitted by the Chemical Examiner regarding vaginal swabs. He is therefore of the view that if there is any discrepancy with regard to taking into possession of the swabs their deposition in the Mulkliana or transmission to the office of the Chemical Examiner, the whole evidence would be rendered useless and cannot be used against the accused persons. He has pointed out some dates to show that the prosecution has not explained as in between those dates in whose custody the parcels remained and no evidence has been produced to testify that the parcels were not tampered with and they remained intact. The contention has not. much force. The best evidence is the report of the Chemical Examiner itself. In case the parcels had been tampered with or the seals affixed on them were not intact, it is invariably pointed by the examiner that the sealers were not, intact, therefore authenticity or genuineness of the contents is disputed. No such remark or observation has been made by the Chemical ICxuininer. It. means that they were received in the office with the sealers affixed thereon and were intract. Even otherwise if this view is considered, logically if the prosecution had tampered with the parcels or got fictitious swabs prepared then every care and caution would have been taken that no discrepancy is created with regard to their possession or transmission to the office of the Chemical Examiner. It appears almost impossible that, the Doctor, the victim, the police and other witnesses may be from the police woidd have joined hands to prepare fake swabs not obtained from the victim and then result is obtained favourable to the prosecution. The Doctor has said that swabs were taken and according to the Chemical Examiner's report they were found to be semen stained. An objection has been raised by the learned counsel that the Chemical Examiner report was not appended with the Challan rather the same was produced in court by the prosecution. Any document can be produced or exhibited in the court, during the trial and its lion submission alongwith the Challan does not affect its genuineness. The original swabs therefore provide reliable corroboration to the statement made by the victim. 13. It, has been next argued that the PWs including the complainant except Mst. Naseem Begum victim were declared hostile therefore no safe reliance can be placed on their testimony. It is true that, the complainant (PW-9) and Aludul Khaliq (PW-7) were subjected to cross-examination by the Prosecutor with the permission of the court but the law is not inflexible on the point. Appellants contention that credibility of a hostile witness is always doubtful is not of universal application. There are number of authorities that a hostile witness being discarded by the prosecution itself has to be relied upon with care and caution but it, does not mean that his statement cannot he considered in evidence at, all. In this behalf the guidance can be taken from the principle laid down by the Hon'ble Supreme Court in case of Muhammad Sadiq vs. Muhammad Sarwar (1979 S.C.M.R. 4(i9). If was held that "primary question is not whether witness is hostile or disinterested hut whether the witness is honest or dishonest. A hostile witness may be a truthful witness. The com! should look to the quality of the evidence whether probable or consistent". Following the same principle there are number of judgments such uk Abdul Ruzak Ralliore's case (I'M) 1992 Kar. 39) Holding that a hostile witness does not lose credibility just because he has been permitted to he cross-examined. Similarly in a D.H. judgment of Kuloo's case (1973 P.Cr.L.J. 334) it has been held that evidence of a hostile witness cannot be discarded wholly because of being declared hostile. The learned counsel for the appellants further has cited judgments against the hostile witness i.e. Habib-ur-Rdnnan vs. Mustafa Abhus (I'M) 1989 S.C 20), laying down that a hostile witness who resiled from his earlier statement, no importance should be attached to his evidence. On the same point in Munawar Khan's case (S.C 1975 S.C.M.R. 119) it has been laid down that evidence of a witness resiling from his statement made before committing court can be accepted only when corroborated by reliable evidence. There are number of authorities and pronouncements given by the Ilon'ble Supreme Court and the High Court. The net result of (lie various authoritative pronouncements is that evidence of a hostile witness can he taken into account and its intrinsic value should be considered hut with care Mini caution. Applying the same principle to the statements in the instant case it is found that all the three witnesses supporter! the prosecution version on all material points. They were declared hostile and subjected to crossexamination appears to be on account of some inexperience on the part, of the prosecutor. A witness is not to be declared hostile merely because hemade a statement slightly different from the statement made during the investigation. If the witness has supported and substantiated the prosecution case there remains no justification to get him declared hostile. The witnesses in the present case supported the prosecution on all the material points. Their evidence cannot be excluded merely for the reason that, they were subjected to cross-examination by the Prosecutor. The statements made by all the three witnesses are consistent and nothing damaging to the prosecution could be elicited from any one oi them. Their statements are supported by Mst. Naseem Begum, medical evidence, the report, of the Chemical Examiner and above all with the circumstances of the case. 14. The learned counsel has discussed the medical evidence in details. According to him the medico legal report ^ivo by Dr. Shaiuim Aklitur (PW-2) does not prove that, Mftf. Naseetn Begum was subjected to Zina-hil- jabr by the three accused persons. The fact that vagina only admit one finger and second finger could be inserted only with force and that bear no marks of violence or that the examination did not reveal that she felt pain during the examination or some bleeding occurred during the intercourse or during examination negates and contradicts the prosecution version. The argument, suffers from fallacy both on factual as well as on legal plain. The physical condition varies and differs from person to person. There have been cases that a girl or woman was subjected to sexual intercourse but, even hymen was not torn. It is not always necessary that in all individuals the consequences of sexual intercourse would be similar and identical. It merely depends on one's biological condition. A bare perusal of the report reveals that.M.sV. Naseem Begum was definitely subjected to sexual intercourse. It. is not possible for any Doctor to conclusively determine as to how many people or as to how many times the sexual act was performed. Considering the statement of the victim alongwith medical report, the prosecution version that all the three accused persons committed rape cannot he held to he not true. Even if persuming that all the three persons did not commit, the sexual act hut only one or two committed the same, section 10(4) of the Ordinance has taken care of this situation. If more than one person commits Zina-biljabr and they have all participated in the commission of the Zina-bil-jabr then it will be treated as Zina-bil-jabr committed by all of them in furtherance of their common intention. 15. Eye witness account of the PWs is further supported by one very strong circumstance that the victim was found naked and she was wrapped and was thereafter dressed by the women-folk from the neighbourhood. Had Mat. Naseem Begum not been subjected to Zina-bil-jabr she could not have been found naked in the morning. All the three accused persons came in the evening, they pre-planned and pre-meditated the scheme and they brought milk with intoxicant. It clearly show that Mst. Naseem Begum was not consenting party. She was rendered almost sense-less so that she may not be able to make any resistence. She saw the accused persons coming to her house, administering milk and thereafter taking her to the room. It was not impossible for her to see or realise that, she was being subjected to sexual intercourse. The act or the offence is of the nature that victim may not be fully conscious yet, could not, be rendered incapable of seeing or feeling that, she was subject, to such an act. While keeping within the limits of decency. f A/.s/. Naseeni Begum, who has no reason to falsely implicate the -. n~i! i'Bisons has to be accepted. 16 Tlie learned trial judge has rightly found the accused persons

10(4) of Offence of Zina (Enforcement of Hudood) Ordinance VII .( 1H7H. Although the prosecution has successfully brought home the guilt of the accused persons yet a difficult was confronted with the learned trial jii'ltif on legal j)lain peitainingto quantum of sentences. By virtue of offence iif '/.i iiu (Enforcement of Hudood) Ordinance 1979 sub-section 4 has been added to section 10 to the following effect :-- "When zina-bil-jabr liable to tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death." Tin 1 learned trial judge on conclusion of the procedure and powere of the Special Court. After going through whole of the section which contains fouiteen sub-sections, it transpires that Code of Criminal Procedure subject to some variations and adaptation has been made applicable. Similarly under section 25(7) it has been laid down that an Appellate Tribunal shall, in exercise of its appellants jurisdiction, subject to the provisions of this Act, liave all the powers conferred on an Appellate Court under Chapter XXXI of thf ("r. P.C. It clearly means that when ever some ambiguity has to be resolved we have to fall back upon the Code of Criminal Procedure. Under aforesaid two sections various provisions of that Code have been made applicable and the Code as defined u/s 2(c) of the Act, means the (/ode of Ciiminal Procedure. Chapter XXXI of the ('ode deals with the powers and functions of the Appellate Court. In particular u/s 42M (l)-B it is laid down that :-- "in an appeal from a conviction, (1) reverse the finding and sentence, and acquit, or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or send for trial, or (2), alter the finding, maintaining the sentence, or, with or without altering the finding reduce the sentence, or, (3) with or without such reduction and with or without the finding, alter the nature of the sentence but, subject to the provisions of the section 106, sub-section (3) not so as to enhance the same;" It clearly implies that the Appellate Court firstly has the same power as that I of trial court and can later,' reduce or reverse any oi the sentences->mp»we«v.Tw The question for determination is that in case an offence is exclusively) punishable with death lesser punishment can be awarded or not. The guide line can be taken from the principle incorporated in sub-section <. r ) of section 67 Cr.P.C 1 -. It reads: "If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment stale the reason why sentence of death was not passed." It is tllerefore, inferred that even in cases where death is the only sentence and the circumstances of the case do not warrant imposition of extreme penalty of death then lesser sentence by way of imprisonment for life can he imposed. This view is fortified by section 20 of the Anti Terrorism Act, 1997 which is in the following terms :--"A person convicted for an offence by the Special Court shall be awarded the maximum punishment prescribed by law for the offence unless for reasons to be recorded the Court. decides to award a lesser punishment." It means that if in the interest of justice lesser penalty has to he imposed then the principle laid down in section 367(5) Cr. P.C. has not been deviated from. In the present case u/s 10(4) of the Offence of Zina (Enforcement, of Iludood) Ordinance VII of 1979, sentence of death has In-en described but none the less if the trial court, or the Appellate Court feels that the same is not warranted in the circumstances of the case lesser punishment, can be awarded. When ever any provision of law has to be interpreted it should he interpreted in a manner that interest of justice is not. defeated and the interpretation advances the cause of justice. If it is held that any person who is found guilty can be awarded the sentence of death alone then it is apprehended that, number of acquittals would be increased because for awarding the sentence of death extreme care and caution up to the level of abundant pre-caution has to be taken. In the present case the accused persons have committed the offence and it cannot be conclusively held with certainty that all the three accused committed the offence one after the other but the fact, remains that they have committed the offence of Zhtu-bil-jabr in furtherance of common intention of all of them. As such each of them would be liable to imposition of extreme penalty of death which under the circumstances of the case may be too excessive and un-just. 7. The upshot of above discussion is that conviction and sentence as recorded and imposed by the learned Special Judge Anti Terrorism Court . No. II, Multan is up held and maintained. The appeal therefore fails and is dismissed. (MYKK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 561 Present : SHAH JEHAN KHAN YOUSAFZAI, J. ABDUL HAKIM KHAN and another-Petitioners versus STATE and another-Respondents Criminal Misc. Bail Application No. 216 of 1997, decided on 28-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Double Murder-Offence of-Petition for bail against-Occurrance has taken place without premeditation as all the four accused nominated in FIR did not attract to spot jointly-Previous conduct of deceased S. also seems to be of desperate and dangerous person who had been involved in blood feud enmity with number of persons-Benefit arising from controvertial stand of complainant in his F.I.R. and his affidavit before Special Judge, leads to material doubt which benefit has to go to accused-Each accused is to be dealt with for his individual role in commission of offence, being a premeditative occurrence-Complainant who is cousin of deceased has diverted from his first information report and has exonerated accused Sher Baz Khan-He has affirmed that accused Sher Baz Khan has satisfied him and his other legal heirs that he has not committed murder of deceased Fazal Rahim-Case against Sher Baz is distinguishable from accused Hakim Khan who is charged for effective firing at deceased Shah Nawaz-Bail petition of Hakim Khan rejected, but Sher Baz Khan was allowed bail-Orders accordingly. [Pp. 563, 564, 565] A to H Mr. Ejaz Muhammad Khan, assisted by Mr. Saleemullah Khan, Advocates for Petitioners. Mr Muhammad Khan, Advocate for State. Mr. Gohar Zaman Kundi, Advocate for Complainant. Date of hearing: 28-11-1997. judgment Cr. Misc. Bail Petition No. 216/97 and Cr. Misc. Bail cancellation Petition No. 243/97 arising from the same order are disposed of by this single order. 2. The accused/petitioners in Cr. Misc. No. 216 and accused/respondent in Cr. Misc. No. 243/97 alongwith Sher Muhammad, (an absconding accused) were charged for the double murders of Fazal Rahim and Shah Nawaz, vide : FIR No. 119, dated 18.5.1996 at P.S. Tajori. On their arrest they applied for bail to the Special Judge under the Suppression of Terrorist Activities Act, 1975. The bail was refused to the petitioners in Cr. Misc. No. 216/97. However, the accused/respondent in Cr. Misc. No. 243/97 was allowed bail. The accused/petitioners have come to this Court for the said relief. While the complainant has moved this Court for cancellation of bail granted to the accused/respondent Amin Khan. 3. Abdul Haleem complainant disclosed in his report that he alongwith Fazal Rahim deceased, his cousin, were present at Malang Adda while Shah Nawaz deceased and his brother Muhammad Zaman were also waiting nearby for the arrival of vehicle. At about 7,30 hours the accused/petitioner Sher Baz armed with a pistol and Amin Khan accused/respondent as empty handed attracted towards them from Gambeela Bridge side while the accused/petitioner Hakim Khan and absconding accused Sher Muhammad armed with double barrel shot guns reached near Shah Nawaz deceased from he other side. Amin Khan accused/respondent commanded his co-accused "to Kill". Sher Baz accused/ petitioner allegedly fired at Fazal Rahim deceased with a pistol on his back side which hit the deceased and fell down on the ground. The complainant rushed to catch hold of the said accused but failed. In the meanwhile the accused/petitioner Hakim Khan fired at deceased Shah Nawaz on his front while Sher Muhammad absconding accused fired at him from the back side with their respective weapons of double barrel shot guns which hit the deceased and he fell down. The accused decamped from the spot. Fazal Rahim deceased then injured was rushed to the Naurang Hospital who subsequently died in the Hospital while Shah Nawaz deceased expired on the spot. The motive behind the occurrence is a dispute over the Auction of Adda Commission between the accused party and Shah Nawaz deceased. Accused have got no ill-will against Fazal Rahim deceased. 4. The learned counsel for the accused/petitioners contended that the complainant Abdul Haleem has filed an affidavit stating therein that on the day of occurrence on hearing the fire shot he attracted to the spot and found his relative Fazal Rahim lying injured while Shah Nawaz was shot dead. He enquired from the general people two where running from the spot and at their (general people) instance he charged all the four accused. Further stated that he has satisfied himself that only Sher Muhammad the absconding accused alongwith an unknown culprit has committed the offence and the accused Hakim Khan, Sher Baz and Amin Khan are innocent. They being innocent as per his satisfaction, he has no objection if they are released on bail. Further contended that the distance between Sher Baz accused and deceased Fazal Rahim has been shown one pace and there was no charring marks found on the person of Fazal Rahim deceased. Further submitted that the report was lodged on the spot after preliminary investigation. It is recorded in the FIR that the occurrence was reported by the officials of F.R. Picket Gambila and on their information the police attracted to the spot where the report of the complainant was reduced into writing. Also contended that the occurrence has allegedly taken place in the broad-day-light and in a place of public gathering but except the real brother of deceased Shah Nawaz, no disinterested person, i.e. shopkeepers in vacinity. have deposed against the accused, rather they have shown ignorance about the culprits. All these facts suggest that either the occurrence is an unseen one or the real culprits have been substituted with the accused charged in the FIR. Further contended that the alleged motive was between Shah Nawaz deceased and the accused party and the accused/petitioners are not related inter se. The learned counsel for the accused/petitioner has also placed on record copies of F.I.Rs. registered at Police Station Tajori bearing No. 103, dated 27.7.1989, No. 9 dated 16.2.1992 and No. 252 dated 27.12.1991, wherein deceased Shah Nawaz has been cited as accused in the aforesaid three different murder cases. The Investigating Officer was produced a D.B. shotgun and a .30 bore pistol belonging to Shah Nawaz deceased by Nasibullah, an owner of the hotel in the vacinity and argued that the deceased Shah Nawaz a desperate person and a proclaimed offender and he might have been done to death by those with whom he had blood found enmity. 5. The learned counsel for the heirs of deceased Shah Nawaz submitted that both the accused/petitioners are charged in a promptly lodged FIR for the effective firing at the deceased. The occurrence has taken place in a broad-day light and the ocular version of the eye-witnesses have got support from the medical report. The accused/petitioners remained absconders for sufficient long time and they are not entitled to the concession of bail. As against Amin Khan accused/respondent, it is ontended that although he was empty handed at the time of occurrence but he has participated in the commission of offence by raising Lalkara and prima facie he is involved in the commission of the offence. He prayed for dismissal of Cr. Misc. Bail Petition No. 216/97 and acceptance of Cr. Misc. Bail Cancellation Petition No. 243/97. 6. The learned State counsel supported the order of Special Judge, Lakki Marwat. In his opinion the accused/petitioners have rightly been refused bail as prima facie case exists against both the accused. However, he did not support the Cr. Misc. Bail Cancellation Petition No. 243/97. 7. I have heard the learned counsel at the bar and gone through the record of the case. 8. Without going into deep merits of the case, from the perusal of the FIR it transpires that the occurrence has taken place without premeditation as all the four accused nominated in the F.I.R. did not attract to the spot jointly. Two of the accused, namely, Muhammad Amin and Sher Baz had arrived at the scene of occurrence from Gambeela Bridge side while the accused/petitioner Hakim Khan and absconding accused Sher Muhammad arrived there from the opposite side. Complainant and Fazal Rahim had arrived the place of occurrence independently, while deceased Shah Nawaz and his brother Muhammad Zaman happened to be there waiting transport. The previous conduct of deceased Shah Nawaz also seems B to be of desperate and dangerous person who had been involved in blood feud enmity with number of persons. During the course of arguments, learned counsel for State though affirmed that the deceased Shah Nawaz was involved in a number of murder cases, but his conduct as such does not provide permission to the accused to commit his murder. 9. The complainant Abdul Haleem present in court was asked about the contents of affidavit submitted by him in the Court of Special Judge. In the presence of the counsels at the Bar he affirmed the contents of the said affidavit statement. In these circumstances the only ocular evidence left with the prosecution is the statement of Muhammad Zaman, the brother of deceased Shah Nawaz. The benefit arising from the controvertial stand of the complainant in his F.I.R. and his affidavit statement leads to material doubt which benefit has to go to the accused. Being a premeditative occurrence, each accused is to be dealt with for his individual role in the commission of offence. The accused/respondent Amin Khan in Cr. Misc. No. 243/97 has been allowed bail keeping in view the empty handed role assigned to him in the F.I.R. which is not questionable. The accused/ petitioner Sher Baz is charged for the sole effective fire at the deceased Fazal Rahim. The complainant who is cousin of the deceased has diverted from his first information report and has exonerated the accused from the commission of offence. No legal heir of deceased Fazal Rahim has come forward in support of the prosecution case. 10. The dimension of solitary injury on the person of deceased Fazle Rahim commensurate with the injuries on the person of deceased Shah Nawaz, who was fired at through D.B. shotgun. Keeping in view the injuries on the persons of deceased possibly that both the deceased sustained injuries of weapon of the same calibre cannot be concluded. Absence of charring marks around the injury on the person of deceased Fazal Rahim further confirm that he was not fired at from a distance of one pace, but from some distance. Accused/petitioner Sher Baz who has been shown at a distance of one pace only cannot cause an injury to deceased Fazal-Rahim, without causing charring marks. The complainant has also affirmed that accused/petitioner Sher Baz Khan has satisfied him and his other legal heirs that he has not committed the murder of deceased Fazal Rahim. 11. In these circumstances, the case against accused Sher Baz Khan J is distinguishable. It is yet to be established that accused Sher Baz Khan had (shared his common intention with his co-accused Hakim Khan. 12. So far as the case of accused Hakim Khan is concerned, he alongwith the absconding accused Sher Muhammad is charged for effective firing at the deceased Shah-Nawaz and aprima facie case exist against him. 13. For the reasons stated in the preceding paragraphs, I reject the bail petition of Hakeem Khan. However, the accused/petitioner Sher Baz Khan is allowed bail provided he furnishes bail bond in the sum of Rs. 1,00,000/- (Rupees one lac) with two sureties each in the like amount to the satisfaction of the trial Court. Nonetheless, the bail cancellation petition No. 243/97 against Amin Khan accused/respondent is dismissed. This order is based on tentative assessment of material available on record and has no bearing on trial of accused. (A.P.i Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 565 Present: shah jehan khan yousafzai, J. ASHIQ MUHAMMAD and another-Appellants versus KHUDA BAKHSH and others-Respondents Cii. Appeal No. 22 of 1996, dismissed on 14-11-1997. Criminal Law amendment Act XL of 1958-- -—S. 10 (2) read with S. 417 (2-A) of Cr.P.C.-Offence u/s 420/468/471/109 PPC read with S. 5(2) of 1947 PCA-Acquittal of accused-Appeal againstaintainability of Appeal-Question of-Respondents are undisputedly employees of Provincial Government and were tried by special judge- Section 10(2) of Act, 1958 provides no right of appeal to Provincial Government against acquittal order passed by special Judge-Right of appeal is a statutory right and unless statute provides for, there will be no right of appeal-Cr.P.C. is not applicable to proceedings under criminal Law Amendment Act, 1958 because Pakistan Criminal Law Amendment Act, 1958 is by itself a procedural law which shall prevail upon general law i.e. Cr.P.C.-Appeal by complainant against acquittal dismissed being not maintainable. [Pp. 568, 569 & 570 ] A, B & C PLD 1960 Dhacca 200, PLD 1968 SC 265 ref. M/s Rustam Khan Kundi, Gohar Zaman Khan Kundi and Sanaullah Shamim, Advocates for Appellants. S. Zafar Abbas Zaidi, Advocate for Respondents. Mr. Saleemullah Khan Ranazai, Advocate for State. Date of hearing : 28-10-1997. judgment This appeal has been filed by the appellants/private complainants in Anti-Corruption case No. 3/1994 decided by Judge, Special Court , D.I. Khan on 6.6.1996 under Criminal Law Amendment Act, 1958. 2. Facts alleged in the complaint discloses that the mother of petitioner No. 1, petitioner No. 2 and respondent No. 5 are real sister and brothers. Their father was owner of sufficient landed property in District D.I. Khan. Three sons of respondent No. 5 are serving as Patwari. Respondent No 5 on committing collusion with the Revenue Staff recorded Ameeran Bibi as issueless and entered a gift Mutation No. 1911 in favour of his sons which was objected to by the appellants. As result of which with exclusion of the share of the mother of appellant No. 1, namely, Mst. Ameeran Bibi was attested. Respondent No. 5 also managed to prepare a Deed No. 434 in favour of his mother Mst. Ghulam Zainab Bibi and then got transferred the same land vide mutation No. 413 attested on 19.5.1961 in his own name and depriving his sister Mst. Ameeran Bibi and brother Abdul Aziz appellant No. 2. He (respondent No. 5) also managed to transfer the lands of Ghulam Hassan, his father and Ghulam Hassan in favour of his sons and wife depriving the legal heirs of Ghula Hussain. 3. On the complaint of appellants an open enquiry was conducted and as a result of which case was registered on 14.2.1993 against the respondents and one Abdur Rehman Tehsildar. After conducting investigation in the matter sanction for prosecution was granted against the present respondents Nos. 1 to 4 under Section 6(5) read with Section 12(2) of the Pakistan Criminal Law Amendment Act, 1958 by the Commissioner/ Chairman, Anti-Corruption Committee No. II, D.I. Khan Division, D.I. Khan. However, no sanction was granted for the prosecution of Abdur Rehman, Tehsildar. 4. The learned Judge, Special Court notified under Section 3 of the Act-XL of 1958, summoned the accused/respondents, formally chargesheeted them but they denied charge and claimed trial. He examined 7 witnesses in all produced by the prosecution in order to bring home guilt of the accused. The accused/respondents who were examined under Section 342 Cr.P.C., respondent No. 5, the alleged principle accused was put question as question No. 3, as follows :-- "It is in evidence that you in connivance with your coaccused recorded the inheritance mutation No. 751 attested on 14.11.1991 of the aforesaid properly situated in Mauza Gara Hayat Korai wherein omitted the name of your sister Mst. Amiran Bibi and thus deprived her from her legal share. What do you say about it?" 5. The accused answered the same in the following words :-- "There is neither any connivance nor I could in any way omit my sister because prior to this at my instance another mutation of inheritance was entered on 29.5.1991 vide mutation No. 1910 in which the inheritance of my mother had been transferred in the name of Mst. Amiran Bibi to the extent of her share. In mutation No. 751, as it would appear from the entry made by the Patwari, I only informed about the death of my mother and nothing else or nothing more was either stated by me or was required to be done. The name of Mst. Amiran Bibi was already in the Jamabandics and the entry was made accordingly. The name of Mst. Amiran Bibi appears to have been inadvertently left out and was lateron rectified by the Revenue officials. There is a legal provision of Fard Badar for the rectification of such like mistakes. If I had any intention of depriving Mst. Amiran Bibi from her share, I could not have been instrumental in the attestation of a similar mutation No. 190 on 29.5.1991 and this fact has been admitted by the PWs in their statements before the Court. The omission has since been rectified." To the question as what was his statement and why he was charged, he replied as follows :-- "I am innocent and have been falsely charged. Infact I had my differences with the children of my brothers and sisters over the inter-marriages of our sons and daughters and there are also pending civil litigations between us in the Court of learned SC J. I produce a copy of judgment in this respect as D/l. The local police in collusion with my nephew and other relations involved me in this case falsely. They have also been trying to implicate my sons because of the traditional inter family disputes and grievances." 6. The appeal was admitted to full hearing on 19.11.1996 and bailable warrants of arrest in the sum of Rs. 20,000/- with two sureties each were issued against the accused/respondents. On 17.6.1997 the parties put their appearance through their counsels. The counsels for the respondents raised a preliminary objection with regard to the maintainability of appeal. The learned counsels for the parties addressed their arguments before the Court on the maintainability of appeal at great length. 7. Appeal/revision/transfer of cases under Act-XL of 1958 are governed by Section-10 of the Act ibid. Sub-section 2 thereof provides for appeal against acquittal which reads as under :-- "Notwithstanding the provision of section 417 of the Code of Criminal Procedure (V of 1898), in any case tried by Special Judge appointed by the Central Government under Section 3, in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid." 8. A bare reading of the aforesaid provision of law provides a right of appeal to the Central Government through Public Prosecutor against an order of acquittal passed by Special Judge appointed by the Central Government. In the instant case, the trial Judge is undisputedly appointed/notified by the appropriate Government under Section 3 of the Act-XL of 1958. The appropriate government has been defined in Section 2(a) of the Act ibid "means in relation to a person serving in connection with the affairs of the Centre and any other person employed by the Central Government or by a Corporation or other body or organization set-up, controlled or administered by, or under the authority of, the Central Government, (the Central Government) and in other cases, the Provincial Government concerned". The respondents are undisputedly employees of the Provincial Government and were tried by the Special Judge notified by the Government of N.W.F.P. Section 10 or any other Section of the Act ibid provides no right of appeal to the Provincial Government against the order of acquittal passed by the Special Judge appointed/notified by the Provincial Government. 9. The question of maintainability of appeal against the acquittal under the Special Act came before the Court in "The Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan vs. Syed Bazlur Rehman and others" reported in PLD 1960-Dhacca-200. The issue of maintainability of appeal under Section 417 of the Criminal Procedure Code was thoroughly thrashed and it was held in the following words :-- "But, reading the provisions of Act X of 1956. as they are, alongwith the provisions for appeals under the Code of Criminal Procedure, we cannot hold that, in the absence of a provision for appeal under the said Act, the provisions of Section 417 by themselves would entitle the Provincial Government to maintain an appeal against an order of acquittal. We, therefore, hold that no appeal lies against an order of acquittal passed by a Special Magistrate under Act X of 1946 or, on appeal, by a Sessions Judge." 10. The same issue in a case under Prevention of Corruption Act (II of 1947) tried under Pakistan Criminal Law Amendment Act (XL of 1958) and Sections 3, 10(2), (4) read with Section 6(5) and Section 417 Cr.P.C. was thoroughly discussed by full Court of the Supreme Court of Pakistan in "The State vs. Muhammad Hussain" (PLD 1968 SC 265) and the following conclusion was drawn :-- "The provisions contained in the Pakistan Criminal Law Amendment Act relating to sanctions for the pr-osecution of persons serving in connection with the affairs of the Centre, the appointment of Special Judges by the Centre for the trial of such persons, the power reserved to the Centre to withdraw prosecutions launched against such persons and finally the power reserved to the Centre to move an appeal against the acquittal of such a person by a Special Judge (Central) combinp to create a clear impression that control of prosecutions and of Proceedings in Court on behalf of the State against such persons, are matters wholly and exclusively within the power of the Central Government. The general powers of the Provincial Government under the Criminal Procedure Code in these respects are by expression excluded." 11. The question of maintainability of appeal by the private complainant after the insertion of 2(a) in Section 417 Cr.P.C. in cases where acquittal orders were passed by the Special Judge under the Suppression of Terrorist Activities Act, 1975 was thoroughly discussed by this Court in unreported judgment vide Criminal Appeal No. 6/1996 (Faiz Muhammad vs. Mchrab Shah) and 25 other identical appeals. After a thorough scrutiny it was observed as follows :-- "The upshot of what has been discussed above is that the right of appeal cannot be extended to a private complainant by reading the same into the provisions of Section 7 of the Suppression of Terrorist Activities Act 1975 when such a right is not specifically provided therein. All the appeals in motion as well as in notice, given in the title are hereby dismissed, the first 23 being in liminc." 12. The learned counsel for the appellants also referred to the case "Federation of Pakistan vs. Zafar Awan etc" reported in PLD 1992 S.C. 72, wherein Sub-Section 5 of Section 6 of the Pakistan Criminal Amendment Act 1958 has been declared repugnant to injunction of Islam with effect from 30.6.1992. The sanction required for prosecution of a public Servant under Section is no more existence. To bring the law in conformity with the injunction of Islam, Paragraph "2A" has been added to Section 417 Cr.P.C. whereby any aggrieved person from the acquittal order has also been empowered to file an appeal. In these circumstances the instant appeal filed by the complainant is maintainable. 13. The contention is not sustainable for the simple reason that by striking down Sub Section 5 of Section 6 of the Criminal Law Amendment Act 1958, the other provisions more particularly Section 10(2) of the Act would not be omitted ipso facto. Section 10(2) is still in the field in unamended form. As earlier stated right of appeal is a statutory right and unless statute provides for, there will be no right of appeal. There is no provision for appeal even for the Provincial Govt. what to say of an aggrieved B person/complainant. The Criminal Procedure Code 1898 is not applicable to the proceedings under Criminal Law Amendment Act 1958. By insertion of 2( A) in Section 417 Cr.P.C. the legislation could also amend Section 10(2) of the Act ibid, but the same is still in force unamended. 14. Even revision petition by the complainant against an acquittal order under the Act ibid is not maintainable under Section 435/439 Cr.P.C., because Pakistan Criminal Law Amendment Act, 1958 is by itself a procedural law which shall prevail upon the general law i.e. Cr.P.C. 5. For the reasons stated above, this appeal by the complainant against the acquittal order dated 6.6.1996 of Special Judge, Anti-Corruption, D.I. Khan is dismissed being not maintainable. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 570 Present: SHAH JEHAN KHAN YOUSAFZAI, J. MUHAMMAD SHARIF-Petitioner versus INAM ULLAH and another-Respondents Crl. Misc. Bail Cancellation No. 178 of 1997, accepted on 10-11-1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497 (5)-Murder~Offence of~Grant of bail on plea of alibi and placement of respondent accused in column No. 2 of challan as a result of .second investigation-Bail-Cancellation of-Prayer for-In disposal of bail petition a tentative assessment of evidence brought before court is made- In a case where accused is charged for committing non-bailable offence punishable for 10 years or more, court shall look into, whether a prima facie case exists against accused or not-If prosecution brings on record reasonable evidence to connect accused with commission of offence, court will have no jurisdiction to grant bail~A new trend has developed in investigation of criminal cases that accused persons frankly applied for fresh investigation and High-ups of Police Department liberally allowed re-investigation—it is not difficult for a hardened and dangerous criminal to manage false evidence in his support-It is also not difficult for a law breaker, desperate, dangerous criminal to adduce oral evidence in support of his plea of alibi-Prima facie accused/ respondent is reasonably charged for committing an offence punishable for more than 10 years- Defence witnesses were examined by subsequent I.O. when accused was let free on Ad-interim bail and that too after lapse of about five months of occurrence-Had they been truthful witnesses they would have recorded their statement immediately after occurrence-Had the accused/respondent been innocent, he must have surrendered immediately after registration of case but he selected to go into hiding-It is for the Court to adjudge prosecution evidence and defence witnesses I.O. cannot over look or discard eye witnesses on basis of oral defence evidence—To establish plea of alibi, accused must produce some cogent evidence which could not reasonably be discarded-Petition accepted in view of prima facie nature of charge against accused-Bail cancelled. [Pp. 573 & 578] A to F 1989 P. Crl. J. 2253 ref. Mr. Abdul LatifKhan Baloch, Advocate for Petitioner. S. Zafar Abbas Zaidi, Advocate for Respondent No. 1. Mr. Shaukat Hayat Khan, Advocate for State. Date of hearing: 10-11-1997. judgment Muhammad Sharif complainant has moved the instant bail cancellation petition against the order of learned Special Judge, Lakki dated 2.6.1997 whereby in case FIR No. 131 registered on 10.11.1996 in the Police Station Ghaznikhel for committing an offence under Sections 302/34 PPC, the accused/respondent was allowed bail. 2. Facts in brief are that Muhammad Sharif complainant brought the dead body of his brother Muhammad Ayoob to the Police Station and lodged the report. In his report, he stated that at 11.45 hours he went to the shop of Waseeullah to purchase the household articles (Sauda Sulf) he found his deceased brother uhammad Ayoob sitting at a Cot inside the shop of Waseeullah and one Obaidullah was sitting on a separate cot. Meanwhile Inamullah (accused/respondent) and Yousaf Khan brothers inter se appeared there duly armed with Kalashnikovs. Both the accused fired effectively at the deceased who fell down on the cot and both the culprits decamped from the spot. The deceased lost his breath on the spot. The occurrence was witnessed by one Obaidullah apart from complainant. The motive disclosed is that in the morning Inamullah accused/respondent directed Muhammad Ayoob deceased to bring one Zar Wali from the Flour Machine, but Muhammad Ayoob deceased refused to do so which resulted in abusive altercation between Inamullah accused/respondent and Muhammad Ayoob deceased. 3. After registration of the case, the Investigating Officer inspected the spot wherefrom he recovered 4 empty shells of 7.62 before from Point No. A at a distance of two paces from Point No. 2 (the place of Yousaf Khan accused) were recovered. Three empties of 7.62 bore were recovered from Point No. B situated at a distance of two feet from Point No. 3 where the accused/respondent was allegedly present and fired effectively at the deceased. The Investigating Officer recorded the statements of various persons including Obaidullah the eye-witness on the day of occurrence. Obaidullah in his said statement under Section 161 Cr.P.C. fully supported the version of complainant. Both the accused were searched but they had gone into hiding. Both the accused were proceeded under Section 204 Cr.P.C. and a complete challan was submitted on 30.1.1996. The accused/ respondent surrendered before the Court on 3.4.1997 and applied for Ad- interim bail. His Ad-interim bail was recalled on 12.4.1997. The accused/ respondent after surrendering himself before the Court applied to the Superintendent of Police, Lakki Marwat for re-investigation of the case. It was alleged in his application that on the day & time of occurrence he was not present in his village but had gone to Village Abakhel. His application was entrusted to Inspector, CIA for investigation. The Inspector CIA examined Waseeullah, the Shopkeeper of the shop in front whereof the occurrence took place, Tehseelur Rehman, Inayatullah, Muhammad Ayoob Khan, Aleem Khan, Amir Nawaz, Mir Salam and Mir Qadir were examined as defence witnesses in support of the plea of alibi raised by the accused/ respondent. After recording statements of the aforesaid defence witnesses the Inspector CIA reported the innocence of the accused/respondent. The opinion of prosecution Branch was asked for. The prosecuting Inspector suggested that in view of the subsequent investigation, the accused/ respondent be placed in Column No. 2 of the Challan. The discharge of the accused/respondent was not suggested for the unexplained prolong abscondance of the accused/respondent. 4. The accused/respondent was allowed bail without making tentative assessment, of the evidence but simply on the ground of placement of espondent/accused in column No. 2 of the Challan. 5. The learned counsel for the petitioner contended that the accused/respondent has committed the murder of Muhammad Ayoob in broad day light. He was charged in promptly lodged FIR. The version of complainant have got corroboration of the ocular testimony of Obaidullah. The contents of FIR have got corroboration from the site plan wherefrom the Investigating Officer has recovered empty shells of 7.62 bore from two points close to the points allocated to the accused/respondent and the absconding accused. The motive behind the occurrence is also attributed to the accused/ respondent. The accused/respondent remained absconder in the case and he was proceeded under Section 204 & 87 Cr.P.C. All these facts are sufficient to establish a prima facie case against the accused/respondent. The statements of defence witnesses to support the plea of alibi of accused/ respondent is nothing but mere concoction. The investigation of the accused/ respondent was already complete and challan was submitted. The subseqiient investigation was illegal & a collusive action. The accused/ respondent was placed in column No. 2 without any notice to the complainant. In these circumstances he prayed for setting aside the impugned order and cancellation of the bail granted to the accused/ respondent. 6. The learned counsel for the accused/respondent vehemently contended that the accused/respondent has rightly been placed in column No. 2 of the challan on the basis of evidence collected during the nvestigation conducted by the Inspector CIA. Also submitted that in a case where the accused is placed in column No. 2 of the challan, the accused becomes entitled to the concession of bail. 7. The learned Assistant Advocate General, representing the State, also supported the learned counsel for the complainant/petitioner. 8. I have gone through the record and heard the learned counsels at a great length. It is an established principle of administration of justice that in disposal of bail petition a tentative assessment of the evidence brought before the court is made. In a case where the accused is charged for committing non-bailable offence punishable for 10 years or more, the Court shall look into, whether aprima facie case exists against the accused or not. If the prosecution brings on record reasonable evidence to connect the accused with the commission of offence, the Court will have no jurisdiction to grant bail to such an accused. If the evidence brought on record by the prosecution does not connect the accused reasonably with the commission of offence, the Court may grant him bail. The Court can also look into the plea of defence at bail stage provided it is confidence inspiring and based on solid proof. In the resent past a new trend has developed in the investigation of criminal cases that the accus • • persons frankly applied for fresh investigation and the High-ups of the Police Department liberally allowed re-investigation. In the present era it is not difficult for an accused person, more particularly for a hardened & dangerous criminal to manage false evidence in his support. It is also not difficult for a law breaker, desperate, dangerous criminal to adduce oral evidence in support of his plea of alibi. If this practice is allowed, no guilty person could he awarded punishment. The High-ups of the Police Department should order re-investigation in appropriate case but should not allow re-investigation with intend to help the criminals or obstruct the smooth administration of justice. 9. After going through the record, including the defence witnesses produced by the accused/respondent before the Inspector CIA during the subsequent enquiiy, I came to the conclusion thatprima fade the accused/ respondent is reasonably charged for committing an offence punishable for more than 10 years. The defence witnesses were examined by the subsequent Investigating Officer when the accused/respondent was let free on Ad-interim bail and that too after a lapse of about five months of the occurrence. Had they been the truthful witnesses they would have recorded their statement immediately after the occurrence when the Investigating Officer was holding the investigation of the charge against the accused/respondent. Had the accused/respondent been innocent, he must have surrendered immediately after the registration of the case but he selected to go into hiding. 10. The Inspector CIA in his report wherein he has exonerated the accused/respondent of the charge, has also opined that accused/respondent is a desperate person. The Investigating Officers are supposed to collect prosecution evidence and to do an impartial investigation. After holding complete investigation by the local police the accused/respondent was held responsible for the crime, and a challan was submitted against him, but after a lapse of 5 months and procuring defence witnesses by the accused/respondent the Inspector C.I.A. recommended his innocence. It is for the Court to adjudge the prosecution evidence and defence witnesses. The Investigating Officer cannot overlook or discard the eye-witnesses on the basis of oral defence evidence. To establish the plea of alibi the accused must produce some cogent evidence which could not reasonably be discarded. In a case of identical circumstances "Shadi Khan vs. Matiullah & another" (1989 P.Cr.L. J. 2253), it was observed as follows :-- "With utmost respect I would differ with the proposition canvassed at the Bar that if the Investigating Officer has found the accused innocent & placed him in Column No. 2 of the challan then he would be entitled to bail as of right. In support of the plea for bail on behalf of the respondent, the only ground urged is that during the investigation he was found innocent by the police and placed in Column No. 2 because at the time of the alleged occurrence he was found in another village. The oral statements of some witnesses including that of Muhammad Ali Pawinda recorded long after the occurrence, to my mind are not enough to attract the benefit of Badiuzzaman's case referred to above. The respondent has been assigned in the F.I.R. an effective role in the murder of the deceased and the charge is supported by the statements recorded under Section 161 Cr.P.C. The belated statements of Muhammad Ali Pawinda P.W. and others referred to above are not prima facie based on sound material as held in Muhammad Afzal vs. Nazir Ahmad 1984 SCMR 429. It is not the single case from jurisdiction of Bannu District that such a plea has been advanced. In a number of cases I noticed a tendency that such a plea has been advanced and relying on Badiuzzaman's case, the accused are being declared innocent and placed in column No. 2 of the challan. In my view, however, the opinion of the police qua the innocence of the respondent in this case is not based on sound material and, therefore, even if he has been placed in Column No. 2 of the Challan, he would not be entitled to bail. On consideration of the entire material on the file and abscondence of the respondent for over eight months, I have formed the opinion that there are reasonable grounds for believing that the respondent has committed the offence with which he had been charged." 11. In view of the prima facie nature of charge against the accused/respondent, I accept this petition for bail cancellation and set aside the impugned order of the Special Judge, Lakki Marwat. The accused/respondent present in Court is taken into custody and sent to Jail to await his trial as under trial prisoner. He shall be produced before the trial Court on 25th instant. These are the reasons for the short order announced today. (K.K.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 575 Present: ZAFAR PASHA CHAUDHRY, J. GHULAM RASOOL-Appellant versus STATE-Respondent Criminal Appeal No. 264 of 1994, accepted on 20-10-1997. Pakistan Penal Code, 1860 (XLV of I860)- —S. 302-Murder—Offence of~Conviction for-Appeal against—Witnesses have not come forward with true version and have tried to implicate appellant by imputing a direct fire on the person of deceased-Initial version in FIR was that appellant fired a shot at R which accidently hit M deceased-Witnesses have made mprovements which is clearly a dishonest act and rendered credibility of witnesses as extremely unacceptable-On account of adopting a new version, it becomes even difficult to place reliance or to accept initial version that appellant in fact intended to kill R but M deceased accidentally fell victim to fire shot-No motive has been set up in FIR, but during trial, a motive has been introduced that 10/15 days prior to occurrence, appellant set ablaze "Parali" of M on which M hurled abuses and gave him a slap which is extremely vague and unconvincing-Moreover one G had been injured during incident and he had been cited as a witness by prosecution but was subsequently given up~His non-production has left a lacuna in the prosecution case and benefit in any case has to be extended to accused- Similarly S and R who even according to prosecution were engaged in fight with appellant were neither cited nor examined during trial-There does not appear any valid reason for not examining them by prosecution-­ Medical evidence is not in consonance with eye witness account on all material aspects, same cannot be treated or regarded as supporting evidence-Fire arm injuries have been caused from a veiy close range which is contradicted by prosecution witnesses-Prosecution evidence is discrepant on material points-It has to prove guilt of accused person beyond any shadow of doubt which has not been done-Appeal allowed Appellant acquitted. [Pp. 579, 580 & 581] A to H Ch. Bashir Hussain Khalid, Advocate for Appellant. Ch. Nazir Ahmed, Advocate for State. Date of hearing : 20-10-1997. judgment This judgment will dispose of Criminal Appeal No. 264/94 filed by Ghulam Rasool against his conviction and sentence and Criminal Revision No. 115/95 filed by Ghulam Muhammad complainant for enhancement of the sentence of Ghulam Rasool convict, directed against the judgment dated 11-5-1994 passed by Mr. Pervaiz Ali Chawala, Additional Sessions Judge, Gujranwala. 2. The brief facts as revealed from the FIR Ex. PD recorded on the statement of Ghulam Muhammad PW. 3, uncle of Mansha deceased are that on 4:4.1991 at about 5.30 p.m. the complainant alongwith his nephew Muhammad Mansha deceased as well as Muhammad Abid Hussain PW. 4 were proceeding towards Haveli of Muhammad Mansha. When they reached near the house of Mushtaq situated on the main road, he saw Ghulam Rasool appellant armed with 12-bore shot gun was engaged in fighting with Shaukat and Muhammad Ramzan. Muhammad Mansha intervened to get them separated but Ghulam Rasool fired a shot from his gun which instead of hitting Muhammad Ramzan hit Muhammad Mansha on right side of his chest and arm. Muhammad Mansha fell down on account of injuries. The complainant alongwith his companions removed him to Civil Hospital, Noshera Virkan and obtained his Medico Legal Report. He was referred to Civil Hospital, Gujranwala. Unfoitunately he succumbed to the injuries and expired at 3.30 a.m. on 15.4.1991. His Post Mortem was conducted at 10.45 a.m. on the same day, by Dr. Hafeez-ur-Rehman (P.W.ll). 3. , Earlier, Muhammad Mansha had been medically examined by Dr. Ashfaq Ahmad, SMO, RHC, Noshera Virkan on 14.4.1991 at 6.30 p.m. who found the following injuries on his person :— 1. A fire arm wound 1 cm circular x going deep on front of right shoulder and margins were black. 2. A fire arm wound 1 cm circular x going deep on the front of the right chest 7 cm below the injury No. 1. 3. Fire arm wound 1 cm circular x going deep on front of right chest at the entrance and at the exit 1% cm fire arm wound on back of chest. Wound was through and through and 2 cm from injury No. 2. 4. Fire arm wound 1 cm circular x going deep on front of right chest at the entrance and 1% cm on the back of right chest and margins were black at the entrance, 3 cm from injury No. 3. 5. Fire arm wound 1 cm circular x going deep on front of chest, outside of the chest 4 cm from injury No. 2. 6. A fire arm wound 3 cm x 1 cm on outer side of right upper arm. 7. Fire arm wound 1 cm circular on outer side of right upper arm at the entrance and at the exit \^A cm circular on back of right upper arm at the exit. S. A fire arm wound 1 cm circular x going deep on inner side of right upper arm alongwith fracture humerus. 9 A fire arm wound 1 cm circular x going deep on outer side of right, upper arm and the margins were black. Dr. Hafeez-ur-Rehman (PW. 11) also noted the injuries sustained hy Muhammad Mansha deceased as described in his Medico Legal Report. All the injuries were found to be ante-mortem caused by fire-arm which "" corresponded to the injuries mentioned in the M.L.R. issued by Dr. Ashfaq Ahmad PW.5. The cause of death was rib fracture, damage to right pleura, nght lung and right pulmonary vessels which caused haemorrhage and shock. The injury was sufficient to cause death in ordinaiy course of nature. Probable time between injuries and death was one to two hours whereas time between death and post mortem was 12 to 24 hours. 4. FIR Ex. PD was recorded by Safdar Hussain MHC and copy of the same was sent to Muhammad Akram S.I. (PW. 10). He after receipt of the same reached hospital at Gujranwala but the injured had been removed -^ to Mayo Hospital, Lahore. He followed him up. He recorded the statements of the PWs on his visit to the place of occurrence. In the meanwhile he was informed that the injured had expired. Therefore, section 302 PPC was substituted for section 324 PPC. He visited the spot, collected blood stained earth vide memo Ex. PE. He also prepared the injury statement Ex. PJ and inquest report Ex. PK. He also got prepared the site plans Ex. PC and PC/1 from the Draftsman. He also secured the last worn clothes of the deceased and a sealed phial containing pellets and took them into possession vide memo Ex. PA. Thereafter, the investigation was taken up by Riaz Ali Shah Inspector/SHO (PW. 9). He arrested the appellant on 3.5.1991 and on his ointation effected recovery of gun (P. 3) from his residential house situated at village Baddo Ratta and took the same into possession vide memo Ex. PG. The investigation was then transferred to DSP Karaoke. After completion of the investigation the appellant was sent up to face trial in the Court of Sessions which was entrusted to the court, of learned Additional Sessions •Judge. 5. The prosecution in order to prove the guilt of the appellant examined 9 witnesses. Muhammad Ikram PW. 1, Arif Hussain lyaz Draftsman PW. 2, Muhammad Ali PW. 6 and Safdar Hussain ASI PW. 7 are formal in nature and they performed varu,, s a~ + s during he investigation. G hula in Muhammad complainant (PW. 3) and Auid Hussain (PW. 4) furnished eye-witness account of the occurrence. Th? statements made by Dr. Ashfaq Ahmad (PW.5) and Dr. Hafeez-ur-Rehman (PW. 11), Riaz Ali 5hah. Inspector/SHO (PW. 9) and Muhammad Akram S.I. (PW. 10) have been detailed above. The learned Prosecutor after examining the aforesaid witnesses tendered in evidence the report of Chemical Examiner Ex. PN and that of Serologist Ex. PO and with that closed the case of the prosecution. The appellant when examined under section 342 Cr.P.C. denied the allegations against him. In answer to Question No. 5, as to why this case against him and why the PWs deposed against him, he made the following reply :- "Due to enmity with the PWs. The feet of the matter is that 7 days prior to the murder of Munsha, I and Rafique PW of this case had quarrelled with each other, :>:; he got me involved through his relatives. On the day of occurrence Muhammad Munsha deceased fired at Gulzar Ahmad "given •? up PW). who sustained injury on his thigh, but, luckily survived and in retaliation he fired at Muhammad Munsha who sustained fatal injuries. Both were shifted to Rural Health Centre, Noshera Virkan for medical treatment and were examined by Dr. Aslsfaq Ahmad PW-5, as private cases, almost simultaneously. Doctor PW-5 handed over to police 'Dhoti' of Gulzar PW having corresponding holes. +, When Dr. Ashfaq Ahmad appeared as PW-5, the prosecution with ulterior motive restricted his statement by proving the MLR of Muhammad Mansha only and not allowed him to f prove MLR of Gulzar PW. So during cross-examination MLR of Gulzar was got proved. Initially the prosecution put forward its case that I had fired at one Muhammad Ramzan but instead of Muhammad Ramzan, the fire hit Muhammad Munsha deceased and no motive was attributed to rue but later on, the complainant party changed its stoiy and invented a false motive of setting ablaze 'Parali' of Muhammad Munsha and also improved the stoiy that I intentionally murdered Muhammad Munsha. In this way, firing of Muhammad Munsha at Gulzar was not disclosed n and Gulzar restrained to lodge FIR against Munsha, so that _..--" stigma of crime of Munsha may be brushed aside. I am the only son of my parents, the others being daughters. The complainant party wanted to grab the property of my parents by putting pressure of this case. Many police officials have remained under the influence of complainant party." He produced certified copies of order dated 19.2.1992 passed by Mr. Justice Sajad Ahmad Sipra as Ex. DE and order dated 3.10.1991 passed by Ch. Riaz Ahmad, Additional Sessions Judge, Gujranwala as Ex. DF, and School Leaving Certificate Ex. DG to prove his date of birth. He however, did not appear as his own witness as envisaged under section 340(2) Cr.P.C. 6. Learned trial court on conclusion of the trial, held the appellant guilty of committing Qatal-e-Arnd of Munsha deceased. Accordingly, he was convicted under section 302(b) PPC and sentenced with imprisonment for life as Tazir. He was directed to pay compensation of Rs. 40,000/- to the legal :he deceased under section 544-A Cr.P.C. or in default to undergo •.ir-ins: urgent for six months. 7 Learned counsel for the appellant has argued that the learned :r.al Judge has erred in convicting the appellant. The case as set up by the ;r:r?e-:v.:::r, in the FIR at initial stage has totally been deviated from in the 5T-iTerp.er.~5 made during trial. The material witnesses such as Shaukat and ?_ijnzar. mentioned in the FIR were not examined. Similarly Gulzar PW who had teen injured during the incident was although cited as a witness but •.vas not produced on the ground that he had been won over by the prosecution. It is lastly submitted that the medical evidence contradicts the eye--.vi:ness account, therefore, the appellant is entitled to be acquitted. Learned counsel for the State has opposed the prayer and supported the impugned judgment. 8. I have considered the arguments raised at the bar carefully and also perused the record. The first version given by the prosecution itself was that the appellant was engaged in fighting with Shaukat and Ramzan. Mansha deceased tried to intervene as he intended to separate the parties but the appellant fired a shot at Ramzan which accidentally hit Mansha deceased, who subsequently sccumbed to the injuries and died in the hospital. During trial this version was changed and both the eye-witnesses namely Ghulam Muhammad complainant PW. 3 and Abid Hussain PW. 4 stated that when they were proceeding towards the place of occurrence, fight in between Ghulam Rasool appellant on one hand and Shaukat and Ramzan on the hand had finished. The appellant fired a shot straight on Mansha hitting his right arm and right chest. New motive was introduced that 10/15 days prior to the occurrence, the appellant had set on fire 'Parali' in the Havdi of Mansha on which Mansha had abused him and also given him slap. This version obviously is totally different from the version taken up in the FIR. During cross-examination both the eye-witnesses were confronted with their previous version but no satisfactory explanation was tendered. It appears that the witnesses have not come forward with true version and B have tired to implicate the appellant by imputing a direct fire on the person of the deceased. Initially the case of the prosecution was that even if another person than the victim was hit by the accused, he would be guilty of murder, as per principle laid down under section 301 PPG. The witnesses have made improvements which is clearly a dishonest act and has rendered the credibility of the witnesses as extremely unacceptable. On account of adopting a new version it becomes even difficult to place reliance or to accept the initial version that the appellant iu %ct m-t^ided to kill Ramzan but Mansha deceased accidentally fell victim to uie lire >?hot. The argument by the learned counsel for the State that in case the veision taken up by the prosecution witnesses during trial is not accepted, the initial version may be considered and relied upon, does not have much force. In considering the testimony of a prosecution witness the most important aspect is to see whether it inspires confidence or not? As the prosecution witnesses have changed their version materially, therefore, their statements do not inspire confidence, as such it is veiy hard to believe their statements and their testimony cannot be safely relied upon. 9. Not only the narration of the incident has been changed, a new factor by way of motive has been introduced. No motive has been set up in the PTT ? but during trial with a view to make the statements to look reliable and trust-worthy, a motive has been introduced that 10/15 day? prior to the 0 occurrence the appellant set ablaze Tarali' of Mansha on which Mansha hurled abuses and gave him a slap. The motive apart from being extremely vague and unconvincing cannot be accepted as a feature which would have given rise to the present occurrence. A futile attempt has in fact been made by the prosecution to bring on record a corroborative piece of evidence. 10. Apart from the aforesaid reasons, the prosecution case suffers from other infirmities. It has been brought on the record that during the occurrence one Gulzar received fire-arm injuries. He was also medically examined by Dr. Ashfaq Ahmad PW. 5 who had earlier examined Mansha injuried. He attested his M.L.R. as well. According to the M.L.R., Gulzar received fire arm injuries. The defence version that in fact the fight had ensued in between Gulzar on one hand and Mansha on other hand; Mansha deceased inflicted a fire arm injury on his person and Gulzar with a view to defend himself fired at the eceased who after receipt of the said injuries expired subsequently. The defence version cannot be accepted as a whole truth but the fact remains that sufficient material has come on the record to indicate that Gulzar had been injured during the incident and he had been cited as a witness by the prosecution in the calendar but was subsequently given up as having been won over. It cannot be said with certainty as to what statement he would have made in the court but his non-production has left a lacuna in the prosecution case and the benefit in any case has to be extended to the accused. Similarly, Shaukat and Ramzan who even according to the prosecution were engaged in fight with the appellant were neither cited nor examined during trial. The witnesses were apparently opposed to the appellant and there does not appear to be any valid reason for not examining them by the prosecution. Their non-production in court also makes the prosecution case as doubtful. A valid inference can be drawn that the prosecution did not deliberately bring on record the true facts. The contention raised by the learned counsel that medical evidence is not in consonance with the eye-witness account is not without basis. The injuries have been found to have blackening by the doctor but according to the eye­ witnesses and the I.O. as well as the site plan exhibited by the prosecution, the distance in between the assailant and the injured was 27-30 feet. No blackening or tattooing can be caused if a shot is fired from that distance. The mere fact that injuries have been caused with fire arm is not sufficient to lend support to the eye-witness account. Unless the medical evidence is in line with the eye-witness account on all material aspects the same cannot be treated or regarded as supporting evidence. The fire arm injuries have been ca'.i^e.: from a very close range which is contradicted by the prosecution v.esse; The prosecution case on this score as well is rendered doubtful ar." ; :ceptable. As regards the recovery of weapon of offence, the same is uential because the very recovery of gun in absence of recovery of -i:;v e!:.::~y for being matched with the said gun and the report of Forensic Expert in that behalf is of no help to the prosecution. 11 The upshot of the above discussion is that the prosecution has - failed :o discharge its onus. The prosecution evidence is discrepant on iT.irerial points. Although the defence version put forward by the appellant can also hot be accepted in toto but there is no onus on the accused which he ha> T o discharge. The prosecution has to prove the guilt of the accused j)ei> :i beyond any shadow of doubt which has not been done. Resultantly, the appeal is allowed, the conviction and sentence of the appellant is set. asr'e and he is acquitted of the charge against him. He shall be released forthv.itii if not required in any other criminal case. MFYK Sentence set aside.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 581 Present: raja FAYYAZ AHMED, J. ABDUL RASHID-Appellant. versus STATE-Respondent Criminal Appeal No. 343 of 1996, accepted on 16-2-1997. Prohibition (Enforcement of Hadd) Order, 1979-- —->. 27 read with Ss. 3, 4 and 16(b)--Criminal Procedure Code, 1898 Ss. 103. 410 and 510-Qanun-e-Shahadat Order, 1984, Arts, 59, 73 and 75- Offence u/S. 3/4 of Prohibition Enforcement of Hadd Order, 1979- Conviction for—Appeal against—Report of analysis about suspected opium has been issued by chemical expert which cannot be tendered in evidence without its legal proof as chemical expert is not a chemical examiner- Said report of analyst so relied upon by trial court without examination of expert in court is of no legal effect-Such document being not a public document, cannot be legally tendered in evidence except through primary evidence within meaning of Art. 73, 75 & 59 of Order, 1984, hence, cannot be treated to be a valid and legal piece of evidence against accused-Suspected material (opium) has been sent for examination after lapse of about two months—No explanation has been given by I.O. for this inordinate delay-An offence under Article 3 and 4 of Hadd Order, if not committed at public place is not cognizable-Place of occurrence wherefrom suspected material is a 'Baithak' of the house of appellant, which is not a public place but situated in a habitated area—Raid was conducted by police after midnight-No magistrate was with raiding party as per PW1 whereas PW-2 stated that one Magistrate was present at that time and PW-3 (I.O.) stated that neither there was Magistrate nor any private person was called from nearby houses to witness the search-All P.Ws are police officials who contradict each other with respect to non-avilability of private persons to witness the search-Inconsistency of PWs creates legiti-mate doubt about alleged recoveiy of narcotics-Deliberate suppression of fact about taking out samples further creates doubt with respect to authenticity of parcels of suspected material-Impugned judgment and conviction of appellant set aside-Appeal accepted. [Pp. 584, 585, 586 & 587] A to H PLJ 1981 Cr. C. (Lah.) 137, PLJ 1996 1323, NLR 1995 626 S.D. 1986 SCMR 1836, 1995 MLD 932 (SCD) ref. M/s Muhammad Aslam Chishti and Zahoorul Haq, Advocates for Appellant. Mr. Mehmood Raza, Advocate for State. Date of hearing : 4-2-1997. judgment This appeal has been filed under section 410 Cr.P.C. read with section 27 of the Prohibition (Enforcement of Hadd) Order, 1979 against judgment dated 11.12.1996 passed by the Additional Sessions Judge, Khuzdar whereby the appellant has been convicted and sentenced under section 3/4 of the Hadd Order to suffer R.I. for a period of two years plus fine of Rs. 5000/- imposed and in default of payment of fine to undergo further six months R.I. 2. The facts of the case as per FIR lodged by Maqsood Anwar SI/SHO police station Khuzdar (FIR No. 97/95) under section 3/4 of the Prohibition (Enforcement of Hadd) Order 1979 are that on 18.8.1995 the complainant alongwith Abdul Aziz ASI, head constables, Mumtaz Hussain, Muhammad Riaz, Atta Muhammad, Khuda Bakhsh, Pazal Muhammad and four constables under the supervision of DSP Mr. Abdul Hayee were on the patrol (Gasht) of the area in vehicles, got a spy information that one Abdul Rasheed son of Sher Dil frequently deals in narcotics and he at that time is in possession of the narcotics. The complainant alongwith the police personnels at the given address raided the 'Bathak' of the house of the appellant and from under the table recovered plastic bage hidden there. Upon checking the plastic bagc/iaras weighing 1515, grams, opium weighing 450 grams recovered from it. While Rs. 7750/- recovered from a plastic packet, which were taken into possession vide, separate inventories and sealed parcels prepared in presence of the attesting witnesses namely Mumtaz Hussain and Atta Muhammad, Head constables. The investigation of the case was handed over to ASI, Abdul Aziz. Two separate FIRs were registered by th'e complainant one in the instant case (FIR No. 97/95) pertaining to the recovery of opium and the other one under sections 8/14 of the Dangerous Drugs Act regarding the recoveiy of charas under FIR N: t" 5 1?95. whereas: ASI Abdul Aziz was the Investigating officer ale :i~ ted in this case too. The investigating officer sent hoth the parcels of alleged narcotics to the F 5.L. Quetta for analysis, site plan of the place of occurrence prepared and statement of P.Ws under section 161 Cr.P.C. recorded. Finally challan No. ill 95 submitted in the trial court under FIR No. 97/95 and separate challan No. 110/95 under FIR No. 96/95 against the appellant for trial submitted. 3. The learned trial court on 24.9.1996 framed charge against the appellant under Article 4 of the Prohibition (Enforcement of Hadd) Order regarding the illicit charas and opium to which the appellant did not plead guilty and claimed trial. The prosecution in all examined three witnesses namely Maqsood Anwar (complainant) as P.W.I, Mumtaz Hussain, Head Constable as P.W.2 (the witness of the incident) and the attesting witness of the inventory Ex. P./2-A and Abdul Aziz, ASI as P.W.3 (The Investigating Officeri in the case. Whereupon; the appellant was examined under section 342 Cr.P.C. wherein the convict disputed the recovery of the narcotics from his possession and stated that the amount of Rs. 7750/- has been snatched from him by the police while he was going back to his home and that the P.Ws have deposed against him falsely due to enmity. The convict did not lead any defence nor made his statement on oath in disproof of the charge. 4. The learned cor~"e! for the parties have been heard at length and the record of the learned trial court perused in depth. Mr. Muhammad Aslam Chishti, Advocate for the appellant mainly contended that, the charge against the convict has not been established by the prosecution on the grounds; (i) the report of the chemical expert who is not the chemical examiner within the meaning of section 510 Cr.P.C. could not have been tendered in evidence by P.W. 3 the Investigating Officer hence not admissible in evidence, (ii) the recovery of the narcotics have not been made from the control/possession of the appellant, (iii) flagrant violation of the mandatory provisions of section 103 Cr.P.C. has been done by the police without offering any explanation in view of he judgment of the Hon'ble Supreme Court of Pakistan reported in PLJ SC 1323 rendering thereby the stated recovery doubtful and inconsequential, (iv) the'report of the chemical expert being not a public document is not capable of admissibility by tendering it, fv) no analysis report pertaining to stated charas has even come on record, (vi) the stated search of the 'Baithak' of the house of the appellant at late hours of the midnight has been made contraiy to the relevant provision of search as contained in the Cr.P.C. (vii) the offence described in section 4 of the Hadd Order, if committed at a public place within the meaning of section 16(b) shall be cognizable and in the case in hand the 'Baithak' of the house of the appellant was not a public place, vitiating thereby the search proceedings (viii) that there are material contradictions in the statements of the P.Ws as well; which make the conviction as not sustainable and (ix) that without prejudice to the forestated grounds, the inordinate delay in sending/despatching the illicit articles to chemical analyst created doubt with regard to the authenticity thereof, specially for want of any explanation offered by the prosecution of such delay. The learned counsel elaborating that the offence under Article 4 of Hadd Order, if not committed at a public place, referred to the scheme of the law and made reference to Articles 8, 9 and 12 of the Hadd Order. 5. The learned counsel appearing for the State subm tted that charge against the appellant was proved beyond doubt, there is no material contradiction in version of the P.Ws and that the minor discrepancies in prosecution evidence does have no effect on the merits of the case and that the police witnesses are as good witnesses as that of the public, in absence of special circumstance/reason. The Advocate for the State generally controverted even the legal pleas raised on behalf of the appellant and while confronted with the point of inordinate delay in sending the articles to chemical analyst for inviting some plausible arguments, he frankly conceded about the possibility of manipulation/tempering with the parcels. 6. I have given anxious thought to the propositions involved in the ase. Section 510 Cr.P.C. reads :-- "Report of Chemical Examiner, Serologist. etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or any Serologist, finger-print expert or fire­ arm expert appointed by Government (or of the Chief Chemist of Pakistan Security Printing Corporation, Limited), upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code : Provided that the Court may if it considers necessary in the interest of justice summon and examine the person by whom such report has been made." The admitted feature of the case is that report of analysis Ex. P/3-B about the suspected opium has been issued by the chemical expert of the F.S.L. Quetta (Police Crime Branch Balochistan) and being not a Chemical Examiner to the Government cannot illegally be tendered in evidence without its legal proof i.e. through the person/expert who analysed the material and executed the report without putting him in the witness box, is not tenderable by any one else by way of evidence. The report of the analyst so relied upon by the learned trial court without the examination of the expert in court, not having been exempted under section 510 Cr.P.C. is of no legal effect. Such document being not a public document cannot be legally tendered in evidence except through primary evidence within the meaning of Article 73 and 75 read with Article 59, of the Qamm-e-Shahadat, Order 1984. In absence of legal proof/evidence of the analyst, despite the report having been exhibited in the statement of Investigating Officer; cannot be Treated to be a valid and legal piece of evidence against the accused. Conviction based upon such report is no sustainable. PLJ 1981 Cr. C. (L'ah.) 137. AIR 1944 Bom. 321 referred. The police officials nor the courts are experts in the chemical analysis to determine by looking or observing the suspected material to be intoxicants in absence of the proof of chemical analysis. Even in cases where the chemical analysis report has been produced in evidence but the reasons for the conclusion drawn by the expert were wanting such report kept out of consideration, if it were the sole basis for conviction, keeping in view the principles of safe administration of justice. (Muhammad Kalim v. The State 1995 MLD 1152 (SCO) referred). 7. As per report of the chemical Analyst Ex. P/3-B the suspected material i.e. opium parcel No. 1 was received in the F.S.L. Laboratory (sent by the SHO, Police Station, Khuzdar by hand) on 15.10.1995. The analyst report has been issued on 31.10.1995 whereas, Ex. P/3-B indicates that the parcel in question was received in the Laboratory duly sealed bearing four seals and after examination of the suspected material, it was returned to the SHO concerned duly sealed. The recoveiy memo of the suspected material (Opium) Ex. P/2-A was prepared on the date of incident i.e. 18.8.1995 but the parcel thereof has been most probably sent by hand after the lapse of about two months, the ate on which it was received in the F.S.L. for analysis. Xo explanation whatsoever has been given by the Investigating Officer for this inordinate delay nor any evidence produced by the prosecution as to in whose custody of where the parcel of the suspected material was kept lying. The learned counsel for the State was not in position to clarify the inordinate delay in sending the parcel to the Laboratory, rather conceded to the possibility of its tampering/manipulation. In such a situation where no explanation has been offered in sending the suspected material for test analysis after a considerable long delay nor any evidence produced by the prosecution as to where and in whose custody the material was kept, renders its authenticity as doubtful hence immune of any reliance. KLR 1991 Cr. C. 29 referred. 8. The place of occurrence wherefrom the suspected material narcotics as per case of the prosecution, has been recovered by the police, is the •Baithak' of the house of the appellant. Section 16 of the Hadd Order envisages certain offences to be cognizable, namely (a) an offence punishable under Article 3; (b) an offence punishable under Article 4, Article 8 or Article 11 if committed at a public place. The admitted feature of the prosecution case is that the alleged offence under Article 4 of the Hadd Order 1979 has not been committed at a public place hence not cognizable within the meaning of section 16(i)(b) of the Prohibition (Enforcement of Hadd) Order, 1979. The enabling provisions of Article 22 and 23 of the Hadd Order in my humble view, have been enacted to deal with the issuance of search warrants in such like cases as well, where a cognizable offence has not been committed under Article 4, 8 and 11 of the Hadd Order within the meaning of Article 16, besides, the cognizable offences within the purview of section of the Order. In view of the prosecution case Article-3 of the Hadd Order did not attract in the instant matter and the learned trial court was fully conscious of this legal aspect, therefore, it did not frame charge under Article 3 of the Order; although FIR has been registered under the said Article too. Similarly the offence of drinking punishable under Article 8 and 11 of the Hadd, Order has been made cognizable, only if committed at a public place under Article 16 of the Order. In view of the express provision of the Hadd Order referred to above, the intent of the legislature is quite manifest from the said provisions of law; so an offence under Article 3 and 4 of the Hadd Order, if not committed at public place is not cognizable. The provisions of the law have not been adhered to by the police which render the investigation into the case as irregular and not in consonance with the law; resultantly the search so carried out stands vitiated, but ipso facto does not vitiate the trial and the court despite such illegality and irregularity seized of the jurisdiction and competence to try the offence. Noorul Islam versus State 1986 SCMR 1836, Nasir Abbas versus State NLR 1989 SD 806, Ashiq Hussain versus State 1995 MLD 932 (SCD), Ejaz Mehmood versus State NLR 1994 SD 37 referred. 9. The other important legal aspect involved in the case pertains to the violation of the mandatory provisions of section 103 Cr.P.C. if any; has taken place in the circumstances of he case. Obviously the raid has been conducted by the police in the Baithak of the appellant's house which is located in a habitated area after midnight. In the given circumstances in the late hours at night it is hardly conceivable that respectable persons of the locality could be made available to witness the intended search but despite this aspect of the case, the P.Ws themselves have made the stance of the prosecution in this context doubtful. For instance P.W. 1 during cross examination stated that they did not inform any private person to witness the search as it was night hours, the house of the accused is surrounded by many other houses, and no Magistrate was with the raiding party, whereas; P.W. 2 H.C. stated that one Magistrate was present at the time of raid, SHO called people from the surrounding houses but no one came out of their mouses due to night and in this context during cross examination P.W. 3 the -Investigating officer stated that at the time of raid no Magistrate was present and no private witness was called from nearby houses to witness the search. L\ll the P.Ws are police officials who instead of being consisting in their version contradict each other with respect to the non-availability of the private persons to witness the search, this was a pre-arranged raid, they could have made effort even at hours of the night to arrange for public witness or at least their stand on the point should have been consistent in kdew of the Rule laid down by the Hon'ble Supreme Court reported in PLJ 11996 page 1323 and NLR, 1995 626 (SD). The inconsistency of the P.Ws in this context creates legitimate doubt about the alleged recovery of narcotics and the recovery of the alleged narcotics for the foregoing reasons is of no credence. 10. The prosecution was fully aware of the fact that both the parcels of the suspected material were sealed for analysis and the report of the Laboratory with respect to the charas has also been annexed with the challan separately submitted in court but it did not bother even to prove it. P.W. 1 (the complainant) in the case deposed during cross examination that the opium and the charas was weighed at the place of occurrence and subsequently in the police station and he did not remember as to who weighed these at both the places. Whereas; P.W. 2 (the Investigating Officer) deposed during cross examination that he sent the Murasila to police station through a constable and that he had taken out samples of the recovered narcotics weighing two grams each and while answering to a question stated that he sent the parcels on 15.10.1995 to Quetta for analysis. The deliberate suppression of the fact about the taking out the samples further creates doubt with respect to authenticity of the parcels of the suspected material. The learned trial court did not take into account the relevant facts and the grounds of law involved in the case and recorded the conviction of the appellant without the charge having been proved, which is not sustainable under the law. The impugned judgment and the conviction of the appellant recorded by the trial court is hereby set aside for the foregoing reasons. The appellant be set at liberty if not detained in connection with any other case. The cash amount of Rs. 7750/- taken into possession by the police if not earlier returned, be restored to the appellant, resultantly the appeal succeeds. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 587 Present: MALIK HAMID SAEED, J. STATE-Appellant versus KHAN WALI-Respondent Cr. Appeal No. 16/96 with Cr. Misc. No. 6/96, dismissed on 15-4-1997. Suppression of Terrorist Activities (Special Courts) Act, 1975-- —-S. 7 read with section 417 of Cr.P.C.-Offence u/s 13 .of Arms Ordinance- Acquittal of respondent-Appeal against-Appeal filed after a delay of more than four months-Status-It is not a mistake but delay caused due to lack of diligence and carelessness-No cogent and valid reasons which restrained State from filing appeal in time-An appeal against acquittal could not be entertained unless filed within requisite period of limitation and when filed thereafter, unless it is shown that such delay was due to act of acquitted co-accused or by some circumstances of compelling nature beyond control of appellant including state-Appeal dismissed in limine. [Pp. 588 & 589] A to D 1972 SCMR 331 ref. S. Saeed Hassan Sherazi, AAG for Appellant. Date of hearing : 15-4-1997. order The accused/respondent, namely, Khan Wali, was tried by the learned Special Judge Lakki who vide his order dated 20.8.1995 acquitted him from the charge under Section 13 Arms Ordinance. 2. The prosecution case in brief is that Kalam Rais Khan SHO Police Station Naurang on receipt on information about the presence of the accused/respondent in his house who was a proclaimed offender in case F.I.R. No. 4 dated 9.1.1992 u/S. 324/34 PPC of Police Station Naurang raided the house of the accused and apprehended him alongwith an unlicenced Kalashnikov having three chargers and 145 live cartridges of 7.62 bore. 3. After conclusion of the trial, learned Special Judge acquitted the accused/respondent from the charge vide order dated 20.8.1995 on the grounds that the case property was neither exhibited nor produced before the Court; and that the provisions of Section 103 Cr.P.C. before conducting raid on the house of the accused were not complied with. 4. Without discussing merits of the case, the instant appeal is not maintainable being time barred, as the impugned order was passed on 20.8.1995 while the appeal was filed on 13.2.1996, i.e. after a delay of more han four months. The explanation furnished for this delay as per Cr. Misc. No. 6/96 that due to late receipt of file and late recommendations to file an appeal from the Government of NWFP; the delay had occasioned which was neither intentional nor deliberate. 5. We are, however, not persuaded to accept the reasons given for the said delay. To us it is not a mistake but the delay caused was due to lack of diligence and carelessness. The august Supreme Court in the case reported as 1972 S.C.M.R. 331 was held that in petitions against acquittal delay cannot be condoned unless it is shown that petitioner was precluded from filing his petition in time due to some act of the acquitted respondent or by some circumstances of compelling nature beyond his control. 6. We, therefore, hold that an appeal against acquittal could not be entertained unless filed within the requisite period of limitation and when filed thereafter, unless it is shown that such delay was due to the act of the acquitted co-accused or by some circumstances of compelling nature beyond the control of the appellant including the State. 7. In the present appeal, we find no cogent and valid reasons which j ; t.-n ained the State from filing the appeal in time. S. As a result, the appeal is without any meritable onsideration ah. hereby dismissed in limine. K.K.F.' Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 589 (DB) Present : IFTIKBAR MUHAMMAD CHOUDHARY AND RAJA FAYYAZ AHMED, JJ. FATEH MUHAMMAD-Appellant versus MEHMOOD KHAN ETC.-Respondents Crl. Acq. Appeal No. 306 of 1995, allowed on 28-8-1997. Criminal Procedure Code, 1898 (V of 1898)-- ----S. 417-Murder-Offence of-Acquittal of respondents No. 1 to 3-Appeal against—Defence itself admit presence of all three respondents inside house of deceased, where they were seen by witness, when they were present in courtyard—Even in impugned judgment, it has been held thai they were found guilty of lurking house tress-pass by might and this portion of judgment has been conceded by respondents theinselves- Presence of two wounds of bullet in dead body of deceased gets corroboration from recovery of two empties by police at the time of incident—During investigation crime weapon i.e. pistol was recovered from possession of respondent M-Pistol alongwith empties was sent to Fire Arm Expoit, but it was reported to be missing-There is no delay in recording statement of P.W. N so his evidence cannot be discarded or ignored—His statement is sufficient to hold respondents guilty for committing murder which they have done in furtherance of common intention-It is not understandable that how respondents have been exonerated of charge of murder by trial Court-Impugned order set aside—Appeal allowed—DIG crime was directed to conduct enquiiy to ascertain that under what circumstances, crime weapon was misplaced from custody of Fire Arm Expert and what action taken against responsible officer. [Pp. 594, 595, 596 & 597] A to K PLD 1985 SC 11, PLD 1991 SC 923 rc.f. Mr. M.S. Rakhshani, Advocate for Appellant- Mr. M. Riaz Ahmed, Advocate for Respondents No. 1 to ,'i. Mr. Noor Muhammad Achakzai, Additional Advocate General for State. Date of hearing : 18-8-1997. judgment Iftikhar Muhammad Choudhary, J.--Appellant Fateh Muhammad feeling dissatisfied from the order dated 14th November, 1995, passed by Sessions Judge, Sibi Division, whereby respondents were acquitted of the charge of murdering his brother, has filed instant appeal. Briefly the prosecution case is that on 3rd October, 1994, respondents Mehmood Khan son of Manzoor Khan, Muhammad Ismail son of Phunal and Rehamtullah son of Essa Khan committed murder of Nabi Bakhsh, inside his house, by making fire shots, in presence of PW-Niaz Muhammad, younger brother of deceased and Mst. Marvi, widow of deceased. PW-Niaz Muhammad, who was present in home, went to inform PW-Fateh Muhammad, who was sitting in a shop in Sibi Bazar, as such, vide FIR (Ex. P/A), a case was registered under section 302/34 PPG, at Police Station, Saddar, Sibi. It is alleged in FIR being No. 71/94, that 2/3 fatal shots were fired at deceased by respondent Mehmood, whereas co-respondents Ismail and Rehmatullah, cought. hold of deceased. Motive was alleged against one of the respondent Muhammad Ismail, that a theft case was lodged by him against deceased Nabi Bakhsh, in which, he was acquitted of the charge by Sessions Judge, Sibi on 22nd September, 1994, therefore, according to complainant due to this grudge, respondents committed the murder of Nabi Bakhsh. PW-Abdul Karim, SHO visited the place of incident, where he prepared the Inquest report (Ex. P/G) site plan (Ex. P/H) and also secured blood stained earth from the spot vide Memo Ex. P/D. He also recovered two empties of .30 bore pistol vide memo Ex. P/E. On the arrest of respondent Mehmood, one pistol and four live cartridges were recovered from his possession vide Memo Ex. P/F. On completion of investigation, respondents were sent up to answer the charge in the Court of Sessions Judge, Sibi. Charge framed against all the respondents under section 302/34 PPC, was denied by them, and they claimed trial. To prove its case, prosecution led evidence of PWs Fateh Muhammad, Niaz Muhammad (an eye witness) Mst. Marvi (widow of deceased Nabi Bakhsh, an eye witness, but declared hostile), Dr. Abdul Ghaffar, Medical Officer, who produced Medical Certificate (Ex. P'/B), Zaka-ul Hassan, Police Constable, witness of blood stained clothes of deceased, Muhammad Ibrahim, who saw accused running away from the side of the house of Mian Khan, after incident, but could not identified them, Allah Dinna, recovery witness of blood stained earth, Abdul Rehman, recovery witness of pistol, Abdul Karim, SHO/I.O., Rafiullah, Second Investigating Officer, and Syed Abdullah, Chemical Expert. Respondents in their statements under section 342 Cr.P.C. denied the prosecution case, however, they did not examine themselve on oath, nor produced anybody in defence. Learned trial court after completion of evidence, pronounced the Judgement on 14th November, 1995, whereby charge was altered and they v tie convicted under section 456 PPC and sentenced to two years R.I. each iiiid to pay fine of Rs. 1000 or in default, they have to further undergo three mc.iirh? R.I. each, with benefit of section 382-B Cr.P.C. Respondents challenged their conviction before this Court in (."rirmria! Appeal No. 301/95, which was disposed of on 24th December, 19S5. in view of the statement, made by their Counsel Mr. Riaz Ahmad, for i -eduction of the sentence, to the extent, which they had already undergone. Re!- vaiir para from the said Judgment is reproduced herein-below :-- "Thus, conviction under section 456 PPC, is maintained. However, the sentence is reduced to that of which, the appellants have already undergone, with fine of Rs. 1000/- each and in default in payment of fine they will further undergo three months R.I. With the above modification in sentence, the appeal is disposed of." Against, the above order, appellant Fateh Muhammad, filed Criminal Petition foi leave to Appeal being No. 16-Q/96, before the Hon'ble Supreme Court, which was dismissed on 14th May, 1997. Operative para from the Judgment reads as under :-- "It would appear that the petitioner herein had filed Criminal Appeal No. 306 of 1995 against the acquittal of the respondents for the commission of the murder of his brother Nabi Bakhsh which is still pending in the High Court. Since the acquittal appeal filed by the petitioner is pending before the High Court, any order passed by this Court in this petition is likely to prejudice the case pending in the High Court. We would, therefore, refrain from passing any order in this petition. Also this petition is barred by delay of 71 days, we, therefore, dismiss this petition as barred by time. We may, however, clarify that this will have no effect on the appeal pending in the High Court which will be decided on its own merit" It may be observed that according to record, when appeal of respondents being No. 301/95, was pending, appellant also filed instant appeal, which was admitted on 18.12.1995. It appears that when Criminal Appeal No. 301/95, was being argued, no one pointed out that appellant has also filed appeal against the acquittal of respondents. However, on 26 th March, 1996, learned counsel appearing for parties, brought in knowledge of Division Bench that single bench of this Court, comprising of (Justice Iftikhar Muhammad Chaudhry), has already passed order on the appeal, filed by respondents, during pendency of instant appeal and against the said order, petition for leave to appeal, is pending before the Honourable Supreme Court. Therefore, Mr. M.S. Rukhsani, learned counsel, for appellant Fateh Miihammad, requested that the matter may be adjourned sine-die, so that Hon'ble Supreme Court may decide the appeal. As such, order was passed accordingly. As now criminal petition for leave to appeal filed by appellant before Hon'ble Supreme Court, has been dismissed vide order noted herein-above, therefore,this Appeal has been fixed for regular hearing. Mr. M.S. Rukhshani, leaned counsel for appellant, contended that PW-Niaz Muhammad has furnished co-herent and confidence inspiring evidence about the commission of murder by respondent. His statement gets corroboration from evidence of PW-Muhammad Ibrahim, medical evidence, recovery of pistol and empties, blood stained earth from inside the house of deceased, where he was murdered and Judgment of trial court itself, to the extent of charging the respondents for offence of lurking house trespass for committing offence falling within the mischief of section 456/34 PPC, whereby they were convicted and sentenced, which has attained finality, because they conceded to it, by praying for reduction in sentence, through their Advocate, before this Court in Criminal Appeal No. 301/95. In as much as this Judgment has been confirmed by Hon'ble Supreme Court, as leave to appeal was not granted to appellant. According to learned counsel, as the respondents who were convicted and sentenced did not challenge the same, therefore, the Judgment can be considered against them, as a strong circumstance, in terms of Articles 54 and 57 of the Qanoon-e-Shahadat Order, 1984. He further contended that learned Sessions Judge, by passing a shocking and ridiculous order, based on misreading of the statement of PW-Niaz Muhammad, has illegally acquitted the respondents from the charge of murder. It was also urged by him that impugned Judgment has proceeded on wrong assumption of facts, therefore, it deserve interference by this Court in view of the principles laid down by Hon'ble Supreme Court for converting acquittal into conviction, reported in PLD 1985 SC 11 and 1993 SCMR P. 550. On the other hand, Mr. Riaz Ahmad, learned counsel for respondents, contended that prosecution has miserably failed to prove the guilt of murder against respondents. Except the statement of PW-Niaz Muhammad, a minor of 12 years age, there is no other incriminating convincing evidence to saddle the pondents with the liability of crime. According to him, as for as PW-Fateh Muhammad is concerned, he is not. The witness of incident. PW-Marvi, widow of eceased, who even being his wife, has not supported the prosecution, therefore, she was declared hostile, as such solely on the statement of PW-Niaz Muhammad, acquittal earned by - respondents cannot be converted into conviction. As for as the Judgment, of trial court to the extent of declaring respondents, guilty for the offence falling under section 456/34 PPC is concerned that cannot be treated as strong circumstance against them because the trial court while acquitting them from the charge of murder, did not rely on this aspect of the case. Mr. Noor Muhammad Achakzai, learned Additional Advocate . General, supported to the contentions of Mr. M.S. Rukhshani, Advocate and prayed that respondents be convicted/sentenced under section 302/34 PPC, because the prosecution has successfully established the charge, against. Them. It would be appropriate to note at this stage, that initially PW-Niaz Muhammad and PW-Marvi, widow of deceased were the witness of incident. As for as latter is concerned, her evidence cannot be used by either of the party i.e. prosecution or defence, because she has been declared hostile. So for the former witness Niaz Muhammad is concerned, he is the only witness, who could either prove or disprove the prosecution case. He was minor of 12/13 years, at the time of recording his statement before the trial Court.. Learned Court before commencement of recording his evidence, examined his capability of making statement and on having been satisfied, proceeded to record his evidence. In this behalf a note has also been left, on his statement. According to his testimony, he was sleeping with his father in his house, when he heard gun shot report, on which, he rushed towards the room of his deceased brother and saw that accused Rehmatullah and Ismail had cought hold of deceased and Mehmood fired with pistol. Then he went to the shop of Abdul Rehman to inform his brother Fat.eh Muhammad (Complainant) and returned back. On reaching home, his brother lias already expired. In cross examination, he disclosed ioliowing three important aspects of the case :-- (i) the police recorded my statement next day in morning in my house. I had not stated in my statement before police., that I rushed towards the room of my brother Nabi Bakhsh and saw accused Rehmatullah, and Ismail cought hold of Nabi Bakhsh and Mehmood fired on him. (ii) I do not remember that I stated before police that I came out from room and saw Mehmood Khan, Rehmatullah and Muhammad Ismail, present in Courtyard of our house, and (iii) it is correct that at the time of incident, my brother Fateh Muhammad was present in the house and he had not seen any person committing the murder. Mr. Riaz Ahmad, Advocate, contended that portions of his statement, noted at Serial No. (i) and (iii) have given fatal blow to the prosecution case, because on basis of these versions, statement of witness can be kept out of consideration, without further discussion. There is no doubt that the portions of evidence in cross examination of witness noted at Serial No. (i) and (iii) has caused dent in the prosecution case, but if both these sentences are read together, with the sentence j mentioned at Serial No. (ii) it becomes abundantly clear that the defence itself admit the presence of all the three respondents inside the house of , deceased Nabi Bakhsh, where they were seen by the witness, when they were present in the Courtyard. As for as the taken identity of respondents, is concerned, that is not arise because it is nobody's case that they were not, identified by PW-Niaz Muhammad. Assuming for sake of arguments that portion of evidence of the witness at Serial No. (i) and (iii) are correct, still it has been established that respondents entered inside the house of deceased Nabi Bakhsh, on the night of incident. To substantiate this aspect of the case, reference to the impugned Judgment can be made to the extent, wherein it has been held that they were found guilty of lurking house tresspass by night and this portion of the Judgment has been conceded by respondents themselves, because they did not challenge their conviction on merits, even before this Court as well as by filing a petition for leave to appeal before Hon'ble Supreme Court. Therefore, said portion of the Judgment being a relevant circumstance, can be used against respondents under Article-54 read with 57 of the Qanoon-e-Shahadat Order, 1984. Thus in presence of this important aspect of the case, portion of the evidence of PW-Niaz Muhammad noted herein-above at Serial No. (i) and (iii) looses its significance, if at all, it is presumed that the witness had not stated before police that he rushed towards the room of his brother Nabi Bakhsh and saw the accused Rehmatullah and Ismail, cough hold of Nabi Bakhsh and Mehmood fired on him, nor the next portion of his evidence, wherein he stated that at the time of incident, his brother Fateh Muhammad was present in the house and he has not seen any person present in the house and he has not seen any person committing the murder, could be considered to brush aside his evidence, as a whole. It may further be seen that admittedly the dead body of Nabi Bakhsh -• was found laying inside the house as per sketch (Ex. P/H). Similarly the recovery of blood stained earth suggest to believe that deceased was killed inside the house. It is not understandable that how respondents have been exonerated of the charge of murder by trial court, because in view of above discussion and the order operating against them, to the extent of conviction sentence under section 456/34 PPC, it has been established that respondents entered inside the house of deceased during night time. PW-Dr. Abdul Ghaffar Medical Officer, in the medical Certificate i Ex. P B i had confirmed following two wounds of fire arm on the dead body of deceased :— "1. Fire arm entrance wound ^" in diameter margined burnt would lies in the 5th intercostal space anterior midcleviculer line (RT side). 2. Exit wound about 1" in diameter between 8th and 9 th intercostal space on back (RT side). 3. Enterance wound left maxillary bone of left side. 4. Exit wound lies on occipital region diameter is about 1"." Presence of two wounds of bullet on his dead body gets corroboration from the recovery of two empties by police at the time of incident vide memo Ex. P E. produced by PW-Allah Dinna. It may be re-called that PW-Niaz Muhammad has also stated in his examination-in-chief that respondent Mehmood fired 2/3 shots upon the deceased. It is important to note that during investigation crime weapon i.e. pistol was also recovered from possession of respondent Mehmood, vide memo Ex. P/F, produced by PW- Abdul Rehman, Police Constable. The witness deposed that accused disclosed to Abdul Karim, SHO that he is ready to lead the police for recovery of weapon of crime. Thereafter accused took the police party consisting of SHO, the witness himself ana o f h^.. police ziaff to his house, situated in Charmori, Sibi. The accused went inside the room and took out a .30 bore pistol from beneath the beddings. On unloading the pistol the Magazine found contained four live rounds. SHO took into possession the pistol and prepared the recovery memo. In cross examination, statement of this witness could not be shakened. The pistol alongwith empties was sent to the Fire Arm Expert as per the statement of Abdul Karim DSP, who at that time was posted as SHO, Saddar Police Station, Sibi. According to his version, the Moharar of Police Station sent the blood stained earth, clothes of deceased and empties to the Chemical Expert. He further stated that he was called by S.P. Crimes and he told him that the above pistol is missing, therefore, due to this reason, the pistol could not be produced alongwith the Expert» report. As such, it would be useless to further discuss this piece of evidence. Learned trial Judge discarded the evidence of PW-Niaz Muhammad in view of the fact that his statement was recorded with delay, for which, no explanation has been offered. Therefore, in view of the Judgment, of Hon'ble Supreme Court reported in 1993 SCMR 550, he has not been considered a trust worthy witness. In our opinion the principle laid down in the Judgment, with utmost respect, is not attracted in view of the facts of instant case, because PW-Niaz Muhammad when entered in witness box, he gave explanation that on next day his statement was recorded but Abdul Karim stated that he recorded his evidence on 3rd October, 1994 i.e. the night when incident took place. Learned trial court has fallen in error in holding that there should have been explanation of recording the statement with delay. We may observe that when there is no delay at all as per the statement of Abdul Karim, who was investigating the case, then where was the occasion for the witness to give explanation. As for as the version of PW-Niaz Muhammad to the effect that he recorded his statement on next day is concerned, that also appears to be true, because incident took place during night and FIR (Ex. P/A) was lodged by PW-Fateh Muhammad at 2.15 a.m. therefore, his statement could have only been recorded in morning time. Thus the reasons advanced in this behalf by trial Court to discard the evidence of PW-Niaz Muhammad is contrary to the principle laid down by Hon'ble Supreme Court in PLD 1985 SC 11, as in this behalf it has been held that when any important piece of evidence has been ignored, the appellate court ceased with the acquittal appeal, can interfere in the order. Thus, we are inclined to hold that the impugned judgment to the extent acquitting the accused from the charge of murder is based on ignoring important evidence of Niaz Muhammad, which is supported by other evidence, as it has been discussed herein-above. In our opinion, this statement itself is sufficient to hold the respondents guilty for the crime of murder of Nabi Bakhsh, because he was a boy of tender age, therefore, he had no rehym or reasons to falsely involve the respondents in commission of offence. Additionally his brother has been murdered, therefore, he would not allow the real culprits to go escort free and will involve respondents without any justification. He being the natural witness has furnished coherent and ccuf-ietce inspiring evidence, which does not suffer from any important legal error, rendering his statement, in-admissible. Xcv, the next important question is relating to the quantum of punishment Since in FIR motive was set-up but except the statement of PW-Faieh Muhammad, no other evidence has come on record to corroborate that deceased Nabi Bakhsh had committed theft in the house of respondent Ismail, in which, he was arrested and sent-up to face trial but he was acqiiitted of the charge, as such, due to this grudge, Ismail has killed him. In this behalf, prosecution could have brought on record the facts of earlier theft case and Judgment of acquittal, recorded by Sessions Judge, Sibi. Therefore, in absence of convincing evidence, it is not possible to believe the motive. At this juncture, question crops up with regard to liability of each of the accused in commission of offence. To attend this aspect of the case, reference can be made to the statement of PW-Niaz Muhammad, according to whom. Rehmatullah and Ismail cought hold of deceased whereas Mehmood fired 2/3 shots upon him, which would mean that crime was committed by all of them with common intention, therefore, they would be equally liable for the act of murder, which they have done in furtherance of common intention, because overt act of both the respondents Rehmatullah and Ismail facilitated the commission of crime for the accused Mehmood. Therefore, inview of the Judgment reported in PLD 1991 SC 923, we are inclined to hold that accused Mehmood, inflicted fatal blows on the person of deceased whereas accused Rehmatullah and Ismail facilitated the commission of offence, as sucn, each of them shall be liable for the act of murder. Thus for the foregoing reasons, appeal is allowed. Impugned order is set aside and respondents-accused are convicted under section 302(b)/34 PPC and each of them is sentenced to suffer imprisonment for life, with benefit of the period, during which they remained as under-trial Prisoner, as provided under section 382-B Cr.P.C. Warrants of arrest of accused-respondents, Rehmatullah, Ismail and Mehmood be sent to S.P. Sibi, alongwith the copy of this Judgment, for execution and compliance report. A copy of the Judgment be also sent to DIG Crimes, for conducting enquiry to ascertain that under what circumstances the crime weapon i.e. pistol was misplaced from the custody of Fire Arm Expert and what action was taken by police department against the officer, who is responsible for such act and if action has not been taken against him, the reasons of same should be assigned in the report, to be submitted by him within four weeks, after receipt hereof. On receipt of report, it will be placed in chamber for perusal and further action, if need be. (MYFK) Appeal allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 598 (DB) Present : IFTIKHAR MUHAMMAD CHAUDHARY AND RAJA FAYYAZ AHMED, JJ. MUHAMMAD KARIM-Appellant versus MUMTAZ AHMED and another-Respondent Crl. Acq. Appeal No. 121 of 1997, decided on 28-8-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 417-Offence u/S. 324/454/PPC-Acquittal of respondent No. 1/accused-Appeal against on point of jurisdiction-Trial Court passed judgment in a slip shod manner contrary to set principles of writing of judgment-Whether ordinary criminal court has jurisdiction to try a case, if FIR discloses that a schedule offence under STA Act, 1975 has been committed-Question of-PW-M.N. stated that a TT Pistol was used in committing crime by respondent—SHO had also recovered one empty and one live cartridge of TT pistol from place of incident-All these facts ere mentioned in challan under schedule attached with STA Act, 1975, if an offence has been committed by accused using TT Pistol, trial of case has to be held by special Judge under Act, 1975-Trial Court without determining question of jurisdiction decided to proceed with matter and framed charge against respondent-No sooner question of jurisdiction is noted by superior courts it becomes its duty to rectify order by setting aside it-Case remanded to special Judge under STA Act, 1975 for re-trial of respondent in accordance with law-Impugned judgment set aside. [Pp. 603, 604, 605, 606 & 608] A to E 1997 SCMR 1092, 1994 SCMR 717 ref. Mr. Aziz Ullah Memon, Advocate for Appellant. Mr. Tahir Muhammad Khan, Advocate for Respondent No. 1. Mr. Noor Muhammad Achakzai, Addl. A.G. for State. Date of hearing : 18-8-1997. judgment Muhammad Karim appellant has instituted Criminal Acquittal Appeal against judgment dated 31-3-1997 passed by Additional Sessions Judge Panjgoor whereby respondent Mumtaz Ahmed has been acquitted of the charge u/S. 354 PPC. He has also filed criminal revision wherein prayer has been made to enhance adequately sentence awarded to respondent u/s 448 PPC by means of same judgment. Facts of the prosecution case are that on 31-12-1995 respondent entered in the house of complainant Muhammad Karim (appellant) and opened fire which caused injuries to complainant. However, respondent was over powered by the inmates of the house and till the arrival of police party he was tied with ropes and on their arrival his custody was handed over to them. As such FIR No. 128/1995 u/S. 325, 454 PPC was registered at Police Station Panjgoor. The complainant and injured were shifted to hospital as later also received injures. During investigation the rope, blood stained earth one live cartridges and one empty of TT Pistol was recovered by the police from the place of incident; whereas in hospital Abdul Rehman brother of complainant handed over a pistol to the police and according to him it was the crime weapon with which the respondent fired upon his brother Muhammad Karim. It is also stated that in the hospital police recovered 3 live caitridges of TT Pistol from the coat of the respondent. On completion of investigation respondent was up to face charge of attempt to murder and house trespass. Additional Sessions Judge Panjgoor framed charge against respondent on 27-3-1996 to which he pleaded not guilty. Prosecution examined following witnesses to substantiate accuations against the accused : PW-1 Muhammad Karim son of Usman (complainant). He narrated facts about the incident according to which door of his house was knocked, his son Khuda-e-Nazar went to attend the call and on return informed that a person wearing black coat had come as at that time it was raining, therefore, complainant thought probably some guest had come, as such he asked to his son that said person be allowed to sit in 'Baithak'. In the meanwhile he also went towards tae main gate. When he reached there he heard that respondent is enquiring from his son whether his father is present at home. Boy replied in affirmative and when the complainant reached more near the door, he saw that respondent is standing there to whom he recognized. At that time he had a TT Pistol is his hand with which he opened fire upon him out of which one fire hit on his hand. On this he took turn for going back towards the house, but when he reached near the room of his brother he saw that respondent is coming towards him by firing, therefore, another bullet hit on his right hand's wrist. In the meanwhile complainant thought that perhaps he would not be in a position to reach up to the room, therefore, he took turn but in the meanwhile respondent was present very close to him and again he fired upon him which hit on left side of his abdomin due to which he fell down and respondent started running. But he got slipped. In the meanwhile his son Khuda-e- Nazar, Abdul Rahim and his brother Abdul Rehman reached there and with the help of women folk they over powered the respondent and he was tied with the rope. They were beating to him but the witness asked him not to do so and he sent his brother to lodge report; PW-2 Khair Muhammad. He accompanied police to the house of complainant after the incident and noticed that respondent is lying there tied. He was arrested and Fard Ex. P/2-A was prepared which was signed by him. In his presence blood stained earth was also taken into possession vide Ex. P/2-B. Further he stated that in hospital Abdul Rehman brother of the complainant produced a TT Pistol 30 bore made in Pakistan with magazine to SH) and disclosed that with this pistol his brother was injured by the respondent. The SHO took it into possession vide Fard Ex. P/2-C. Pistol was also produced in the court by the witness as Article-3. The blood stained clothes of respondent including the coat was also taken into possession by the police vide Ex. P/2-D. He further stated that in the collar of the coat a stone was also found lying. He produced the stone as Article-4; PW-3 Abdul Qadir son of Mir Qadir Dad. He being SI Police on the day of incident accompanied Muhammad Naseem SHO and other police officials to civil hospital Panjgoor where respondent was admitted in injured condition. He stood witness to Ex. P/2-E in respect of taking into possession his blood stained clothes. In his presence 3 live cartridges of TT Pistol, one wrist watch and Rs. 17/- vide recovery memo Ex. PW/3-A were also recovered from the possession of respondent. He produced cartages of TT and wrist watch as Ex. P/6 & 7. PW-4 Abdul Rehman son of Muhammad Usman. He is the brother of complainant and also eye witness of the incident. He has seen respondent running after his brother Muhammad Karim and firing upon him. He with the assistant of women folk over powered the respondent and his hands and feet were tied. He also snatched pistol from the respondent and thereafter managed to shift his brother to hospital. In the hospital he handed over the pistol to police which was taken into possession vide Ex. P/3-C produced by Khair Muhammad son of Jumma Khan ; PW-5 Abdul Rasheed son of Ahmed. He is the witness of circumstances. According to him on the day of incident when he was going to whom respodent Mumtaz was also behind him. When he entered into house he heard knock at the door, as such he sent his brother Tariq to attend the knock.When his brother came back he enquired from him that who was on the door. He told him that one person was enquiring about the house of Muhammad Karim. After sometime he heard the commotions, besides the house of Muhammad Karim. As such he rushed there and saw that Muhammad Karim is lying in an injured condition. He was asked by the ladies to bring his uncle for shifting the injured Muhammad Karim to hospital. At that time he had also seen that in the foreclosure in the house of Muhammad Karim respondent is also present and he has been tied with the ropes. At that time Abdul Rehman had also snatched the pistol from the respondent. Then he brought the vehicle and shifted to Muhammad Karim to hospital. According to him the pistol was handed over by him to police in the hospital; PW-6 Muhammad Alam son of Haji Abdullah. He is also witness of the circumstances. According to him he heard the commotions. He was attracted towards the house of Muhammad Karim on hearing smears of the ladies and when he went there he saw that respondent Mumtaz is lying there, his forelimbs were tied. At that time ladies and Abdul Rehman were present there. Abdul Rehman had already snatched pistol from the respondent. He also saw that Muhammad Karim is lying in the injured condition near the room. Then he went to inform the police on telephone and when he came back Muhammad Karim had already been shifted to hospital; PW-7 Abdullah son of Muhammad Usman. He is younger brother of the deceased. On the day of incident when he reached in front of his house he came to know that his brother Muhammad Karim has been fired upon by respondent due to which he has been injured. When he reached in the boundary wall of his house, he saw respondent lying tired; whereas his brother Muhammad Karim had already been shifted to hospital; PW-8 Muhammad Saleem son of Panj Shanbay. His statement is identical to the statement of PW-Abdullah because he also learnt about the incident in the house of Muhammad Karim. Subsequently in his presence on 6-2-96 appellant Muhammad Karim handed over his clothes to SHO which were taken into possession by him vide recovery memo Ex. PW/8-A; It may be noted that for the purpose of treatment respondent was shifted to Quetta and after recovery when he came back to Panjgoor then he handed over his clothes to police. He further explained that shirt of Muhammad Karim had two holes of pistol; one on left side of the body and the other in the cuft of left arm of the shirt. He identified those clothes in the court; PW-9 Dr. Abdul Samad son of Haji Abdul Salam. According to him on 13-12-1995 he examined the appellant and noticed 3 injuries on his person; thereafter he referred him for treatment to Quetta vide Ex. PW/9-A. He also produced medical Certificate Ex. PW/8-B; PW-10 Naseem Ahmed son of Badal Bakhsh. He being SHO narrated the story of prosecution case and steps taken by him to complete he investigation. He prepared the injuries report of the appellant Ex. PW/10-C as well as of the respondent being PW/10-D. According to him respondent Mumtaz was also serious, therefore, he was informed by the Doctor that his treatment is not possible at Panjgoor. As such Magistrate accompanied him to hospital who released Mumtaz on bail for the purpose of shifting to some other hospital for treatment. He also produced Murasala Ex. PW/10-E which was sent from hospital to Police Station for registration of the case; PW1-11 Muhammad Anawr son of Gazzi. On 24-1-1996 he took over charge as SHO Police Station Panjgoor. At that time case was under investigation. During investigation he enquired from respondent to produce license of pistol which he failed to do, as such he registered a separate a case u/S. 13-E of the Arms Ordinance against him. He also submitted challan of the instant case asa Ex. PW/ll-A. Respondent was examined u/S. 342 Cr.P.C. wherein he denied that he did not enter in the house of complainant no caused injuries with the pistol fire. He also denied that a pistol was recovered from his possession. However, he admitted that he was forcibly caught hold and was tired. He further stated that he was unconscious when police picked up him from the place of incident. He urged that Abdul Rehman had given a pistol to police; otherwise nothing has been recovered from his possession. In his statement on oath u/S. 340 (2) Cr.P.C. he stated that on the day of incident he was standing in Chatkan Bazar at 1.00 p.m where he met with mast Muhammad Karim Azad who was riding on a motor cycle. He gave offer to him to accompany him to his home where they will take meal and will also have literary chit chat. Muhammad Karim also told him that thereafter he would drop him at his home. Since he was on foot, therefore, he agreed to accompany with the appellant. As there was no 'baithak' in his house, therefore, he took him inside the room. When they were talking to each other Abdullah brother of appellant Muhammad Karim Azad, who is sympathiser of BNM Hayee Group also reached there. He did not like their conversation, therefore, he attempted to beat up him, but appellant intervened due to which a pistol bullet hit Muhammad Karim. The pistol was with Abdullah. The inmates of the house to save the skin of Abdullah from the liability caught hold of him and he was beaten up with stones. Thereafter he was tied. His plea was that he is innocent and the brother of Muhammad Karim had fired upon the appellant Muhammad Karim and he has been wrongly involved in the case. No recovery of the pistol has been effected from his possession. On completion of trial learned Additional Sessions Judge Panjgoor vide judgment dated 31-3-1997 acquitted the respondent of the charge u/S. 324 PPC. However, he as convicted/sentenced him on altering the charge u/S. 448 PPC to undergo 4 months and fine of Rs. 1000/-. Admittedly learned trial court did not frame any point for determination in terms of Section 367 Cr.P.C. nor discussed evidence available on record. Judgment was passed in a slip shod manner contrary to set principles of writing of judgment. Be that as it may, the prosecution's story was disbelieved mainly for two reasons; firstly that there is no explanation as to how the accused was injured seriously coupled with the fact that recoveries of articles specially pistol and live rounds in hospital is very doubtful and objectionable. Thus for these two reasons he acquitted the accused from the charge u/S. 324 Qisas & Diyat Ordinance. It may be noted that in the judgment even the learned Judge has not bothered to write that from which section of Qisas & Diyat Ordinance, he has acquitted the accused. It depicts the non application of the mind on the facts of the case by the learned Presiding Officer. However, he convicted/ sentenced the appellant u/S. 448 PPC because he could not satisfactorily explain that for what purpose he entered into the house of complainant. In our opinion such observation is also the result of non reading the file by the Presiding Officer. In this behalf he could have only read the statement of the respondent (accuse) u/S. 340(2) Cr.P.C. alone. Any way since conviction/sentence u/s 448 PPC has not been challenged by the respondent in appeal, therefore, now he would be bound with these findings subject to the result whatever it could be. Mr. Azizullah Memon learned counsel for appellant contended that the impugned judgment has been passed without jurisdiction by Additional Sessions Judge as according to him in Murasala Ex. PW/10-E PW-Naseem Ahmed SHO had incorporated that respondent fired upon appellant Muhammad Karim with TT Pistol due to which he sustained injuries on his left hand as well as on the left side of his abdomen. During investigation $W-Abdul Rehman produced TT Pistol to police which was taken into possession vide Ex. PW/2-C produced by Khair Muhammad. During investigation recovery of empty cartridges of TT Pistol and a live cartridge of TT Pistol vide Ex. PW/10-B were also recovered, therefore, prima facie it was established that appellant had committed a scheduled offence triable by Special Court under the Suppression of Terrorist Activities Act, 1975. The Additional Sessions Judge Panjgoor admittedly was not a Special Court, therefore, it had not jurisdiction to try the offence. Mr. Tahir Muhammad Khan learned Advocate appearing for respondent could not meet the objection put forth by appellant's counsel except contending that since no cause of attempt to commit Qatl-c-Amd or causing injuries intentionally to appellant has been made out, therefore, learned Additional Sessions Judge had jurisdiction to try the offence. He explained that no recovery of TT Pistol has been effected from the possession of appellant because admittedly after a considerable time from incident, i.e. 3/4 hours so called TT Pistol was produced by PW-Abdul Rehman, brother of appellant Muhammad Karim in the hospital. Had PW-Abdul REhman really snatched a pistol fro respondent it would have been produced to the police in the house of Muhammad Karim when they have gone thereon receiving information of incident and from where they united the respondent arrested him and brought him to hospital, therefore, merely on allegations that TT Pistol has been recovered from respondent the Special Court functioning under the Act of 1975 will not assume the jurisdiction. He also emphasised that no prejudice has been caused to appellant or prosecution if the trial has been conducted by Additional Sessions Judge at Panjgoor. Mr. Noor Muhammad Achakzai learned Additional Advocate General contended that honourable Supreme Court had laid down a test in the judgment reported in 1994 SCMR 717 to determine whether the case will be triable by the Ordinary criminal court or by the Special Court under the Suppression of Terrorist Activities Act. In this judgment it has been stated that if FIR discloses that a schedule offence under Suppression of Terrorist Activities, has been committed, then ordinaiy court will cease to have jurisdiction and matter will be triable by the Sessions Judge. He further emphasised that truthfulness or falsity of allegations could only be determined after trial, therefore, the argument advanced by respondent's counsel in this behalf is contrary to principles of law declared by honourable Supreme Court. We have heard parties' counsel and have also penised record of case carefully. There is no dispute concerning the contents of Murasala Ex. PW/10-C wherein it has been incorporated by PW-Muhammad Naseem that a TT Pistol was used in committing the crime by respondent. On the same day at the same time the SHO had also recovered one empty and one live cartridge of TT Pistol from the place of incident vide Ex. P/10-B. All these facts were mentioned in challan Ex PW/ll-A. Under the schedule attached with STA Act, 1975 if an offence has been committed by the accused using automatic or semi automatic weapon which would also include a TT Pistol trial of the case has to be held by the Special Judge under the Act of 1975. Now the question is that what would be the stage where the court ceased with the matter would be competent to adjudicate whether crime has been committed cognizable by the Special Court or criminal court who has received the challan. In this behalf in the case of "Allah Din & 18 others vs. Thr Srafe & another" (1994 SCMR 717) honourable Supreme Curt laid down that question of jurisdiction can be determined on the basis of FIR and other material which is produced by the prosecution at the time of presentation of the challan. To take advantage from the rule relevant para from the judgment is reproduced hereinbelow :-- "We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of FIR and other material which is produced by the prosecution at the time of presentation of the challan. On the basis of that material the court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye witnesses and on our querry whether eye witnesses have supported the allegations in FIR about use of Klashinkov like weapon, learned counsel for the petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court. Other contentions raised by the learned counsel for the petitioners s mentioned above, can be properly appreciated only when evidence is recorded in the trial Court and witnesses are cross examined. When that stage comes, the law will take its own course and it is open to the parties to take steps as are permitted by the law. For the present we are of the view that no flaw or legal infirmity is pointed out in the judgment of the High Court warranting interference. Leave is refused and the petition being devoid of merits, is hereby dismissed". In the instant case essentially learned Additional Sessions Judge Panjgoor did not determine whether jurisdiction vest in him or the case is triable by the Special Judge under Act of 1975 because there is no indication on the record that ever such exercise was undertaken by him in view of the material submitted alongwith challan before the court to proceed with the matter. Needless to observe that it is the duty of the Presiding Officer heading a criminal court to examine carefully before taking cognizance of the offence the material placed before him to determine whether he had jurisdiction to tiy the offence and prima facie, what-would be the nature of offence allegedly committed by the accused, because in the instant case the learned trial court without determining the question of jurisdiction decided to proceed with the matter and framed charge against the respondent of the offences which were mentioned in the forwarding note of the challan namely, Section 324 Qisas & Diyat Ordinance and Section 454 PPC; whereas the recital of Fard-e-Biyan, recoveries, statements of the witnesses u/S. 161 Cr.P.C., the medical evidence as well as contents of challan also disclosed that the respondents besides Section 324 PPC would also be liable for the offence u/S. 337-A(ii), 337-D as well as u/S. 455 PPC. We suggested to learned counsel for parties that the trial of the case has not been conducted with jurisdiction nor judgment has been written by Additional Sessions Judge Panjgoor in accordance with law, therefore, in all fairness it would be proper if the case is remanded to competent forum for adjudication. Learned counsel for appellant consented for remand; whereas learned coxmsel for respondents' did not agree as according to him no prejudice has been caused because no case warranting conviction u/S. 324 PPC is made out, therefore, he insisted that, this court itself may decide the case on merits. But keeping in view the facts and circumstances discussed hereinabove we are not inclined to agree wit the learned counsel for respondent; firstly jurisdiction of a court to adjudicate upon the matter does not rest on the facts whether prejudice has been caused to any of the party or not and if any proceeding shave been drawn by a court without jurisdiction then notwithstanding the fact whether the ultimate order has caused any prejudice or not it is bound to be set, aside. Secondly with reference to the facts of instant case under the scheme of Suppression of Terrorist Activities Act, 1975 trial is to be held of the schedule offences by a Special Court which will govern its proceedings under the said Act. Thirdly under the Act of 1975 object of trial is to conclude speedily the matter which would serve a deterrent to like minded persons involved in schedule offences. Fourthly jurisdiction is conferred or divested on the courts by statutory provisions of law. It cannot be assumed either by consent of the parties or for the reasons that no prejudice has been caused to any of the party. Lastly as far as the appellant himself is concerned he had no say in respect, of exercising jurisdiction either by the Additional Sessions Judge or by the Special Judge STA because he was a wittiess, therefore, there is no possibility of holding that he has submitted himself to the jurisdiction and now is estopped by his conduct to challenge the same. Thus for these reasons we are satisfied that no sooner question of [jurisdiction particularly in a criminal matter is noted by the superior courts n it becomes its duty to rectify the order by setting aside it. As we have observed hereinabove that, prima facie record reveals that respondent, is not only charged for the offences u/S. 342 r/w 445 PPC but. also u/S. 337-A (ii) and 337-D PPC,, therefore, if at, this stage we decide to proceed with the matter and come to conclusion that, respondent is involved in commission of crime then we are bound to make addition in the charge by incorporating those sections of PPC- in respect of which no charge was framed against him, therefore, it will necessarily cause injustice to wp havp nninU'd out, in above paras is not sustainable because both the reasons which prevailed upon the Presiding Officer in acquitting him are unfounded viz-a-viz with the observation of the court that respondent is guilty for the offence u/S. 448 PPC. Really we are sorry to observe that how the learned Judge came to the conclusion rhat except committing the offence of house trespass respondent has not committed any other offence particularly when medical evidence was before him which indicates 3 bullet injuries. Even if we go with the arguments and stand taken by respondent in his oath statement is accepted that Abdullah fired with the pistol which hit to appellant, this version would not be acceptable because Abdullah being brother would not make 3 fires intentionally on his brother to commit murder, therefore, the plea without prejudice to the case of respondent is not convincing, as such learned trial Judge could have taken into consideration all these aspects and then would have passed a proper order strictly in accordance with law. As we have held hereinabove that the respondent prima fade can be charged for the scheduled offence under Suppression of Terrorist Activities Act, 1975 because old Section 307 PPC finds mention therein if it has been committed with reference to facts of the instant case with automatic or semi automatic weapon. But after repeal of Section 307 PPC new Section 324 PPC which is corresponding to earlier section has not been inserted so far in the schedule, but this change would not take away jurisdiction of STA Court because in substance both these sections are the same, therefore, old Section 307 PPC would be deemed inter changeable with Section 324 PPC. There would be another question which may crop up in the mind of the Presiding Officer of Special Court concerning addition of those offences which are not schedule offences like Sec. 337-A(ii) or Sec. 337(D), therefore, to over come this dilemma reference with benefit can be made to the case of "She.r Akram vs. Shcr Qadir" 1994 SCMR 1092 wherein honourable Supreme Court discussed the implications of Sec. 4 (1) and (2) STA (Special Courts) Act, 1975 and laid down following principle of law :-- "Before adverting to the interpretation of the provisions of Sec. 4 of the Act, it would be useful to reproduce hereunder the relevant portion thereof :-- '4. Jurisdiction of Special Court.-(I) Notwithstanding contained in the Code, the scheduled offences shall be triable exclusively by a Special Court ............... (2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence' In our view subsection (2) creates an exception to sub section (1) of section 4 and provides that if the accused is charged with more than one offences, and one of the same is not a scheduled offence, it is necessary for the Court to record its opinion in respect thereto, and try the offence as if it was scheduled offence. The words "as is scheduled offence" clearly signify that non scheduled offence is to be tried as scheduled offence. It appears, that the Legislature visualised the situation, where the accused commits scheduled and non scheduled offences in the same transaction, the trial of one offence before one forum may prejudice the trial in the other case before another forum". Thus following the above principle laid down by honourable Supreme Court we are inclined to hold that subject to recording reasons the Special Judge would also be competent to try those offences which are non schedule offences, but prime facie have been committed in the same transaction. For the foregoing reasons impugned judgment dt. 31-3-1997 is set aside and case is remanded to Special Judge Mekran at Turbat under Suppression of Terrorist Activities Act (Special Courts) Act, 1975 for re-trial of the respondent in accordance with law. Criminal Acquittal Appeal No. 121/1997 and Criminal Revision No. 42/1997 both stand disposed of. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 608 (DB) Present : IFTIKHAR MUHAMMAD CHAUDHARY AND amanullah khan yasinzai, JJ. Haji DILBER-Appellant versus SHAH MUHAMMAD ETC.-Respondents Crl. Acquittal Appeal No. 208 of 1997, dismissed on 30-10-1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 417 (2-A) read with Ss. 6, 9 and 31-Suppression of Terrorist Activities (Special Courts) Act, 1975, S. 3-Murder-Offence of-Acquittal of respondents/accused No. 1 to 3 by Additional Sessions Judge acting as Sessions Judge/Special Court for Anti Terrorism-Appeal against- Whether an Additional Sessions Judge holding harge of Sessions Judge is competent to perform functions of Special Court under Act, 1975- , Question of-Under Section 3(2) Provincial Government of Balochistan -rth-'r-.sed by Federal Government to appoint Special courts, -.k. £1 sessions judges functioning in their respective Divisions, sats Seec. empowered to function as special court—Whenver, an A,iinio~jl Sessions Judge, has been authorized by competent, authority, :,: b:«i zi^rie :f Sessions Judge, he would be deemed for all intent and firrxse? m be Sessions Judge of said division- Held, Additional Sessions J-aisfe. being in charge of Sessions Court, in absence of a sessions Judge, -jy>" >.e competent to function as special Court for suppression of Terr ns: Activities Appeal dismissed. [Pp. 614 & 616] A to C ii» Criminal Procedure Code, 1898 (V of 1898)-- ----5. 41?>2-A>--Appeal against acquittal challenge- Competency of acquitting Court-It was in the knowledge of appellant that Additional Sessions Judge was functioning as Special Court under Act, 1975, because he fully participated in proceedings throtigh his coimsel -Had the appellant any doubt about competency of Additional Sessions Judge as special Court, he could have raise objection at that time, therefore, such objection touching to jurisdiction of court, cannot be allowed to be raised for first time, at appellate stage-Held, Additional Sessions judge being in charge Sessions •Judge was competent to function as 'Special Court' under Act, 1975. [Pp. 615 & 616] D & F 1992 P.Crl.J. 2299 ref. (iiit Criminal Procedure Code, 1898 (V of 1898)-- ----? 417 (2-A) Appeal against acquittal-Admitted to consider competency of acquitting court-Application to hear arguments on merits-It'an appeal is not admitted to consider merits of case, appellant has no right to argue case on merits-Application rejected. [P. 616] E PLJ 1982 SC 11, 1975 SCMR 258, ref. Mr. Muhammad Aslam Chishti, Advocate for Appellant. Mr. Nasrullah Achakzai, Advocate for Respondent No. 1 to 3, Mr. Noor Muhammad, Additional A.G. for State. Date of hearing : 29-9-1997. judgment Iftikhar Muhammad Choudhary, J.--This Appeal has been filed under section 417(2-A) of the Code of Criminal Procedure, against the juiiement dated 8th July, 1997, passed by Sessu-is . Ti »ige, Pislvn. whereby respondents have been acquitted of the charge, under section 302/34 PPC. Briefly the facts are that on 21st April, 1994, PV.'-4 Abdullah Jan, ; Ex. P/4-A, lodged a complaint with Assistant Commissioner, Chaman, to the effect that at about 10.30 a.m. Abdul Qahir son of Haji Dilbar Malezai { PW-11 informed him on telephone that when he and his brother Nazar Jan, were passing from near Killi Shahdezai, while coming from Bazar, sons of Haji Wahdad and Hanifia, both by caste Malezai, fired upon them. Nazar Jan was hit with bullets, on account of which, he died at the spot. On this report, case was registered and investigation commenced. Subsequently on 30th April, 1994, appellant, Haji Dilbar Jan, who appeared as PW-8, filed a complaint under section 302/34 PPC, against 10 persons including respondents 1 to 3. Initially investigation was conducted by levies Force, at Chaman, but subsequently case was transferred to Crimes Branch, Quetta. It is suit-id that Tehsildar being the Incharge of Levies Force arrested four persons namely Saleh Muhammad, Shall Muhammad, Wall Muhammad and Nida Muhammad, on the day of incident, whereas remaining accused succeeded in absconding. The Crimes Branch on completion of investigation submitted challan in the Court of Special Judge, for Suppression of Terrorist Activities, Ealochistan, being a scheduled offence triable by the Specia! Court. Learned Special Court, read over charge to the respondents, including Haleh Muhammad and Nida Muhammad on 19th September. 1.995. to which, they did not plead guilty and claimed trial. Prosecution to substantiate the accusation led evidence of PWs Abdul Qalur Haji Wafa, Sultan Muhammad Abdullah Jan, Haji Dilba'- (Appellant.. Maimllafa, Tehsildar and Muhammad Iqbal, Inspector, Crimes Branch, Quetta, After recording statement of last mentioned witness, case file v/as transferred from the court of Special Judge, Suppression of Terrorist Activities, Quetta to Special Judge, Suppression of Terrorist Activities, Pirshin, on creation of new Sessions Division. The Incumbent Officer (Sessions Judge) completed statement of respondents and co-accused under section 342 Cr.P.C. and last case-diary was maintained by him upto 18th March, 1997, when he fixed the next date to be 7th April, 1997. In the meanwhile on 26th March, 1997, vide. Notification No, 556/Admn: the services of Syed Abdul Wajicl Agha the then District and Sessions Judge, Pishin, were placed under suspension and the charge of the Court of District and Sessions Judge, was given to Additional District and Sessions Judge, Pishin, in addition to his own dirties till further orders. In the meanwhile the then Additional Sessions Judge, who was holding the charge of the Court of Sessions Judge, was also transferred uide. Notification No. 716120- Est:/Admn: High Court of Balochistan dated 16th April, 1997 and Mr. Abdullah Khan was posted as Additional District and Sessions Judge, Pishin. As such, he completed oath statement of the respondents as well as of the co-accused on 2nd June, 1997. Thereafter arguments were heard and ;>idr impugned Judgment dated 8th July, 1997, acquitted the respondents of the charge including Nida Muhammad and Saleh Muhammad. As such, instant appeal has been filed on 12th August, 1997. Mr Aslam Chishti, learned Counsel was heard in support, of the irr-eil :n 20th August, 1997, when the same was admitted for regular -"ir.r. ry passing following order :-- Mr. Chishti, contended that, Incharge Sessions Judge, Pishin, was not conferred with jurisdiction of Special Judge under section 3 of the Suppression of Terrorist Activities Act, 1975. Since the instant case was pending on the file of Special Judge, STA, therefore, he had no jurisdiction to proceed with the matter. Contentions raised require consideration. Admit. Notice." Appellant questioned the above admission order before the Hon'hle rer-c Court, by filing a Criminal petition for leave to Appeal No. 41- . alongwith a C. M. Application No, 47-Q/1997, with the prayer that, iecifion of petition, learned Court may graciously stay hearing of Acquittal Appeal No. 208 of 1997 pending before Balochistan High . The Hon'ble Supreme Court passed order on C.M. Application on 8t.h . 1997, which reads as under :-- »' ' "~ Mr. S.A.M. Quadri, AOC for the petitioner. The grievance of the petitioner is that the learned Division Bench of the High Court of Balochistan while admitting the acquittal appeal mentioned only the ground of jurisdiction. According to Mr. Quadri, if the High Court will come to the conclusion that the court below had the jurisdiction in the matter, there would be no hearing of the appeal on merits. In my view, it will be appropriate for the petitioner to approach the High Court with the prayer to include the ground of merit if primo fade there is material available o record to justify the hearing on merits. Sd/- AJMAL MIAN, J. After passing of the above order by Hon'ble Supreme Court, the appellant submitted Crl. Misc. Application No. 279/97, under section 561-A Cr.P.C. wherein, after tracing the history of the case, concerning filing of petition, Appeals; its hearing, summoning of record, preparation of paper book etc. it. was pointed out that the appeal deserves to be heard on merits, as in such circumstances, it is customary to use the expression 'inter-alicC in the admitting note, if all the contentions are not noted, therefore under these circumstances, appellant expressed apprehension that, if the expression ^ ",nicr-aUa' is not inserted or for that, matter i.he appeal is not. directed to be heard on merits as well and question of jurisdiction is decided against the appellant, the appeal might not. be heard on merit';. As such, it was prayed that in the admitting note, ground of merit as well, be included and appeal may be directed to be heard both on the ground of jurisdiction and merits. Notice of the application was given to respondents, who vehemently opposed the request of appellant. This question would he taken up lateron. At the first instance we are inclined to examine; whether Additional Sessions Judge, being Incharge Sessions Judge, Pishin, was competent to function as Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as 'the Act of 1975'). Mr. Muhammad Aslam Chishti, learned Counsel for appellant contended that the Additional Sessions Judge was not competent to perform functions of Special Court under the Act of 1975, because he was holding the charge of Sessions Judge, Pishin. According to him u/s 3(1 )(b) of the Act, of 1975, only those Sessions Judges, can function as Special Court, who have exercised, whether continuously or not, the powers under the Court of a Sessions Judge for three years. According to him Abdullah Khan, who had delivered the impugned Judgment, being an Additional Sessions Judge could have not competently function as Special Court, In support of his argument, he relied on PLD 1967 Pesh. 343, 1968 P.Cr.L.J. 1373, PLD 1969 SC 187, The Interpretation of Statutes, by N.S. Bindra's 7th Edition, 1984 p. 230 (Special Tribunal), Maxwell on the Interpretation of Statutes 10th Edition Section 2, p. 3 (Lateral construction) and the Interpretation of Statutes by Crowt'ord Paragraphs 178 and 288, On the other hand, Mr. Nasrullah Khan Achakzai, learned Counsel, appearing on behalf of respondents stated that in the Province of BalochLstan by a General Notification, all the Sessions Judges, functioning in respective Sessions Divisions, have been declared 'Special Courts' under the Act, of 1975, therefore, who so ever would be holding the charge of Sessions Court, irrespective to the fact; whether he is Additional Sessions Judge or the Sessions Judge, would be deemed to be as a 'Special Court'. He further emphasised that vide Notification dated 26th March, 1997, the Additional Sessions Judge, Pishin by virtue of his post, was authorised to hold the charge of the Court of District and Sessions Judge; meaning thereby, that for all intent and purposes, he was the Sessions Judge, under the Code of Criminal Procedure as such, he was empowered to function as 'Special Court' as well, under the Act, of 1975. He further argued that appellant was represented by an Advocate before the Additional Sessions Judge, functioning as Sessions Judge, as well as Special Court, Pishin and during trial no objection was raised by him on the competency of Presiding Officer, being Incharge Sessions Judge, therefore, at, this stage, the objection is not. available to him in view of the principle of law, laid down by Hon'ble Supreme Court in 1992 P.Cr.L.J. 2299. He further stated that this Court is not competent to review the admission order and is legally bound to decide the appeal only on the point, on which, it was admitted, as it has been held in 1975 SCMR 258, 1976 SCMR 199 and PLJ 1982 SC 11. Lastly he contended that this Court may also examine that what prejudice has been caused to appellant, if the acquittal order has been passed by Additional Sessions Judge, in acting as Incharge Sessions .Judge/Special Court, Pishin, :e_j.^5c inier the Code of Criminal Procedure, there is no distinction in the p-ra-ers :f Sessions Judge and Additional Sessions Judge. Similarly on same iSiI:ey -jzier section 3(l)(b),of the Act, of 1975. Special Court can c-.: ^; r: cuse :n the Sessions Judge or the Additional Sessions Judge, as well i= th« Judge of the High Court. . Mr N'oor Muhammad Achakzai, learned Additional AivociTc General, was also of the opinion that Additional Sessions -Jcitc. being Incharge Sessions Judge, had rightly exercised jurisdiction of Sft-aal Court, because at that time, he was not an Additional SessiCT-i Judge, but a Sessions Judge, in terms of the Notification issued t The High Court of Balochistan on 26th March, 1997, after the suspension ;f :r.e tren Incumbent Sessions Judge, Mr. Abdul Wajid Agha. Therefore, r he crier has been passed with jurisdiction and does not deserve :r. T e:ieienee. We have heard the learned counsel for parties and also minutely exarvne..i the law, on the subject. it may be noted that section 6 of Code of Criminal Procedure, defines a-tsses of criminal Courts including High Court, and the Courts constituted under any law other than the Code for time being in force. Under the circumstances there shall be 5 classes of Criminal Courts, including the Courts of Session. Whereas section 9 of the Code speaks that the Provincial Government shall establish a Court of Session for every session division and appoint a Judge of such Court. Sub-section (3) of this section, also empowers the Provincial Government to appoint Additional Sessions Judges and Assistant Sessions Judges, to exercise jurisdiction, in one or more such Courts. As for as its subsection (4) is concerned, it is most important to clinch the issue, as according to it, Sessions Judge of one sessions division may be appointed by the Provincial Government to be also an Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases at such place or places in either division as the Provincial Government may direct. It may be noted that by virtue of Rule of the High Court Rules and Orders, in place of Provincial Government, the High Court comprising of Chief Justice and the Judges have been empowered to transfer Sessions Judge from one Division to another and so is the position of Additional Session Judges. Under section 31(2) Cr.P.C. the powers of Sessions Judge or Additional Sessions Judge are similar, as for as passing of any sentence, authorized by law is concerned, except that any sentence of Death passed by such Judge, shall be subject to confirmation by the High Court. On the basis of this scheme of law, conveniently it can be held that the Sessions Judges and the Additional Sessions Judge, if have been appointed under the Code of Criminal Procedure, they enjoy same powers, as regards awarding of sentences. It may be seen that under administrative arrangement, a Sessions Judge holds the charge of Sessions Division, for administrative purposes, and so for Additional Sessions Judge is concerned, from administrative point of view, he would be his subordinate, but as regards the powers of awarding sentences, there is no distinction nor the Additional Sessions Judge, can be deemed to be his sub-ortlinate. In view of these provisions of Code of Criminal Procedure, now we will advert towards section 3 of the Act of 1975, which deals with constitution of Special Court. For our purpose, clause (b) of subsection (1) of section 3 of the Act of 1975, is relevant. According to which, the Federal Government may, by notification in the official Gazette, constitute, for the whole or any part of Pakistan, Special Courts consisting of a person, who has, for a total period of not less than three years, exercised whether continuously or not, the powers under the Court of Sessions Judge, Additional Sessions Judge. In this clause total period of not less than three years of exercising the powers continuously or otherwise, would be applicable, on the court of Sessions Judge and Additional Sessions Judge. It would mean that if a Sessions Judge or an Additional Sessions Judge, had worked for this much period, anyone of them can be appointed as Special Court. In the instant matter, it is nobody's case that Additional Sessions Judge, to whom the charge was given on 26th March, 1997, by the High Court had not exercised powers of AdditionalSessions Judge for a period less than three years. It is necessary to observe that under subsection (2) of section 3, the Provincial Government of Balochistan has been authorized by the Federal Government to appoint Special Courts, therefore, in exercise of these delegated powers, throughout, the Province, all the Sessions Judges, functioning in their respective Divisions, have been empowered to function as Special Court,. Mr. Aslam Chishti, learned Counsel by making reference to 'The Interpretation of Statutes by N.S. Bindra's' contended that when Special Tribunal is constituted under the Statute, its jurisdiction depends upon the specific provisions of the Statute. According to him, if the Sessions udge,Pishin was authorized to function as Special ourt, the Additional Sessions Judge, cannot discharge the duty of Special Court, in his absence, notwithstanding the fact, that Additional Sessions Judge, has been allowed to hold the charge. Similarly he referred to section 2 (Literal Construction) of 'Maxwell on the Interpretation of Statutes', and stated that the first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning; and, secondly, that the phrases and sentences are to be construed according to the rules of grammar. As for as these principles of Interpretation of Statutes, are concerned, there is no cavil with them, rather applying the same test, we re inclined to hold that the plain language of section 3(l)(b) of the Act of 1975, clearly suggests that either the Sessions Judge or an Additional Sessions Judge, who has exercised such powers, for a period, not, less than three years, can act as a Special Court. At this juncture, reference to section 9(4) Cr.P.C. would not be out of context, according to which, even a Sessions Judge in another Division, can be appointed as an Additional Sessions Judge .d Division and in this manner lie would be holding the charge of - Judge of one Division and would be acting as Additional Sessions •:.:v.ier thesubordination of Sessions Judge of other division. : ~. on the basis of same analog}, whenever an Additional Sessions :,is been authorized by the competent, Authority, to hold the charge ms Judge, he would be deemed for all intent and purposes to be the ; Judge of said Division, notwithstanding the fact, whether in his capacity, his status in the service is of an Additional Sessions Judge. :i of giving the charge to an Additional Sessions Judge is always toall functions, duties, etc. which are required to be performed by the Judge. As for as the authorities, cited by Mr. Aslam Chishti, learned Counsel, are concerned, those are not helpful to him in advancing his plea For the above discussing, we are inclined to hold that Additional Sessions .Judge, being Incharge of the Sessions Court, in absence of a Sessions Judge, shall be competent to function as Special Court, in view of section 3 <D (b) of the Suppressions of Terrorist Activities (Special Courts) Aci. 1975. At this stage, it is also most important to note that to the knowledge of appellan' the Additional Sessions Judge was functioning as Special Court, under the Act of 1975, ' n .iuse he fully participated in the proceedings through his counsel, as it is evident from the order sheets dated 26th April, 1997 to onward till 14th June. 1997 when the arguments advanced by the state counsel, counsel for accused as well as counsel for appellant (Mehta K.X. Kohli) were heard and judgment was reserved. Had the appellant any doubt about the competency of Additional Sessions Judge to function as Special Court, he could have raised the objection at that time, therefore, such objection touching to the jurisdiction of the court, cannot be allowed to be raised for the first time, at appellate stage. Informing this view we are fully supplied by the judgment reported in 1992 P.Cr.L.J. 2299. Xow adverting towards the application submitted by appellant's counsel for allowing to him to argue the appeal on merits, it is to be noted that the admission order is explicit on the point that only to consider the question of jurisdiction of the trial court the appeal was admitted. If appellant had made out aprima fade case on merits, there was no reason to incorporate the word 'intcralia' in the admission order. Order was dictated in pi esence of Mr. Muhammad Aslam Chishti learned counsel for appellant. He did not raise any objection at that time, concerning his submissions on merits of the case, because he was fully aware that the Bench is not inclined to entertain the appeal on merits otherwise there was no hurdle in his way to point out at that time that the appeal may also be admitted on merits of tiie case as well. Even later on he did not, move an application agitating his grievance for not admitting the appeal to consider its merits. However, he filed a criminal petition fui leave to appeal before the honourable Supreme Court but on his application being No. 47-Q/1997 in which request was made for stay of hearing of criminal acquittal appeal until decision of petition the honourable Supreme Court was pleased to refuse to stay hearing and advised appellant to approach this court, for inclusion of ground of merits, if prima facie there is material available on record to justify the hearing on merits. Application u/S. 56.I-A Cr.P.C. so submitted lateron by appellant has been vehemently opposed by respondents' counsel as well as by learned Additional Advocate General. At this juncture it is to be noted that even before the honourable Supreme Court it is an established practice that after granting leave to appeal matter had to be disposed of on the same points on which the leave was granted, if the expression 'interalia' has not been used. It is the consistent view of the honourable Supreme Court that after signing the order, the court becomes functious officio to add or delete anything from it. In this behalf reference can be made to 1975 SCMR 258 and 1976 SCMR 199, wherein it has been held that points specifically dealt with and decided against the appellant at the time of granting leave to appeal, cannot be agitated at the time of hearing of appeal. Thus we are of the opinion that as the appeal was not admitted to consider the merits of the case, therefore, the conclusion would be that prima fade appellant had no case to agitate on merits and alone for this reason, the appeal was admitted to examine question of jurisdiction. Likewise in another case reported in PLJ 1982 SC 11, the honourable Supreme Court held that if the counsel appearing for appellant at. the leave granting stage was not able to argue certain available points or failed to properly highlight certain aspects, this by itself would not. l)e a valid ground for review. Applying this test as well on the facts of the case in hand, we are inclined to hold that learned counsel for appellant failed to convince us on merits of the case, therefore, appeal was admitted only on the question of jurisdiction. As such, by making request through civil miscellaneous application he cannot be allowed to argue the appeal on merits. Therefore, application is rejected. For the foregoing reasons, we are of the opinion that the Additional Sessions Judge being Incharge Sessions Judge, Pishin was competent to function as 'Special Court' under the Suppression of Terrorist Activities (Special Courts) Act, 1975. therefore, the impugned judgment has been passed by him competently, thus it deserves no interference. Consequently appeal is dismissed. (K.K.F.) Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 617 Present: khalil-ur-rehman ramday, J, MUHAMMAD SHOAIB-Petitioner versus ABU BAKAR Eld-Respondents Crl. Misc. No. 2038/CB-97, accepted on 20-6-1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)-Offence u/s 324, 337-F(ii) P.P.C.-Cancellation jf bail-Prayer for-Complete sensory motor loss of functions of left lower leg of victim reported by Medical officer-Bail application of accused twice dismissed by magistrate and Addl. Sessions Judge and once by High Court—Another application for grant of bail was pending with High Court when Magistrate allowed bail to accused on application, not disclosing pendency of application in High Court which was later on withdrawn-Whether allowing bail to accused in circumstances was improper exercise of jurisdiction by Magistrate-Question of-According to medical report it had been found that sciatic nerve had been permanently damaged and injury had been declared as permanent Itlaf-i-Salahiyyat-i-Udw of left lower leg—Opinion of doctor makes injuries in question liable for punishment inter alia U/S 336 PPC and imprisonment envisaged for said offence is ten years-Grant of bail by Magistrate after dismissal of accused persons, bail petition by High Court without any fresh ground having accrued to such person was highly improper exercise of discretion by said learned court which conduct of Magistrate was open to rather serious exception-Held: Bail granting order in question passed by him was seriously lacking in propriety and eligibility-Bail allowed to accused recalled and he is directed to be taken into custody in terms of section 497(5) Cr.P.C. [Pp. 622 & 523] A, B, D & E (ii) Petition- —-Ordinarily there would be no difference between a petition which is ismissed by a Court on merits and a petition which is dismissed as withdrawn. [P. 623] C Zafar Iqbal Chohan, Advocate for Petitioner Salah-ud-Din Zafar, Advocate for State. Muhammad Jamil Sadiq, Advocate for accused-Respondent. Date of hearing: 20-6-1997. order Having been accused of the commission of offences punishable U/Ss 324/337-F(iii)/34 of the P.P.C. through F.I.R. No. 275/95 dated 25.4.1995 of Police Station, Satellite Town Gujranwala, Abu Bakar respondent had been allowed bail by a learned Judicial Magistrate exercising powers U/S 30 of the Cr.P.C. at Gujranwala through his order dated 18.2.1996. Muhammad Shoaib who was the injured victim of the occurrence in question, has filed this petition seeking re-call of the said bail allowed to Abu Bakar accused and prays for a direction for the arrest of Abu Bakar accused and for the said accused being committed to custody. 2. The above-mentioned F.I.R. had been recorded at the instance of ne Ataullah who is the father of Shoaib petitioner herein and who had alleged through the said F.I.R. that, on 25.4.1995 his son Shoaib took out their sheep at about 4.10 p.m. from their house which sheep was meant for being slaughtered at Eid-ul-Azha; that when Shoaib reached Siddiquc Park, Abu Bakar respondent-accused and Shahidi accused started abusing him and on being told by Shoaib not to abuse him, both the accused persons got flared up: that Shahidi accused gave a kick to Shoaib P.W. whereafter Abu Bakar ac«-used attacked him with a Churn -snd that, thereafter both the accused persons ran away after leaving Shoaib P.W. half dead. Atauilah complain;: :U,' ,-,t\ further added that. Shoaib P.W. who had been got admitted in the local hospital was in a precarious condition and had inte.r-alia requested that the statement of Shoaib P.W. be immediately recorded. 3. Muhammad Shoaib was medically examined at D.H.Q. Hospital at Gujranwala on the very day of occurrence within about 15 minutes of the occurrence in question. The doctor examining the said Shoaib had found him in a serious condition and according to the said doctor his blood pressure and pulse were not recordable. Shoaib P.W. was found to have five sharp-edged weapon injuries on his left thigh; his buttocks and in his left, renal area. He was admitted in the hospital. The said patient then appears to have been referred to Mayo Hospital, Lahore where he was operated upon and on 17.8.1995, it was opined that there was a complete sensoiy motor loss of left, lower leg as a result of which the injury to the left, leg had been declared as Itlaf-i-Salahiyyat-i-Udw. It. had however been mentioned by the doctor that the question whether this disability was permanent, or temporary would be decided after a period of 5/6 months depending upon whether the injured nerves got, cured or not, 4. Through an order dated 13.11.1995 passed by this Court, in Crl. Misc. No. 4900/B-95 which was a bail petition of Abu Bakar accused. Dr. Abdullah Khan, M.O, of D.H.Q. Hospital at Gujranwala had been directed to e-examine Muhammad Shoaib about, the then prevailing condition of his above-mentioned leg and to submit, a report about the name. The abovementioned M.O. referred Muhammad Shoaib to the Orthopaedic Surgeon of D.H.Q. hospital Gujranwala and through a report dated 30.11.95, the said doctor had found a complete sensory motor loss of functions of left lower leg as according to him, sciatic nerve had been permanently damaged. ITlJ.F-l- SALAHIYYAT-I-'JDW of left lower leg was thus declared permanent. 5. These are then the accusations levelled against Abu Bakar accused; the role attributed to him in the occurrence in question: the details f the injuries received by Muhammad Shoaib P.W. and his medical and physical condition as a result of the said injuries. 6. After his arrest, in this case, Abu Bakar accused submitted an application to the learned trial Magistrate for his release on bail. After considering all the submissions made in support of bail for the said accused, the learned trial Magistrate dismissed the said application on 26.6.1995 through a detailed order passed by him. Abu Bakar accused then petitioned the learned Court of Session seeking his release on bail which application was also dismissed by a learned Addl. Sessions Judge on 13.7.1995. After about two months, the said accused person went back to the learned -Magistrate repeating his prayer for bail which prayer was once again refused by the learned Magistrate Section 30 through his order dated 20.9.1995. He again went to the Court of Session and his bail plea was once against dismissed by a learned Addl. Sessions Judge at Gujranwala on 9.10.1995. Thereafter Abu Bakar accused approached this Court through Crl. Misc. No. 4400/B-95. This petition was dismissed on 13.12.1995 with the following order :-- "When I was going to dictate the order of dismissal of this petition, learned counsel wants to withdraw the same. Disposed of accordingly. Scl/- JUDGE" 7. Abu Bakar accused then filed another petition before this Court on 31.1.1996 which petition remained pending for about eight months as no one was appearing to prosecute the same and it was finally on 18.9.1996 that this petition bearing Crl. Misc. No. 485/B-96 was dismissed with the following order :-- "Nemo. The case has been called many times. It, is 9.50 a.m. None has put, in appearance. Dismissed for non-prosecution. Sd/- JUDGE" 8. Muhammad Shoaib, the injured petitioner complains through this petition that after the bail application of Abu Bakar respondent, had been twice dismissed by the learned Magistrate; had been twice dismissed by a learned Addl. Sessions Judge and had been dismissed once by this Court and while Crl. Misc. No. 485/B-96 was still pending before this Court, Abu Bakar accused once again approached the learned trial Magistrate who through his order dated 18.2.1996 released the said accused on bail. This according to the learned counsel was exercise of jurisdiction by the said learned Magistrate which was improper and in-valid, intcr-alia, on the ground that the petition of the said accused having been dismissed by the High Court on 13.12.1995, no fresh ground had accrued to the petitioneraccused which could justify grant of bail to him on 18.2.1996 i.e. within two onths of dismissal of his plea by the High Court, and also on the ground that, filing of a bail petition before a Magistrate during the pendency of a hail petition before this Court and by concealing the said fact, the accused person had dig-entitled himself to any relief in equity, 9, The reasons which had weighed with the Seamed Magistrate in allowing bail to the accused were that, the accused had been in custody for about ten months; that the challan had not been submitted in Court which showed the callous attitude of the prosecution towards the said accused; that the accused was a first offender; that the intention of the accused to cause the murder of the victim could be determined only at the trial; that Shoaih P.W. never made himself available to the Medical Board which had been constituted in the light of the direction of the Hon'ble High Court for reexamination of the said injured person and that in the circumstances Abu Bakar accused was entitled to the grant of bail 10 The learned Addl. Sessions Judge who had refused to cancel this bail through his order dated 9.4.1996 also appears to have been impressed with the same considerations which had weighed with the learned Magistrate in allowing bail. While dealing with the submissions from the complainant side that Abu Bakar respondent's bail petition stood dismissed by the High Court when the learned Magistrate allowed hirn the saul concession, the learned Addl. Sessions Judge added that though it had been mentioned by this Court in its order dated 13.12.1995 passed in Crl. Misc. No. 4400/B-95 that while the learned Judge was going to dictate the order of dismissal of the bail petition, the learned counsel for the petitioner prayed for permission to withdraw the same, the fact, that the High Court had accepted the request of the accused person to allow him to withdraw his bail petition from the High Court, such a withdrawal did not convey 'solid view -- of the High Court that the petitioner was denied the concession of bail for all times to come'. The learned Addl. Sessions Judge also took notice of the fact, that the injured Shoaib had not made himself available to the Medical Board constituted by the Medical Superintendent of D.H.Q. Hospital Gujranwala for his re-examination and further that the fact that the injures Shoaib had gone away to Saudi Arabia sufficiently indicated that, the said injured person was fit to travel abroad which consequently spoke of his satisfactory physical and medical condition. 11. The bail allowed to Abu Bakar accused by the learned Magistrate through his above-mentioned order dated 18.2.1996 was likely to be re-called for more than one reasons : 12. It is not, denied that Abu Bakar petitioner had filed a petition for his release on bail before this Court on 31.1.1996 which was entertained on 1.2.1996 and which bears Crl. Misc. No. 485/B-96. However no one had ever e.-Ucte-.i appearance to prosecute this petition which was consequently dismissed on 18.9 1996 having remained pending for more than seven months The application for grant of bail which had been allowed by Mr. Muhammad Saleem Hassan, a learned Magistrate exercising powers U/S 30 of the Cr.P.C. at Gujranwala was submitted on 7.2,1996 pursuant to which the bail had been granted to Abu kar accused on 18.2.1996. This bail application makes no mention of the filing of and the pendency of Abu Bakar accused's bail application before the High Court. This important fact having been concealed and with-held from the learned Magistrate dis-entitles the sa:d accused person to any relief in equity. It was argued that, the bail petition before the learned Magistrate had been filed without the knowledge of Abu Bakar accused and thus he could not be burdened with the concealment of this fact from the learned Magistrate, This is strange logic.Tiit above-nientioned bail petition of Abu Bakar accused before this Court bt-ii!iu r Crl. Misc. No. 485/B-96 is accompanied by power of attorney e.xtciUtd by the said accused in favour of Rana Abdul ajeed, Advocate. He was thus conscious of a petition having been filed before this Court for his release on bail. If his application for the same purpose before the learned Mjate was un-authorised then he should have refused to be a party tothe same and he should have refused his release on bail inpursuance of an o:ri~; passer! on such an application. He would have come to know of this sir.iu^'.'h when a cancellation of bail petition had been moved against, him in the learned Court of Session in March, 1996 when notice of the same had hern prhtn to him. Not. only thai he did not volunteer to refuse to accept the ni;i r s ot an alleged un-authorised bail petition hut. he in fact vehemently detested this petition for cancellation of bail. Similar is his conduct before This C-.Airt. Needless to mention here that such a conduct on the part of Abu B.ika! accused is sufficient negation of the submission that the bai! application in question before the 'earned Magistrate had been filed without hi.~ knowledge or without any authority from him. The bail in question allowed ro Abu Bakar accused is liable to be re-calk".! on this ground alone. 13. As has been noticed above the learned Magistrate had allowed ail to Abu Bakar accused on the ground that lie had been in custody for bout ten months without the challan having been submitted in Court; that he offtnce U/S 324 P.P.O. was, at least prima-facie., not made out as the injuries caused to the victim were on non-vital parts of his body and that the injured victim had refused to make himself available to the medical board for !e-assessment of his medical/'physical condition. 14. The grant of bail on account of delay in the commencement or ihe conclusion of trials is now statutorily regulated by the 3rd proviso o Section 497(1' of the Cr.P.C. It is not denied that, in the present case the delay which had crept into the matter had not ripened into the kind of delay which, in terras of the said provision of law, could confer any right on the accused person for his release on bail. 15. A mention has been made not, only in the bail granting order of the learned Magistrate but even in the rejection of bail petition order by the learned -Addl. Sessions Judge that, Shoaib P.W. had not made himself available to a Medical Board. There is an indication in the above-mentioned order of the learned Addl. Sessions Judge that this Board had been constituted in the light of some order passed by the High Court. This position is factually incorrect. It, was through an order dated 13.11.1995 passed in Crl. Misc. No. 4400/8-95 that this Court had directed reexamination of Shoaib P.W. to find out the then prevailing condition of the injury sustained by him. From the order dated 28.11.1995 it transpires that. Shoaib P.W. had appeared before the concerned doctor on 21.11.1995 and then on 27.11.1995 but. on both these occasions the concerned doctor was not present. This Court then passed an order on the said date that the said doctor shall examine Shoaib P.W. on 29.11.1995 and the case was adjourned to 5.12.1995 to await the report of this re-examination. From the order date'd 5.12.1995 passed by this Court in the said petition it transpires that the medical report in pursuance of the said re-examination had been received in the Court, and the learned counsel for Abu Bakar accused had sought, an adjournment to go through the same. This report which is dated 30.11.1995 and consists of three pages is also available on the tile which has been reproduced in the earlier part of this order. According to this report it, had been found that the sciatic nerve had been permanently damaged and the injury had been declared as permanent ITLAF-I-SALAHIYYAT-I-UDW of left lower leg. This is therefore not correct either that Shoaib P.W. had not made himself available for re-assessment of the medical loss suffered by him or that the High Court had passed any order thereafter for the constitution of any Medical Board for further re-examination of Shoaib P.W. Who had constituted the Medical Board which is mentioned by the learned Magistrate in his bail granting order; under what authority and for what purpose, is thus not known. Nor is any such order available on record. The impression gathered by the learned Addl. Sessions Judge that, since Shoaib P.W. had gone away to Saudi Arabia, therefore, his condition must have been satisfactory is an impression which is not well founded in record because it is not, un-known that, a person with an invalid lower leg is capable of travelling by air unless the learned Addl. Sessions Judge had some information that this Shoaib P.W. had undertaken the journey to Saudi Arabia on foot. 16. The above-mentioned opinion of the doctor regarding the status of Shoaib P.W.'s leg makes the injuries in question liable for punishment.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 624 [Appellate Jurisdiction] Present: DR. MUNIR AHMAD MUGHAL, J. ABDUL GHAFOOR-Appellant versus STATE-Respondent Criminal Appeal No. 519 of 1993, dismissed on 18.9.1997. (i) Motive-- —Murder -Offence of-Conviction for-Challenge to-Motive as alleged by complainant in FIR was that 'A' divorced Mst. 'N' whereafter complainant married her for which accused harbored grudge and now they have murdered her in furtherance of their common intention-Complainant stated same in his deposition--MA'a/moma also shows marriage between deceased and complainant 'M.A' in his cross examination says, "it, is incorrect to suggest that complainant and deceased were not married, they were just carrying on and committing i/ii,'/-When they were married, relatives of complainant had participated, but none had joined from side of Mst. 'N'-It is incorrect that mother, brother and sister of deceased are alive"—It clearly shows that learned trial Court did not. properly appreciate oral and documentary evidence on recoi'd Reid: Circumstances did prove motive as alleged by complainant. [Pp. 626 & 6271 A (Hi Pakistan Penal Code, 1860 (XLV of 1860)-- x [Pp. 627, 628 & 629] B, C, D, E, F & G Af - Mc>-.:oor Hussain Basra, Advocate for Appellant. M' A H. Masood, Advocate for Respondent. .'•/' 5!. Masood Akhtar, Advocate for Complainant. Date of hearing: 18.9.1997. judgment This criminal appeal calls into question the legality and propriety of the impugned judgment dated 17.5.1993 passed by the learned Sessions Judge. Faisalabad whereby he convicted Abdul Ghafoor under section 302 read with section 311 PPC and sentenced him to undergo five years' R.I. ".vhile Muhammad Sarwar, accused was acquitted of the charges. Muhammad Yousaf, complainant had filed Criminal Revision No. 304 of 1993 for enhancement of the sentence of the appellant and against the acquittal of the co-accused. The criminal appeal as well as t.he criminal revision petitions, are being disposed of by this single judgment. 2. The brief facts of the prosecution story as detailed in the FIR, Ex. PF 1 are that Muhammad Yousaf, PW.7 reported to the Police that Mat. Noor Bakhi, his wife, had gone to fetch water. In the meanwhile, there was noise in the village that Abdul Ghafoor and Muhammad Sarwar are dragging Msf. Bakhi, the wife of the complainant forcibly to their house. He immediately came out of his house in chase and saw that Abdul Ghafoor armed with churri was holding Mst. Bakhi from her hair while Muhammad Sarwar had caught her neck. Both the accused took Mst. Bakhi to their house and bolted the door from inside. The complainant made hue and cry upon which Ashiq Khan and Ahmad Yar came at the spot. All the three knocked at the door but the accused did not open it and through peeping, it was seen that the accused had fallen down Mst. Bakhi on the ground Sarwar was catching hold of her while Abdul Ghafoor was slaughtering her with a churri. All the witnesses and the complainant forcibly entered into the house by scaling over the door but the accused managed to run away. 2. The motive alleged was that Abdul Ghafoor accused had divorced Mst. Bakhi (deceased) and after divorce, the complainant had married with her and due to this grudge, the accused had murdered Msf. Bakhi, 3. Leaving the dead body of Mo' Bakl.i 'uyiug in the house of the accused, the complainant proceeded to the 1 olice Station for registration of case where a police officer met him before whom he narrated the story who thereafter reduced the same into writing. 4. Muhammad Hussain, S.I. (PW. 9) then proceeded to the place of occurrence, prepared the injury statement, inquest report, collected blood stained earth; took into possession shalwar, qamcez and brazier and sent, the dead body of the deceased for post mortem examination. He arrested Abdul Ghafoor accused on 25.9.1990 who while in police custody led to the recovery of Churri PA. The recovery was witnessed by Ashiq Hussain and Ahmed Yar. The investigation was then taken over by Inspector Masroor Ahmed, (PW. 5) who partly investigated the case, found Muhammad Sarwar, accused, innocent, placed him in column No. 2 of the challan and challaned Abdul Ghafoor, accused. 5. On 11.9.1990, Dr. Nazar Hussain (PW. 1) conducted the post mortem examination on the dead body ofMst. Bakhi and found five injuries on her person. The injuries were caused by sharp edged weapon, duration between the infliction of injuries and the death was immediate at the spot, between the death and post mortem 24 hours and in the opinion of the doctor, the injuries numbering five were sufficient to cause death in the ordinary course of nature. 6. The appellant when examined under section 342 Cr.P.C. denied that prosecution allegations and professed innocence. In answer to a question why this case against him, he submitted as under :-- "The complainant is a bad character. The other PWs have deposed against me on his behest. There is a party faction in the village." 7. The learned trial Judge disbelieved the motive and by relying on the statement of complainant PW. 8 and the medical evidence acquitted Muhammad Sarwar and convicted Abdul Ghafoor as indicated above. 8. Learned counsel for the appellant contended that it was an unseen occurrence, the dead body was seen lying in the house of Manshar, brother of the deceased, the medical evidence did not support the prosecution case as regards the alleged time of occurrence, the complainant was a man of bad character and that Ashiq Hussain PW. 8 was an interested witness and his version stood uncorroborated. According to the learned counsel, the sentence awarded to the appellant is not warranted by law. 9. Learned counsel for the State as well as the complainant have submitted that the prosecution has established its case beyond any reasonable doubt, hence the conviction and sentence are liable to be enhanced. 10. I have critically examined the submissions of the learned counsel and have perused the record with their able assistance. The motive as alleged by the complainant in the FIR (Ex. P/A) was that Abdul Ghafoor divorced Mst. Noor Bakhi whereafter the complainant married her for which the accused harboured a grudge and now they have murdered her in furtherance of their common intention. The complainant stated the same in his deposition as PW.7. The Nikahnama Mark 'A' also shows marriage between deceased and the complainant. Muhammad Ashiq (PW. 8) in his cross examination says, "It is incorrect to suggest that Muhammad Yousaf cccnplaiaant and the deceased were not married, they were just carrying on aiaci committing Zina. When they were married, the i-elatives of Muhammad Yottsaf complainant had participated, but none had joined from the side of Ms Bakhi. It is incorrect that the mother, a brother and a sister of the deceased are alive." It clearly shows that the learned trial Coiirt did not properly appreciate the oral and the documentary evidence on the record. These circumstances did prove the motive as alleged by the complainant. 11. The ocular account of the incident as given by Ashiq Hussain »P\V. Si is that Abdul Ghafoor accused was holding Ms?. Bakhi from her hair and in one hand he was holding a Churri and Sarwar accused was holding her by the neck and direct her into their house and bolted the door of the courtyard. He further deposed that Sarwar accused was holding the deceased on the ground while Abdul Ghafoor accused was cutting her throat with the Churri. \fst. Bakhi was writhing in agony and she expired in their presence. The medical evidence as per deposition of Dr. Nazar Hussain (PW. 1) is that he noticed the following injuries on external examination of the dead body of Mat. Xoor Bakhi wife of Muhammad Yousaf on 11.9.1990 at, 4.45 p.m :-- 1. Throat had been completedly cut off (soft parts). Skin, muscles, large vessels, nerves trachea, oesophagus, cervicle muscles and cervical bones had been partially cut off. 2. An incised wound 22 c.m. x 5 c.m. (bone deep). All cervical structure had been cut off. 3. An incised wound 2 c.m. x 1 c.m. on ring finger of left hand. 4. An incised wound 3 c.m. x 1 c.m. on middle finger of left hand. 5. Larynx and trachea had been completely cut off. All blood vessels of neck had been completely cut off. Oesophagus had been cut off. The rest of the organs were healthy. In his opinion death occurred due to the said injuries which were sufficient, to cause death in the ordinary course of nature and that the injuries were caused by sharp edged weapon. The duration between infliction of injuries and death was immediate at the spot and the probable time that elapsed between death and post mortem was within 24 hours. The time of occurrence given in the FIR is "Subahwela" and in the deposition the time given by the complainant PW.7 is 6.30 or 6.33 a.m. The time given by Ashiq Hussain is 'morning time". The time mentioned by the Medical Officer in the post mortem report Ex. PA is within 24 hours. As the death occurred at the spot there seems to be no discrepancy in the medical evidence and the prosecution case because the time of 10% hours is covered by the statement of the Medical Officer when he said that it was within 24 hours. In the cross examination the Doctor has admitted that duration between death and post mortem can vaiy to the extent of two hours on either side. The Doctor has also stated that there was no post mortem staining or rigor mortise on the dead body. He also explained that the dead body was fresh and on this reason there was no rigor motis or post mortem staining. It is also important to note that the Doctor had found the stomach healthy and having only a small q uantity of flued and both the small and large intestines were empty. Thus the time given by the complainant is in line with the time assessment of the Doctor. The Medical Officer corroborates the ocular evidence regarding the cutting of the neck of the deceased by the accused Abdul Ghafoor. The learned Sessions Judge has very correctly appreciated the whole evidence on this point and has come to the correct conclusion both on facts and law. So far as the arguments of the learned counsel for the appellant that the complainant was a man of bad character is of no help as the character is not relevant and even an offence committed against, the complainant of bad character can be brought to the court by such persons for scrutiny. Secondly, the prosecution case is supported by the evidence of Ashiq Hussain (PW. 8) and the medical evidence Ex. PA. The next contention of the learned counsel for the appellant that Ashiq Hussain (PW. 8) was an interested witness and his version stood uncorroborated is also not tenable for the reason that no enmity has come on record nor any factum to show the interested ness of this witness. In cross examination of PW. 8 his truth could not be shaken. The last contention of the learned counsel for the appellant that the sentence awarded to the appellant is not warranted by law is also not sound. The learned Sessions Judge has correctly pointed out in Para No. 27 of the judgment that as all the three Walies of the deceased have pardoned both the accused, hence normally both should have been acquitted but in the circumstances of the case only Miihammad Sarwar accused is allowed this benefit. As far as Abdul Ghafoor accused (the present appellant) is concerned he attacked and cut the throat of a defenceless woman hence he is convicted under Section 302 read with Sec. 311 PPG and sentenced to undergo five years' R.I. Muhammad Sarwar accused was acquitted of the charge. Sections 302, 309 and 311 P.P.C. are reproduced as under :-- "302. Punishment of qatl-i-amd. -Whoever commits qatl-iarnd shall, subject to the provisions of this Chapter be:— (a) punished with death as qusas; (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a alterm which may extend to twenty five years, where according to the Injunctions of Islam the punishment of qisas is not applicable. 309 Waivcr-Afw of qisas in qatl-i-amd. (1) In the case of C3t!-i-amd an adult sane wali may, at any time and without any compensation, waive his right of qisas : Provided that the right of qusas shall not be waived:- (a.) where the Government is the wali; or (b) where the right of qisas vests in a minor or insane. (2) Where a victim has more than one wali, any one of them may waive his right of qisas; Provided that the wali who does not waive the right of qisas shall be entitled to his share ofdiyat. (3) Where there are more then one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim. (4) Where there are more than one offenders, the waiver of the right of qisas against one offender shall not affect the right, of qisas against the other offender. 311. To 'zir after waiver or compounding of right of qisas in qatl-i-amd. --Notwithstanding anything contained in section 309 or section 310 where all the wali do not waive or compounde>. he right of qisas or keeping in view the principle of fasad-fil-arz the Court, may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with imprisonment of either description for a term which extended to fourteen years at ta 'zir. Had there not been the waiver of the right of Qisas by the wali a of the deceased the Qisas would have been enforced in this case but as the Qisa.1 has been waived section 311 PPC empowers the Court keeping in view the principle of Fasad-fil-Ard ( (3°->^l t£ ;>Li ) to punish as a Ta'zir with imprisonment of either description for a term which may extend to 14 years as Ta'zir. The learned Sessions Judge having regard to the facts and circumstances of the case has exercised his discretion correctly with which I do not want to interfere. 12. The result is that no case is made out for setting aside the impugned judgment and conviction nor a case is made out for enhancement. G As such, both the appeal of the appellant and the revision of the complainant are dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 630 Present: raja muhammad SABIR, ALEEK alias MALIKA-Appellant versus STATE-Respondent Crl. Appeal No. 250 of 1993, accepted on 3.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/364--Murder--Offence of—Conviction for--Challenge to--Evidence of complainant and other brother of deceased cannot be believed without independent corroboration-Other two witnesses have been given up as won over-In order to convict person on capital charge standard of evidence should be of unimpeachable character-FIR was not lodged immeidately-Occurrence has not been seen by any one-On mere last seen evidence conviction of appellant is not warranted-Extra-judicial confession furnished does not inspire confidence-Recovery of pistol from appellant is also of no consequence-No empty alongwith weapon was sent to expert for examination purpose-Recovery of such normal type of weapon hardly connects appellant with commission of offence—Held : Procecution has failed to establish case against appellant beyond any shadow of doubt-Held further : Case is not free from doubt-Appeal accepted and conviction/sentence of appellant set aside. [Pp. 632 & 633] A, B, C & D Ch. Muhammad Yaqoob Rung and M. Khizar Hayat, Advocates for Appellant. Mehr Muhammad Saleem, Advocate for State. Date of hearing: 3.2.1998. judgment Appellant Maleek alias Malika son of Kamala Din aged 26 years has filed the present appeal against his conviction by the learned Sessions Judge, Muzaffargarh, dated 29.6.1993 under section 302 PPC sentenced him to life imprisonment and under section 364 PPC to 10 years' R.I. He was also ordered to pay compensation of Rs. 25,000/- to the heirs of the deceased and in default to undergo 1% years' R.I. He was further fined Rs. 5,000/- and in default 6 months' R.I. Both the sentences were ordered to run concurrently. 2. FIR No. 26 dated 25.2.1992 (Ex-PA) was lodged at Police Station Alipur by Muhammad Siddiq PW-1 brother of Muhammad Amin deceased aged 50 years recorded by Malik Muhammad Ashraf SI PW-10 at. 11.30 AM. The distance between the Police Station and the place of occurrence is 7 miles. 3. Brief facts as narrated in the FIR are that Muhammad Saddiq lodged Ex-PA on 25.2.1992 stating therein that his brother Muhammad Ainin alias Aami was married to Maleek's sister Ms?. Allah Rakhi 5/6 years back. Complainant had promised to give the hand of his daughter to Maleek in return. On 23.2.1992 Muhammad Siddiqu complainant was present in the house of his brother Muhammad Amin alongwith Ahdul Ghani hen the appellant arrived and told Muhammad Amin that a person wanted to sell buffalo as he had to purchase the land. Appellant told Muhammad Amin that he would help him in purchasing the huffalo on cheaper rate. The deceased used to deal in buffaloes. He accompanied the appellant and went "away. At the time of departure of the deceased with the appellant the complainant informed the deceased that he had to appear in the Court of Assistant Commissioner Alipur on 24.2.1992 in connection with case relating to possession of the land. Muhammad Amin deceased replied that he would reach the court straight from Mudwala. The complainant attended the court un 24 2.1992 alongwith Abdul Ghani his brother and Muhammad Rafiq and Muhammad Yaqoob his cousins. Muhammad Amin did not turn up. The case was adjourned to 8.3.1992. Non-appearance of Muhammad Amin caused anxiety to the informant. It is also alleged that the informant has enmity with his maternal uncle Fazal Din due to dispute over possession of land inherited by his mother and already Muhammad Amin was attacked and injured by Fazal Din and his companions. They had also advanced threats to Muhammad Amin who had come to take possession. Muhammad Siddiq went to the house of Maleek at Chah Mudwala alongwith his cousin Muhammad Yaqoob. Abdul Ghani and Muhammad Rafiq who told the infor­ mant t hat they would join him after shopping. At the house of the appellant 1 he complainant came to know from the mother of the appellant that he and Muhammad Amin had stayed at Maleek's house during the preceding night and had left, the house for purchasing buffalo. Complainant and Muhammad Yaqoob went in search of the appellant and Muhammad Amin who failed to locate them. They came back in the house of Maleek in the evening where Ahdul Ghani and Muhammad Rafiq were already present. All of them spent night in the house of the appellant and left the same in the morning of the next day. They reached at the western bank of River Chanab where they came across Maleek. Maqbool, Manzoor and Iqbal who were coming from the south and were walking fast. The complainant tried to stop them unsuccessfully. The appellant told the complainant that he was going in connection with urgent job and Muhammad Amin was present at his land where the complainant and the PWs could see him. Muhammad Siddiq and others went, at the land of the appellant but Muhammad Amin was not I>resent there. They remained present for some time waiting for the return ot the appellant. After about half an hour two grazers reached who told that a human dead body was lying in patch of reeds whereupon Muhammad Siddiq and others went to the spot where they found that Muhammad Amin was lying dead and soaked in blood. It is alleged in the FIR that Muhammad Amin was murdered by Maleek and above-named other persons in conspiracy with Fazal Din because of dispute over Watto/exchange marriage with Maleek and enmity with Fazal Din and others over land. 4. After recording the FIR Ex-PA Muhammad Ashraf SHO P.S. Saddar Alipur proceeded to the crime spot where he examined the dead body of Muhammad Amin and prepared the injury statement Ex-PB and inquest report. Ex-PI. He recorded the statements of witnesses and prepared sketch of the place of occurrence Ex-PJ. He secured blood-stained earth vide memo I'lx-PB by putting into a sealed parcel and also secured watch, stick, pistol Tasbih and two rings lying near the dead body of Muhammad Amin vide memo Ex-PC. The dead body was sent to T.H.Q. Hospital Alipur for post­ mortem examination. Statements of two other witnesses were recorded. Alter the investigation the challan was submitted against the appellant alone. 5. Learned trial Judge relying upon last-seen evidence of Muhammad Siddiq and Abdul Ghani brothers of the deceased, extra-judicial confession of Nazar Hussain PW-3, recovery of pistol P. 6 taken into ossession vide memo Ex-PD, convicted and sentenced him as mentioned above. 6. Learned counsel for the appellant contends that there is no direct evidence of the occurrence circumstantial evidence relied upon by the learned trial Judge is highly doubtful. Two independent witnesses Muhammad Yaqoob and Muhammad Rafiq mentioned in the FIR have not bi't'ii produced during trial. The extra-judicial confession of Nazar Hussain and last-seen evidence of Muhammad Siddiq and Abdul Ghani PWs does not inspire confidence for conviction of the appellant. No empty was sent with (.he pistol recovered from the petitioner to the expert to establish that/the weapon was used by him at the time of commission of crime. Learned State counsel has submitted that the prosecution evidence consists of reliable witnesses. Although they are related to the deceased yet the appellant is also from their family, therefore, the learned trial Judge has rightly relied upon their residence. He supports the conviction. 7. 1 have heard the learned counsel for the appellant as well as for he State and perused the record with their assistance. The evidence of Muhammad Siddiq PW-1 complainant and Abdul Ghani PW-2 who are brothers of the deceased Muhammad Amin cannot be believed without independent corroboration. The other two witnesses Muhammad Yaqoob nd Muhammad Rafiq have been given up as won over. In order to convict a person on capital charge the standard of the evidence should be of unimpeachable character. The FIR was not lodged immediately. The occurrence has not been seen by anyone. On mere last-seen evidence of Muhammad Siddiq PW-1 and Abdul Ghani PW-2, conviction of the appellant, is not arranted. Extra-judicial confession furnished by Nazar Hussain PW-3 does not inspire confidence. He has not given the date or month when the appellant made statement before him confessing the guilt. The evidence of Nazar Hussain is not trust-worthy. He has not explained the reason for not having immediately informed Muhammad Siddiq PW-1 for Abdul Ghani PW-2 about the confession of guilty by the appellant. His failure to immediately inform the complainant shows that he is not telling ilif (ruth and probably has been introduced to secure the conviction of the appellant. 8. The recovery of pistol P. 6 from the appellant is also of no consequence. No empty alongwith the weapon was sent to the expert for examination purpose. Recoveiy of such normal type of weapon hardly connects the appellant with the commission of offence. 9. The overall assessment of the circumstantial evidence does not inspire confidence to maintain the conviction of the appellant. The FIR was lodged the next day of the occurrence. The last-seen evidence, extra-judicial confession, and recovery evidence are not of unimpeachable character, therefore, I am convicted that the prosecution has failed to establish case against the appellant beyond any shadow of doubt. The case is not free from j donbt. 10. For the reasons stated above, the conviction and sentence of the appellant under sections 302 and 364 PPC is set aside. He is acquitted of the charges. He shall be released forthwith if not required in any other case. ( H.'I'. I Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 633 [Appellate Tribunal] Present: SH. LUTFUR RAHMAN, J. MUHAMMAD ALI and 2 others-Appellants versus STATE-Respondents Crl. A.S.C. (Tribunal) No. 13-97/BWP, accepted on 14.1.1998. Pakistan Penal Code, 1860 (XLV of I860)- - -Offence u/s. 302, 148, 149, 379 & 411 PPC-Conviction and sentence u/s 32fi substituted through Criminal Law (Fourth Amendment) Ordinance, 1991-Challenge to-Sections 299 to 338 contained in Act XLV of 1860 (Pakistan Amendment Code) were substituted by Criminal Law (Fourth Amendment) Ordinance, 1991, which was enforced on 24th day of August, 1991-Said amendment was kept alive through various successive ordinances and finally embodied in Criminal Law (Amendment) Act, 1997 (Act II of 1997) enforced on llth April, 1997-Occurrence took place on 12.9.1992 while impugned judgment was annoimced on 30th October, 1997-Indeed, trial judge convicted and sentenced appellants under penal provision of law no longer in existence-He should have recorded conviction under corresponding provision, if any, enforced at relevant (.hue—Perusal of charge-sheet reveals that all accused persons were charged separately for committing garf-J-amrf-Allegations as levelled in F.I.R. by complainant and deposed by eye-witnesses are that all accused persons had caused injuries to both deceased persons—In such case, trial court was obliged to determine criminal liability of each accused qua each deceased-Held: Failure on part of trial Judge to comply with mandatory provision of S. 367 Cr.P.C. have vitiated impugned judgment-Both appeals accepted and case remanded for re-writing of Judgment in accordance with provisions of section. 367 Cr.P.C. [Pp. 636 & 638] A, B & C 1991 P.Cr.LJ 833, 1986 P.Cr.L.J 23 44 and 1986 P.Cr.L.J. 2535. Mian Muhammad Tayyub Watto, Advocate and Mrs. Samina Qurcshi, Advocate for Appellants. Mr. Muhammad Akhtar Qureshi, Advocate for State. Dates of hearing: 13.7.1998 and 14.1.1998. judgment On 12.9.1992, at 3 P.M., Mst. Nasreen Akhtar (complainant), her parents Muhammad Rashid and Mst. Naseem Akhtar and brother Nadeem were present at their dera when her six uncles, namely, Muhammad Ali, Mushtaq Ahmad, Muhammad Siddique, Abdul Majeed, Abdul Sattar and Muhammad Rafique sons of Shah Din alongwith Muhammad Hanif Faiz, Shah Muhammad, Sattar and Zulfiqar sons of Shah Muhammad, all armed with solas, reached there and started abusing her parents Muhammad Rashid and Mst. Naseem Akhtar as to why they had got transferred the land belonging to Mukhtar Ahmad, another uncle of the complainant, in the name of Mst. Naseem Akhtar. Then all of them started beating Muhammad Rashid and Mst. Naseem Akhtar with sotas. Meanwhile, Muhammad Siddique (accused) picked up licenced 12 bore gun of Muhammad Rashid and caused injuries on the head of Mst. Naseem Akhtar, while Muhammad Hanif, Faiz, Shah Muhammad, Abdul Sattar and Zulfiqar caused sota injuries on various parts of the body of Muhammad Rashid. The accused (lien dragged Muhammad Rashid and Mst. Naseem Akhtar to a vacant land in the area of Chak No. 173/7-R. Muhammad Saleem Lambardar (P.W.) meanwhile reached the spot and tried to rescue Muhammad Rashid and Mst. Naseem Akhtar, but all the accused continued causing injuries till both of them died. Muhammad Siddique accused took the said licenced gun with him while leaving the spot. The occurrence was the result of a grudge nursed by the accused because Muhammad Rashid (deceased) had got 5% acres of land of his brother Mukhtar Ahmad transferred in the name of Mst. Naseem Akhtar (deceased). 2. Mst. Nasreen Akhtar on 12.9.1992 got recorded F.I.R. No. 82/92 (Ex. P.G.) at Police Station Khichi-wala, under sections 302/379/148/149 P. P.O. In pursuance of the said F.I.R., all the above-mentioned accused were arrested, tried and finally the appellants were convicted and sentenced on the 30th October, 1997 by the Special Judge, Special Court, Anti-Terrorism Bahawalpur-I, as under:- Name of Accused Conviction Sentence Under Section Muhammad Ali, Seven years' R.I. each and to pay Abdul Majeed, Q9«/<uPpr ^ s " 10.000/- eacn as compensa- ~Alushtaq Ahmad tion. The compensation, if and Abdul Sattar. realized, shall be paid to the legal heirs of the deceased in equal shares. M uhammad 379 P.P.C. 1 year R.I. Siddique 411 P.P.C. 1 year R.I. Both the sentences shall run concurrently. 3. Muhammad Ali, Muhammad Siddique and Abdul Majeed sons of Shah Din through Criminal A.S.C. (Tribunals) No. 13 of 1997 and Mushtaq Ali mad and Abdul Sattar sons of Shah Din through Criminal A.S.C. (Tribunals) No. 15 of 1997 challenged their convictions and sentences, while I hi' Slate through Criminal A.S.C. (Tribunals) No. 19 of 1997 prayed for the conviction of the above-mentioned appellants, excepting Muhammad Siddique, according to law. Through this judgment all the above-mentioned appeals are being disposed of. 4. The learned counsel for the convict d-appellants raised a serious objection as to the legality of the impugned judgment. They made a reference (.<i Section 367 of the Code of Criminal Procedure while submitting that the impugned judgment was not in conformity with the provisions contained (.herein, it was, inter alia, pointed out that:- (i) the appellants were convicted under section 326 P.P.C., which was substituted through the Criminal Law (Fourth Amendment) Ordinance, 1991, i.e. enforced prior to the occurrence in 1992; (ii) the conviction of the appellants (except Muhammad Siddique) was recorded for causing grievous injuries to Muhammad Rashid deceased but nothing was mentioned about causing injuries to Mst. Naseem Akhtar deceased; and (iii) the findings of the learned trial Judge were not according to the charge framed against the accused persons. 5. First, of all, I would like to take up the legal aspect of the matter regarding the conviction under section 326 P.P.C. Sections 299 to 338 contained in Act XLV of 1860 (Pakistan Penal Code) were substituted by the Criminal Law (Fourth Amendment) Ordinance, 1991, which was enforced fin the 24th day of August, 1991. The said amendment was kept alive through various successive Ordinances and finally embodied in the Criminal Law (Amendment.) Act, 1997 (Act II of 1997) enforced on the llth April, 1997. Tlie relevant section is as follows:- "7. Substitution of section 299 to 338,. Act XLV of I860.- (1) in the Penal Code, for sections 299 to 338 the following shall be substituted." Tin 1 occurrence in this case took place on 12.9.1992, while the impugned .judgment was announced on the 30th October, 1997. Indeed, the learned trial rJudge convicted and sentenced the appellants under a penal provision of law no longer in existence. He should have recorded the conviction under the corresponding provision, if any, enforced at the relevant time. 6. A perusal of the charge-sheet reveals that all the accused persons were charged separately for committing qatl-i-amd of Muhammad Rashid and Mst. Nassem Akhtar. Charges Secondly and Thirdly referred. The allegations as levelled in the F.I.R. by the complainant Ms?. Nasreen Akhtar and deposed by the eye-witnesses Mst. Nasreen Akhtar (P.W. 4), Muhammad Nadeem (P.W. 5) and Muhammad Saleem Nawaz (P.W. 6) are that all the accused persons had caused injuries to both the deceased persons. In such a case, the trial Court was obliged to determine the criminal liability of each accused qua each deceased. The relevant part, of section 367 of Cr.P.C.. which deals with language and contents of judgment, is reproduced below to the extent it concerns the case is hand:- "367. Language of judgment Contents of judgments.-(I) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court, or from the dictation of such Presiding Officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the Presiding Officer in open Court, at the time of pronouncing it and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be singed by him. (2) It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced. (3) (4) If it. lie a judgment of acquittal, it shall state the offence of which the accused is acquitted, and direct, that, he he set at, liberty. (5) If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not passed. (6) 7. In the case of Shahmand and 6 others versus The State (1991 P.Cr.L.J. 833) it was observed:- "It is well settled that where more accused are tried for more than one murder, the trial Court is obliged to determine the criminal liability of each accused qua each deceased and on finding any particular accused to be member of the unlawful assembly in prosecution of the common object, whereof more than one person are killed, it has to determine the legal sentence to be passed on each accused for each murder. For all these reasons, the judgment of the trial Court as a whole cannot, be approved." 8. In the case of Muhammad Ghayyur alias Ghori and others versus in' Slate (1986 P.Cr.L.J. 2344) it was held as under:- "No doubt, in Criminal Procedure Code, no particular form of judgment, is prescribed as section 367, Cr.P.C. merely requires that the Court will set-forth the points for determination and will, then, come to a finding upon them. The main requirements of section 367, Cr.P.C. are to the effect, that the judgment must be reasonably lucid because this will assist, an Appellate or Revisional Court when reviewing the case at large before it at later stage. Failure to comply with the provisions would normally vitiate the judgment." And was further held:- "Since the judgment of the trial Court is not, a lucid one and suffers from ambiguities, it is neither complete nor selfcontained one, therefore, there is no option but to accept the appeals and set aside the convictions and sentence of the appellants and remand the case for re-writing a legal and proper judgment." 9. In Muhammad alias Jhari's case (1986 P.Cr.L.J. 2535) the following were the observations:- " .... I am of the clear view that the learned Assistant Sessions Judge, Gambat has not complied with the requirements of section 367(1), Cr.P.C. and as such the impugned judgment is not a judgment in the eye of law. Consequently, I have no alternative but to set it side and direct, the trial Court to rewrite the judgment keeping in view the provisions of section 367(1), Cr.P.C. Particularly those with regard the framing of the points for determination and the findings thereon alongwith reasons for arriving at those findings." 10. The irregularities pointed out in paras 5 and 6, supra, are not rable and the failure on the part of the learned trial Judge to comply with Uic 1 mandatory provisions of section 367 Cr.P.C. have vitiated the impugned judgment. As a result of the above, both the appeals of the convicted accused persons are accepted and their convictions and sentences are set aside. The case is remanded for re-writing the judgment in accordance with the provisions of section 367 Cr.P.C. while keeping in mind the guide lines given in I.lie above cited cases. It is also suggested that the study of the book Ml JIHJMKNTS AND HOW TO WRITE THEM" by Dr. S.S. Nehru, would be beneficial and helpful to overcome the practical difficulties while writing a judgment. 11. So far the State appeal is concerned, it is against the acquittal of Muhammad Ali, Mushtaq Ahmad, Abdul Majeed and Abdul Sattar under suctions ,'502/149 PPC. This appeal has become infructuous for the time being because of the remand of the case. No findings are being recorded about, the accused acquitted by the trial Court as the State did not file any appeal against their acquittal. Criminal Appeals S.C. (Tribunals) No. 13 and 15 of 1997 filed by the appellants are accepted in the above terms and case remanded for re-writing of judgment within one month, while Criminal A.S.C. (Tribunals) No. 19 of 1997 filed by the State is dismissed having become infructuous. (K.K.F.) Appeals accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 639 [Appellate Tribunal] Present: SH. LUTFUR REHMAN, J. Syed SHAHBAZ SHAH-Appellant versus STATE-Respondent Cil Appeal SC (Tribunal) No. 28 & 29 of 1997, accepted on 4.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)— ---->. 302, 34--Murder-Offence of-Conviction for--Challenge to-Effect of ji-int recovery-Dead body was allegedly recovered on pointation of accused and it was identified by "N" & "H" but, surprisingly, both said persons were not, cited as witnesses—It is on record that both appellants and discharged accused were in custody when so-called dead body was teciivered on their pointation-Evidence is of joint recoveiy, which is not admissible in law and, therefore, is of no use to rosectuion-Sarwar allegedly saw deceased in company of accused, informed complainant, knew about motive and was present at time of recoveiy of dead body etc.~ His statement regarding motive was of general nature and was not cut Toborated by any other solitary statement of prosecution witness is not sufficient to prove alleged motive for commission of offence-Other witness of having seen deceased alive in company of accused was given up being un-necessary-How in case based only and only on circumstantial evidence and that too of "last seen" such important witness was given up while be was not hostile-Sarwar P.W. was present on all occasions—In nt her words, none else from Mohallah or any other respectable citizen was made to witness recoveries—His statement is materially cartradicted by statements of Investigating Officers regarding arrest of accused and discharged accused and regarding their presence at time of recoveries of dead body etc.—Un-corroborated statement of Sarwar P.W. is not at all sufficient to prove prosecution case-Held: Prosecution has failed to prove its case against appellants-accused beyond reasonable doubt-Both appeals accepted and appellants acquitted giving them benefit of doubt. [Pp. 641, 642, 643 & ] A, B, C, D, E, F & G 199,5 SCMR 351, 1993 P.Cr.L.J. 769 and 1995 P.Cr.L.J. 985. Malik M.H. Zafar Misson, Advocate for Appellant Rana Muhammad Naeem Sarwar, A.A.G. with Mr. Muhammad .\khhir Qureshi, Advocate for State. Dates of hearing : 3.2.1998 and 4.2.1998. judgment On 21.5.1997, Munir Ahmad (complainant) got recorded FIR Exh. i'J. wherein he alleged that his brother Muhammad Younas was married with m.s-/. Sughran Bibi, who developed illicit relations with many persons, which strained the relations between the couple. Muhammad Younas brought. Shehbaz Shah (accused), a Peer, who while giving Tavecz etc. developed illicit, relations with Mst. Sughran About 28 days earlier, Mst. Sughran and Syed Shahbaz Shah took Muhammad Younas to Darbar Pir Chanan to offer respect (Salam). They were seen by Mian Muhammad Sarwar and Umar Hayat (PWs), the relatives of complainant. After four days. Mm. Sughran Bibi Shahbaz returned without Muhammad Younas. Muhammad Sarwar enquired from about Muhammad Younas from Mst. Sughran, who told him that the had gone to Multan to see his brother Munir Ahmad (complainant). Muhammad Sarwar, after waiting for 8/10 days, sent a telegram to Munir Ahmad enquiring about the welfare of Muhammad Younas. The complainant then came to Sadiq Abad and with the help of Muhammad Sarwar and Umar Hayat launched a search for Muhammad Younas and after having failed to trace him, got recorded the complaint Exh. P(i, wherein he expressed his suspicion that Mst. Sughran and Syed SHahhaz Shah had abducted his brother Muhammad Younas with the intention to kill him. In the basis of complaint Exh. PG, formal FIR Exh. PC/1 was recorded at Police Station City Sadiq Abad under Section 364 PPC on 21.5.1997 at, 12.20p.m. 2. After recovery of the dead body of Munir Ahmad, the offence under Section 302/34 PPC was added. In pursuance of the said FIR, both the above-named accused were arrested, tried and finally convicted and sentenced on 6.12.1997 by the Special Judge, Special Court, Anti-Terrorism, Bahawalpur-I, as under:- Name of accused Conviction Section Sentence Shahbaz Shah Mst. Sughran Bibi 302/34 PPC 302/34 PPC Life imprisonment. Life imprisonment. 3. Syed Shahbaz Shah through Crl. A. SC(T) No. 28/97 and Mst. Sughran Bibi through Crl. A.SC(T) No. 29/97 have challenged their convictions and sentences. Through this judgment both the abovementioned appeals are being disposed of. 4. The learned counsel for the appellants at the very outset contended that there was no evidence on record about the identification of the dead-body to be that of Muhammad Younas, the brother of Munir Ahmad complainant. In line with this contention, he further submitted that no one identified or proved that, the pair of shoes P-3/1-2, the torn shirt. P-2, the shalwar P-l and the rings P-8/1-3 belonged to Muhammad Younas (deceased) and he was wearing these articles when he was last, seen alive. In this regard he also referred to the inquest report Exh. PB and pointed out - of these articles were mentioned in it. He elaborated that, in these -instances the recoveiy of said clothes and rings from the person of the and that of the shoes from the place of recoveiy of dead body had highly doubtful. He further pointed out that the recoveiy of P-5 alongwith a packet (puri) P-6 and a cup P-7 was obviously ted recoveries to show the administration of poison to Muhammad ,nas which was belied by the report of the Chemical Examiner as no s lisnn was detected from the hairs, bones, skin and preservatives of the i rv-ivered dead body. He referred to the case of Muhammad Yousaf versus The State i U'H."i S.f.M.R. 351) and submitted that the appellants were entitled to acquittal as the evidence of recoveries was not at all reliable. He further mi!. mined that, it, was evident from the statements of Munir Ahmad (P.W. 5) I .in.! Sai-war (P.W. 6) that, both Shahbaz Shah and Mst. Sughran led to the lecnveiy of the dead body. The learned counsel placed reliance upon Naecrn and others versus The State (1993 P.Cr.L.J. 769) and maintained evidence of joint recovery was not admissible and this fact alone Mifficient to create doubt in the prosecution version. (i. The recoveiy of dead body of the victim bearing marks of physical violence is not the only mode of proving corpus delicti in a murder case and onviction can be based n cogent and satisfactoiy proof of homicidal death f the victim. Such proof may be by the direct ocular account of an eyewii ness, or circumstantial evidence or by both. But where the fact of corpus iii iicti is sought, to be established by circumstantial evidence alone, the circumstances must, be of a clinching and definitive character unerringly leadi ng to t he inference that the victim concerned has met a homicidal death. The corpus delicti by the fact of homicidal death can be proved by telling and i nculpat ing circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. So, even if where the dead body is not found (or for instance not identified) the accused can be convicted if there is circumstantial evidence leading rationally and irresistibly to the conclusion that the deceased was murdered by the accused. But in the case in hand, the dead-body of Muhammad Younas was allegedly recovered on the pointation of the accused and it was identified by Naseer Ahmad son of Bashir Ahmad and Haroou son of Ahdur Rahman as is obvious from the inquest report Exh. P.B. Surprisingly, both the said persons were not cited as witnesses and Munir Ahmad (P.W. !">), the brother, and Sarwar (P.W. 6), a relative of the deceased, made no attempt to identify the recovered skeleton or corpse to be i hiti of Muhammad Younas. Even ASP/SDPO Sadiqabad \vhile checking the challan did not bother to attend to this fact which materially affected the prosecution case. None of the P.Ws. identified the pair of shoes, the clothes and t he rings to be that of Muhammad Youna«. The fact that, one of the rings removed from the finger of the dead body by the doctor had engraved name of Muhammad Younas is nothing but an attempt on the part, of the nvestigating Officer to establish the identity of Muhammad Younas through planted evidence as presence of these articles was not mentioned in the inquest report. Exh. PB and in the recovery memo of dead body Exh. PH. Tin Investigating Officer further attempted to establish the cause of death through poison by further planting the 'thermos', a 'puri' and the cup, but liis allempt miserably failed as no poison was detected from the organs of the dead body »_, f he Chemical Examiner. The prosecution has not only failed in establishing the identity of the recovered corpse (skeleton) but, also created evidence of fictitious recoveries to strengthen the case. It is evidently a case of "joint recovery". Munir Ahmad and Sarwar P.Ws. categorically stated that, both the accused Shahbaz Shah and Mst. Sughran, while in police custody, on 2;U">.1997, led to the recovery of dead body of Muhammad Younas and a pair of shoes. They also admitted in presence of Nazir Ahmad accused (since discharged) at that time in custody. The Investigating Officer Muhammad Sharif A.S.I. (P.W. 11) contradicted both the said P.Ws. and stated that the recovery was effected on the pointat.ion of Shahbaz Shah accused and lie had only taken Mat. Sughran accused with him at that time. This is a patent lie. When Mftt. Sughran was simply taken with him by the said Investigating < )l'fic.ur why he did not. arrest her after the recovery of the dead body. It may be pointed out that according to Muhammad Sharif Inspector (P.W. 10), Mst. Snghran arid Nazir Ahmad (discharged accused) were arrested by him on :{l).f). 1997 and ;51.fi.l997, respectively. It is not understandable as to why Muhammad Sharif A.S.I, let Mst. Sughran go home after the recovery of the dead body of Muhammad Younas and incriminating evidence and arrested her after 7 days. It is on record that both the appellants and the discharged accused were in custody when so-called dead body of Muhammad Younas Bjwas recovered on their pointation. The evidence in the case is of joint recovery, which is not. admissible in law and, therefore, is of no use to the prosecution. 7. The learned counsel for the appellants next contended that there was no satisfactory evidence regarding the alleged illicit relations between bol.li the appellants. He pointed out that, Munir Ahmad (P.W. 5) said nothing about the said illicit relations in his examination-in-chief. He derived his information in this case from the people of Mohallah, as admitted in crossexamination, but neither the disclosed the names of these persons nor produced any witness of the locality to prove the same. He then referred to tin- statement of Sarwar (P.W. 6) and submitted that he was an "niiiiiipiTsciit" and "omnipotent" sort of person. He allegedly saw deceased in Liu- company of the accused, informed the complainant, knew about the moi.ivu and was present at the time of recovery of dead body etc. etc. He submitted that even his statement regarding the motive was of a general nature and was not corroborated by any other P.W. Reliance was placed on I he case ofAshiq Hussnin versus The State. (1993 S.C.M.R. 417). There is much force in the arguments of the learned defence v'. The S'-htaiy statement of Sarwar (P.W. 6) is not sufficient to prove ItL't i ni' Tive for the commission of offence in this case and this fact, is iiiainng to the prosecution case. The learned counsel for the appellants finally submitted that, the iLL ;if last seen provided by the solitary witness Sarwar (P.W. 6) could me become the basis for the conviction of the appellants. In this regard d td the case of Muhammad Hanif versus The State (1995 P.Cr.L.J. D F in Sarwar as P.W. 6 stated that he alongwith Umar Hayat. was j'i:iiL r inwards bus-stand when they met Shahbaz Shah and Mxt. Sughran .iccnsedi and Muhammad Younas (deceased). On his query they replied that :iiey were going to visit the shrine of Chan Peer. Umar Hayat, the other •a i'ness of having seen Muhammad Younas alive in the company of the •.censed, was given up being unnecessary. I am at a loss to understand how :i a case based only and only on circumstantial evidence and that, too of "last seen such an important witness was given up while he was not hostile. This uni mily be explained by Syed Iftikhar Hussain Shah D.D.A., who considered •his witness as mi-necessary. In fact, evidence of Umar Hayat could . ;rnhiiiate the statement of Sarwar P.W. and which ultimately could .•ha'i.^e the fate of the case. Even the learned trial Judge should not have ill lAvd the learned prosecutor to drop such an important, evidence, which a us essential for the correct decision of the case. Now we are left, with the sMJHary statement of Sarwar P.W. in this regard. The said P.W., as observed eai lier. was present, on all the occasions. In other words, none-else from the E Mnhallah or any other respectable citizen was made to witness the i ecnveries. No doubt, Sanvar P.W. cannot be termed as a "chance witness" as Hie presence of such a witness at, pxiblic resorts is veiy likely, but his uni n! iohorated testimony regarding having seen Muhammad Younas in the cnmpaiiy of the accused and his witnessing all the events of this case should have made the trial Court rather conscious in accepting his testimony. In ik t. his statement is materially contradicted by the statements of the Investigating Officers regarding arrest, of Mst. Sughran (accused) and Nazir \iiinad (discharged accused) and regarding their presence at, the time of i ecoveries of dead body etc. In the circumstances of this case, the uncni mbnrated statement, of Sanvar P.W. is not at all sufficient to prove the i rns.ecnl.ion case. It is a poorly and badly conducted case, handled by incompetent persons. In all criminal cases anu part'cidarly where someone has died and someone else is to face gallows every possible effort, should be made to bring on record all available evidence and pl^e the same before the ( 'i mil to enable it, to reach to a correct conclusion so that no injustice is done G in either of the parties. The prosecution has failed to prove its case against 1 lie appellants-accused beyond a reasonable doubt. As a result of the above, both the appeals are accepted and the appellants are acquitted by giving them benefit of doubt. Their convictions and sentences are set aside. They be released immediately, if not required in any other case. (B.T.) Appeals accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 644 (DB) Present: GHULAM SARWAR SHEIKH AND SH. ABDUR RAZZAQ, JJ. IMAM BAKHSHA and 2 others-Appellants versus STATE-Respondents Cr. S.C. (T) No. 16-96/BWP, accepted on 13.5.1997. Pakistan Penal Code, I860 (XLV of 1860)-- —-S. 450/436/34-Setting house on fire causing damage to house-hold articles-offence of--Conviction for-Challenge to-Nature of occurrence was such that if complainant party was sure that culprits/assailants were none else than accused, they would have not delayed report for eight hours-It can, therefore, he safely inferred that intervening time was utilized for deliberations and possibility of appellants having been invol­ ved on guess work/mere suspicions on account of previous enmity cannot be ruled out-Perusal of record shows-that learned judge based conviction f all accused/appellants on occular account furnished by PWs-All three PWs are related interse and in such circumstances, it is not safe to rely upon evidence of such interested and inimical witnesses in absence of any independent evidence which is lacking-Story of putting house and belongings on complainant to fire with bottle of kerosine oil, empty handed, without arm and knowing well presence of inmates of house cannot be ordinarily believed-Prosecution has also tried to seek corroboration of occular account from evidence of recovery of burnt articles, which are alleged to have been secured-Admittedly, these incriminating recoveries were not kept in sealed parcel, as such, it lost its credibility as well as its authenticity-Held: Prosecution has not been able to prove its case against appellants beyond reasonable doubt-Appeal allowed and accused acquitted of charges. [Pp. 647 & 648] A to F Mr. Mumtaz Mustafa, Advocate for Appellants. Malik Dost Muhammad, Advocate and Ch. Shaft Muhammad Tariq, Advocate for State. Dates of hearing : 12.5.1997 and 13.5.1997. judgment While present at dera at about 11.00 a.m. on 12.4.1996 complainant Musheer Ahmed, Munir Ahmed, Abid Hussain, Abdul Aziz and Rashid Ahmed \vere attracted to the noise of their family members. On reaching the spot they saw that Imam Bakhsh, Muhammad Sadiq and Shoukat Ali had set ablaze, the house of complainant, by sprinkling kerosine oil, as a result of which, a wooden window, a cot, seeds of Palak (Spinach), clothes, raw rice ar.i other articles of house-hold had been damaged. On seeing them, the assailants, scaled over the wall and succeeded in making their escape good. Motive behind the commission of such crime is stated to be long standing litigation between the parties. 2. The complainant then proceeded to police station for lodging report. As Muhammad Bakhsh ASI met him in said village, so he lodged complaint Ex. PA. Muhammad Bakhsh ASI, there went to the place of occurrence and secured damaged articles P-2 to P-8 vide memo Ex. PB and also prepared site plan Ex. PD. On 27.4.1996, accused Shoukat Ali led to the recovery off bottle P-l, which, was secured by means of memo Ex. PB. After completing all steps of investigation, challan was submitted in Court. 3. Charge under Sections 450/436/34 PPC was framed against the accused, who, pleaded not guilty to it and chose to face trial. 4. To establish its case, prosecution examined PW-1 Masheer Ahmed complainant, .» . v-2 Abid Hussain, PW-3 Abdul Aziz, PW-4 Muhammad Bakhsh Somero ASI and PW-5 Muhammad Anwar Head Constable. After giving up Rashid Ahmed, prosecution evidence was closed by learned Deputy District Attorney vide statement dated 10.6.1996. 5. In their statements jotted down under Section 342 Cr.P.C. all the accused denied and refuted the prosecution version and professed their innocence. They neither opted to record their statements under Section 340(2) Cr.P.C. nor produce any defence evidence. 6. After scanning entire date and material, learned lower Court convicted the accused under Section 450/34 PPC and sentenced each of them to five years, R.I. and fine of Rs. 20,000/- in default thereof each to suffer R.I. for a term of six months. Also all the accused were convicted under Section 436/34 PPC and each sentenced to suffer R.I. for seven years and fine of Rs. 50,0007- each in default whereof to undergo R.I. for one year. However, benefit of provisions of Section 382-B Cr.P.C. was extended to all off them. 7. Feeling aggrieved accused/appellants have come up in appeal and challenged their conviction and sentences enumerated above. 8. Arguments heard and record examined with able assistance of learned counsel for the parties. 9. It is submitted by learned counsel for the appellants that there are various discrepances in the prosecution evidence which make it untrustworthy. While elaborating his contention, he submitted that as per statements of PWs 1 to 3, they claim themselves to be present of Dera at the time of occurrence, whereas they have not been shown as such in the site plan Ex. PD. He further submitted that similarly, PWs had assessed the damage at Rs. 30,000/-, while deposing in the Court, whereas this fact is not born out from the contents of FIR. Again he submitted that it has been deposed by PWs 1 to 3, that it was Shoukat All accused, who had sprinkled kerosine oil, but such Part has been assigned to accused Muhammad Sadiq in the site plan Ex. PD referred above. He also submitted that evidence of recovery of bottle P-l after 15 days of occurrence is of no vahie, when such bottles are easily procured is o no value, when such bottles are easily prociired from the open market. He next argued that there is inordinate delay in lodging report, as alleged occurrence took place at 11.00 a.m., whereas report had been lodged at 7.00 p.m. He supplemented his arguments and stated that FIR was deliberately delayed with a view to gain time to build up a stoiy and to implicate the appellants falsely. He also submitted that even the mode and time of alleged occurrence is such that it does not appeal to reason. He submitted that as per prosecution story long standing enmity is going on between the parties, and even then the appellants chose to set fire to the house of complainant at 11.00 a.m. and felt contended by causing loss which does not commensurate with the alleged act. He thus submitted that prosecution has failed to bring home guilt to the accused beyond reasonable doubt, and appeal may be accepted and appellants be acquitted. 10. In rebuttal, the judgment under appeal has been supported by learned counsel for the complainant as well as counsel for the State. It is argued by the learned counsel for the complainant that delay in lodging FIR stands explained in the very contents of FIR, as it has been stated therein that the time had been consumed in extinguishing fire, that the mere fact that names of PWs 1 to 3 do not, appear in site plan Ex. PD does not prove that said PWs were not present at the time of occurrence, that similarly discrepancy appearing in site plan Ex. PD, wherein name of Sadiq has been mentioned instead of Shoukat is due to inadvertence on the part of Investigating Officer and is of little consequence. While commenting about the time chosen by the appellants, he submitted that time of 11.00 a.m. was selected as at that time all family members are usually out in their fields. He further argued that occular account stands corroborated by evidence of recovery of kerosine bottle P-l as well as damaged articles P-2 to P-8. He thus submitted that prosecution has succeeded in establishing its case against the accused, and appeal merits rejection. 11. After considering the submissions made at the Bar in the light of evidence on the record, we are of the view that prosecution has not been able tn prove its case beyond reasonable doubt. On prosecution's own showing the occurrence had taken place at 11.00 a.m. while Musheer Ahmed reported the same to Muhammad Bakhsh Somero AST at 7.00 p.m. No explanation has been offered for this inordinate delay. Nature of the occurrence was such that if the complainant party was sure that the culprits/assailants were none else than the accused, they would have not delayed the report, for eight hours. It can. therefore, be safely inferred that the intervening time was utilized for deliberation and possibility of appellants having been involved on eness work/mere suspicions on account of previous enmity cannot, be ruled 12. A perusal of record shows that the learned Judge based the conviction of all the accused/appellants on the occular account furnished by Mushser Ahmed first informant (PW-D, Abid Hussain (PW-2) and Abdul Aziz iPW-3) supported by recovery of burnt articles P-2 to P-8). Of course there was also evidence of motive, regarding criminal litigation going on between the parties. Admittedly PW-2 is nephew of PW-1 and PW-3 is also related PW-1, as per has own admission. Thus all the three PWs are related iti terse and in such circumstances, it is not safe to rely upon evidence of such interested and inimical witnesses in absence of any independent evidence, which is lacking in the instant case. It is well settled that a mere relationship of witness would not be good enough to brand him with interestedness and to discard his evidence, unless the same is tainted with animosity and rancour, which, is not lacking in this case. 13. In the instant case, absence of any independent evidence requires their statements to be viewed with great care and caution, particularly with the background of animosity of not less than of murders and of having every chance roping each other flasely or otherwise without leaving any occasion or chance. In that wake, the stoiy of putting the house and belongings of complainant to fire, with a bottle of kerosine oil, empty handed, without armed and knowing well the presence of inmates of the house, cannot be ordinarily believed. It does not sound to natural course of events nor the appellants could be taken to have assumed the role of dare devil without any material gain or purpose or to achieve any particular object. We are not impressed by the submission made on that score. 14. Prosecution has also tried to seek corroboration of ocular account from evidence of recovery of burnt articles P-2 to P-8. which are alleged to have been secxired vide memo Ex. PC. Admittedly, these incriminating recoveries (P-2 to P-8) were not kept in sealed parcel, as such, ;t lost its credibility as well, as its authenticity. 15. For the foregoing reason, we are of the view that prosecution has not been able to prove its case against the appellants beyond reasonable doubt. We, therefore, allow this appeal, set-aside conviction and sentence and acquit them of the charges. They are ordered to be released forthwith, if not required in any other case. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 648 Present: SH. ABDUR RAZZAQ, J. ABBAS BAIG-Petitioner versus STATE-Respondent. Crl. Misc. No. 9-B of 1998, dismissed on 28.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence U/S. 324/34 PPC-Bail-Grant of-Prayer for-Bail application was moved by learned counsel on 6.1.1998, wherein fact of dismissal of second bail application by learned sessions judge has neither been mentioned nor referred-Held: Concealment of fact alone is sufficient to disentitle petitioner to relief of bail-Petition dismissed. [P. 648] A Mr. Tariq Mahmood Butt, for Petitioner. Mr. Ajmal Katnal Mirza, Advocate for Complainant. Syed Nayyar Hussain, Advocate for State. Date of hearing: 28.1.1998. order The petitioner seeks bail in a case registered against him vide FIR No. 202 dated 8.9.1997 under Sections 324/34 PPG at P.S. Sadar District Jhelum. 2. The petitioner applied for bail in the trial Court which was dismissed vide order dated 23.2.1997. He moved the Sessions Court for the and relief which was also declined be him vide order dated 30.10.1997. He again moved second application before the learned Sessions Judge which was also dismissed on 5.1.1993. The instant bail application was moved by the learned counsel on 6.1.1998, wherein the fact of dismissal of section bail application by the learned Sessions Judge vide order dated 5.1.1998 has neither been mentioned not referred. This concealment of fact alone on his part is sufficient to disentitle the petitioner to the relief of bail, as such, this petition is dismissed. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 649 Present: muhammad naseem chaudhri, J. MUNIR AHMED-Petitioner versus STATE-Respondent Criminal Misc. No. 275/B of 1998, accepted on 17.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Further inquiry--Offence U/S. 302/34 P.P.C.—Petitioner declared innocent by Police and placed in Column No. 2 of challan-Petitioner-accused did not injure deceased as well as prosecution witnesses-He is said to have restrained deceased-Victim would struggle to get herself freed and saved and in that process, accused of this category can also receive injury who obviously would not facilitate his co-accused as mentioned in FIR-Held: Crux of matter shows that involvement of petitioner is question of further enquiry who, as such, is entitled to be admitted to bail-Petition accepted. [Pp. 650 £ 651] A, B, C & D Mr. Moazzam Iqbal Gill and Ch. Ijaz Hussain Bhatti, Advocates for Petitioner. Mr. AsgharAli Hinjra, Advocate for State. Date of hearing: 17.12.1998. judgment Mst. Nargis Bibi deceased of this case was the wife of Nazir Ahmad, a son of Nizam Din. The aforesaid Nizam Din made sale of some landed property and his son Nazir Ahmad as well as Mst. Nargis Bibi demanded their share from the sale price Nizam Din did not agree to that and was annoyed due to that. On 19.11.1997 Mst. Nargis Bibi was arriving back to her home after leaving the kids in a School where they were studying. She reached near the shop of Abdul Ghani Rehmani where Muhammad Azam was standing while armed with a pistol alongwith Munir Ahmad petitioneraccused and his father Nizam Din, both empty handed. Nizam Din is said to have made the commanding lalkara by addressing his sons Muhammad Azam and Munir Ahmad to get hold of Mst. Nargis Bibi and to murder her who always demanded the share from sale price of the land. Munir Ahmad petitioner-accused is alleged to have restrained Mst. Nargis Bibi while Muhammad Azam co-accused effected firing upon her. Two fire shots hit the chest of Mst. Nargis Bibi who fell down. Thereafter Muhammad Azam further fired at her which hit her back. Naseeb Ali father of Mst. Nargis Bibi, Bashir Ahmad and Dost Muhammad are said to have seen the occurrence who were going to contact Nizam Din to settle the matter. About the aforesaid occurrence FIR No. 848 dated 19.11.1997 was registered at Police Station Factoiy Area District Sheikhupura under section 302/34 of the Pakistan Penal Code. Munir Ahmad petitioner was arrested on 29.11.1997 whose bail plea has been rejected by the learned Addl. Sessions Judge, Ferozewala, District Sheikhupura with the reasoning that Munir Ahrnad petitioner is said to have restrained Mst. Nargis Bibi whose presence at the spot is prirna facie made out and that even if the police has declared him as innocent, the said opinion is not binding upon the Court. Munir Ahmad petitioner has filed this petition before this Court to tiy his luck to be admitted to bail. 2. I have heard the learned counsel for munir Ahmad petitioner-accused as well the learned State Counsel and gone through therefore. The contention of the learned counsel for the petitioner are that Munir Ahmad petitioner did not injure Mst. Nargis Bibi who is said to have restrained her and that he has been involved to put the pressure upon the family. He added that the stoiy projected by the police is unnatural as the chance of hitting and injuring Munir Ahmad petitioner-accused cannot be ruled out. He also referred to the opinion of the police whereby Munir Ahmad petitioner has been declared as innocent. On the contrary learned counsel for the State laid the emphasis that the recitals of the FIR have made out the presence of Munir Ahmad petitioner at the spot and that the courts are not bound by the opinion of the police about the innocence of an accused. At the veiy outset I would express that it is the admitted position that during the investigation Munir Ahmad petitioner has been declared as innocent who has been mentioned in Column No. 2 of the challan indictment and has been placed at the mercy of the Court. My view is that due to the role attributed to Munir Ahmad petitioner the aforesaid opinion expressed by the Investigating Officer is entitled to due weight and merits to be relied upon even at this initial stage for the purpose of acceptance of this bail application. The fact of the matter is that Munir Ahmad petitioner-accused did not injure Mst. Nargis Bibi deceased as well as the prosecution witnesses. He is said to have restrained Mst. Nargis Bibi. The assertion raised by the learned counsel for Munir Ahmad petitioner that the chance that Munir Ahmad petitioner would have been hit and injured in case the story mentioned in the FIR is given the weight has the merit and cannot be ignored espectially when at the initial time with the firing effected by the principal accused Muhammad Azam two shots are said to have hit the chest of Mst. Nargis Bibi who fell down and thereafter due to the firing of Muhammad Azam co-accused she received the injuries on her back. It is not a case of one shot only. When there are more than one shots, it can be imagined that the assailant was bent upon to succeed in his enterprise and obviously his co-accused as, in the instant case, would not entrap himself by putting his own life in danger. I would be glossing over an important aspect of the alleged type of matterexpressing that the victim would struggle to get herself freed and saved and in that process an accused of the category of Munir Ahmad can also receive the injury who obviously would not facilitate his co-accused as mentioned in the FIR. This is the crux of the matter to make me hold that the involvement of Munir Ahmad petitioner is a question of further enquiry who. as such, is entitled to be admitted to bail. I, therefore, hold that it is a fit case to admit Munir Ahmad petitioner to bail than to let him to remain in jail. 3. For what has been said above, I accept this application and admit Munir Ahmad petitioner to bail in the sum of Rs. 50,000/- (Rxipees Fifty thousand only) with one surety in the like amount to the satisfaction of earned Acldl. Sessions Judge, Ferozewala, District Sheikhupura with a direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. 4. Copy dasti. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 651 [DB] Present: raja muhammad khurshid and mumtaz ali mirza, JJ. IMRAN MURTAZA-Petitioner versus STATE-Respondent Crl. Misc. No. 1179/B of 1998, dismissed on 12.2.1998. Criminal Procedure Code, 1898 (V of 1898)— —-S. 497-Bail-Grant of-Prayer for-Offence u/S. 10/11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sections 42/114/109/34 P.P.C.--It enough to say that Special Court constituted under Anti Terrorism Act, 1997 has taken cognizance of matter-­ Petitioner is named in F.I.R. and had played specific role in silencing victim by putting his hand over her month when his co-accused committed offence of Zina-bil-Jabr-lt is true that name of petitioner is not mentioned in statement of victim u/S. 164 Cr.P.C. but she has clearly mentioned that one of four accused had put his hand over her month while other had committed Zina-bil-Jbar with her-Even otherwise, provisions relating to bail contained in section 497 Cr.P.C. have been specifically excluded section 30(3) of Anti-Terrorism Act, 1997-Intention of Legislature is quite clear that once case has been taken cognizance by Special Court for offence falling within Schedule of Act, no Court other than special court shall have power or jurisdiction to grant bail-Held: Provisions of Code of Criminal Procedure cannot be invoked at this stage nor petitioner deserves to be released on bail on merits of case-Petition dismissed. [Pp. 653 & 654] A & B Ch. Afrasiab Khan, Advocate for Petitioner. Qazi Ahmad Naseem Qureshi, Advocate for State. Date of hearing: 12.2.1998. order Heard. 2. A case under Sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Sections 342/114/109/34 PPC is registered against the petitioner and others at P.S. Saddar Chakwal on the report of Mst. Musarrat Naseem prosecutrix for an occurrence which took place on 27.9.97. 3. According to her statement, she got angiy with her mother and left her house in order to go to the house of her maternal aunt. She reached Adda Chakora at about 5.00 p.m while on way to the house of her maternal aunt. Meanwhile a Suzuki Ven No. RII-8165 driven by Jamshed, a coaccused of the petitioner arrived there from Chakwal. The passengers lighted from the van and after it became empty, the prosecutrix asked the driver to take her to Chakwal. The driver asked her to board the v n and to occupy the rear seat. On reaching near Odharwal Chowk, the driver stopped the van and asked the prosecutrix to come over to the seat by his side. She accordingly occupied the seat next to the driver's seat. On reaching Sargojra Adda, she asked the driver to drop her but instead, she was taken to the house of Muhammad Shakeel, co-accused situated in Mohallah Line Park Nishat Colony. From there, she was taken by the aforesaid Jamshed and Shakeel to a deserted place and was subjected to Zina-bil-jabr by both of them. From there, she was taken to the house of Rizwan Javed, another coaccused of the petitioner in Mohallah Qutab Abad. The aforesaid Rizwan was also invited by the aforesaid co-accused to accompany them in the Suzuki van. He accordingly boarded the Suzuki van alongwith the present petitioner. All four of them took her to the above said deserted place where she was subjected to Zina-bil-jabr by Rizwan Javed and the petitioner put his hand over her mouth so that she may not raise the noise. The victim was accordingly made silent by the petitioner when his co-accused Rizwan committed zina-bil-jabr with her. Thereafter, all four of them came back in the 'Baithak' of Shakeel where she hed d them to be released. She was again taken out and left near Shah Zeb grave-yard from where she reached the house. 4. Learned counsel for the petitioner submitted that since there was no allegation of Zina against the petitioner, therefore, the offence would not fall within the schedule of the Anti Terrorism Act, 1997 and as such, Special Court was not competent to deal with the matter; that the petitioner was involved falsely in the case as the father of the petitioner who was serving as Inspector had recently retired and had some rivalry with the Investigating Officer; that there was delay in filing of the FIR which made the story intrinsically doubtful; and that the prosecutrix made a statement under Section 164 Cr.P.C. in which she did not specifically name the petitioner to have committed the occurrence. 5. In the light of the above submissions, learned counsel for the petitioner contended that since the facts of the case did not attract the provisions contained in the Anti Terrorism Act, 1997 nor it could be considered a scheduled offence, therefore, the petitioner was entitled to bail. 6. Learned counsel for the State opposed the bail application on the ground that the petitioner is named in the FIR and has been assigned a specific role as he had accompanied the principal accused at the time of commission of Zina-bil-jabr with the prosecutrix. In this regard, it was contended that the petitioner put his hand on the mouth of the victim to make her silent. It was, therefore, urged that the petitioner was equally to be blamed for facilitating the commission of Zina-bil-jabr by his co-accused, may be through a conspiracy or abetment. The offences mentioned in the FIR, therefore, allegedly clearly fall within the ambit of schedule of the Anti Terrorism Act, 1997. Lastly, it was contended that the provisions contained in sub-Section (3) of Section 30 of the Act ibid excludes the application of the provisions of Section 496/497/498 Cr.P.C. and as such, no other Court shall have the jurisdiction to deal with the bail matter. 7. We have considered the submissions made at the Bar from both sides. It will not be possible to enter into the deeper appreciation regarding the merits of the case last it may prejudice the trial. It is enough to say that the Special Court constituted under the Anti Terrorism Act, 1997 has taken cognizance of the matter. The petitioner is named in the FIR and had played a specific role in silencing the victim by putting his hand over her mouth when his co-accused committed the offence of Zina-bil-jabr. It is true that the name of the petitioner is not mentioned in the statement of the victim under section 164 Cr.P.C. but she has clearly mentioned that one of the four accused had put his hand over her mouth while the other had committed zina-bil-jabr with her. The name of the fourth person as pointed out above has been mentioned in the FIR. It is, therefore, obvious that the nonmentioning of the name in the statement under Section 164 Cr.P.C. would not be fatal at this stage so as to create any ground for bail for such an heinous offence of gang rape. Even otherwise, the provisions relating to bail contained in Section 497 Cr.P.C. have been specifically excluded by Section 30(3) of the Anti Terrorism Act, 1997. The intention of the Legislature is quite clear that once the case has been taken cognizance by the Special Court for an offence falling within the schedule of the Act, no Court other than the Special Court shall have power or jurisdiction to grant bail. As such, the aforesaid provision of the Code of Criminal Procedure cannot be invoked at this stage nor the petitioner deserves to be released on bail on the merits of the case. 8. The petition is, therefore, dismissed. (B.T.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 654 Present: muhammad nawaz abbasi, J. SHAHID NASEEM-Petitioner versus STATE-Respondent Criminal Misc. No. 44/B of 1998, accepted on 10.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Offence u/S. 302 P.P.C.-Case under trial-Admitted position is that deceased was not seen by PWs in .company of petitioner as such before occurrence rather their evidence was to the effect that accused and deceased were seen by them at a distance of 500/600 yards from each other—In such cases through tentative assessment of evidence, apparent correctness of allegation is ascertained as statements of persons recorded by Police are not subjected to cross examination and, therefore, cannot be considered as sacrosanct for purpose of decision of bail application—Keeping in view above principle, evidence against petitioner being traceable on record pertaining to presence of petitioner near place of occurrence and disclosure of intention to kill alongwith matching of crime empty with licensed pistol of petitioner cannot be considered as positive proof of guilt of petitioner unless same is put to test of cross examination and doubts and dents arising in it are removed—Thus before determining guilt of petitioner at trial, benefit of doubts for purpose of bail will necessarily he given to petitioner and concession of bail in such circumstances cannot be refused merely for reason that case is under trial—As per post-mortem report, death probably occurred at some time before 8.00 p.m. when it was not yet dark but witnesses despite hearing firing report remained unconcerned and have not attracted to scene, therefore, taking notice ef attending circumstances, possibility of false implication of petitioner being not ruled out, there would be reasonable ground leaving towards plea of innocence, which makes room for further inquiiy into guilty of petitioner--Held: There are no reasonable grounds to believe that petitioner is responsible for murder of deceased-Petition accepted and petitioner granted bail. [Pp. 656, 657 & 658] A. B, C, D, E & F PLD 1972 SC 81. Raja Abdul Aziz Bhatti, Advocate for Petitioner. Mr. Muhammad Ilyas Siddiqui, Advocate for Complainant. Qazi Ahmad Naeem Qureshi, Advocate for State. Date of hearing: 10.2.1998. order The petitioner namely Shahid Naseern son of Abdul Latif is facing trial before the learned Additional Sessions Judge, Gujar Khan for the charge of committing murder of Muhammad Taj son of Muhammad Akbar. 2. Miran Dad father-in-law of Muhammad Taj deceased upon information supplied to him by Muhammad Qadir nephew of Muhammad Taj deceased at about 9 PM on 8.6.97 that he alongwith Babar son of Karamat Hussain, while going on kacha road leading towards village Kund found the dead body of Muhammad Taj with his motorcycle lying on the said kacha road lodged report of the occurrence on the same day at 11.00 PM at Police Station Mandra and in consequences thereof a case was registered against the unknown persons through FIR No. 107. 3. Muhammad Sharif and Allah Ditta relatives of the complainant, appearing before the police, subsequent to the registration of the case, stated that three days earlier i.e. on 4.6.1997, petitioner expressing his grievance before them against the deceased, stated that deceased by carrying illicit conofection with his mother disgraced him in the village and that he would not spare him. 4. Rafaqat and Abdul Razzaq claimed to have seen the petitioner, near the place of occurrence shortly before the incident at some distance from the deceased on 8.10.1997, who was going on motorcycle and after hearing fire report noticed the petitioner boarding on a bus at Mandra Bus Stand. The I.O. upon the statements made by the above named persons before him declaring the petitioner responsible for the commission of murder of Muhammad Taj made him accused in the case. 5. The crime empty allegedly recovered from the spot by the I.O. during the spot inspection was found matched with the licenced (30 bore) pistol of the petitioner subsequently recovered from him on his arrest. 6. The application for grant of bail moved by the petitioner before the learned Additional Sessions Judge, Gujar Khan was refused through order dated 6.10.1997 with the observation that the petitioner was seen by the PWs near the place of occurrence before and after the occurrence and also disclosed his intention before them three days prior to the occurrence. The positive result of fire arm expert regarding the matching of the crime empty with the pistol of petitioner was considered another factor for dismissal of the bail application of the petitioner. 7. The learned counsel for the petitioner contends that the circumstantial evidence of last seen and the disclosure of the petitioner of his intention to kill, having no substance to connect the petitioner with the commission of offence, the case against him falls within the purview of Sub- Section (2) of Section 497 Cr.P.C. He added that excluding the above said pieces of evidence from consideration, the matching of crime empty allegedly recovered from the spot with the licenced pistol of the petitioner itself is not an evidence of murder and that it being a blind murder, the petitioner due to suspicion was involved in the case through artificial evidence. 8. Learned counsel appearing on behalf of the complaint contends that the case was under trial before the learned Special Court nd was at advance stage when it was transferred to the learned Sessions Judge, Rawalpindi. He opposing the grant of bail to the petitioner prayed for the issue of direction to the learned trial Court for early conclusion of the trial. He with reference to Qasim Ali versus The State (1993 MLD 2260 Lahore) and Naseem Ullah versus The State (1991 SCMR 2450) contended that after commencement of the trial normally bail is not granted in the cases of capital punishment. 9. Learned State counsel supporting the contention raised by the learned counsel for the complainant prayed for the dismissal of this application. 10. I have heard the learned counsel for the parties at length and also perused the record. Without causing prejudice to the prosecution case, while making tentative assessment of the evidence, the admitted position is that the deceased was not seen by the PWs in the company of the petitioner as such before the occurrence rather their evidence was to the effect that the accused and deceased were seen by them with a distance of 500/600 years from each other. Thus the question for determination would be, whether it can legally be called and used as last seen evidence in a case of capital punishment. Similarly, the evidence of disclosure of the PWs about the intention of the petitioner to kill the deceased three days before the occurrence whether can be taken as confessional statement before actual commission of offence and if so what is its nature and credibility. The legal status as well as the admissibility of the last seen evidence and the alleged disclosure of the petitioner being still ascertainable, the refusal of bail with observation that prima facie petitioner was connected with the crime and there existed reasonable grounds to be believe that he committed the offence with which he was being charged amount to prejudge the guilt of the petitioner. In such cases through the tentative assessment of the evidence, the apparent correctness of the allegation is ascertained as the statements of the persons recorded by the police are not subjected to cross-examination and therefore, cannot be considered as sacrosanct for the purpose of decision on bail application. Thus, the Court has to take atentative sifting of the e%idence to judge the prima facie case at bail stage avoiding from raising any inference adverse to accused and stretching the law in favour of prosecution. In bail for offence under section 302 PPG, the Judge seized of the matter should consider the whole case on the dated available on record and if by doubt arises, the benefit of the same must be given to the accused. 11. Keeping in view the above principal, the evidence against the petitioner being traceable on record pertaining to the present of the petitioner near the place of occurrence and disclosure of intention to kill alongwith matching of crime empty with the licensed pistol of the petitioner cannot be considered as positive proof of the guilt of the petitioner unless the same is put to the test of cross-examination and the doubt and dents arising in it are removed. Thus before determining the guilt of the petitioner at the trial the benefit of the doubts for the purpose of bail will necessarily be given to the petitioner and the concession off bail in such circumstances cannot be refused merely for the reason that the case is under trial. 12. As per post-mortem report, the death probably occurred at some time before 8.00 p.m. when it was not yet dark but the witnesses despite hearing fire report remained unconcerned, and have-not attracted to the scene, therefore, taking notice of the attending circumstances, the possibility of false implication of petitioner being not ruled out there would be a reasonable ground learning towards the plea of innocence, which makes room for further inquiiy into the guilt of the petitioner. The Courts while considering the question of bail are not to keep in view only the maximum sentence of death or imprisonment of rifle provided under the law but at bail stage, if there appears reasonable ground that person was not guilty of offence with which he was being charged, such person by virtue of sub­ section (2) of Section 497 Cr.P.C. would be entitled to bail and the rohibition contained in sub-section (1) of Section 497 Cr.P.C. will not create a bar for grant of bail. 13. It was held by the Supreme Court of Pakistan in Manzoor versus The State (PLD 1972 SC 81) as under:- "For an offence punishable with death or trnasportation.for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credential of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence." under:- The apex Court commenting upon the subject further held as "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in Jail merely on the allegation that the have committed offence punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarcei'ation at any stage of the case albeit his acquittal in the long run." 14. Without prejudice to the case of the prosecution, I do not find much credential in evidence in the hands of the prosecution to suggest reasonable grounds to believe that the petitioner is responsible for the murder of the deceased. Thus in view of the principal laid down by the Supreme Court of Pakistan in Manzoor versus The State (PLD 1972 SC 81) the petitioner being entitled to be given the benefit of doubt for the purpose of bail, I am inclined to allow this application. The petitioner is granted bail, subject to his tendering bail bonds in the sum of Rs. One Lac with two sureties each in the like amount to the satisfaction of the trial Court. (B.T.) Petition accepted

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 659 (DB) Present: MUHAMMAD NASEEM CHAUDHRY AND M. JAVED BUTTAR, JJ. MUHAMMAD HUSSAIN alin TEDI-Appellant versus STATE-Respondent Crl. Appeal No. 136 of 1996, accepted on 21.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- ...-s. 103-Arms Ordinance XX of 1965 S. 13 Qanun-e-Shahadat Order, 1984. Art. 38 and 40~Recovery of Kalashnikov-Conviction for-Appeal against-Recovery of illicit arms has not been effected in any Nakabandi or on secret information-Appellant was arrested in another case and was interrogated and during that process is said to have imparted information that he could lead the recovery of kalashnikov-In view of mandatory provisions of section 103 Cr.P.C. two or more respectable inhabitants of locality should attend and witness the search-No effort to call or join any person in the recoveiy proceedings was made out—House from which kalashnikov and bullets are alleged to be recovered was not owned by appellant which means that exclusive possession of illicit arms by appellant was not established-Confession of an accused person before police officer is inadmissible in evidence-Recovery had to be established in accordance with law-Held: There being no plausible explanation in not associating witnesses of recovery from public available at the time of alleged recovery of illicit arms attributed to appellant, said recovery is false and concocted and has no legal force as to make him criminally liable for charge u/S. 13 of A.O., 1965-Impugned judgment set aside-­ Appeal accepted. [Pp. 661, 663 & 664] A to F 1991 SCMR 331, NLR 1991 Criminal 281 ref. Mian Abdul Quddus, Advocate for Appellant. Ch. Muhammad Siddique, Advocate for State. Date of hearing: 21.1.1998. judgment Muhammad Naseem Chaudhry, J.--This appeal is directed against the judgment dated 17.1.1996 passed by the Judge, Special Court No. HI, Supression of Terrorist Activities, Lahore Division, Lahore whereby Muhammad Hussain alias Tedi appellant son of Noor Muhammad, Caste Khokhar, resident of Hinjarwal, Lahore was convicted and sentenced to R.I. for a period of seven years and to fine of Rs. 25,000/- or in default of its payment to further R.I. for a period of one year under section 13 of the Arms Ordinance XX of 1965. 2. The facts giving rise to this appeal are that Muhammad Hussain alias Tedi appellant was an accused of case FIR No. 422 registered on 22.11.1994 at Police Station Hinjarwal, Lahore under sections 324/148/149 PPC. He was under arrest on 8.7.1995 when during the investigation in the presence of Muhammad Siddique ASI PW. 1 and other police officials he is said to have imparted the information to the Investigating Officer Muhammad Hussain S.I. to the effect that he had concealed the Kalashanikov used during the aforesaid occurrence in the house of Muhammad Tufail son of Barkat Ali caste Khokhar resident of Ghang Sharif and that he could lead to the recoveiy of the same. On 8.7.1995 Muhammad Hussain alias Tedi appellant is said to have led to the recovery of Kalashnikov P. 1, loaded with 20 bullets P. 2/1-20 from the house of the aforesaid Muhammad Tufail lying in an iron box in the room of the house which was taken into possession vide memo Exh. PA attested by Muhammad Siddique ASI. Muhammad Hussain S.I. PW. 2 sent complainant Exh. PB at Police Station Hinjarwal where formal FIR Exh. PB/1 was drafted. He prepared the site plan Exh. PC of the place of recovery situated in the house of Muhammad Tufail. After completing the investigation the challan was submitted. 3. Muhammad Hussain alias Tedi appellant was charged under section 13 of the Arms Ordinance XX of 1965 who pleaded not guilty thereto. At the trial Muhammad Siddique ASI and Muhammad Hussain S.I. stood in the witness box who supported the persecutive case. When examined under section 42 of the Code of Criminal Procedure the appellant claimed to be innocent and termed the aforesaid recoveiy as false and concocted. He did not claim the ownership of Kalashnikov and bullets. He did not choose to appear in person in his own defence on oath under section 340(2) Cr.P.C. However, he produced Hakam Ali DW. 1 who stated that the police party did not visit the house of his neighbourer Muhammad Tufail alongwith Muhammad Hussain alias Tedi appellant. 4. After hearing the arguments the learned trial Court placed reliance on the statements of Muhammad Siddique ASI PW. 1 and Muhammad Hussain S.I. PW. 2 and holding that the factum of recovery of llicit arms having been proved beyond reasonable doubt, convicted Muhammad Hussain alias Tedi appellant as narrated above who as preferred this appeal which has been resisted by the State. 5. We have heard the learned counsel for the appellant as well as the learned State counsel and gone through the record before us. The contentions of the learned counsel for the appellant are that no person from he neighbourhood of Muhammad Tufail from whose house the appellant is said to have led to the recovery of illicit arms was joined at the alleged time of occurrence and that the mandatory provisions of section 103 Cr.P.C. have been violated. He added that the place of recovery was the house of Muhammad Tufail which was neither owned by nor under the exclusive possession of the appellant and the alleged recoveiy from the same has no legal force. He maintained that Muhammad Hussain alias Tedi appellant has been convicted and sentenced without any legal justification. On the contrary learned counsel for the State laid the emphasis that both Muhammad Siddique ASI PW. 1 and Muhammad Hussain S.I. PW. 2 are respectable police officers and that their statements had rightly been relied upon by the trial Court for the conviction of the appellant who is criminally liable in the matter. 6. We would express that the reasoning adopted by the learned counsel for the appellant has to prevail. The recovery of the illicit arms attributed to Muhammad Hussain appellant has not been effected in any Nakabandi or after having been surprised and apprehended on secret information. He was admittedly arrested in crime case No. 442 dated 22.11.1994 registered at Police Station Hinjarwal, Lahore under sections 324/148/149 PPC, who was interrogated and during that process is said to have imparted the information that he could lead the recovery of the Kalashanikov. Such type of recovery is relevant under Article 40 of Qanoon- e-Shahadat Order, 1984 and has to be proved in accordance with law keeping in view the mandatory provisions of section 103 Cr.P.C. wherein there is use of word "shall call" two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search. No evidence has been produced to make out that Muhammad Hussain S.I. made any effort to call or to join any person from Mauza Ghang Sharif the recovery proceedings wherein Muhammad Hussain alias Tedi appellant is said to have led to the recovery of illicit arms. It means that the alleged recovery is violative of the mandatory provisions of section 103 Cr.P.C. 7. At this stage We have to express that the Registrar Supreme Court of Pakistan, Rawalpindi addressed a letter dated 20.8.1990 to the respective Inspector, General of Police, Punjab, Sindh, N.W.F.P. and Baluchistan, a copy of which was sent to all the District and Sessions Judges in the Province of the Punjab by the Registrar, Lahore High Court, Lahore. The aforesaid letters are reproduced in toto as under:- "J. B. 32-R(S)/88-SCJ SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20, 1990 From The Registrar, Supreme Court of Pakistan, Rawalpindi. To (1) The Inspector-General of Police, Punjab, Lahore. (2) The Inspector-General of Police, Sindh, (3) The Inspector-General of Police, N.W.F.P. Peshawar. (4) The Inspector-General of police Baluchistan Quetta. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Dear Sir, It has come to the notice of this Court that in a large number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-official witnesses in such cases should be impressed upon all concerned. 2. The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the police officials support the prosecution version when denied by the defence. 3. It is requested that the above orders of this Court should be brought to all concerned for strict compliance. Sd/- (M.A. LATIF) LAHORE HIGH COURT, LAHORE No. 17712-Genl/l-G Dated Lahore the 20th December, 1990 From The Registrar, Lahore High Court, Lahore. To All the District and Sessions Judges in the Province of Punjab. Subject: WITNESSES OF RECOVERY IN CRIMINAL CASES. Sir, I am directed to forward herewith a copy of letter No. J.P. 32-R(S)/88-SCJ, dated 20.8.1990 received from the Registrar, Supreme Court of Pakistan, Rawalpindi, on the subject noted above, for information and strict compliance by all concerned. Your Obedient Servant, Sd/- Deputy Registrar (Admn), for Registrar. Endst: No. 17713 Genl/I-G, dated Lahore the 20th December, 1990. A copy is forwarded for information to:- The Registrar, Supreme Court of Pakistan Rawalpindi, with reference to his letter No. J.P. 32 R(S)/88- SCJ, dated 20.8.1990. ^A/­ Deputy Registrar (Admn.) for Registrar. 8. The aforesaid directions issued by the Supreme Court of Pakistan have to be complied with by all the Police Officers of all the ranks and they cannot be ignored thereof. I have to express that this Court is also bound to follow the instructions mentioned in the aforesaid letter dated 20.8.1990. If the directions contained in the aforesaid letter are not complied with, the recovery of the instant nature need not be given the legal weight and legally the accused involved in the matter shall derive the legal benefit. There being no plausible explanation in not associating the witnesses of the recovery from public available at the time of the alleged recovery, it is enough to make B out that the alleged recovery of illicit arms from Muhammad Hussain alia Tedi appellant is false and concocted. 9. The house from which the Kalashanikov and the bullets are alleged to have been recovered was owned and possessed by Muhammad Tufail situated in Mauza Ghang Sharif. It means that the house was not owned and possessed by Muhammad Hussain alias Tedi appellant. There is no evidence on record to make out that the Kalashanikov was lying concealed within the exclusive knowledge of Muhammad Hussain alias Tedi appellant in the iron box lying in the room of the house of Muhammad Tufail which could be visited by Muhammad Tufail and his family members. It means that the exclusive possession of the illicit arms hy Muhammad Hussain alias Tedi appellant was not established. It has been commanded by the Hon'ble Supreme Court of Pakistan in ArifAli vs. Muhammad Ramzan alias Janan and 4 others (1991 SCMR 331) that the recovery made from a place accessable to everyone in the house could not be used as a corroborative evidence. It is proper to express that this judgment has been announced in a murder case. If such a recoveiy cannot prove to be a corroborative piece of evidence, how the same can be basis of the conviction in the original case of recovery of the illicit arms wherein the charge is under section 13 of the Arms Ordinance XX of 1965. It has been held in Iftikhar alias Gutto and another vs. The State (NLR 1994 Criminal 281 DB (Lahore) that the recoveiy of the illegal firearm from a house which is neither in the ownership of an accused nor in his exclusive possession has no legal force which has not to be relied upon and the appellant of the aforesaid case convicted under section 13 of the Arms Ordinance XX of 1965 was acquitted. The idea behind the aforesaid reasoning is that any item lying in the house of a stranger Muhammad Tufail, cannot be held to be in possession of Muhammad Hussain alias Tedi appellant and the alleged type of recovery, as such, cannot be given any weight to make the appellant criminally liable. 9. We are tempted to express that no doubt all the police officers of all ranks are respectable persons. However, the law of the land has to take its course. To exemplify the confession of an accused person before the police officer is inadmissible in evidence under Article 38 of Qanoon-e-Shahadat Order, 1984. This case is covered by Article 40 of the said Order, 1984 and the recovery had to be established in accordance with law as expressed above about which we have no hesitation to hold that the prosecution has miserably failed. 10. The only irrestible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the recoveiy of illicit arms attributed to Muhammad Hussain alias Tedi appellant has no legal force so as to make him criminally liable for the charge framed against him under section 13 of the Arms Ordinance XX of 1965 ho, as such, is entitled to be acquitted. We hold that Muhammad Hussain alias Tedi appellant is innocent and express that he has been falsely involved in this false case. 11. We, therefore, accept this appeal, set aside the impugned udgment and acquit Muhammad Hussain alias Tedi appellant. He shall be set at liberty forthwith, if not required to be detained in any other case. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Karachi) 665 Present: AMANULLAH ABBASI, J. MUHAMMAD ARIF-Appellant versus STATE-Respondent Cr. Bail No. 418/1997, allowed on 1.4.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Case registered for offence U/S. 17(3) EHO-Contention that there has been no identification parade as is required under the law, only piece of evidence against appellant was that his name was disclosed hy co-accused after arrest—This piece of evidence is to be examined in light of provision Qanun-e-Shahadat, as per case law decided by Federal Shariat Court in PLD 1996 Karachi 534 confession of an accused against co-accused is not acceptable—Bail allowed. [Pp. 665 & 666] A & B Mahrnood A. Qureshi, Advocate for Applicant. Agha Za far All, Advocate to State. Date of hearing: 1.4.1997. order Heard Advocate for the applicant and Mr. Agha Zafar AM for the State. The F.I.R. in this case was registered on 15.1.1997 for offence U/S 17(3) E.H.O. The learned advocate for the applicant has requested for bail on the ground that the only piece of evidence against the applicant is that his name was disclosed by co-accused. After his arrest he was not subjected to identification as is required under the law. The learned State counsel concedes that after the arrest of applicant there has been no identification but the accused was identified by P.W. Muhammad Yasin. The learned II-Additional Sessions Judge Karachi Central in his order dated 6.3.1997 has mentioned as under:- "The perusal of file shows that name of the applicant/ accused was disclosed to the complainant and eye witness by co-accused Rizwan Ahmed, who was arrested on the spot, hence the name of applicant/accused is mentioned in the FIR. Besides that the rnashirnama of arrest shows that applicant/accused was arrested on the basis of identification by P.W. Muhammad Yasin who is eye witness of the incident." The lower Court rejected the bail application because P.W. Muhammad Yasin identified the applicant. The learned advocate for the applicant has submitted that there has been no identification parade as is required under the law and, therefore, identification by P.W. Muhammad Yasin at the police station is against the requirement of law. The learned State counsel has conceded to this legal position. So if we omit this piece of evidence there is fhe fact that the name of applicant was disclosed by co-accused. This piece of evidence will have to be examined in the light of provision of Qanoon-e- Sahahadat. The learned advocate for the applicant has relied on decisions reported in PLD 1996 Karachi page 534 and PLD 1991 FSC page 53. Their lordship of Federal Shariat Court in Paragraph 10 of the Judgment have ruled as under:- "10. In Islamic Criminal Law, the confession of an accused against the co-accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession." This being the position of law, I grant bail to the applicant subject to furnishing of surety in the sum of Rs. 50,000/- with P.R. bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 666 Present: ALI MUHAMMAD BALOCH, J. MUBARAK ALI and an other-Applicants versus STATE-Respondent Cr. Bail Appln. No. 486/1997, accepted on 12.5.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1) 4th proviso-Offence U/S. 3/4 Prohibition (Enforcement of Hadd) Order, 1979-Heroin Powder-Recovery of-Trial Court held that accused on ground of statutory delay entitled to grant of bail but since they were found in possession of dangerous drug they are hardened desperate and dangerous criminals-Challenge to-Held : There was no meterial in possession of prosecution to show that applicants are previous convict or involved in other cases-In the circumstances and in view of the Principle laid down by Supreme Court in case of Jaggat Ram v. State, applicants are not hardened, dangerous and desperate criminals-Bail allowed. [Pp. 667 & 668] A, B & C 1997 S.C.M.R. 361. Mr. G.M. Kamal, Advocate for Applicants. Miss Nasreen Zafar, Advocate for State. Date of hearing: 12.5.1997. order Applicants Mubarak Ali and Rizwan Ellahi, are facing trial in a case registered against them through an F.I.R. lodged by Mr. Abdul Qadir Soomro, Assistant E.T.O. on 8.12.94. The facts of the case in short are to the effect that on an spy: information the Excise police followed a car and stopped it near Liaquat National Hospital. The persons riding in the car were searched. Applicant Mubarak Ali was sitting on the driving seat and from his possession two packets containing heroin powder were secured. Similarly applicant Rizwan Ellahi who was also in the car was found in possession of 1 Kg. heroin. There were two other passengers one of whom was a Kenyan national, two passports in name of applicant Mubarak Ali were also secured. The remaining co-accused each had a passport with himself. This had happened on 8.12.1994. The applicants are facing trial from the date of their arrest and . continuously till this date they are in custody. They are not held liable for the delay in disposal of their case. The learned counsel for the applicants had pointed out that earlier an application for their bail was rejected by this Court (Cr.B.A. No. 288/96) on 16.10.1996, thereafter the applicants again approached the trial Court for bail but the trial Court has refused the request of the applicant holding that although on the ground of statutory delay they became entitled to the grant of bail but since they were found in possession of dangerous drug i.e. heroin powder which they were transporting, they were hardened, desperate and dangerous criminals and therefore, they were not entitled to the concession of bail which is provided by 4th proviso to Sub-section (1) to Section 497 Cr.P.C. The learned counsel appearing for A.G. Sindh, has opposed the grant of the bail to the applicants on the same ground which found weight with the trial Court. I have considered the arguments of the learned counsel for the applicants who has contended that for the purpose of holding a person to be affected by the 4th proviso to Section 497(1) Cr.P.C. it is necessary that the prosecution place on record some material which may prove that the applicant is previous convict, or which may prove that he is desperate, dangerous and hardened criminal. The contention of the learned counsel for the applicants is that no such material has been placed by the prosecution before this Court inspite of seeking time on many dates. The case of the applicants appears to be governed by the principle laid down by the Supreme Court in the case of Jaggat Ram v. The State (1997 S.C.M.R. P/361) wherein under similar circumstances bail was allowed to an applicant who was transporting 25 Kg of heroin powder but was caught during day time. It was held that in the absence of the material proving the applicant to be a previous convict, or a dangerous, desperate or hardened criminal, mere fact of his having been found in possession of 25 Kg. heroin powder while transporting same should not by itself make the applicant to be affected by the definition of hardened, desperate or dangerous criminal. He was not a previous convict. The facts of the present case also disclose that there was no material in possession of the prosecution to show that the applicant is a previous convict. There is nor record laid down before this Court by the prosecution to show that the applicants are involved in other cases. In the earlier order of this Court the bail was refused to the applicants on the ground that since they were found in possession of the dangerous drug, they must be hardened, dangerous and desperate criminals on that account. But in view of the principle laid down in the case of Jaggat Ram v. The State, I find that this circumstance alone should not be considered as the proof of the applicants being desperate, dangerous and hardened criminals. Therefore, in view of the principle relied on by the Supreme Court I find that the applicants' case is similar to the case of Jaggat Ram. Under these circumstances this application is allowed. The applicants are granted bail each in the sum of Rs. 200,000/- (Two Lacs), with two sureties each in the sum of Rs. 100,000/- (One Lac) and P.R. bond in the like amount to the satisfaction of the trial Court. (AAJS) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 670 Present: muhammad roshan essani, J. MUHAMMAD SHARIF-Applicant versus STATE-Respondent Cr. Bail Application No. 1405 of 1997, accepted on 30.10.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497/498 Bail-Grant of-Prayer for-Statutory delay-Offence U/S. 324/353/34 PPC-It is a cardinal of criminal jurispendence that until and unless guilt is not proved man is innocent-Merely registration of number of cases against accused without conviction is no ground for with holding the grant of bail on ground of statutory delay-Accused was arrested on 17.4.1996 and case diaries of trial Court reveals that not a single witness has been examined so far and bail of accused can not be withheld on the ground that co-accused is absconder-Bail allowed. [P. 671] A & B Raja Sardar Khan, Advocate for Applicant. Haleem Siddiqui, Advocate for State. Date of hearing: 30.10.1997. order The applicant/accused Muhammad Shareef (u> Ketcho has applied for/bail in FIR No. 306/1995 under Section 324/353/34, PPC registered at P.S. Kalakot dated 12.10.1995. The facts of the prosecution case are that on 12.10.1995 FIR of this case was lodged on receipt of statement of S.I. Wahid Ali Shah of SIC South who alleged therein that on the same day he alongwith sub-ordinance staff was patrolling in the area when he received spy information that the accused namely (1) Abdul Rehman (2) Rahim (« Rehmat (3) Muhammad Shareef («.' Ketcho (4) Sattar and (5) Mushkoor, who are required in many cases are present in Gabol Park duly armed. On this information he at about 17.30 hours, called a mobile from P.S. Kalakot and reached at the said place. On seeing the police party accused started firing. Police also returned the fire but the accused managed their escape good taking advantage of firing and narrow streets. Due to the firing of accused one passer by namely Batoo (a 1 Shero sustained injury on his left leg. Police after usual investigation submitted the challan in the trial court against the applicant/accused under Section 512 Cr.P.C. It is the further case of prosecution that on 17.4.1996 applicant was formally arrested in this case and was sent to stand trial. Applicant applied for bail in the trial Court and application was rejected and bail plea was refused by the learned Additional District & Sessions Judge South Karachi on 1.8.1997. I have heard the learned counsel for the applicant & Mr. Haleem Siddiqui appearing on behalf of the State. Counsel for applicant/accused states that the accused was arrested on 17.4.1996 and since then he is continuously in Jail and the trial of the case is not concluded as yet, therefore, accused is entitled for the benefit of proviso 3 to sub-Section (2) of Section 497 Cr.P.C. He has relied on 1997 SCMR 412, 1997 MLD 1496, 1997 MLD 1202 and 1997 MLD 1743. Learned State Counsel has opposed the grant of bail and has contended that accused is a hardened desperate and dangerous criminal and he has further submitted that 11 cases are pending against, him and coaccused Abdur Rehman is absconder. It is cardinal principle of criminal jurisprudence that untill and unless guilt is not proved man is innocent. Merely registration of number of cases against the accused without conviction is not ground for withholding the grant of bail on the ground of statutory delay. Admittedly accused was arrested on 17.4.1996 and case diaries of trial court reveals that not a single witness has been examined so far, moreover bail of accused cannot be withheld on the ground that co-accused is absconder. In the circumstances when one year has already expired and accused is not a previous convict he is granted bail on his furnishing relevent surety in the sum of Rs. 2,00,000/- Rupees two lacs only) and the P.R. Bond in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 671 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. ABDUL WAHAB-Petitioner versus STATE-Respondent Cr. Misc No. 1149/B-1997, accepted on 11.12.97. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Bail-Grant of-Prayer for-Further inquiry-Offence U/S. 11 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979- Abduction-Abductee as medically examined whereupon it was discovered that she was about 18/19 years her statement there after was recorded under section 164 Cr.P.C.-She affirmed that she was about 18/19 years of age and had come out of her own free will empty handed and in three clothes and got herself married with petitioner—Held: Matter of further inquiry-Bail allowed. [Pp. 672 & 673] A, B, C & D Ch. Azamatullah, Advocate for Petitioner. Syed Nayyer Hussain, Advocate for State. Date of hearing : 10.12.1997. order A case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered at Police Station Pir Wadhai, Rawalpindi, vide F.I.R. 266 dated 13.8.1997 against the petitioner for the abduction of Mst. Dilshad Begum who was 14/15 years of age according to the report before the police. In fact, the aforesaid Mst. Dilshad Begum while in the company of Abdul Wahab petitioner was interrogated by the police after they were found together at the Bus-stand. The police suspected their relationship and were arrested under section 108 Cr.P.C. but later on the present, case was registered against them. The ahductee, however, claimed that she was married with Abdul Wahab on 13.8.1997 at Village Tull District Hangu for which a Nikahnama was also produced in the Court wherein the age of the bride was shown as 17 years. She also appeared before a Judicial Magistrate at Hangu to make her statement under section 164 Cr.P.C. The Magistrate in order to ascertain the age of the abductee got her medically examined whereupon it was discovered that she was about 18/19 years of age as claimed by her. After satisfying that the abductee Mst. Dilshad Begum was ready to make a statement without any duress or under any influence, her statement was recorded under section 164 Cr.P.C. on 11.9.1997. In the aforesaid statement, the abductee Mst. Dilshad Begum stated that she was about 18/19 years of age and had come out of the house of her parents on 13.8.1997 of her own free will, empty handed and in three clothes. Thereafter she got herself married with Abdul Wahab petitioner and was living with him as his wife. According to her, she left the house of her parents as they wanted to many her else-where. She specifically denied that she was abducted by any one or that she had brought anything from the house of her parents. In the end she stated that she was living happily with her husband aforesaid Abdul Wahab petitioner. The abductee is also present in Court today who has been identified by Ch. Azmatullah, learned counsel for the petitioner i.e. Abdul Wahab. She has re-affirmed her marriage with the petitioner and claimed him to be her husband. Learned counsel for the petitioner while relying on Ghulam Ghaus vs. Muhammad Amin and others (1997 SCMR 37) has submitted that the petitioner is entitled to bail in view of the foregoing facts. Learned counsel for the State has, however, opposed the bail on the ground that the statement of the abductee under section 164 Cr.P.C. that she had got married to the accused i.e. the abductor would not provide any good ground for releasing the abductor on bail particularly when the marriage was not attended by her parents and was solemnized at a place outside her residential area. I have considered the foregoing submissions and after taking into consideration the statement of the abductee under section 164 Cr.P.C. which she has affirmed while appearing in this Court, I find that it is a case of further inquiry. The petition is accordingly allowed and the petitioner is admitted to bail in the sum of Rs. 50,000/- with a surety in the like amount to the satisfaction of learned trial Court. iK.K.F.1 Petition accepted

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 673 Present: ALI MUHAMMAD BALOCH, J. (ANNOUNCED BY ZAKIR MlRZA, J. GHULAM HUSSAIN and 3 others-Appellants versus STATE-Respondent Criminal Appeal No. 108 of 1996, accepted on 3.7.97. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302(b) Murder-Offence of-Conviction for-Challenge to-Section 302(b) was amended by Qisas & Diyat Ordinance which was promulgated on 5.9.1990-Offence was committed prior to promulgation of Qisas & Diyat Ordinance-Trial Court awarded punishment under amended law- Preliminary objection-Qisas & Diyat Ordinance is a substantive law and is prospective in nature-Appellants have been prejudiced by passing of sentence under amended law-Held: Sentence and judgment of Trial Court is set aside, case is remanded with direction that judgment be rewritten keeping in view provision of PPC and not provisions of Qisas and Diyat Ordinance-Appeal accepted. |P?. 674, 675 &, 676] A, B, C & D A. Q. Haleopta, Advocate for Appellants. Muhammad Saleem Semo, A.A.G. for State. Dates of hearing: 5, 6, 9, 10 and 12.6.1997. judgment Appellants Ghulam Hussain, Behram, Ali Hassan and Allah Dito were convicted by learned Addl. Sessions Judge, Shahdadpur on 31.8.1996. Appellant Behram was sentenced to undergo imprisonment for life under Section 302(b) P.P.C. (as amended by Qisas & Diyat Ordinance) as Tazir, while the remaining appellants were sentenced to undergo imprisonment for 10 years eacu. Binder Section 802(c) P.P.C. (as amended by Qisas & Diyat Ordinance). The appellants were also directed to pay compensatson

^ f Rs. 25,000/- each payable to die legal heirs of the deceased and in case of failure they were to undergo simple imprisonment; for 2 years more. The benefit' under section 382-B Cr.P.C. had also been awarded to them. All the four appellants by this joint appeal have challenged the judgment passed against them and have also challenged the sentences recorded against them. The learned counsel for the appellants at the very outset of his arguments by way of a preliminary point challenged the legal aspect of the sentence as, in the judgment of the lower court it is clearly mentioned that the sentence was considered under the provisions of Qisas & Diyat Ordinance and this was clear from the fact, that while awarding sentence for Imprisonment for life, 'Section 302(b)' lias been mentioned and in addition, the word 'Tazir' was also mentioned. Similarly, while awarding sentences to the remaining three 'appellants Section 302(c) was mentioned. The learned counsel for the appellants contended that the judgment shows that the learned trial Judge at the time of awarding the sentence had consciously mentioned the provisions of Q & D Ordinance and had awarded the sentence keeping in view the provisions of that law. The learned counsel for the appellants pointed out that for the first time Q & D Ordinance (Ordinance No. VII of 1990), under which the conviction is recorded, was promulgated on 5.9.1990 and that it being a substantive law was prospective in nature. The offences committed prior to the date of promulgation of this Ordinance were, to be decided under the provisions of substantive law prevalent on the date of occurrence of the offence. The present occurrence had admittedly taken place on 24th of August, 1990, on which date the same was punishable under the provisions of Pakistan Penal Code as it stood on that date and was not amended by Qisas & Diyat Ordinance (Ordinance No, VII of 1990). It was argued that therefore, the writing of the judgment and awarding of the sentence under the provisions of Q & D Ordinance by the trial Court was in violation of the provisions of law and that the sentences awarded to the appellants under th provisions of law, which was not prevalent at the time of occurrence, had caused substantial prejudice to the accused. The prayer of the learned counsel for the appellant, therefore, was that before deciding the appeal on merits, it should be remanded after setting aside the judgment and sentence pasc«c ty the trial Court, for re-writing of the judgment afresh keeping in crovisions of P.P.C. i.e. the law prevalent at the relevant time, 5 The learned A.A.G. who, apart, from arguing the matter orally, had sutnr.Ttea his written arguments, conceded to the prayer of the learned ;:"ar.sei ::r the appellants and himself relied on earlier decisions on this p-~:r_: and contended that under the circumstances the judgment and seniincc passed by the trial Court could not be sustained and lie has prayed for remanding the case to the trial Court for fresh decision keeping in view the provisions of Section 302 P.P.C. and other relevant provisions of P.P.C. as they stood on the date of commission of the offence. 6. I have given due consideration to the preliminary point raised by the learned counsel for the appellants and have given due consideradoB to the arriiuients of the Seamed counsel for the parties on that point, 7, Although the appeal was argued in detail on merits also but f feel that in '."lev.- of my having arrived at a conclusion that the preliminary point raised by the learned counsel for the appellants was correctly 'taken, and the master :>ught to be remanded to the trial Court, for re-writing of the judgment. I have not considered the merits -.wid demerits of the evidence reccried by the trial Court and have not considered the other points raised in the appeal. S. As regard the proposition that judgment lias not been written keeping in view the provisions of relevant, law prevalent at the relevant time, there are earlier decisions on the point, which have been reTe™-red. -One of such decision is of a Division Bench of this Court in Cr. Appeal No. 101/95, connected with Confirmation Case No. 5/95. That appeal was decided on 16.1.1997 and it was held that the date of occurrence ii fha" case was 7.6.19S9. whereas the judgment in that case was passed oil 6.6.1995, showing therein that the sentence was being passed under the provisions of Qisas & Diyat Ordinance, The judgment and sentence in the above appeal was set-aside and the case was remanded to the trial Court for re-writing of the judgment as it was held that Ordinance No. VII of 1990, known as Q & D Ordinance, was promulgated for the first time on 5.9.1990. The decision in the above appeal was based on earlier decisions viz. Cr. Appeal No. 61/93 decided on 30.9.1993 and the case reported in 1990 P.Cr.L.J. 317. 9. After giving due consideration to the arguments of the learned counsel and having considered the legal position, I fully agree with the contention of the learned counsel for the appellants as well as the learned A.A.G. that since the date of incident in the present case was prior to the date of promulgation of Q & D Ordinance, unuar v rV ich thp judgment and sentence were passed by the trial Court, I hold that it is a fit case where the judgment and sentence passed by the trial Court be Gtt-aside and the case be remanded to the trial Court for re-writing of the judgment. It is needless to point out that Q & D Ordinance has brought amendment in substantial nature to the provisions of P.P.C. and that it is substantive law, which takes effect prospectively. Since the passing of the judgment under Q & D Ordinance for the offence committed when the substantive law in force was P.P.C., and there is difference in awarding of the sentences under the two different laws, I hold that the appellants have been prejudiced by passing of the sentences under the amended law. 10. Consequently, under the above described circumstances, the case is reminded to the trial Court with the direction that the judgment be re-written after due notice of hearing to the parties and provisions of P.P.C., as it was prevalent at the time of incident, be considered instead of provisions of Q & D Ordinance. The trial Court is directed to decide this case on remand within two months from the date of receipt of the copy of this order and the R &P of the case. The office is directed to send the R & P of the case without any delay. (K.K.F.) Appeal accepted.

PLJ 1997 Cr PLJ 1997 Cr.C. ( Karachi ) 676 Present: ZAFAR HADI SHAH, J. MUHAMMAD ISRAIL KHAN-Applicant versus STATE-Respondent B.A. No. 933 of 1997, accepted 1.7.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of--Prayer for-Rule of consistency-Offence u/S. 409/109/34 PPC r/w Section 5(2) Act II Prevention of Corruption Act, 1947-Applicant had been operated for by-pass surgery and has been under constant medication and medical survellance-Report from National Institute of cardiovascular discuses also mentions about heart ailment of appellant-Other accused person already have been released on bail-Held: Accused is entitled to grant of bail 1st on ground of his illness as considering Medical certificate issued by National Institute of Cardio Vasicular diseases 2nd on rule of consistency as two main accused have already been released on bail-Bail allowed. [Pp. 676, 678, 679, 680 & 681] A, B, C & D Mr. Iqtidar Ali Hashim and Mr. Arshad Lodhi, Advocate for Appellant. Mr. Mubarala Hussain Siddiqui, Advocate for Respondent. order The applicant has been involved in FIR No. 17/96 P.S. FIA, SBC under Sections 409/109/34 PPC read with Section 5(2) Act-II P.C.A. of 1947. The facts disclosed in the FIR are as under:- "Consequent upon an enquiry instituted in FIA/Crime Zonal Office, Karachi vide No. 19/96 conducted by Assistant Director Khaliquz Zaman of FIA/CC-I, Karachi regarding procurement of 3rd Converter for Steel Mills Corporation, Karachi, it is revealed that Lt. Gen. (Retd.) Sabeeh Qamaruz Zaman while posted as Chairman Pakistan Steel Mills, Karachi in the year 1992/93 in collusion with Habibullah Siddiqui Director (Procurement) fraudulently and with criminal intent manipulated the purchase of 3rd Converter which was not required. In this connection they invited the services of M/S Mercury Corporation owned by one Mr. Asif of Karachi with whom he came in contact during his visit of Russia and whom the contract was awarded contrary to the settled rules and procedure meant for such issue. In this regard a sum of Rs. 135 million was paid to M/S Mercury Corporation as mobilization advance against bank guarantee in three installment with effect from 30.8.1993 to 12.10.1993 but the contractual commitment was not fulfilled and amount was mis-appropriated without any material progress. The accused Asif of Mercury Corporation who did not deal in Machinery and being the Sole G... :aent Dealer exported from Pakistan to Russia on barter system and was facing some problem with the realization of their export bills and the Russian Government was inclined to make payment in the shape of Machinery/Hardware. The accused Sabeeh Qamaruz Zaman facilitated the accused Asif of Mercury Corporation by placing an order of 3rd Converter for realization his outstanding export bills from Russia. Subsequently accused Sajjad Hussain during his posting as Chairman Pakistan Steel Mills Corporation, Karachi also availed the opportunity and facilitate him in the same manner by extending advance payment of Rs. 40 million without any lawful justification with the connivance of Director (Finance) S.N. Abbasi and other Officers of P.S.M.C., Karachi and thereby used the funds of Pakistan Steel Mills for their pecuniary advantage and for the advantage of co-accused Asif of Mercury Corporation. Thus a total loss caused to the Pakistan Steel Mills is more than 175 million. It is thus established that the accused persons being employees of the Pakistan Steel Mills Corporation and employees of Federal Government and custodian of the public funds wilfully and deliberately by abus their official position as such public/government servant in active collaboration with accused Asif of M/s Mercury Corporation, Karachi committed the act of criminal breach of trust to the tune of Rs. 175 million without including interest and related financial factors and thus committed the offence punishable u/S. 409/109/34 PPG r/w Section 5(2) Act-II of PCA, 1947, Hence registration of this case." 1 have heard Mr, Iqtidar Ali Hashmi, the learned counsel appearing for the applicant and Mr. Mubarak Hussain Siddiqui, the learned DAC. The applicant's counsel argued that the name of the applicant does not appear in the FIR as well as in the interim Charge Sheet dated 26.12.96. Thereafter, another interim Charge Sheet, dated 2.5.97 was submitted wherein the applicant/accused has been shown as absconder in column 2 thereof. He further submitted that the applicant/accused throughout this period had been attending his office and was very much available and that due to mala fide intention on the part, of the Investigating Agency, the applicant was challaned showing him as an absconder. His name has been included only in the second interim Charge Sheet dated 2.5.97 stating therein that during the course of nvestigation two more officials of Pakistan Steel have been found nvolved in the commission of the crime namely, Muhammad Ahsanullah Sharif and the present applicant/accused. He further submitted that no specific allegation has been made against the applicant/accused and no role has been scribed to him. His further submission was that the applicant/accused being the Director of Production in Pakistan Steel Mills as not, in any manner, concerned with purchase of 3rd Converter and he was also not concerned with the finances of the Mills and had also no connection whatsoever with making any payment to the ontractors or to any other person. The allegations against the applicant/accused of his participation in the allege- ' off rv aie baseless He further argued that the sick -. • 31 d io an old patient of heart ailment and 1 B^ "i-t- &i-.-'~ % and is on regular medication and er.-rr by this Court or by the trial court and, therefore, on the rule of Mns;stency, he argued that the applicant/accused is entitled to the grant of :i-l The learned counsel has filed certified copies of the orders granting bail :: :ae 'Other accused namely, S.N. Abbas! and Sajjad Hussain. The learned DAG opposing the bail application, argued that the savment to the contractor was made on the report/recommendation of the applicant/accused. In this regard, the relied upon a note dated 13,9.95 signed !;. :he applicant/accused and others. He further submitted that it is not the .vmplaint of the applicant that the applicant cannot be treated for his r.5ea;es while remaining in jail. The other accused persons named in the FIR, namely, Sajjad Hussain, the Ex Chairman of Pakistan Steel Mills Corporation and S.N. Ahbasi. Director Finance have already been granted bail. It is an admitted i -run That the name of the present applicant/accused does not appear in •hi-- FIR as well as in the interim Charge Sheet dated 26.12.96. For the first r • i, ihe name of the present applicant/accused appeared in the second .:.-r in; Charge Sheet dated 2.5.97 wherein it has been alleged the during :;.,: ,:oursc "f investigation two more officials of Pakistan Steel Mills have 1 ~-r found involved in the commission of the crime, the applicant being one i 'hem. It is not mentioned that how the applicant was involved in this crime as to role had been attributed to the present applicant. It was argued by i he applicant's f— ->r>.sel that after the contract for procurement of 3rd Converter was made by the Ex Chairman of the Pakistan Steel Mills in the year 1992-93 and a sum of Rs. 135 million was paid to M/s Mercury Corporation as mobilization advance against bank guarantee in three installments with effect from 30.8.93 to 12.10.93, the name of the present applicant/accused did not figure anywhere. It is further submitted that a delegation of three members of the Pakistan Steel Mills Corporation was sent to the USSR in connection with some other work and the present applicant/accused being one of the members of that delegation was, therefore, asked to look into the position of the 3rd Converter also. Accordingly, on his return, he submitted the note dated 13.9.95 mentioning therein that in USSR he had visited the contractor who had told him that the converter will ready for shipment. A perusal of the note elated 13.9.95 reveals that the applicant/accused in the note has stated that payment of the amount to the : ntractor may be considered. The learned counsel appearing for the .-ipm-.cant relied upon 1980 SCMR 142 (Abdus Salam v. The State) wherein ~h- lordships of the Supreme Court observed that the Court, should maintain 5c;vary of treatment between persons placed in similar situations and. similar circumstances. Further it was observed that, there was no distinction 1 enveen the case of the petitioner and case of the co-accused and bail having ::een allowed to co accused, privilege of bail should not have been refused to idtioner. 'Die learned counsel further relied upon 1996 P.Cr.L.J. 978 (Shehzad v. The State) wherein the principle laid down is that if the case of the accused being at par with that of the co accused, bail should not have been refused to him and accordingly accused was admitted to bail. In another reported case, relied upon by the learned counsel for the applicant, (Muhammad Naseem @ Naseem v. The State) 1996 P.Cr.L.J. page 1302 a division bench of this Court held that where on accused is granted bail then the other co-accused placed in similar and identical circumstances should, as per rule of consistency, also be released on bail. Arguing the bail application on the ground of illness of the applicant/accused, the learned counsel relied upon the medical certificates filed alongwith the bail application and on the case reported in NLR 1982 Cr. page 223 (Sardar Khalid Umer v. The State) wherein the law laid down is that law does not require that a person can be released on bail only if he is suffering from sickness or ailment in a manner that he is likely to die soon or cannot be treated in jail or under the supervision of jail authorities. In this reported case, the relevant observations are as under:- "From the certificate of Dr. Rauf Yousuf dated 15.9.70 and from the certificate of Dr. Shahryar Ahmed Sheikh, hot Heart Specialists, there is no manner of doubt that the petitioner has been having treatment of heart ailment. The fact that he has been attending to his duties as a member of various bodies would not ipso fact show that he was not suffering from the disease. So also the fact that he did not take up this plea at the time of pre-arrest bail application. The disease is such that fatal attack can come at any time and the detention in jail would obviously be a stress which may hasten the onslaught. The law does not require that a man can be released on bail only if he is suffering from sickness or ailment in a manner that he is likely to die soon, or, cannot be treated in jail or under the supervision of the jail authorities." The admitted fact in this case is that the applicant had been operated for By-Pass Surgery and, according to the certificate issued by Pakistan Steel, Medical Department it has been clearly mentioned that the applicant/accused has been under constant medication and medical surveillance. Further the report, called for by the trial court from the National Institute of Cardiovascular Diseases, also mentions about the heart ailment of the applicant/accused and in conclusion the Doctor mentioned that the applicant suffers from Post CABG Angina, therefore needs rest, regular medication and further evaluation and that as a cardiac patient any physical or mental stress will have deleterious effect on whse cardia condition. In the case reported in PLD 1995 S.C. page 58 (Malik Muhammad Yousufullah Khan v. The State) the Hon'ble Supreme Court has laid down the criteria for grant of hail on the ground of illness of the accused and principle of appreciation of Medical opinion. The observations of the Supreme Court are as under:- "If the Court has any doubt or suspicion about the authenticity of the opinion of the Medical Board constituted under the direction of the Courtto examine condition of the accused it can either summon the members of the Board to satisfy itself as to the correctness of the opinion given by the Board or the accused could be referred to any other medical expert in the relevant filed for a second opinion Court, without following such procedure cannot" be in a position to form its independent opinion as to the condition of the accused nor it will be a safe course for the Court to follow Medical report being highly technical, opinion expressed by the Medical Board cannot be burshed aside lightly by the Court in the absence of any counter-opinion or any medical literature placed before the Court to contradict the opinion given by the Board." From the above discussion, the following points emerge for consideration. If the Court refers the accused for examination before a Medical Board or before any specialist, then their report should not be brushed aside by the Court. If the Court oubts the correctness of such report, the Court should follow the rule laid down in PLD 1995 S.C. page 58 referred to above. The view that an accused on the ground of illness cannot be released on bail unless the illness with which the accused is suffering is of such a nature or at such a stage that the accused is likely to die soon in jail, is not a correct view. See NLR 1982 Criminal page 223, Sardar Khalid Umer v. The State referred to above. An accused should be treated equally in the same manner under the same circumstances in which a co-accused has been treated which in other words has been held as the rule of consistency. See 1980 SCMR page 142 Abdus Salam's case referred to above. Summing up the above discussion in the light of points (a) & (b), I am of the opinion that accused/applicant is entitled to grant of bail on the ground of his illness, as considering the Medical Certificate issued by the National Institute of Cardiovascular Diseases, I am of the view that the treatment and care of the cardiac ailment of the accused is not possible in jail. Secondly on the rule of consistency e accused/applicant is also entitled to grant of bail as the two main accused namely 1 ; S.N, A.bbasi ami Sajjad Hussain have already been released on bail. (See point, "€' above), la view of the above discussion and in the Sight of the cases discussed above, this bail application is granted and the applicant/accused is ordered to be released on. bail on his furnishing one solvent, surety i.n. the sum of Rs. 200.OOO/- (Rupees two lac) and PR bond in the like Hinonnt to the satisfaction of the Nazir of this Court, Above are the reasons of t.hs short order announced in Court on 27.6.97. (K.K.F.) Bail granted.

PL,I 1998 Cr PL,I 1998 Cr.C. ( Karachi ) 682 Present: MUHAMMAD RnsHAN essani, J. RAHIM & RAHMAK-Applicants STATE-Respondents Cr. Baii Application No. 1403 off 1997, allowed on 1.9.1997. Criminal Procedure Code, .1898 (V of 1898)-- —-S. 497/498 r/w Section 561-A--Bail-Grant of-Prayer for--Offence u/s. 324/353/332/427/147/148/149 PPC-Statutoiy delay-Ground of-Bail application refused by both Lower Courts-Challenge to-AlIegation that accused is a hardened desperate, and dangerous criminal and 11 criminal cases are pending against him-It is a cardinal Principle of Criminal Jurisprudence that unless suit is not proved man is innocent—Mere registration of number of cases against accused without conviction is no ground for withholding grant, of bail on ground of statutory delay •particularly when he is not a previous convict further accused was ' arrested on 17.4.1996 and case diary of trial Court reveals that not a single witness has been examined so fa) 1 —Bail allowed. [P. 683] A, B & C Raja Sardar Ahmad, Advocate for Applicant. Halle n Siddiq, Advocate for S ? ate. Date of hearing; 30.10.1997. order The applicants/accused Rahim (<• Renraat. arid Muhammad Shareef (a 1 Ketcho have applied for bail in a case arising out of FIR No. 52/1995 registered against them at P.S. 324/353/332/427/147/148 and 149 PPC. The facts of the prosecution case are ti uhammad Ishaq was patrolling in the area alongwrth y, iei staff when at ahout 1800 hours he on receiving spy • -ot Hassan Pir Muhammad Road, Usmanahad Mill Area, >p -o ~°" .< c IT arrest of absconding accused, where he found accused Mii'vip. Muhammad Shareef (g Ketcho along-with their co.rpanirns u) Ab«lu' Rehman (2) Rahim («< Rehmak (3) Nazeer duly armed. He encircled the accused in order to arrest them but an enchanted took place with the result accused Muhammad Asif was injured and subsequently succumbed due to injuries at the spot. It is further alleged that Head Constable Mehboob Elahi also received injuries and Mobile was damaged. Poiiee secured one T.T. Pistol from the hands of the accused Muhammad Asif which was taken in possession under the mashirnama. He then came at the police station and lodged the present FIR. Accused was arrested on 17,4.1996 and after usual investigation was sent in the trial court to stand trial. Application for bail was moved in the trial court on the ground of statutory delay but the same was rejected by the learned V Additional Sessions Judge South Karachi on 1.8.1997. I have heard Mr. Raja Sardar Ahmed Khan advocate for the applicants/accused and also heard Mr. Haleem Siddiqui the learned counsel for the State. Learned counsel for the accused has contended that more than a year has elapsed but trial has not started and even a single witness has not been examined in the case, hence accused is entitled to bail in terms of third proviso to Section 497 Cr.P.C. He has placed reliance on 1997 SCMR 12, 1997 MLD 1496, 1997 MLD 1202 and 1997 MLD 1743. The learned State Counsel has opposed the grant of bail and has contended that accused is a hardened,, desperate and dangerous criminal and he has further submitted that 11 criminal cases are pending against him. It is cardinal principle of criminal jurisprudence that until and unless guilt is not proved man is innocent, mere registration ->f a number of cases against the accused without conviction is no ground uk withholding the grant of bail on the ground of statutory delay particularly when he is not a previous convict. Admittedly accused'was ari«v diaries of the trial court reveals that nor, a sickle d so far. In the above circumstances applicant^ «. ^ jju.ed b t i' cm 'i famishing solvent surety in the sum of Rs. 20Q.OOO/- (Rupees two lacs only) and P.R, Bond in the like amount to tilt, tsarislitctsoi; of the trial court Announced in open court. (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Karachi ) 684 Present: ali muhammad baloch, J. (announced by dr. ghous muhammad J.) ANTHONY GONSALVES-Appellant versus THE STATE-Respondent Cr. Appeal No. 38 of 1996, dismissed on 11.6.1997. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302, Murder-Offence of-Conviction/sentence-Challenge to-- Statement given by deceased wife of accused in hospital to A.S.I./duty officer, stands amply proved by proper evidence before trial court in which she veiy clearly implicated accused and she made it clear that she was set on fire by her husband on account of quarrel-Appellant/accused having failed to challenge statement of PW/duty officer, having failed to deny signature of deceased on statement recorded by duty officer and produced in trial court, proved fact that deceased lady had given such statement in presence of duty officer and amounted to a "dying declaration" of deceased-Second strong feature which had convinced trial Court about guilt of accused was his receiving burn injuries on his hands which also stood proved from medical examination of accused--Accused himself admitted in his 342 Cr.P.C . statement, his presence at scene of incident and admitted that his wife caught fire but according to him she had caught fire from stove-Statement of accused appears to be a clear lie when put in juxtra -position with prosecution story as he did not volunteer himself to go to police to report burning of his wife nor he had taken his wife to hospital when she received burn injuries from stove- Appeal dismissed with alteration of sentence. [Pp. 587 & 688] A, B & C Mr. N.K. Jatoi , Advocate for Appellant. Miss Nasreen Zafar , Advocate for Respondent. Dates of hearing: 28.5.97, 4.6.97 and 11.6.97.

PLJ 1998 Cr PLJ 1998 Cr.C. (J^arachi) 689 Present: ALI MUHAMMAD BALOCH, J. ANWAR KHAN-Appellant versus STATE-Respondent Cr. Appeal No. 267/91, dismissed on 14.4.1997. Pakistan Penal Code, 1860 (Act XLV of I860)-- —-S. 409 read with S. 5(11) of Prevention of Corruption Act, 1947--V.P. Clerk of Post Office-Misappropriation of government money-Offence of~ Conviction/sentence--Challenge to-Contention, that sanction for prosecution of public servant u/s. 6(5) of Pakistan Criminal Law Amendment Act, 1958 had not been filed with challan and, therefore, court had to address a letter to concerned department/ministry but letter sent by trial court was addressed to Ministiy of Interior whereas appellant was serving under ministry of communication, therefore, on failure to reply to this letter on part of Govt, it should not be presumed that sanction was deemed to have been accorded after expiry of sixty days period as letter was not properly communicated-Work of anti-corruption law had been assigned to Ministiy of Interior by Federal Government in case of Federal Government employee and therefore, special judge Anti- Corruption had to address his letter to Federal Govt. through ministry of Interior for prosecution of public servants of grade-16 and below-­ Appellant is admittedly a public servant >/' below grade-16, and, there­fore, ministry of Interior, Government of Pakistan, was competent autho­rity to accord sanction for prosecution—Contention has no substance to hold that sanction presumed to have been accorded, was not legal- Witnesses have made it clear that appellant had misappropriated amount and appellant has not been able to either show it from his defence that he defence that he had in fact paid back that amount to relevant person or had not misappropriated same-Appeal dismissed. [Pp. 692 & 693] A, B & C Mr. M.A. Awan, Advocate for Appellant Miss Nasreen Zafar, Advocate for A.G. and Mr. Syed Sayedain Zaidi, A.A.G. for Respondent. Datt^ of hearing : 11.11.1996 and 14.4.1997. judgment Appellant Anwar Khan was convicted and sentenced to undergo R.I. for one year and ordered to pay fine of Rs. 1,000/-, in default whereof he had to undergo R.I. for three months more. The above judgment and sentence was passed by Special Judge (Central-I) Karachi on 29.10.91 for an offence punishable under section 409 PPC read with section 5(11) of the prevention of Corruption Act, 1947. 2. Appellant Anwar Khan has challenged the judgment and sentence passed against him by this appeal which was filed on 27.11.1991. 3. The facts of the case, in short, are that the appellant was serving as a V.P. Clerk in the Registration/Delivery Branch at Saddar Post Office Karachi. One of the functions assigned to him was to deliver V.P. Parcels to the Postman for their delivery to the addressees, and when the parcels were delivered by the postman, he used to receive the value of the parcels from the postman, enter the same in his register and send the amount to the sender of the V.P. for which he had to maintain the necessary record. 4. It was alleged that during the period December 1983 to June 1984 the appellant was posted as a clerk in the V.P. Branch and during that period he had received the value of the V.Ps from the postman but instead of sending them to the persons concerned, he misappropriated the value of the V.Ps which amounted to Rs. 17,915/75. In some cases, he had entered lesser amount than the actual value of the parcel in the register and, thus, was found guilty of misappropriation of the government money which was entrusted to him for safe return to the owners of that money. 5. The appellant during the trial was charged for offences punishable under section 409 P.P.C.. read with section 5(11) of the Prevention of Corruption Act, 1947. The appellant did not plead guilty and, erefore, he was put to trial. The prosecution examined witness, Syed Abdul Sami, the Assistant post Master whose duty was to check the correspondence, as well as working of the clerks. During his checking in the year 1984 from the registers of the Registration Branch, he had found the misappropriation of the amounts relating to the values of the percales which were given to the appellant by the Postman after delivering the parcels to the owners. The appellant was given the chance to cross-examine the witness ~~ it iie iii not avail the chance of cross-examination. This witness produced —r -«sssary records of the office which showed the entries of the V.Ps and •Ji-r -rines in the registers which bore the initials of the appellant. The other ••vmrssca from the prosecution were, Farid Ahmed, Muhammad Hanif who -.veie fcrrnal witnesses. They were also not cross-examined. The fourth •ATdess from the prosecution side was Mulazim Hussain. He was also an Assistant Post Master in Saddar Post Office in 1984. He had checked the reccrd in possession of the appellant and had found that 59 cases of V.Ps -.vere lying with the appellant which had not been shown to be disposed of. Trus witness warned the appellant to dispose of the cases within two days and return the V.Ps to the senders in case the value of the V.Ps was not received by him. This witness further deposed that even after the warning, the appellant, without any justification, did not send the required money. This witness further noted that he had observed from the record that from the month of December, 1983 upto April, 1984 the amounts of the V.Ps were misappropriated by the appellant and, therefore, he had reported the matter ::• :r.e Pest Master, Saddar Post Office. No cross-examination was made to this witness. Yet another witness examined by the prosecution was Muhabat Slier. Sub-Inspector of Police of P.S. Artillery Maidan who had registered the case against the appellant and conducted the investigation, seized the record and recovered the relevant documents from the Post Office and had got the hand-writing of the appellant on the relevant documents compared through an expert. He produced such documents. The Hand-writing expert, Mr. Mouladad was also examined who gave his opinion about the handwriting and initials of the appellant on the relevant registers in positive. These witnesses were also not cross-examined by the appellant. The statement of the appellant under section 342 Cr.P.C. was recorded in which he denied the allegations and stated that by making entries in the registers, he might have committed such mistakes. He also submitted a written reply in his own hand writing before the court in which he stated that he had not misappropriated any amount and that there might he certain mistakes in the entries in the registers, made by him. In reply to a question as to whether he wanted to examine himself to disprove the allegations against him on oath, he replied in the positive but surprisingly the appellant does not appear to have examined himself on oath, and there appears no explanation in the trial court record as to why he was not examined on oath when in his statement under section 342 Cr.P.C., he had shown his willingness to be examined on oath. 8. On 30.7.1991 Prosecution Witness, Farid Ahmed was present and the record of the case shows that the appellant had moved an application for adjournment on the ground that his advocate was busy in High Court, such application was rejected by the trial court and witness was examined and the appellant did not cross-examine this witness. The record further shows that another witness Asadullah Baig who was Post Master at the relevant time was examined on 10.9.1991. He too has been shown as witness No. 5, Ex. 10. He was also not cross-examined by the appellant. 9. It appears from the record that the appellant who was a clerk in the post office neither cross-examined any of the witnesses himself nor he had uulited the services of a counsel. Therefore, it became the duty of the court to examine the evidence on record with caution and care before announcing the judgment. 10. The learned counsel for the appellant, while arguing the case did not assign any reason as to why the witnesses were not cross-examined during the trial but he led stress only on one aspect of the case i.e. he challenged the validity of the necessary sanction for the prosecution. The learned counsel contended that sanction for prosecution under section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 had not been filed with the challan and, therefore, the court had to address a letter to the concerned department/ministry and in case of refusal or non-receipt of the sanction, it was to be deemed by the court that the sanction had been accorded. The learned counsel pointed out that in this case the learned trial court had addressed the letter dated 21.10.1987 to the Secretary, Ministry of Interior, Government of Pakistan, Islamabad and according to the learned counsel, this was iot addressed to the proper ministry as, according to him, the appellant was serving under the Ministry of Communication, while the letter sent by the learned trial court was addressed to the Ministry of Interior and, therefore, it should not be presumed that the sanction was deemed to have been accorded, after expiry of sixty days period of such letter as required by law. The learned counsel for the appellant in support of his contention relied on the case of Syed Afaq Ali vs. The State and 3 others, reported in 1983 P.Cr.L.J. 897. In this case it was held that when an accused was working in Postal Department his relevant authority was the Ministry of Communication and, therefore, the writing of the letter to the Secretary of Ministry of Interior was not proper, consequently failure on the part of the government to reply to such letter, could not be deemed to be proper communication from trial court and, therefore, the sanction had not been accorded, as such trial vitiated, and hence the appellant was entitled to acquittal. 11. I do not agree with the pointed raised by the learned counsel for the appellant, as in a subsequent case, Muhammad Arshad Jawaid vs. The State, decided by a Division Bench of this court reported in 1985 P.Cr.L.J. page 310, the point relating to the sanction of prosecution under section 6(5) of Pakistan Criminal Law Amendment Act, 1958 was minutely examined and the expression "appropriate government" was held to be the relevant O government with regard to the service of the accused i.e. Federal Government or the Provincial Government, as the case may be. It was also held tia: T .vork of the anti-corruption law had been assigned to the Ministry of Interior by the Federal Government and, therefore, in case of Federal Government employees, the learned Special Judge Anti-Corruption had to address his letter to the appropriate government i.e. Federal Government, through the Ministry of Interior, for the prosecution of the public servants of grade-16 and below. The appellant in this case is admittedly a public servant belcw grade-16, and, therefore, it is evident that the Ministry of Interior, Government of Pakistan was the competent authority to accord sanction for -^prosecution as held in the above reported case. The contention of the learned counsel for the appellant, therefore, has no substance to hold that the sanction presumed to have been accorded, was not legal. 12. The learned counsel for the State as well as the learned A.A.G. wn: appeared in this case on different to dates had both supported the judgment of the trial court and contended that sanction had been rightly presumed as necessary letter to Ministry of Interior had been sent by the trial court, and for a period of sixty days no reply was sent refusing the sanction. After giving careful consideration to the arguments of the learned counsel for the parties and also scrutinising the evidence recorded by the trial court and being conscious of the fact that appellant had not crossexamined any of the witnesses nor he had used the services of any counsel at the time of examination t," he witnesses, I do not find anything wrong with the assessment of the evidence by the trial court in arriving at the conclusion that the appellant was guilty of misappropriation of the government money which was entrusted to him. The substance of the evidence of the employees of the Post Office makes it clear that appellant was working at the relevant desk at the relevant time and the entries in the registers concerned were made in his hand and bore his initials. The hand-writing expert's opinion on this point also lends support to the evidence of the prosecution witnesses and the evidence is also supported by the documents. The witnesses have made it clear that the appellant had misappropriated the amount and the appellant has not been able to either show it from his defence that he had in fact paid back that amount to the relevant persons or had not misappropriated the same. The appellant had not challenged the evidence recorded before the trial court, as such I do not find any reason compelling me to disagree with the judgment of the trial court. Consequently, this appeal fails. The appeal is dismissed and the judgment passed and sentence awarded by the trial court is maintained. lAAJS) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Karachi) 694 Present: DR. GHOUS MUHAMMAD, J. MUHAMMAD SAGHIR-Appellant versus STATE-Respondent - Crl. Appeal No. 129/1995, dismissed on 8.8.1997. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-S. 161 read with S. 5(2) of Prevention of Corruption Act II of 1947-Offence of-Conviction for-Challenge to-Contention that two material witness (Complainant and Taxi driver) were declared hositle and their evidence also suffers from material contradiction and that evidence of three official witnesses does not inspire confidence-PWs 1 & 2 have fully supported initial incident as well as lodging of F.I.R. and arrangement regarding passing of tainted money-Although obliging statements have been made by them in latter part of their examination-in-chief, their consistent statement is worthy of credit on almost all material points- Three official witnesses have also fully supported prosecution version on all material points as they witnessed payment of tainted and its recovery from possession of appellant-Once money is shown to have passed on to accused through a decoy witness a rebuttable presumption arises u/s. 4 of Act II of 1947 that tainted money was received as illegal gratification- Appellant has failed to rebut that presumption-Learned trial court has taken note of some contradictions in statements of three official witnesses but has rightly held them to be of trivial nature-Alleged false implication of appellant due to grudge of I.O is not at all plausible as appellant admitted his presence on spot at time of raid but why did he intervene when whole operation was being supervised by a Magistrate-Conviction and sentence awarded by trial Court is maintained-Appeal dismissed. [Pp. 696, 697 & 698] A, B & C Mr. Gul Zaman Khan, Advocate for Appellant. Mr. Agha Zafir, Advocate for Respondent. Date of hearing: 17.6.1997. judgment This appeal is directed against the judgment dated 1.7.1995 whereby the learned Special Judge Anti-Corruption, Karachi (Mr. Munir Ahmed Khawaja) convicted the appellant for the offences under section 161 P.P.C. read with Section 5(2) of Prevention of Corruption Act-II of 1947 and sentenced him to under go R.I. for three months and to pay fine of Rs. 2,000/- or in default of payment to under-go R.I. for 2 more months. Briefly stated the prosecution stoiy as unfolded in the F.I.R. which was lodged by complainant Raees Ahmed, is that on 19.8.1993 at 12.45 p.m. he was going on Jamsheed road in Yellow Cab No. EG-1317 to drop his cousin Mst. Nasreen and when they reached at Jail road two persons in civilian dress stopped them and introduced themselves as police constables 5-agheer and Muhammad Akram. They told the complainant party that he -.vas sitting with a stranger lady therefore they should accompany them to the police station. The taxi was being driven by P.W. Rasheed Ali. The complainant informed the policemen that the lady passenger was his cousin and he was going to drop her at her residence but allegedly the policemen refused 'to listen to the complainant and insisted for taking them to the police station to cause them humiliation. The complainant was then pulled out of the taxi and Rs. 9,880/- were taken out by the policemen from his pocket and they demanded further amount of Rs. 1,00,000/- for their release but ultimately it was agreed that Rs. 5,000/- shall be paid on 21.8.1993 to the coliceman at 3.15 p.m. at NIPA round-about (chowrangi). They informed the complainant that they would reach motor cycle or on any other vehicle to collect their "Kharchipani". They also snatched driving licence, NIC Card and diary from the complainant. Being aggrieved the complainant went to the Ar.u-Corruption police station and lodged his report. After registration of case a raid was arranged under the supervision of a Magistrate and the two r;licemen weie nabbed on the spot for having accepted the tainted money. After due investigation appellant Muhammad Sagheer was challaned. He tried and convicted by the learned Special Judge Anti-Corruption (Province Karachi). P.C. Muhammad Akram was let of by the police. During the trial the prosecution examined five witnesses. Muhammad Raees (P.W. 1) is the complainant and he produced his F.I.R. Ex. 3-A). Rasheed Ali (P.W. 2) was the taxi driver. A.S.I. Altaf Hussain i P.W. 3) acted as one of the mashirs. Inspector Khursheed Ali (P.W. 4) is the investigation officer and he also produced raid report (Ex. 6). Haibat Khan | P.W. 5) is the learned A.C.M. Court No. 15 Karachi East. He supervised the raid. The prosecution then closed its side (vide statement Ex. 8). The appellant in his statement recorded under section 342 Cr.P.C. denied all allegations and pleaded innocence. He also alleged that the tainted money was foisted on him by the I.O. due to grudge as he was annoyed because of the intervention of the appellant to rescue the let of accused Muhammad Akram. In his defence the appellant examined Rasheed Ahmed. The learned trial court formulated the following points:- "1. Whether during the relevant period, accused Muhammad Saghir was serving as police constable in SRP, Gulshan Base No. 1, Karachi? 2. Whether the accused Muhammad Saghir by abusing his official position alongwith let off accused Muhammad Akram on 19.8.1993 stopped the taxi of complainant Rais Ahmed and snatched Rs. 9,880/- from him and further made a demand of Rs. 1,00,000/- as a motive or reward for releasing compltt. and his cousin Mst Nasreen and ultimately agreed to accept Rs. 5,000/- on 21.8.1993 at NIPA chowrangi? Whether accused Muhammad Saghir was caught hold of by the trap party at NIPA chowrangi having accepted tainted money of Rs. 5,000/- from complainant which were recovered from him? What offence has been committed by the accused? I heard Mr. Gul Zaman Khan learned counsel for the appellant and Mr. Agha Zafir learned advocate for State and perused the record. Learned counsel for the appellant submitted that the two material witnesses namely Raees Ahmed (complainant) and Rasheed Ali, taxi driver were declared hostile and their evidence also suffers from material contradictions. He further submitted that the evidence of three official witnesses does not inspire confidence and compliance of section 103 Cr.P.C. was also not made by the I.O. Lastly he submitted that this is a case of no evidence and the learned trial court convicted the appellant on misappreciation of evidence. Mr. Agha Zafir supported the impugned judgment. The complainant in his statement has supported the contents of the F.I.R. about the initial incident which took place on 19.8.1993. He also deposed that at the appointed time and place the two police constables reached near NIPA chowrangi and the complainant had conversation with them. The raiding party was stationed at a distance of 25 paces away from them. However he deposed that he paid the tainted amount to Muhammad Akram but as soon as the police party reached he threw the money on the ground but both of them were arrested on the spot. He was declared hostile and was cross-examined by the PDSP. In cross-examination he denied the suggestion that the police had secured the tainted currency notes from the possession of the appellant. He further stated that he could not say whether the appellant and another person with him namely Muhammad Akram had taken cash of Rs. 9,880/- from him as he was not in proper state of mind at that time. Rasheed Ali (P.W. 2) has also in his examination-in-chief support­ ed the incident when his taxi was stopped and the complainant was harassed and Rs. 9,880/- were also snatched from him by the culprits. He deposed that it was settled that Rs. 5,000/- should be paid by the complainant to the policeman as per arrangement, but he disclosed the name of the present appellant as Muhammad Saleem being one of the accused persons. He also deposed that police apprehended both the culprits but denied the suggestion that money was recovered from the pocket of the other person. He too was declared hostile and in cross-examination he denied the suggestion that the tainted currency was paid by the complainant to the appellant or that the same was secured from his pocket in the presence of witnesses. So far as point No. 1 is concerned this is not at all in dispute as the appellant at the relevant time was serving as police constable in SRP Gulshan Base No. I Karachi. The remaining three points are vital. Although complainant Muhammad Raees and Rasheed AH (P.Ws. 1 & 2) have supported the initial incident when the appellant alongwith P.C. Muhammad Akram stopped the complainant and his cousin and he was deprived of Rs. 9,880/- and both of them have consistently deposed that the two police constables threatened the complainant to pay Rs. 1,00,000/- or he would be humiliated at the police station and ultimately it was settled that Rs. 5,000/- should be paid to them on the appointed day. They have also supported the prosecution version regarding the reporting of the matter to the Anti-Corruption police and handing over of tainted money to the complainant. They have further deposed that in the taxi of P.W. 2 they went to the designated place near NIPA chowrangi and both the culprits reached there. So far the payment of tainted money is concerned on this point the complainant deposed that he had paid the amount to Muhammad Akram and he expected the presence of the appellant on the spot. Likewise P.W. 2 also deposed that the raiding party apprehended both the policemen but the tainted money was recovered from the pocket of other person "and not from the pocket of the appellant." Both of them were declared hostile, but even having been declared hostile the evidence of these two witnesses cannot altogether be ignored. In Kaloo and two others v. The State 1973 P.Cr.L.J. p. 334 a learned Division Bench of this Court held as under:- "When dealing with a hostile witness it is open to the Court to act on such particulars in the evidence of a hostile witness as may be considered to be true in relation to the circumstances of the case. It would be wrong to assume that the evidence of a hostile witness has to be discredited wholly. There may be a case when a witness may be trying to exculpate one cut of several accused for some personal reasons and all the same giving true evidence regarding the rest. In such case it cannot be said that the entire evidence of a hostile witness should be left out of consideration." In Zarid Khan v. Gul Sher and another 1972 SCMR 597 it was held by a full bench of the Hon'ble Supreme court that when a witness turns hostile at the trial the Court has to take into consideration his entire evidence and see whether any part of his evidence was worthy of belief in the light of other evidence. Following this principle in the fact and circumstances of the instant case in my humble view the testimony of PWs. 1 and ,2 deserves to be considered like the evidence of any other witness but with a caution to see whether their statements are in conformity with the remaining evidence. They have fully supported the initial incident as well as lodging of the F.I.R., arrangement regarding passing of the tainted money. B Therefore notwithstanding the fact that although obliging statements have been made by them in the latter part of their examination-in-chief their consistent statement is worthy of credit on almost all material points. Now taking up evidence of the three official witnesses they have also fully supported the prosecution version on all material points. All three of them witnessed the payment of tainted money and its recovery from the possession of the appellant. Once money is shown to have passed on the accused through a decoy witness a rebuttable presumption arises under section 4 of the Act II of 1947 that the tainted money was received as illegal gratification. The appellant has failed to rebut that presumption. The learned trial court has taken note of some contradictions in the statements of these three witnesses but has rightly held them to be of trivial nature. The appellant has alleged false implications as according to him he had tried to intervene and was arrested on the spot due to grudge of the I.O. His witness has also advanced the same theory. The plea of grudge is not at all plausible. Yet another important aspect is that he admitted his presence on the spot at the time of raid but the question is why did he intervene when the whole operation was being supervised by a Magistrate. Therefore keeping in view the entire evidence on record I see no reason to upset the findings of the learned trial court which are just and proper. So far the sentence is concerned the learned trial court has taken a lenient view but in my humble view in a case of this nature when corruption is rampant in the country and every now and then one comes across a large number of cases of corruption and extortion by members of the law enforcing agencies, award of lighter punishment instead of serving any useful purpose acts an inducement to corruption. In my humble view it would be relevant to appreciate the significance of the sentencing process in the context of individualization in the administration of criminal justice. Individualization means that instead of fitting the offence, the criminal sanction should fit the offender. The first movement towards rational sentencing was launched by the English classical school as a reaction against the arbitrary nature of the punishment prescribed for a variety of offences. In eighteenth-century England, over 200 crimes ranging from pick-pocketing to murder were punishable with the death sentence. In other words, far from fitting the offenders, the punishments did not fit even the offences. Bentham sought to achieve some element of rationality in the penal policy by advocating punishments of different magnitudes for different kinds of offences. He provided the following guidelines for the gradation of offences in terms of different punishments: The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence. When two offences come in competition, the punishment for the greater offence must be sufficient to induce a man to prefer the less. The punishment should be adjusted in such manner to each particular offence that for every part of the mischief there may be a motive to restrain the offender from giving birth to it. 4. The punishment ought in no case be more than what is necessary to bring it into conformity with the rules here given. The other rules propounded by Bentham laid down that the quantum of punishments prescribed should be in inverse proportion to the possibility and time factor involved in the infliction of punishment. In other words, punishment ought to be greater in situations where detection of the offence and the consequent punishment is either uncertain or remote in terms of time. Regarding the fixation of punishment in the range permissible by law. Bentham said that the quantum should vary according to the offender's capacity to suffer. He has enumerated thirty-two variables of capacity for suffering, ranging from sex, age, physical and mental health to climate, religion and lineage which, in the words of Nigal Walker, was an astonishingly modern piece of writing for an eighteenth-century penologist. The classical school, therefore, paved the way for distinguishing the various crimes according to their gravity and the prescription of different punishments for them. The Pakistan Penal Code (as amended) is an example of the influence exercised by Benthamites in relation to penal legislation in the nineteenth century and even thereafter. Thus grading of the various offences is based on their gravity as understood by the legislature; and the gravity of an offence is generally assessed in terms of social danger, alarm, social disapproval, harn and wickedness involved in it. (See Rupert Cross, The English Sentencing System (1971) p. 139). It may be further observed that the sentencing authority should have sufficient information regarding the various personal factors, of the accused and in this regard pre-sentence report can provide valuable basis for sentence and treatment of the individual offender. The Congress of the Institutional Penal and Penitentiary Commission in Brussels held in 1951 recognised the utility of pre-sentencing reports and some of the resolutions reproduced below indicate the scope and context of such reports likely to be helpful in the sentencing process:- In the modern administration of criminal justice, a presentence report covering not merely the surrounding circumstances of the crime but also the factors of the constitution, personality, character and socio-cultural background of the offender is a highly-desirable basis for the sentencing, correctional and releasing procedures. The scope and intensity of the investigation and report should be adequate to furnish the judge with enough information to enable him to make a reasoned disposition of the case. In this connection it is recommended that criminologists in various countries conduct researches designed to develop prognostic methods ('prediction tables', etc.) It is further recommended that the professional preparation of judges concerned with peno-correctional problems include training in the field of criminology. "Quoted Ahmed Siddiqui; Criminology IV Ed. p. 324 Delhi 1997." The pre-sentence reports are now a regular feature of the English and American criminal law systems. In the U.S.A. the various States have enacted laws for the supply of these reports and they have also been the subject matter of the constitutional issues arising due to the requirement in many jurisdictions that the reports must be kept confidential. In England , the Home Office has powers since 1967 to require any kind of criminal court to obtain a 'social inquiry report' before imposing a custodial sentence on whatever category of offender the Home Office may prescribe. In our countiy, however, there is no such provision in the laws relating to the administration of criminal justice except those relating to juvenile offenders. The potential utility and sociological value of pre-sentencing reports cannot be denied in a good administration of justice. Therefore this vital issue deserves to be given due consideration by Pakistan Law Commission and our legislators. It would not be out of place to further suggest that improving sentencing skills should be an important part of any scheme which aims to make sentencing practices more consistent. The trial judges should be made well-conversant with all the alternative sentences and their application in appropriate situations. They should be trained to evaluate pre-sentence and psychiatric reports in cases where they are made available to them. In the U.S.A. there is a National College of State Trial Judges where short but intensive training is imparted to the newly-appointed judges. Besides, seminars wholly devoted to sentencing are frequently held for the benefit of judges in the Federal system and also in a few States. (Ahmed Siddiqui, supra). (See also The Psychology of Judicial Sentencing Catherine Fitzmaurice and Ken Peasis-Manchester University Press 1986 Manchester U.K.). Following the above guideline and principles in the facts and circumstances of the instant case I deem it appropriate to maintain the conviction and sentence awarded by the learned trial court. Accordingly the appeal having no merits is dismissed. The benefit of section 382-B is granted to the appellant. Since he is on bail and is called absent therefore, he should be got arrested by the learned trial court in accordance with law so that he undergoes the sentence as mentioned above. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 701 (DB) Present: MUHAMMAD NASEEM CHAUDHRY AND SH. ABDUR RAZZAQ, JJ. MUHAMMAD AKHTAR alias GOO PEHLWAN and another-Appellants versus STATE-Respondent Cr. A. No. 27 of 1993, dismissed on 6.11.1997. (i) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-S. 302/34~Murder--Offence of-Conviction/sentence-Challenge to- Contention, that no occurrence regarding motive ever took place, as no report to that effect was lodged with police-This fact itself does not disprove motive especially when matter was initially patched up-Motive stands established from statements of PWs 6, 7 & 8—Contention is devoid of any force and is ignored. [P. 705] A (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302/34-Murder-Offence of-Conviction/sentence-Challenge to~ Contention, that presence of complainant PW 6 and two eye witnesses PWs 7 & 8 at place of occurrence was doubtful-Complainant (PW 6) and two eye witnesses (PWs 7 & 8) have been cross-examined at length regarding mode of arrival of assailants, mode of their attack and mode of then departure from place of occurrance—All of them have stood test of cross-examination and defence has failed to create any doubt in their statements—Mere fact that they are resident of 2 miles from place of occurrence does not mean that their presence at 2.30 P.M. at place of occurrence was not possible-Objections raised are devoid of any force and presence of all three witnesses stands proved-Appeal dismissed. [Pp. 706 & 707] B & C Mr. Aftab Farrukh, Advocate for Appellants. Ch. Imtiaz Ahmed, Advocate for Respondent. Date of hearing: 6.11.1997. judgment Sh. Abdur Razzaq, J.--This appeal is directed against judgment dated 23.12.1992 passed by Ch. Zahoor Hussain, Judge Special Court, (Suppression of Terrorist Activities) Rawalpindi Division Rawalpindi whereby he convicted Muhammad Akhtar alias Goo Pehlwan son of Ghulam Hussain, Caste Kashmiri, aged 35 years, resident of Mohallah Gharibpura, Gujrat and Zia Ullah son of Sultan Beg, aged 29 years Caste Mughal, resident of Ali Masjid, Gujrat, and sentenced each of them under Section 302/34 PPC to imprisonment for life and a fine of Rs. 1,00,000/- (Rupees one lac) each or indefault thereof to suffer R.I. for five years each. Benefit of Section 382-B Cr.P.C. was also extended to the appellants. 2. Briefly stated the facts leading to this episode are that complainant Muhammad Farid (PW 6) was proprietor of Kukku Coach Service, Chowk G.T.S., Gujrat. The stand of Ghousia Travel owned by Mian Saeed Akhtar was located adjacent to Kukku Coach Service. Both the parties had been exchanging hot words over fetching the passengers. On 23.2.1990 a similar dispute arose between Ijaz Khan, brother of complainant and Zia Ullah Manager Ghousia Travel. Both of them exchanged abuses. However, the matter was patched up by the intervention of other persons. However, while leaving, Zia Ullah threatened Ijaz Khan (PW 8) to take revenge of that insult. The complainant alongwith his brothers Muhammad Naveed and Ijaz Khan, Waqar Booking Clerk, and Tanvir Manager, were present at their coach stand at 2.45 P.M. Muhammad Akhtar alias Goo Pehlwan appellant armed with a kalashnikov, Arif Saeed (acquitted accused) armed with a 12 bore gun, Mian Saeed Akhtar (acquitted accused) empty handed and Zia Ullah appellant armed with 7 mm rifle arrived there. Zia ullah riased a Lalkara that none of them should go alive. Accordingly Muhammad Akhtar alias Goo Pehlwan fired with his kalashnikov hitting his brother Muhammad Naveed (deceased of this case) at his right flank. Zia Ullah fired with his rifle at Muhammad Naveed hitting his right wrist. Muhammad Naveed fell down as a result of injuries sustained by him. Subsequently Arif Saeed and Zia Ullah kept on firing in the air and shouting Lalkaras that if any body tried to intervene, he would meet the same fate. Afterwards all of them while firing went towards their stand. The complainant removed injured Muhammad Naveed to Aziz Bhatti Shaheed Hospital Gujrat. The entire incident was witnessed by Tanvir Ahmad (PW 7), Ijaz Khan (PW 8) and Waqar PW. 3. Abdul Ghafoor Inspector/SHO A/Division (PW 13) learnt about this incident at 2.50 P.M. while he was on petrol duty. He rushed towards Aziz Bhatti Shaheed Hospital GUjrat, where he reached at 3.15 P.M. He moved an application Ex, PH for recording the statement of Muhammad Naveed injured, but th&itoetor opined, that Muhammad Naveed injured was not in a fit condition to make the statement. He collected medico-legal report of Muhammad Naveed injured from the medical officer. He then reached the place of occurrence and on the application Ex. PK moved by Muhammad 1 arid, recorded his supplementary statement. He made the Spot Inspection. He collected blood-stained earth vide memo Ex. PC and made it into sealed parcel. He collected three empties of kalashnikov Pl/1-3 vide memo Ex. PD and made them into sealed parcels. On the same day he arrested Zia Ullah, Mian Saeed Akhtar and Muhammad Akhtar alias Goo Pehlwan. On the same day at 10.00 P.M., Muhammad Naveed injured died. He reached the afore-said Hospital. He took into his possession the dead body. He prepared injury statement Ex.PL and inquest report Ex. PM of the deceased. He despatched the dead body through Muhammad Younas and Akhtar Hussain constables for post-mortem examination. On 24.2.1990, Akhtar Hussain constable produced before him last worn clothes P4 to P7 of the deceased handed to him by the Medical Officer which he secured vide memo Ex. PN. On 24.2.1990. Muhammad Akhtar alias Goo Pehlwan appellant led to the recovery of kalashnikov P 2 which he secured vide memo Ex. PE attested by Tiuqir PW 11: and Javed Akhtar PW (not produced). He sealed that in a parcel. On 25.2.1990. he got prepared site-plans Ex. PB and PB/1 from Akhtar Xaqash. On 4.3.1990, accused Zia Ullah led to the recovery of rifle P 3 '.vhich he secured vide memo Ex. PF. On 13.3.1990, he arrested accused Arif Saeed. He handed over the parcels to the Moharrir and after completing the investigation challaned the accused. 4. A charge under Section 302/34 PPC was framed against all the accused to which they pleaded not guilty and claimed to be tried. 5. In order to establish the guilt of the accused, the prosecution examined Nisar Ahmad Head constable PW 1 who on 23.2.1990 drafted formal FIR Ex. PA/1 on the basis of complaint Ex. PA. On the same he was given two parcels containing blood-stained earth and empties of kalashnikov. He delivered the said parcels to Akhtar Ali constable on 24.2.1990. On 26.2.1990, he was handed over another parcel containing kalashnikov which he delivered to Nazir Ahmad constable on 27.2.1990 for onwards transmission to the office of Forensic Science Laboratory Lahore. Nazir Ahmad PW. 2 constable deposed that he was given a parcel containing alashnikov which he delivered in the office of Forensic Science Laboratory intact. Akhtar Hussain constable PW. 3 deposed that on 26.2.1990, he was given two sealed parcels by the Moharrir PW 1 which he delivered in the respective offices intact. Akhtar Naqash draftsman PW. 4 deposed that on 25.2.1990, he visited the place of occurrence, prepared site-plans Ex. PB and PB/1 and handed over the same to the I.O. on 27.2.1990. Abdul Rashid PW. 5 identified the dead body of Muhammad Naveed deceased on 24.2.1990 at the time of autopsy. Muhammad Farid PW. 6 is complainant and has corroborated his version appearing in complainant and has corroborated his version appearing in complaint Ex. PA which he produced before Abdul Ghafoor Inspector PW. 13 Tanvir Ahmad PW. 7 and Ijaz Khan PW 8 are the ye-witnesses of this occurrence and both of them corroborated the prosecution version appearing in complainant Ex. PA. PW. 9 Tanvir Ahmad is a witness of recoveiy of blood-stained earth and three empties of kalashnikov PI to P3. Tauqir Ahmad PW. 10 is a witness of recovery of kalashnikov P2 at the instance of Muhammad Akhtar alias Goo Pehlwan appellant. The said recovery was effected from an iron safe of Ghousia Travel Gujrat. Sanaullah PW. 11 is a witness of recoveiy of rifle from Zia Ullah. Dr. Xusrat Riaz PW. 12 has deposed that on 23.2.1990, he was posted as Medical Officer, Aziz Bhatti Shaheed Hospital Gujrat, when at 2.20 P.M. he conducted medical examination of Muhammad Naveed and found six injuries on his person. He further deposed that injuries No. 1 & 2 were declared as dangerous whereas injuries No. 2, 4, 5 & 6 were declared as simple. All injuries were caused by fire arm within the fresh duration. He issued medico legal report, Ex. PG. He further deposed that the SHO had moved an application Ex. PH for permission of record the statement' of the injured Muhammad Naveed on which he gave his opinion Ex. PH/1 that the patient was not in a fit condition to make his statement. On 24.2.1990 at 11.00 A.M. he conducted post-mortem examination on the dead body of Muhammad Naveed and found six injuries on his person. According to him all the injuries were ante-mortem and caused by fire arm. Injuries No. 1 and 2 were sufficient to cause death due to massive haemorrhage and shock in the ordinary course of nature. The probable time which elapsed between injury and earth was within 10" hours and between death and post-mortem examination was within 14 hours. He issued post-mortem examination report Ex. PJ and diagram of injuries Ex. PJ/1. Abdul Ghafoor Inspector PW. 13 is the Investigating Officer of this case. Learned Assistant Advocate-General tendered report of Chemical Examiner as Ex. PP, that of Serologist as Ex. PQ and that of Forensic Science Laboratory as Ex. PR. 6. When examined under Section 342 Cr.P.C. acquitted accused Mian Saeed Akhtar deposed about his non-participation in the occurrence and his false involvement in this case as a result of political rivalry which had been going on between Pagganala Family and Chaudhry Zahoor Elahi Family in Gujrat. He stated that Muhammad Inayat son of Imam Din alias Mamoon caste Arain Resident of Gujrat was the paternal cousin of complainant arid the deceased and an active member of party of chaudhry Brothers and their staunch supports. He stated that he, Muhammad Akhtar alias Goo Pehlwan, Arif Saeed and Zia Ullah had been involved in this case by Muhammad Inayat at the instance of Chaudhry Zahoor Elahi Family. He further stated that Zia Ullah accused belonged to be their party and that he has leased out Ghousia Travel to him for a sum of Rs. 6,000/,-per month and since one year before the occurrence with which he had no concern nor he ever visited the Adda. When examined under Section 342 Cr.P.C. Muhammad Akhtar alias Goo Pehlwan and Zia Ullah appellants as well as Arif Saeed (acquitted accused) denied the prosecution version and adopted the statement of Mian Saeed Akhtar acquitted accused. Mian Saeed Akhtar (acquitted accused) did not adduce defence evidence who appeared in his own defence on oath under Section 340(2) Cr.P.C. Muhammad Akhtar alias Goo Pehlwan appellant and Arif Saeed acquitted accused produced defence evidence who did not appear in their defence under Section 340(2) Cr.P.C. Zia Ullah appellant did not produce defence and also did not himself appear under Section 340(2) Cr.P.C. in his own defence. The accused examined Malik Mushtaq Ahmad DW 1, Muhammad Aslam DW. 2, Ghazanfar AH Gul DW: 3, Ajmal Ali Khanwar DW: 4 and Mirza Lai Hussain DW: 5. The trial Court also examined Jamil Akmal constable No. 946 CW: 1 and Shujat Ali CW 2. Muhammad Akhtar alias Goo Pehlwan appellant produced attested :ipy of FIR No. 179 dated 1.7.1990 as Ex. DB, attested copy of FIR No. 49 dated 13.1.1990 as Ex.DC, a photo copy of score record dated 23.2.1990. 7. After hearing the parties the trial Court gave the weight to the prosecution evidence to the extent of both the appellants and convicted them as narrated above while acquitted the two co-accused. Hence this appeal by the convicts which has been resisted by the State. 8. We have heard the learned counsel for the appellants as well as the learned State counsel and gone through the record before us. 9. Learned counsel for the appellants argued that no occurrence regarding motive ever took place, as no report to that effect was lodged with the police. There is no doubt that no report in respect of occurrence which took place on that day at 9/10 a.m. was lodged but this fact itself does not disprove the motive especially when the matter was initially patched up. Further the motive stands established from the statements of PW: 6 Muhammad Farid, PW: 7 Tanvir Ahmad and PW: 8 Ijaz Ahmad. Thus, the contention is devoid of any force and is ignored. 10. It was next argued that the very registration of case is doubtful. His contention is threefold; first, how an application Ex. PQ moved by PW. 13 Abdul Ghafoor SI at 3. 15 P.M. contains number of FIR lodged at 4.00 P.M.. secondly, why columns No. 12 and 20 of inquest report Ex. PM did not contain that death was due to injuries of kalashnikov and thirdly, why the names of accused did not appear in applications Ex. PL and Ex. PC. So far as the first contention, it has been stated by PW 13 that, he mentioned the number of FIR in Ex. PC later on. This statement of PW 13 removes the objection made by the learned counsel for the appellants which has lost its force. About the second assertion suffice is to say that it is not the requirement of law to describe the exact nature of weapon used and the Investigating Officer has not departed from normal routine by writing that death was clue to fire arm injuries. About the third objection we have to express that an explanation has been given by the learned State counsel that according to the routine with the police unless and unstil accused acquire arrested, their names are not mentioned in such applications. Thus, nonmentioning of names of the accused in the said applications does not establish the registration of case with deliberations so as to make it doubtful. 11. Again the evidence of incriminating articles i.e. kalashnikov P2 and its empties Ex. P3/1-3 have been challenged on the ground that both these parcels were not sent on one and the same date by the Fire Arms Expert. There is no doubt that the first parcel was sent on 26.2.1990 and the second was sent 27.2.1990. However, an explanation in this regard has come on record and the same has not been seriously contested. Be that as it may, the despatch does not make any difference, as the empties have been found to have been fired from kalashnikov Ex. P2 as per report Ex. PR of Technical Services. Again tne recovery has been challenged on the ground Tauqir Ahmad could accompany the police party to the lace of recovery as he belonged to the complainant party. The objection is devoid of any force as no such restriction has been imposed by law. 12. The presence of Muhammad Farid complainant PW: 6, Tanvir Ahmad PW: 7 and IJaz Ahmad PW: 8 has also been challenged. His contention is that had Ijaz Ahmad PW 8 been present on the spot, he must have been made the target as the initial incident took place between Ijaz Ahmad PW: 8 and Zia Ullah accused and that the absence of any injury on the person of Ijaz Ahmad PW: 8 makes his presence doubtful. It is further argued that had Ijaz Ahmad PW: 8 been present at the place of occurrence, he must have remembered the names of drivers and number of wagons which were present at the Adda at the time of occurrence. The presence of Tanvir Ahmad PW: 7 has been challenged on the ground that he participated in the cricket match which started on that day at 10.30 A.M. Similarly the presence of PW: 6 Muhammad Farid complainant has been questioned on the ground of introduction of improvements to his first stand contained in complaint Ex. PA. It is thus contended that occurrence has not taken place in the manner in which it has been described in the complaint Ex. PA and actually firing was exchanged between the drivers of both Kukku Coach Service and Ghousia Travel on account of fetching of passengers and as the deceased intervened to settle the dispute, he received injuries and as both the parties belong to two different political groups, so one party has been pitched against the other. 13. There is no doubt that initial incident took place between PW: 8 Ijaz Ahmad and Zia Ullah accused, but the mere fact that PW: 8 Ijaz Ahmad was not made a target does not mean that he was not present on the spot as the choice of hitting the victim was with the assailants. An effort has been made to make his presence doubtful on the ground that he failed to give the number of wagons or the names of drivers who were present at the time of occurrence or which had left prior to the occurrence. The mere fact that he did not know or remember the names of drivers or the number of wagons does not make his presence doubtful. So far as the presence of PW: 7 Tanvir Ahmad is concerned, it was urged that he was playing a cricket match on that day which started at 10.30 A.M. and thus he was not xpected to be present at the place of occurrence at the time of occurrence. Admittedly, PW: 7 participated in the match which started at 9.30 A.M. and not at 10.30 A.M. His participation in the cricket match which started at 9.30 A.M. or 10.30 A.M. does not mean that he could not be present at 2.30 P.M. Thus his presence on that score cannot be termed as doubtful. It was asserted that PW: 6 Muhammad Farid made the improvements and thus he could not be expected to be present at the spot. The improvements regarding attributing fire shots to Ijaz Ahmad PW: 8 is of no material effect, as his stand finds corroboration from medical evidence. The other improvement relates to ineffective firing whether it took place before or after the deceased fell down is of no consequence. Complainant Muhammad Farid PW: 6 as well as eye "ATSesses -P\~: 1 and PW: 8) have been cross-examined at length regarding the niece of arrival of the assailants, mode of their attack and mode of their departure from the place of occurrence. All of them have stood the test of cross-examination and learned defence counsel has failed to create any doubt in tieir statements. The mere fact that they are residents of 2 miles from the place of occurrence does not mean that their presence at 2.30 P.M. at the place of occurrence was not possible. The objections raised are devoid of any force and the presence of all three witnesses stands proved. 14. In view of the findings noted above, we are convicted the prosecution has succeeded in bringing home the guilt of the appellants. Accordingly we uphold the impugned judgment and dismiss this appeal.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 707 (DB) Present: MlJMTAZ All MlRZA AND RAJA MUHAMMAD KHURSHID, JJ. Mst . NAHEED KAUSAR and 2 others-Petitioners versus STATE-Respondent Criminal Misc. No. 1022/B-1997, dismissed on 26.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-5. 497-Bail-Grant of-Prayer for-Offence u/s. 156(1X89) & 178 reau with S. 9(b) & (f) of Narcotic Substances Ordinance, 1996-Although narcotic drug was not recovered from petitioner No. 3 and only tv.'o ' thans ' of foreign cloth were recovered from him, but he being head of group including his wife and sister-in-law petitioner No. 1 & 2) who was earning 2.05 kilo grams of heroin, therefore, none of them would deserve to be released on bail—Petition dismissed. [P. 708] A Mr. Zaheer Ahmed Hashmi , Advocate for Petitioners. Mr. Muhammad Ayub Kiani , Advocate for State. Date of hearing: 26.11.1997. order A case under Section 156(l)-(89) and 178 Customs Act read with Section 9<b) & (c) of Narcotic Substances Ordinance, 1996 was registered against the petitioners at Police Station, Rawat District Rawalpindi on the ground that Abdul Rashid albngwith hi& iir ifr MsL Kiueez Fatima and Naheed Kausar his sister-in-law was carrying 2 thans of foreign cloth while travelling together in a bus. The personal starch cf Mst . Kaneez Fatima showed that she was carrying 250 grams of heroin in two packets hidden in her brassier whereas her sister Mst . Naheed Kausar was also carrying 250 grams heroin concealed in her brassier and 2 kilo gram of heroin in a shopping bag carried by her. 2. The petitioners applied for post arrest bail, which was refused vide impugned order. 3. The learned counsel for the petitioners has submitted that petitioner No. 3 namely Abdul Rashid was only carrying 2 ' thans ' of foreign cloth and as such he had a case for bail because he was not carrying any narcotic drug; that the personal search of the lady petitioners was not conducted in accordance with law as the same was to be conducted by an officer not below the rank of Sub Inspector; that none of the petitioner is a previous convict; that petitioners Nos. 1 & 2 being women are entitled to bail as their case would fall within the proviso to Section 497 Cr.P.C . and that no person from the public was associated as recovery witness which infringed the provisions of Section 103 Cr.P.C . 4. In the light of above submissions, it was prayed that all the three petitioners are entitled to bail. 5. The learned counsel for the State contended that investigation is complete and the case has been sent to the court for trial after all the three petitioners were found guilty; that personal search of the lady accused was conducted through a lady constable at the order of a competent officer, who was not below the rank of Sub Inspector; that although two of the petitioners were women, but they were operating as a gang alongwith male accused namely Abdul Rashid, therefore, they did not deserve to be enlarged on bail particularly when the recovered heroin weighed 2.05 kilo gram; that there was no violation of Section 103 Cr.P.C . as the occurrence took place in very early hours of morning i.e. at 4.00 AM in a public transport and as such availability of an independent and respectable person from the locality could not be possible and that the police employees were not only natural, but reliable witnesses in this case. 6. We have considered the foregoing submissions and find that although narcotic drug was not recovered from Abdul Rashid petitioner No. 3 and only two thans of foreign cloth were recovered from him, but he being head of the group including his wife and sister-in-law, who was carrying 2.05 kilo gram of heroin as detailed above, therefore, none of them would deserve to be released on bail as the offence was punishable with death, or imprisonment for life or for imprisonment for a term which may extend to 14 years and also to be fine upto one million rupees in view of the provisions contained in Section 9(c) of the control of Narcotics Substances Act, 1997. The mere fact that narcotics drug was recovered from women would not create any extenuating circumstance for any of the petitioners in the light of offence under, which they are arraigned. 7. The bail petition being merit less is dismissed. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 709 Present: rasheed ahmed razvi, J. ZULFIQAR-Applicant versus STATE-Respondent Criminal Bail Application Nos. 374/74 & 436/97 accepted on 10.4.1997 Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence U/S. 17(3) E.H.O. 1979, 353, 324 Q & D Ord.-Both accused were arrested on 20.9.1995 from alleged place of incident, that charge was framed on 12.11.1995 and that till 28.3.1997, only there prosecution witnesses have been examined out of eighteen (18) prosecution witnesses cited in charge sheet during period of 18 months— On adjournment of hearing before trial Court with consent of both parties i.e. Deputy District Attorney & Defence counsel, only accused can not be held responsible for delay, as prosecution was equally responsible in making request for adjournment-Even if period for which adjournments were granted at instance of applicant/accused excluded, there remains in field a period more than one year which delay cannot be attributed to applicant/accused-Both applicant/accused admitted to bail. [Pp. 710, 711 & 712] A, B & C Mr. Abdul Karim Junejo, Advocate for Applicant/Accused in Cr. Bail No. 374/1997. Mr Rana M Shamim, Advocate for Applicant/Accused in Cr. Bail No. 434/1997. Mr. Naraindar Motiani, Additional Advocate General Sindh alongwith Muhammad Saleem, Assistant Advocate General Sindh for State. Dates of hearing : 2.4.1997, 8.4.1997 & 10.4.1997. order On 28.3.1997, accused namely Zulfiqar S/o Riyasat was granted bail in Cr Bail No.374 of 1997 while accused Muhammad Mushtaq alias Munna was granted bail on 10.4.97 in Cr. Bail No. 436 of 1997, through short orders. Following are common reasonsable for both the above said short orders as these arise from the same F.I.R. 2. Brief facts as alleged in the F.I.R. dated 20.09.1995, lodged with P.S. Mithadar, Karachi South, at about 1615 hours, are that on the same day when the complainant Abdul Hameed, who is jeweller by profession, went to his house in the afternoon to take lunch he was informed by his other brother that some four dacoits had entered in their apartment. It is also alleged by the complainant that he immediately went outsid the said building and locked the main door. He then called police on emergency phone number 134. It is further stated in the F.I.R. that the other persons from the neighhourhood also called illaqa police. It is further alleged that these alleged dacoits when tried to come out of the building, the mohalla people pelted stones on them. Meanwhile, police arrived and after exchange of fire arrested the four alleged dacoits and also recovered stolen articles, details of which are given in the said F.I.R. Names of all the accused, arrested on the spot, are also disclosed Rashid son of Islam was having a T.T. Pistol in his hand, which was recovered from him. 3. I have heard Mr. Abdul Karim Junejo, Advocate for applicant/accused Zulfiqar and Mr. Rana M. Shamim, Advocate for accused Muhammad Mushtaq, Mr. Naraindas Motiani,A.A.G. Sindh in Cr. Baial No.374/1997 and Mr. Muhammad Saleem Assistant Advocate General in Cr. Bail No.436/1997 for the State. It is admitted position that both the acaused were arrested on 20.9.1995 from the alleged place of incident; that charge was framed on 12.11.1995 and that till this date i.e. 28.3.1997 only three prosecution witnesses have been exmained. It is argued by learned counsel for the applicants that in all there are eighteen (18) prosecution witnesses cited in the charge sheet, out of which only three witnesses have been examined during the period of last 18 months. They have further argued that there is no likelihood that the trail would be concluded in near future. It was vehemental artued that except the dates 26-11-1997 and 10-3-1996 no adjourments or delay can be attributed to the present applicant/accused. Reliance was placed on cases of All Sher v. The State (1992 P.Cr.L.J. 2515) and the case of Amir v. The State (1991 P.Cr.L.J. 534). Learned Additional Advocate General has vehemently opposed the bail application on the ground that there are several occasions when the trial was adjourned at the instance of the defence. The learned counsel for the State have further argued that under the High Court orders police papers were called which remained there for three months and it was due to acts of the defence that delay was caused in completion of trial. They further referred to severl diaries of the learned trial Court when the prosectuion witnesses were present but the learned President Officer was on election duty. There are certain dates of hearing when the case was adjourned by consent of both the sides, which, according to the learned counsel for the State, is to be attributed to the defence. With the assistance of all the learned counsel, I have gone through the entire case diaries/orders of the trial Court. 4. For the first time, P.Ws. were produced on 26.11.95 when these witnesses were oound clown and the case was adjourned to 27.11.1995 for the reason that the custody of the accused was produced at 2:30 p.m. On 27.11.1995, P.W. 1 liamid was examined but recording of his cross examination was adjourned at the instance of defence counsel subject to payment of cost of Rs, 200/-. The case was adjourned to 21.12.1995 when the said witness was present but the custody of the accused was not produced. Mr. Naraindas has referred to the dates 13.2.1996 and 10.3.1996 when, according to him, hearing was adjourned at the instance of defence. On 13.2.1996, the case was adjourned on the application of complainant as other two P.Ws. were not present. Therefore, this delay cannot be attributed to the present applicant. However, on 10.3.1996 adjournment was sought hy the '•resent applicant/accused as his counsel was not present and the matter was id;turned for two days only i.e. to 12.3.1996 when again the custody of accused persons was not produced from the jail. However, late diary of the said date indicates that A.P.P. was also not present either in the early hours or at 1:00 p.m. Mr. Naraindas has also referred to the diaries dated 12 5.1996. 30.5.1996 and 3.7.1996 when the hearing was adjourned as the police papers were not available with the prosecution and were summoned by the office of Advocate General, Sindh as bail application of one of the accused was pending in this High Court. That period is spread over for nearly three months. To me, such delay should not be attributed to accused person, as I am of the considered view that it is the dutyof the office of Advocate General Sindh to return the police file immediately after disposal of bail applications. This delay, in return of the police file accused may be due to negligence an accused person is not liable to be penalized. In addition, I would like to point out that Cr. Bail No.643/96 was disposed of on 4.6.1996 and. therefore, it was duty of the office of A.G. toreturn the file which was not done till August, 1996. 5. Learned A.A.G. has also pointed out diaries of 21.1.1997,25.1.1997,29,1.1997 and 30.1.1997 when the hearings beforee the trial court were adjourneed by consent of both the parties i.e. Deputy Distrit Attorney and defence counsel. I am afraid that in such circumstances whether only accused can be held responsible for delay? To me, answer should be in negative, as ^-osecution was equally responsible in making request for adjournment. However, learned counsel for the applicant have invited my attention to the fact that on these dates the learned Presiding Officer was on election duty. Therefore, again adjournments on such dates cannot be attributed to accused persons. 6. In the case of All Sher v. The State (1992 P.Cr.L.J.2515), a learned single Judge of Lahore High Court extended bail to an ccused involved in an offence oiZina on the consideration, inter alia, that more than one year has passed since the arrest of accused registration of the case and trial has not been concluded till that date. In Amir v. the State (1991 P.Cr.L.J. 534) a learned single Judge of this court Qaiser Ahmed Hamidi, J. i as he then was) granted bail to an accused alleged of an offence under section 302,P.P.C. on the consideration inter alia, that adjournment sought by the counsel for the defence, on three occasions cannot be attributed to the accused. In that case bail was granted to accused after deducting the period for which the adjournment were sought by the counsel for accused. Learned trial court has also referred to two reported judgments, firstly, Muhammad Younas v. The State (1995 S.C.M.R. 1087) where the Hon'le Supreme Court refused to grant leave against the order of Lahore High Court, Rawalpindi Bench, on the ground that on four occasion hearing was adjourned at the instance of accused. In Hassan v. The State (PLD 1996 Karachi 489) it was held that in case where the trial court has adopted a mathematical method of calculating delay and adjournments sought during the pendency of proceedings before trial Court while accused remained in custody and subtracting from it the period obviously involved in delaying the case, was held not to be proper mode of reckoning the period envisaged in the third proviso to sub-section (1) of section 497, Cr.P.C. It was further held that an adjournment of a single day have repercussions and reverberations and other implication in leading to the delay of the case. 7. I would like to refer the case of Shaukat alias Shoki and another v. The State (1984 S.C.M.R. 613) which was not cited before the learned Division Bench of this Court in the case of Hasan (supra). In that case, Hon'ble Full Bench of Supreme Court granted bail to accused who were facing trial under section 302,P.P.C. on the ground that the act or omission of one co-accused who are being jointly tried would not deprive others of the benefit of this proviso and that the fact that counsel representing the accused was busy in other professional wor and was unable to attend for delay in conclusion of trial. There is another case of Hon'ble Supreme Court which was again not cited before the learned Division Bench of this Court, namely Abdullah v. The State (1985 S.C.M.R. 1509) where bail was granted to accused involved in an offence under section 302 P.P.C. by a Bench comprising of Dorab Patel and Muhammad Haleeem, JJ. (as their lordships then were)on the ground that if the period for which the case was adjourned at the request of accuseed is excluded, the accused was behind the bars for more than 2 1/2 years. 8. Even, i£ the period for which the adjournments were granted at the instance of present applicant/accused excluded, there remains in field a period more than one kyear which delay cannot be attributed to the applicant/ accused. Under these circumstances, through two separate short orders, both applicants/accused were admitted to bail upon furnishing sureties in the sum of Rs.200,000/- (rupees two lacs only) each with P.R. bonds in the like amount to the satisfaction of the Nazir of this Court. Above are the reasons for the said short order. (AAJS) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Karachi) 712 (DB) Present: mrs. majida rizvi and rasheed A. razvi, JJ. ASIF-Applicant/Accused versus STATE-Respondent Cr.Misc. No. 23/97, accepted on 26.5.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Offence U/S. 399/402 P.P.C.-Queshment of proceedings- Prayer for-Bare allegation in F.I.R. and challan that applicant alongwith other four accused gathered at a certain place to commit "some offence", there is no other material with prosecution to sustains allegation that they were there with preparation to commit offence of dacoity—Mere gathering of five or more armed persons does not necessarily lead to conclusion that they have gathered with intention and preparation to commit dacoity-There are other offences which can be attributed to these persons-It would not be just to hold that in all cases of recovery of arms, it is to be presumed that accused were likely to commit, offence of _ dacoity-There must be something more than recovery of arms through which it can be alleged that persons arrested and from whom recovery of arms were effected have gathered with preparation to commit dacoity—All such allegations and material is absent in prosecution case-Held : Charge against applicant is baseless and there is no likelihood that trial against him will culminate in conviction-Further Held: Continuation of proceeding against applicant, if not quashed would amount to absue of process of law-Petition accepted. [Pp. 716 & 717] A, B, & C. Mr. Muhammad Hanif Kashmiri, Advocate for Applicant. Mr. Azizur Rehman, Advocate for Respondent. Date of hearing: 15.05.1997. judgment Rasheed A. Razvi, J.-This petition under section 561-A, Cr.P.C. has been filed by an accused who is facing trial before the Special Court No.l i Suppression of Terrorist Activities) at Karachi alongwith other four accused for offence allegedly committed under sections 399/402 P.P.C. Petitioners application under section 249-A. Cr.P.C. was rejected by the Special Court _yide order dated 28-2-1996 on the ground that it was a premature stage and secondly, no witness was examined till then. 2. On 16-08-1996 at 7:30 p.m. an F.I.R. was lodged by the S.H.O Police Station Sher Shah, Karachi alleging that he alongwith other police party was on patrol duty on the same day when he received spy information that some persons duly armed near Paracha Kabrastan were making programme to commit some offence; that the police party after receiving such information raided the place of incident and arrested four persons including applicant; that fifth accused namely Ghulam Rasool absconded from the place of alleged incident; that two motorcycles alongwith revolvers, pistols, Mouzer were recovered from these accused persons. On 29.8.1996 final charge sheet was submitted before the trial Court wherein the same facts as of the F.I.R. were alleged. Even in this charge sheet/challan it was mentioned that after investigating and recording statements of all witnesses, it was found that the accused persons had gathered at Paracha Kabrastan with the intention to commit "some crime". 3. We have heard Mr. Muhammad Hanif Kashmiri, Advocate for the applicant and Mr. Shaikh Azizur Rehman, Advocate for the State. It was strenuously argued by Mr. Muhammad Hanif Kashmiri that no ingredients of offences under section 399/402 P.P.C. can be spelled out from the contents of F.I.R., charge sheet and 161, Cr.P.C. statements of the prosecution witnesses. He has further argued that the allegation on the part of prosecution that the applicant alongwith other person had gathered at some place duly armed to commit some offence is not sufficient to form bais of conviction for the alleged offences. According to the learned counsel for the alleged offences. According to the learned counsel for the applicant, there is no possibility that the trial against the applicant may culminate in the conviction and that the continuation of proceedings before the trial Court amounts to abuse of prcess o Law. He has relied upon the cases Jamaluddin and another v. The State (NLR 1995 Criminal 576) and the case of Muhammad Jaffar and another v. The State (1995 P.Cr.L.J. 2052)). Mr. Shaikh Azizur Rehman appearing on behalf of the State has conceded to the fact that the ingredients of the offences as specified under sections 399 and 402 PPC are absent in the prosecution's case and that there is no likelihood that the trial would end in conviction of the accused persons. He has supported this quashment application. 4. In Jamaluddin's case, a learned Single Judge of this Court qaushed the proceedings pending against the applicant under section 399/402, P.P.C. on the ground Inter alia, that the offences under sections 399/402, P.P.C. would be attracted only where the number of alleged offenders is five or more and that the offenders have made some preparation for committing dacoity and that the assembly should be for the purpose of committing dacoity. In the case of Muhammad Jaffar (Supra) a Division Bench of this Court following the case of Khawar and others v. The State (PLD 1995 Karachi 105) set aside the conviction order passed by a Special Court (S.T.A. Hyderabad) on the ground inter alia, that there was no evideence on the record of any witness to the effect that he had beared the accused to be conspiring or planning to commit dacoity. It was further held that gathering of five or more armed persons at one place' does not give rise to any suspicion that they had assembled to commit dacoity. In the case of Khawar and others (PLD 1995 Karachi 105) another Division Bench of this Court set aside the sentence passed by the Special Court (Suppression of Terrorist Activities) in the offence under Sections 399/402, P.P.C. with the following observations: " In these circumstances, the learned counsel have further argued that according to section 8 referred to above the initial burden is on the prosecution to show that any article or thing which is capable of being useed for or in connection with the commission of such offence or that the accused is apprehended in circumstances which lead to raise a reasonable suspicion that he has committed such offence unless he can prove otherwise. In view of the above provision, it is obvious that the second part relates to commission of an offence whereas in the present case admittedly it was not committed but only the accused were assembled for the purpose of committing dacoity or were making preparation for the same. Now it can be argued by the prosecution that because the weapons were recovered from the accused and they were part of unlawful assembly, therefore, the presumption would be against them. We are afraid we cannot subscribe to the said contention unless there be some evidence on record to suggest that the said fact which is lacking in the present case. Reference may be made to the case of Sirajul Hague and others v. The State (1994 P.Cr.L.J. 685) where in a Division Bench of this Court had accepted the appeals of the accused where there was no satisfactory evidence available on the record to prove that the accsued either had prepared themselves or had been making preparation to commit the dacoity. In the same case it was also held that mere assembly of five or more armed person at one place did not give rise to any presumption that they had assembled there to commit dacoity..Same view was held by another Division Bench of this Court while dealing with the bail application in the case of Amir Ali Khan v. The State (1994 P.Cr.L.J. 576). Same view was taken by a learned Single Judge of the Lahore High Court in the case of Muhammad Sohail v. The State (PLD 1994 Lahore 383)." (Underlining is ours). 5. We have considered the arguments of both the counsel. Present applicant was arrested on 16th August, 1996 alongwith other three accused. Besides the present case, another case under section 13-D of Arms Ordinance, 1965, was registered for the weapon shown to have been recovered from the possession of the present applicant. We are told that till this date, charge has not been framed by the learned Trial Court and, therefore, no evidence was recorded despite the fact that more than nine months have passed. It is pertinent to note that Section 511 of the Pakistan Penal Code has made attempts to commit certain offences, as mentioned in that Section, punishable with imprisonment no extending to one and half of the longest term of imprisonment proved for that offence or with such fine/daman. However, offences under sections 399/402 are exceptions as under these two provisions of law even preparation for commission of dacoity (Section 399) and assembly of five or more persons for the purpose of committing dacoity (Section 402) have been made substantive offences punishable with imprisonment extended to ten years and to five years respectively alongwith fine. The stage of preparation has been included in these two provisions as the term 'dacoity' defined in Section 391 P.P.C. includes an attempt to commit a robbery by five or more persons and aiding such commission or attempt, to be an offence of dacoity. The stages from the conception to consummation of crime, particularly in relation to the distinction between preparation and attempt was elaborately discussed by the Full Bench of Hon'ble Supreme Court in the case of Central Board of Revenue and another v. Khan Muhammad (PLD 1986 S.C,. 192). We cannot do better than what Justice Zafar Mussain Mirza ( as his lordship then was) has observed in the said judgment, relevant portion of the same is as follows:- "....The classic analysis of the course of conduct of a culprit from the stage of conception to consummation of crime has laid down four distinct stages, namely, (i) intention; (ii) preparation (iii) attempt; and (iv) completed act. As observed by Sir H.S. Court, in his commentary on the Penal Law of India, the first of the aforesaid four stages, the Criminal Codes of all countries exempt from punishment. The Penal Code of Pakistan punishes the second stage of certain offences, by constituting them separate and stinct offences The case in which mere preparation to commit an offence has not been made punishable present the problem to determine whether the acts or omissions committed by the culprit constitute merely preparation or amount to attempt. Often times in such cases the transition between what is preparation and an attempt is so gradual as to be almost imperceptible. The preparation to commit an offence consists in devising or rranging the means or measures necessary for the commission of the offence. It implies the taking of previous measures necessary for the crime " (underlining is ours). 6. In the present case, except the bare allegations in the F.I.R. and challan that the applicant alongwith other four accused gathered at a certain place to commit "som offender", there is no other material with the prosecution to sustain the allegation that they were there with the preparation to commit the offence of dacoity. Except arms, as mentioned above, nothing else was recovered from the present applicant or from other co-accused, which may suggest that they have gathered with the preparation to commit the offence of dacoity. Mere gathering of five or more armed person does not necessarily leads to the conclusion that they have gathered with the intention and preparation to commit dacoity. Equally, it can be presumed that they may have gathered there to commit murder or to commit other acts of terrorism by making indiscriminate firing in public places. There are other offences which can be attributed to these persons. It would not be just, to hold that in all cases of recovery of arms, it is to be presumed that the accused were likely to commit offence of dacoity. In our considered view, there must be something more than the recovery of arms through which it can be alleged that the persons arrested and from whom recovery of arms were effected have gathered with the preparation to commit dacoity. All such allegations and material are absent in the prosecution case. 1. Applicant has prayed for quashment of the proceedings pending before the learned Trial Court. In our view, rejection of his plea by the trial Court on the ground that it was a premature stage and no witness was examined were not proper as no stage has been defined as to when an application under section 249-A Cr.P.C. or an application under Section 265-K Cr.P.C. is to be filed. It can be filed at any stage even prior to framing of charge. The trial Courts are not required to wait till recording of prosecution evidence. What they are quired to see is whether the accused is likely to be convicted or whether the charge is baseless. Now, we are with the question what order is to be passed in such circumstances. In the case of Asif Ali Zardari v. The State and others ( 1992 P.Cr.L.J. 58) a Division Bench of this Court comprising of Mamoon Kazi and Qaiser Ahmad Hamidi, JJ. quashed the proceedings pending before the special Judge (Offences in respect of Banks) Sindh. We would like to point out her that Section 10 of the Special Court (Offences in respect of Banks) Ordinance, 1984 is para materia to Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. It was held in that reported case that the powers of High Court to quash judicial proceeding in order to prevent harassment of an accused by invoking provision of Section 561-A, Cr.P.C. are unfettered. It was further held that if the Court comes to the conclusion that continuance of such proceedings against the accused would defeat rather than secxire the ends of justice or that no result in furtherance of justice would come the proceedings can no doubt be quashed. (For further reference please see Muhammad Rashid v. Mst. Niazan Bibi and two others (1972 SCMR 387), andMz'cm Munir Ahmad v. The State (1985 SCMR 257). 8. As a result of the above discussion, we are of the considered view that the charge against the present applicant is baseless and there is no likelihood that the trial against him will culminate in conviction. We are of further view that continuations of the proceedings against applicant, if not quashed, would amount to abuse of process of law. Accordingly, this petition is accepted and the proceedings pending before the learned trial Court are quashed in respect of the present applicant. (K.K.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C (Karachi) 718 Present: abdul hameed dogar, J. ABDUL GHAFOOR-Applicant versus MIR MUHAMMAD and 3 others-Respondents Crl. Misc. No. 162/97, accepted on 8.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)) Cr.P.C.-Offence U/S. 302/324/34 P.P.C.-Cancellation of bail-­ Admittedly 3 persons have lost life and complainant as well as one P.W. received fire arm injuries—Complainant has nominated respondents and co-accused in FIR-One deceased, who expired in hospital in his 161 Cr.P.C statements, has also fully implicated respondents with specific roles—Medical evidence further corroborates words of complainant and witnesses-complainant and PWs A,B and C in their evidence recorded in rial Court have also implicated respondents-For purpose of grant or otherwise of bail only tentative assessment of evidence on record is to be made—Respondent No. 3 was initially refused bail by trial judge considering all aspects of case as such there was absolutely no justification for Link Judge II to grant bail, specially while trial judge was on short leave and earlier bail application was rejected on merits and no fresh ground has arisen—Moreover order granting bail is not only perverse but is in clear disregard of salient feature of case and legal principles-Main ground for grant of bail to other two respondents is that since co-accused has been granted bail, therefore, rule of consistency is attracted-Infact no ground is justifiable for grant of bail-Orders of granting bail to respondents are set aside and bail granted to respondent cancelled. [Pp. 721 & 722] A, B, C, D & E Mr. Shoukat Hussain, Advocate for Applicant. Mr. Badar Munir, Advocate for Respondents No. 1 to 3. Mr. M. SarwarKhan, A.A.G. for Respondent No. 4. Date of hearing: 8.9.1997. judgment By this application the applicant seeks cancellation of bail granted to the Respondents Mir Muhammad, Yousuf and Khair Muhammad in Sessions Case No. 506/95 pending before the Court of Ilnd Addl. Sessions Judge, Karachi. Briefly the facts of the prosecution case are that on 14.11.1995 applicant/complainant alongwith his brothers namely Muhammad Siddique, Karim Bux, Muhammad Ishaque and Usman were working in their garden, when at about 9:30 a.m. respondents namely Mir Muhammad, Yousuf, Lai Muhammad and Khair Muhammad came over there on their tractor. Mir Muhammad had a rifle of 7 MM, Khair Muhammad had a .12 bore gun while Lai Muhammad had one hatched in his hand. Immediately on their arrival they started firing on the complainant party with intention to finish their lives and on account of firing his brothers Muhammad Siddique and Karim Bux died on the spot whereas he received bullet injuries on the left side on the ribs and PW Muhammad Ishaque receipt bullets on his stomach and thigh and Osman received bullent injuries on his left leg. The respondents and co-accused decamped on their tractor. The motive of incident narrated by the complainant in the FIR is shown to be a dispute over a landed property. The complainant in the end of the FIR has said that he was quite in senses while making statement before the police that the respondents/ accused with intention to kill them have murdered his brothers Muhammad Siddiq and Karim Bux by firing and caused injuries to him, Muhammad Ishaque and Usman. The incident was witnessed by Abdul Sattar, Muhammad Murad and other people of the Mohalla, I have heard Mr. Shoukat Hussain Zubedi, learned counsel for the applicant, Mr. Badar Munir, learned counsel for the respondents 1 to 3 and Mr. M. Sarwar Khan, learned A.A.G. for the State at length. Learned counsel for the applicant contends that bail application of accused Khair Muhammad was rejected by Dr. Qamaruddin Bohra, II Addl Sessions Judge, Karachi West (the Trial Judge) on 9.9.1996 where as on 26.3.1996 he was granted bail by Mr. Jawed Qaiser, Link Judge, of II Addl. essions Judge. Karachi West without having any fresh ground. He further argues that on 11. 2.1996 respondent/accused Yousuf was also granted bail by MrS Shamshad Kazi, I/C, II-Addl. Session udge, Karachi West, whereas respondent Mir Muhammad was granted bail by Mr. Javed Qaiser, Link Judge, of II Addl. Sessions Judge, Karachi W T est on 16.4.1997. Mr. Shaukat Hussain Zubedi further argues that bail orders of respondents are not only perverse, but have been passed by ignoring important facts of the case of the prosecution and have resulted in the mis-carriage of justice. According to him all the respondents are not only nominated in the FIR with specific role of murdering 3 persons namely Muhammad Siddique, Karim Bux and Muhammad Usman but have caused serious fire arm injuries to Complainant Abdul Ghafoor and PW Muhammad Ishaque. He contends that the occular evidence is fully corroborated by the medical evidence. Post Mortem of deceased Muhammad Siddique reveals that he has received 4 fire armed injuries on the skull and other parts of the body whereas the deceased Karim Bux received 5 fire armed injuries and the deceased Usman received 3 fire armed injuries on the left thigh and Scapular region. Complainant Abdul Ghafoor has received fire armed injuries on the left side of the chest a vital part, of the body and similarly Muhammad Ishaque did receive fire arm injuries on the thigh and the stomach. He further argues that PWs Muhammad Ishaque, Abdul Sattar, Ghulam Qadir, Muhammad Murad, Ghulam Rasool in their 161 & 164 Cr.P.C. statements have fully implicated the respondents including respondent Yousuf saying that they were armed with rifles and guns and caused injuries to the above-named deceased and witnesses. He contends that 161, Cr.P.C. statement of Usman who expired in the hospital subsequently by considered as his dying declaration, in which statement he has also fully implicated the respondents with commission of the offences. Learned counsel further submits that the complaints, PWs Muhammad Ishaque, Muhammad Murad and Ghulam Qadir have been examined by the Trial Court and all these witnesses have fully implicated the respondents with commission of offences. All them have categorically deposed that they caused the death of above said deceased, and seriously injured complainant and P.W. Muhammad Ishaque. On recovery of weapon, it is argued that a rifle from respondent Mir Muhammad, a double barrel gun from respondent Khair Muhammad and single barrel gun from respondent Yousuf were recovered. Irrespective of these, 3 empty cartridges and 3 empty bullets of 7 MM were collected by policy from the scene of offence. Learned Counsel lastly contends that the learned Incharge Judges (Link Judges) while granting the bail to the respondents have ignored the principle laid down by the Superior Courts, whereby the principle of grant of bail by Incharge judge have been discouraged. He further relies on the case law reported in PLD 1986 SC 173, 1987 SCMR 1156. On the other side Mr. Badar Munir, learned counsel appearing for the respondents, controverts arguments advanced by the applicant's counsel. He contends that in fact the place of wardat is situated in Survey No. 103 of Deh Chitara belonging to Co-accused Lai Muhammad as such the applicant has not come with clean hands. He further argues that respondent Yousuf is shown to be empty handed in the FIR and no specific part has been assigned to him, and the respondent Khair Muhammad was rightly granted bail by the Incharge Judge as he was acquitted under Section 249-A Cr.P.C. in a connected case of 13-E of Arms Ordinance. About respondent Mir Muhammad learned counsel argues that main ground for grant of bail was that the prosecution had examined only one witness during a period of 16 months of trial. He places reliance on 1996 SCMR 984 and prays for dismissal of the application. Mr. M. Sarwar Khan learned AAG appearing for the State, supports the arguments advanced by learned counsel for the applicant and states that all the respondents are not only nominated in the FIR but have caused fire arm injuries to the complainant party resulting in the death of Muhammad Siddiq, Karim Bux and Usman and causing injuries to the Complainant and PW Muhammad Ishaque. According to him, his occular version is fully supported by medical evidence, which shows the presence of so many fire arm injuries on their person. He further argues that the learned Incharge Judges of the trial Court were not competent to grant ail to the respondents specially during a short period, when the trial Judge had proceeded for performing 'Haj' and uu,; practice of granting bail by the Incharge Judges have been discouraged by the Superior Courts. In support of this contention he relies on case laws reported as 1989 P.Cr.L.J. 191, 1986 SCMR 2321 and 1991 MLD 386. Admittedly in this case 3 persons namely Muhammad Siddiq, Karim Bux and Muhammad Usman have been lost life and complainant as well as P.W. Ishaque received fire arm injuries. In the FIR the complainant has nominated the respondent and co-accused Lai Muhammad Respondent Mir Muhammad is said to be armed with rifle whereas respondent Khair Muhammad had shot gun and co-accused Lai Muhammad had hatchet. Though Yousuf is not shown to be armed with any weapon in the FIR but eye-witnesses Ishaque, Murad, Abdul Sattar and Ghulam Qadir in their 161 & 164 Cr.P.C. statements have fully implicated him, stating that he was armed with gun and used the same in commission of offence. Deceased Muhammad Usman in his 161 Cr.P.C. statement recorded on 14.11.1995 has also fully implicated the respondents with specific roles. The medical evidence further corroborates the words of complainant and the witnesses. Complainant, PWs Ishaque, Murad and Ghulam Qadir in their evidence recorded in the Trial Court have also implicated the respondents, specifically stating, that they were armed with weapons and fired on the complainant party resulting in the death of Muhammad Siddiq, Karim Bux and Muhammad Usman and injuring complainant Adbul Ghafoor and Muhammad Ishaque. The contention of the Learned counsel for the respondent requires deeper appreciation of the evidence which could only be doneat the final adjudication of the case. For the purpose of grant or otherwise of bail only tentative assessment of evidence on record is to be made. Respondent Khair Muhammad was initially refused bail by Dr. Qamaruddin Bohra, II Addl. Sessions Judge Karachi West on 9.9.1996 considering all the aspects of the case as such there was absolutely no justification for Mr. Javed Qaiser, Lind Judge of II Addl. Sessions Judge, to grant bail specially while the trial Judge was on short leave and earlier bail application was rejected on merits and no fresh ground has arisen. More over the order granting bail is not only perverse but is in clear disregard of ^salient feature of case and legal principles. Similarly while granting bail. Mrs. Shamshad Kazi, I/C.II-Addl. Sessions Judge, Karachi West, to the respondent Yousuf has ignored the important aspects of the case and has passed the same without applying mind and absolutely without any justification. This practice of granting bail by the Incharge (Link Judges) has been dis-approved by this Court in case of State v. Amanullah ( 1989 P.Cr.L.J. 191)) wherein practice of hearing and granting bail by Incharge Judge was not only discouraged but the said order was recalled, and bail was cancelled. The Hon'ble Supreme Court in case of Muhammad Nabi and Ors. v. Muhammad Munir Ahmed and Ors. (1986 SCMR 1321) also set aside the order of bail granted by the Sessions Judge who was not trying case but merely attending to urgent matters during vacations. Hon'ble Supreme Court in case of Abdul Ghafoor vs. Sakhi Sultan and 3 Ors. (1987 SCMR 1556) also cancelled the bail granted to the accused by the High Court merely on the ground that the accused were nominated in the FIR and the case was fully supported by the medical evidence. In case of InayatuUah vs. Muhammad Panah & others (1991 MLD 386) bail was also cancelled in the similar circumstances of the present case. Perusal of the impugned order in respect of grant of bail to respondent Yousuf show that learned Incharge Ilnd Additional Sessions Judge granted him bail only by mentioning some contradictions with regard to weapon of offence and that no empties were collected by the police from the wardat. The mashirnama of place of wardat mentions presence of three empty cartridges and shells of two empty bullets and also all the eye-witnesses in their 161 and 164 Cr. P.C. statements have fully implicated him the commission of offence by saying that he was armed with gun and used the same. The main ground for grant of bail to the other two respondents as mentioned above is that since co-accused has been granted bail, therefore, rule of consistency is attracted. Infact no ground is justifiable for the grant of bail. While granting bail to the respondents the principles laid down in the case of State through Advocate General NWFP v. Zubair & 4 others P.L.D 1986 S.C. 173), has been deliberately ignored by the learned Incharge Judges who dealt with the matter, whereby all the successive bail application filed by the respondents was to be heard and disposed of by Dr. Qamaruddin Bohra, Ilnd Additional Sessions Judge, Karachi, the trial Judge who firstly dealt with the bail application of respondent Khair Muhammad and dismissed the same on 9.9.1997. It is pertinent to note that in all the bail applications, Respondents have not disclosed the fact of earlier dismissal of bail application of respondent Khair Muhammad. So far as this case is concerned, I am of the considered view that in this case there are strong and essential grounds of setting aside the orders of granting bail to the respondents. For the reasons, stated hereinabove, the impugned orders of the trial Court are hereby set aside and the bail granted to the respondents Mir Muhammad, Yousaf and Khair Muhammad are concealed. Copy of this order be sent to the trial Court with directions to cause the said respondents to be taken into custody. (AAJS) Bail cancelled.

PLJ 1998 Cr PLJ 1998 Cr.C ( Karachi ) 722 Present: hamid An mirza, J. ABDUL BAQI and 3 others-Applicant versus STATE-Respondent Criminal Misc. No. 313 of 1996, accepted on 4.3.1997 Criminal Procedure Code, 1898 (V of 1898))- —-S. 561-A & 195 offence U/s 188 P.P.C. r/w Section 144 Cr.P.C.-Case registered by ASI for violation of Section 144 Cr.P.C. without written ~-^Wc of District Magistrate-Whether invalid, illegal and liable to be quashed-Question of~Held: Police officer is not authorised to register FIR for violation of Section 144 Cr.P.C. unless complaint in writing is made by authority in terms of Section 195(l)(a) Cr.P.C.-Proceedings being invalid and illegal, are hereby quashed-Appeal in allowed. [P. 723] A, B & C. Waqar Shah, Advocate for Applicant. Riaz Akhtar A.A.G. for State. Date of hearing: 4.3.1997. judgment This is Criminal Miscellaneous Application under Section 561-A Cr.P.C. wherein the petitioner has prayed for quashment of proceedings in respect of FIR No. 322 of 1995, under section 188 PPC of Police Station Gulzar-e-Hijri, pending before SDM Airport, Malir, Karachi. Learned counsel for the applicant contends that FIR. No 322 of 1995 has been registered by ASI Moid Khan without written orders of the District „ Magistrate. Reliance is placed upon Syed Abdul Rehman Shah and 25 others v. Station House Office Police Station City Mansehra and another (1996 P.Cr.L.J.483), wherein learned Judge in Chambers has observed:- " No Court shall take cognizance of any offence punishable under sections 172 and 188 of Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate." It was also observed at page 425:- "In the instant case proceedings under section 188 PPC have been initiated before the Magistrate by the same Police Officer who had initially lodged the report. As section 195(l )( a) Cr.P.C. requires of a Court to take cognizance of the offence only on a complaint in writing of the public servant concerned who promulgated an order under section 144 Cr.P.C. all such proceeding conducted before the Magistrate Court were thus invalid and could be quashed by the High Court while exercising jurisdiction under section 561-A Cr.P.C. An amendment has been although made in the schedule of the Criminal Procedure Code and section 188 Cr. P. C. made cognizable ^hereby and a Police Officer after the aforesaid amendment in the Schedule has now been empowered to make arrest of a person without warrant if an offence punishable thereunder has been committed in any public place, but there being no corresponding amendment in section 195 Cr.P.C. a Court despite that could only take cognizance of such an offence on a complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate. We have enough precedent law on this score and I would after few cases cited at the Bar, Sharif & 4 others-Petitioner v. The Staterespondent (PLD 1975 Lah 1315) and All Hussain-- Applicant v. The State-respondent (1979 P.Cr.L.J. 941). The learned AAG has candidly conceded to this position. It would be, therefore, held that no prosecution of the petitioners could take place on a charge under section 188 PPC for the allegedly violation of an order passed under section 144 Cr.P.C. by the District Magistrate, Mansehra ia the absence of a written complaint by the District Magistrate herself or of some other Officer to whom he is subordinate." Nizamuddin Samejo and others v. Sub-Divisional Magistrate and others (1988 P.Cr.L.J. 988 ) , wherein learned Judge in Chambers at page 990 has observed:- "Cognizable offence is defined under section 4(f) Cr.P.C. as an offence in which a Police Officer may arrest without warrant. By making offence under section 188 PPC cognizable the intention of Legislature was to authorise the -- police to arrest the person violating section 144 PPC on the spot and as held by my learned brother Mr. Justice Mushtaq Ali Kazi (as he then was) in case of All Hassan v. The State reported in 1979 P.Cr.L.J. 941, in absence of corresponding amendment in section 195 Cr.P.C. the embargo under clause (l)(a) is, therefore, no answer to the infirmity pointed out so far taking cognizance by Magistrate is concerned and State counsel has failed to convince me that after amendment the legal embargo provided under section 195(l)(a) Cr.P.C. _ become redundant as complainant is not the same as filing i of charge-sheet in a case under section 188 nor Court could take cognizance which is permissible only on the complaint in writing of the public servant concerned. The complaints defined under section 4(h) Cr.P.C. means the allegation made orally or in writing to the Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but it does not include the report of Police Officer." Learned A.A.G. also conceded to the legal position that the Police Officer is not authorised to register FIR for the violation of section 144 Cr.P.C. unless complaint in writing is made by the authority in terms of section 195(l)(a) Cr.P.C. The proceedings being invalid and illegal, are hereby quashed. Consequently Criminal Miscellaneous Application is" allowed. (AAJS) Application allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 725 [DB] Present: JAWAID NAWAZ khan GANDAPUR AND tariq pervaiz khan, JJ. MUHAMMAD SIDDUQE and another-Appellant versus STATE-Respondent Crl. Appeal No. 7 of 1998, dismissed on 4.4.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302 34--Murder-Offence of-Conviction for-Challenge to--Almost all witnesses including complainant, Magistrate who recorded confessional statement and Doctor who conducted post-mortem were subjected to length cross-examination by learned counsel for Appellant but nothing was brought on record to suggest, even remotely, that anyone of the witnesses was planted witness or that they had any motive/enmity to depose against accused falsely-Most of the witnesses were consistent on all material points-Statements of most witnesses corroborate with each other-Even nothing was brought on record to show that there was some dishonesty in investigation-Defence witnesses are compulsive liar and their testimony hardly inspires confidence-Same is discarded-Appeal without substance accordingly dismissed. [Pp. 739, 741 743, 745, 747,748, 749, 750 & 751] A to J Mr. Mushtaq All Tahir Kheli, Advocate for Appellants. Mr. Muhammad Aslam Khan Tanoli, Advocate for State Mr. Saeed Akhtar Khan, Advocate for Complainant. Date of hearing: 2.4.1997. judgment Jawaid Nawaz Khan Gandapur, J.-Mazhar Iqbal appellant (who died in the Jail during the pendency of this appeal) and Muhammad Siddique appellant were both put on trial in the Court of Additional Sessions Judge. Haripur in case registered U/Ss. 302/34 P.P.C. Vide F.I.R. No. 465 dated 13.6.1990 lodged in Police Station, Haripur. 2. After the conclusion of the trial the Additional Sessions Judge by his judgment dated 3.2.1993, held both the accused guilty and convicted them. He sentenced Mazhar Iqbal appellant (now deceased) to death whereas Muhammad Siddique appellant was sentenced to life imprisonment. 3. Hence this appeal. 4. The trial Court has also sent Murder Reference No. 1/1993 for the confirmation of the death sentence awarded to Mazhar Iqbal accused appellant (deceased). 5. Additionally, the complainant, not content with the sentence awarded to Muhammad Siddique has filed Cr. Revision No. 9/1993 wherein he has prayed that the sentence of life imprisonment be enhanced and the appellant be sentenced to death. He has further prayed that compensation, as envisaged U/S. 544-A Cr.P.C., be awarded to the heirs of the deceased including the complainant. 6. It may be stated, at the out-set, that during the pendency of this appeal (pending disposal for the last more than three years) appellant Mazhar Iqbal died in the death cell in March, 1993. Appeal filed by him, therefore, has become infructuous and accordingly stands abated. The Murder Reference (No. 1/993) also relates to him, therefore, the same having become infructuous as abated, hence dismissed. 7. We are now left with the Cr. Appeal filed by Muhammad Siddique appellant and the Cr. Revision filed by the complainant for the enhancement of sentence awarded to Muhammad Siddique appellant. Since both are inter connected, therefore, we propose to dispose of the same by the single judgment. 8. Stated briefly, the facts of the case, as disclosed in FIR No. 465 dated 13.6.1990 registered in Police Station, Haripur are that on the eventful day Dilawar Shah F.C. (P.W. 7) and Abdur Rashid F.C. (P.W. 8), attached with the Court of Extra. Assistant Commissioner (I), Haripur were on duty outside the Court. At about 7.30 A.M., Zafar Ali deceased s/o Abdul Hameed R/0 Mankarai, Tehsil District Haripur, alongwith his two companions, arrived there in connection with the case registered against him U/S. 307 P.P.C. which was pending disposal in the Court of the said E.A.C. (I). 9. Muhammad Siddique, appellant and Mazhar Iqbal appellant (deceased), residents of village Mandarai also came to the Court. Both of them had come to the Court in connection with the same case. Since both the parties used to come to the said Court, therefore, they were known to the two eye witnesses (including the complainant) i.e., Dilawar Shah F.C. (P.W. 7) and Abdur Rasheed F.C. (P.W. 8). 10. According to the Prosecution version, within the sight of F.C. Dilawar Shah (P.W. 7) and R.C. Abdur Rashid (P.W. 8) Mazhar Iqbal appellant took out .32 revolver and fired four shots at Zafar Ali (deceased). Muhammad Siddique appellant, on the other hand, gave a 'churn' blow to Zafar Ali. In short, Zafar Ali after having received the bullet injuries on his chest, neck, at the back of his right palm, in the front of neck and a 'churri' blow on the left side of his belly, was grievously injured/wounded and resultantly fell on the ground. Both the accused, after accomplishing their task, tried to escape from the scene of occurrence. However, they were apprehended/chased by P.W. 7 and P.W. 8 Mazhar Iqbal appellant was apprehended by Abdur thp crime weapon (pistol) whereas the other culprit namely Muhammad Siddique appellant was apprehended by Dilawar Shah F.C. iP.W. 7) on the spot alongwith blood stained 'Churri'. In addition to P.W. 7 and P.W. 8 the occurrence was seen by other persons who were present in the premises of the Court, including the two companions of Zafar Ali deceased. 12. The deceased, then injured seriously, was immediately rushed to the Hospital for medical treatment. Dr. Noor Wahab Shah Medical Officer ' P.W. 111 after providing necessary First Aid treatment to him, referred him to the District Head Quarter Hospital Abbottabad. Since the injured was in precarious condition be succumbed to his injuries and expired while on his way to Abbottabad. Resultantly, he was brought back to the Civil Hospital, Hanpur. 13. The autopsy on his dead body was then conducted by the same Medical Officer (P.W. 11). 14. The killing was reported to the Police on the same day and a case was registered Vide F.I.R. No. 465 dated 13.6.1990 U/Ss. 302/34 P.P.C. against both the appellants. 15. The motive, as alleged in the F.I.R., is stated to be the case pending against the deceased U'/S. 307, P.P.C. 16. On the following day both the appellants were produced before Mr. Muhammad Nasim M.I.C. (P.W. 5) who recorded their confessional statements (Ex. P.W. 5/2 and Ex. P.W. 5/5). 17. After the completion of the usual Police investigation complete challan was submitted against the appellants in the trial Court. 18. The charge, against the accused, was framed on 10.2.1991 which was read over and explained to the appellants who pleaded not guilty and claimed trial. 19. In order to prove its case against the appellants the Prosecution produced the following witnesses: P.W. 1 Raja Parvez s/o Raja Khan Bahadur. P.W. 2 Muhammad Saleem s/o Abdul Aziz. P.W. 3 Muhammad Ilyas Khan Muharrir ASI PS: Haripur. P.W. 4 Muhammad Banaras Traffic H.C. Abbottabad. P.W. 5 Muhammad Naseem Khan M.I.C. Haripur. P.W. 6 Abdul Latif F.C. No. 447 P.S. Haripur. P.W. 7 Dilawar Shah F.C. No. 767 Process Server EAC-I Haripur. P.W. 8 Abdul Rashid F.C. No. 731 Police Line Abbottabad. P.W. 9. Abdul Salam s/o Nawab Khan. P.W. 10 Muhammad Fareed Khan, Inspector SPI Branch, Peshawar. P.W. 11 Dr. Noor Wahab Shah, M.C. Incharge Civil Hospital Haripur. P.W. 12 Muhammad Nazir Khan ASI No. 21 Traffic Police, Haripur. 20. The statement of Mazhar Iqbal appellant (now dead) was recorded U/S 342 Cr.P.C. on 22.10.1991. It is to the following effect- Statement of Mazhar Iqbal s/o Fazal Dad Caste Awan aged about 25 years r/o Mankarai accused U/S. 342 Cr.P.C. Q. It is correct that Muhammad Siddique, your coaccused, is your maternal Uncle? A. Yes. Q. Is it a fact that deceased Zafar Ali was charged for attempting at the life of your maternal Uncle Abdul Khalil brother of your co-accused and on the day of occurrence the deceased had come to the Kutehri premises for attending the Court? A. It is correct. Q. Is it in evidence that on 13.6.90 at, 0730 hours in the premises Kutcheri Haripur you alongwith your coaccused and in furtherance of your common intention attempted at the life of deceased Zafar Ali with revolver, firing at him effectively, who succumbed to his injuries on the way, while he was being shifted to D.H.Q. Hospital Abbottabad? A. It is incorrect. In fact, Zafar Ali, deceased, after having an altercation with us i.e. myself and Siddique, pressuring for compromise in case U/S. 307 PPC against him, attempted at our lives by firing two shorts from his revolver. Fortunately, the bullets did not fire and we managed to get hold off him, so that, he could be prevented from firing further. It was during the scuffle, wherein, Siddique was holding him and I was trying to snatch the revolver that the firing continued under the pressure of his finger on the trigger. Due to that firing he got injured. We did not cause any injury to him. Nor we initiate the fight. We were making hectic effects to save ourselves from his determined attack. Zafar Ali has lost his life by his own hands. We are innocent. Q. It is in evidence that on the same date, time and place you, alongwith your co-accused in furtherance of your common intention attempted at the life of Zafar Ali, deceased, with churri by causing him injury who succumbed to injuries on the way when he was being taking to the Hospital? A. It is incorrect. Siddique was empty handed and so was I. There is no injury on the person of deceased caused with churri or any sharp edged weapon. The injury recorded in the documents has been assigned by the Doctor, in collusion with the complainant party and the Police just to trap Siddique. The body of Zafar ALi can be exhumed and get inspected, it would certainly show no sharp weapon injury on his person. In any way, I and Siddique fell victims to aggression of Zafar Ali deceased and caused him no injuries at all. There is no evidence on record acceptable according to the established norms of law and justice. It is all biased and truped up evidence of either the police witnesses or the relations of the deceased who could never be present on the spot. We have been falsely implicated for collateral reasons. We are absolutely innocent. Q. It is in evidence that on 13.6.90 at 07.30 hours in the premises of kutcheri Haripur you alongwith your co-accused and in furtherance of your common intention caused murder of Raja Zafar Ali by firing and stabling at him. What have you to say? A, It is incorrect. We have been falsely implicated. Zafar Ali died of the injuries caused to him under his own hands. There is no independent evidence on the record against us. We are innocent. Q. It is in evidence that on the same day you were apprehended near the place of occurrence while you were decamping from the spot with the revolver, weapon of the offence, by P.W. Abdur Rashid. What have you to say? A. It is incorrect. In fact, after Zafar Ali fell on the ground, I removed the revolver in question from his hands and I, alongwith Siddique, ran to Police Post City Haripur. The revolver was handed over to the Incharge PP Haripur and the occurrence was narrated by us. There was no police man present on the spot at the time of occurrence. Thus, question of my being caught by any policeman can not arise. Story of F.C. Rashid and other Police witnesses had been made up by the police in collusion with the complainant party subsequently. The revolver in question belonged to deceased Zafar Ali. Q. It is in evidence that on the same day, time and place when you were apprehended by P.W. Abdur Rashid F.C. near the scene of occurrence he recovered 32 bore revolver Ex. P-2, four empties freshly discharged from the pulli of the revolver Ex. P-3, two missed cartridges P-4 from your and he also recovered 9, .32 bore live cartridges P-5 during your personal search which, he later on, produced before Muhammad Nazir A.S.I, who took it into possession through the recovery memo Ex. PW 4/1. What have you to say? A. It is incorrect. Neither F.C. Abdur Rashid was present on the spot nor he caught me, thus, question of the alleged recoveries cannot arise. However, at the PP Haripur when I handed over the revolver to Incharge PP, he took out from the said revolver two missed cartridges and four empties. What transpired between the I.O. and F.C. Rashid thereafter I may not award of that. I was kept in PP and the police went away who did not perform any act of investigation in my presence. Recoveries, as attributed to me, are the result of absolute fabrication and falsehood. Q. It is in evidence that on the same date, time and place your co-accused Muhammad Siddique was also apprehended near the scene of occurrence by PW Dilawar Shah F.C. while he was decamping with blood stained churri the weapon of offence which he recovered from your co-accused Muhammad Siddique and produced Ex. P-l the blood stained churri to Muhammad Nazir S.I. who took into possession the same through recovery memo Ex. PW 4/1. What have you to say? A. It is incorrect. The details have been given above. Neither F.C. Dilawar nor any other police was present on the at the time of occurrence. Siddique was empty handed even after the occurrence, since, I was holding the revolver used by the deceased. Siddique alongwith me Went to PP Haripur where we were detained. We are not aware of what transpired between the members of police, thereafter we are not aware. Alleged recoveries against both of us are concocted and false. Q. How will you explain the positive report of Arms Expert Ex. PW 10/D-2 regarding 32 bore revolver and 4 empties? A. In fact, the questions should have been directed to Zafar Ali deceased. Nevertheless, the report whether termed negative or positive, had no reflection upon me. The four empties got fired by the same revolver at the hand of Zafar Ali deceased. Similarly, the two missed rounds were also fired under the hand of Zafar Ali deceased. The docket sent to the Arms Expert by the police after un-constionable delay is full of patient malafides by its contents as well. The report not being specific about the missed rounds taken out of the chamber of the revolver in question by the police would cast grave doubt on the truthfulness of the report whatever its contents and whoever may be its victim. Q. It is in evidence that the I.O. despatched recovered blood stained churri, weapon of the offence, alongwith the garments of the deceased, blood stained earth and sand recovered from the spot to the chemical examiner whose report is Ex. P.W. 10/2 and is positive. What do you say about it? A. It is not uncommon for the police to plant weapons like churries and smear those with the blood of the deceased fi-om his clothes. The Churri has no relevance to me and the co-accused with me. Thus, the positive report of forensic Science Laboratory has nothing incriminating against us. Q. It is evidence that on 14.6.90 you made volunteer confessional statement before MIC Muhammad Naseem Khan PW and signed the confessional statement Ex. P 5/2 after admitting it correct before him? A, I was subjected to inhumen treatment at the hands of the police who also nurshed grudge against me previously. I had stated the same thing before the Magistrate what I had conveyed to the Incharge PP Haripur soon after the occurrence. I was made to sign a statement not presenting true version given by me but recorded at the instance of the police. Thus, the said statement can neither be termed voluntarily nor it is true wholly by its contents. Q. It is in evidence that on 14.6.90 your co-accused Muhammad Siddique also made a volunteer confession Ex. PW 5/5 before MIC Muhammad Nasim Khan PW. What have you to say? A. We both were kept in PP Haripur initially and then in the P.S. and subjected to same torture treatment. However, that Siddique stated before the Magistrate and under what circumstances, it may be asked from him. Q. Why the PWs have deposed against you? A. Admittedly on record, there were many persons from public present at the time of occurrence, yet, not a single one has come forward to depose against me which is the solid proof of false depositions of police witnesses and a solitary witness closely related to the deceased. There is no independent evidence against me which could be accepted according to law and justice. The PWs are interested, enimical and trumpeted up. Hence, there evidence is non entity according to the established principles of evidence, which makes it a case of no evidence coming forth from unimpeachable source. I was victim of the occurrence at the hands of Zafar Ali and committed no offence. I am innocent. Q. What is your statement and why are charged? A. I am innocent and have been falsely roped in. I have already provided sufficient details hereinbefore. Q. Do you wish to produce defence evidence? A. Yes. I would be requesting the honourable court to summon Moharrir P.S. Haripur and Moharrir PP Haripur alongwith Daily Diary registers of 13.6.90 as CWs/DWs as the Honourable court may deem fit. Q. Do you wish to appear as your own witness on oath as required U/S. 340 (2) Cr.P.C. A. Yes. Q. Do you add anything in your statement? A. I would explain matters further in my statement U/S. 340(2) Cr.P.C. RO & AC Sd/- 22.10.91 ASJ-I Haripur. Sd/- Sd/- Accused Mazhar Iqbal ASJ-I Haripur. Certified U/S 364 Cr.P.C. 21. The statement of Muhammad Siddique appellant was recorded U/S. 342 Cr.P.C. on 11.11.1991 which is to the following effect- Q. It is fact that Zafar Ali deceased was charged for attempting at the life of your brother Abdul Khalil and on the day of occurrence he had come to Kutcheri premises for attending the Court. What have you to say? A. Yes. Q. It is in evidence that on 13.6.90 at 07.30 hours in the premisses of kutcheri Haripur you alongwith your coaccused and in furtherance of your common intention attempted at the life of deceased Zafar Ali with revolver by firing at him effectively who succumbed to injuries on the way while he was being shifted to DHQ Hospital Abbottabad. What have you to say? A. It is incorrect. I was empty handed and remained so until I reported to PP Haripur alongwith Mazhar Iqbal. The deceased firstly abused us and in consequence of an altercation between us took out his revolver and fired upon us. In order to save ourselves we attempted to catch hold of the deceased during which the revolver was being fired because of struggle between Mazhar Iqbal and deceased. I and my co-accused have neither killed the deceased nor caused him any injuries. In fact, our lives were put to danger of death by the deceased who wanted to pressurise us to compromise the case with him. The allegations against us of causing any harm to the deceased are false and fabricated between the complainant party, the police and the doctor as an after thought. Q. It is in evidence that on the same day, time and place you alongwith your co-accused in furtherance of your common intention attempted at the life of Zafar Ali deceased with Chhuri by causing him injuries who succumbed to injuries on the way while he was being shifted to DHQ Hospital Abbottabad. What, have you to say? A. It is incorrect. I never caused any injury to the deceased nor had any chhuri with me at the relevant time. The churri may be invention of the police in collusion with ,.- doctor who was deeply interested to the deceased and against myself and my tribe. The deceased could not have nay injury with churri on his body. The body of the deceased can be exhumed to see that the allegations are false and fabricated. Q. It is in evidence that on 13.6.90 at 07.30 hours in the premises of Kutcheri Haripur you alongwith your common intention committed murder of deceased Zafar Ali by firing and stabbing him. What have you to say? A. It is incorrect. The deceased attempted to shoot both of use but we managed to escape because the firing by the deceased did not prove fruitful by miss firing. Thereafter during the struggle between Mazhar Iqbal and the deceased the revolver went on discharging while Mazhar was trying to snatch it from the deceased who was attempting to fire at Mazhar Iqbal. We have committed no crime and were victim of aggression. Q. It is in evidence that on the same, day, time and place you were apprehended near the scene of occurrence by Dilawar Shah F.C. PW while you were decamping from the spot with blood stained churri weapon of offence Ex PI which he recovered from you and produced to Muhammad Nazir ASI who took into possession the same through recovery memo Ex. PW 4/1. What have you to say? A. It is incorrect. I never had any chhuri with me at t elevant time. After Zafar Ali had fallen on ground I alongwith co-accused took the revolver from his hand and went to PP Haripur and reported the occurrence. There was no police constable at the spot, thus, question of catching me on the spot by any policeman could not arise. The assertion of the part of said FC is absolutely false. Otherwise, there should have been blood spots seen by the I.O. on my person, my clothes person of the said F.C. and clothes of the said F.C. Importation of chhurri and corresponding injuries to me is an after thought planned by the police, complainant party with the support of the doctor. Q. It is in evidence that on the same day, time and place your co-accused Mazhar Iqbal was also apprehended by Abdur Rashid F.C. near the scene of occurrence while he was decamping from the spot and he recovered .32 bore revolver Ex. P2, four empties freshly discharged Ex. P3 two missed cartridges Ex. P4 and nine leave cartridges Ex. P5 from him which he later on produced to Nazir ASI who took into possession the same through memo Ex. PW 4/1. What have you to say? A. It is incorrect. The reply in detail has been made in foregoing answers as well. I alongwith Mazhar Iqbal ourselves went to PP Haripur and reported the occurrence to the Incharge PP. We handed over the revolver in question belonging to the deceased and' fired by the deceased during the struggle to the Incharge PP. We were not allowed to go anywhere thereafter by the police. As such, whatever police has imputed to us in this respect in untrue and of their own making. Q. It is in evidence that I.O. despatched the recovered blood stained chhuri weapon of offence alongwith the garments of deceased, blood stained earth and sand to chemical examiner whose report is Ex. P.W. 10/2 and is positive. What have you to say? A. It may be known to the I.O. from where be brought chhuri and got it blood stained. As the I.O. alongwith the Doctor have acted as a party with the complainant side, there could easily obtained the blood strains of the deceased from his body on any chhuri and sent that for the chemical analysis. Whatever the report of the expert, has no reference to any act on my part. Q. It is in evidence that the I.O. had despatched the recovered revolve and empty to arms expert whose report is Ex. P.W. 10/D-2 and is in positive. What have you to say? A. The report with respect to the empties may be correct since, the revolver kept discharging during the struggle between the deceased and Mazhar Iqbal. However, report of the expert with respect to two missed cartridges, at the face of it, is mala fide tentitious at the instance of the police which would opei'ate against the veracity of the entire report of the arms expert, it becomes essential that he should summoned by the court to explain and satisfy as to why he could not make conclusive report about the missed two cartridges. Such a report could have no legal value which also reflects on parties on behaviour of the expert at the instance of the police. Q. It is in evidence that on 14.6.90 you made a volunteer confessional statement Ex. PW 45/5 before MIC Haripur. What have you to say? A. I was subjected to unbearable torture by the local police who wanted me to make a statement before a Magistrate as they liked. It was beyond my ignorance to resist the police nay more. The statement attributed to me is not holly true. However, I did state therein that the deceased had fired upon me and my co-accused which part alone is of my own accord. As my co-accused had not fired at the deceased, I could not falsely implicate anything to him. The role attributed to me in the said statement is result of police corrosion, duress and torture. I have given the true account to day before the Court in my answers to .the foregoing questions. Q. It is in evidence that Mazhar Iqbal yours co-accused also made a confessional statement before MIC. What have you to say. A. I know only this much that Mazhar Iqbal was meted out similar treatment by the police as it was done to me. Beyond that the question may be directed to Mazhar Iqbal for answer. Q. Why the PWs. have deposed against you? A. There is no independent witness examined against me before the court. The court premises being public place and over-crowded by persons from various walk of life at the relevant time, only the policeman and one odd individual related to the deceased have been trumped as PWs. It could have been demonstrably proved before the Court had been allowed through my present counsel to cross examine further such trapped up witnesses of the police. The witnesses are not the witness of occurrence. They have been brought up only to support a concocted and fabricated version of the occurrence, since, dozens of independent witnesses of occurrence available on the spot did not support the version developed by the police inclusion with the complainant party and the doctor. Thus, there is no evidence against me which can be legally and judicially accepted. I am innocent and have been implicated for collateral motive. Q. What is your statement and why are you charged? A. I am innocent and have been falsely charged. My detailed answers about my false implication in the case have already been recorded. Q, Do you wish to produce defence evidence? A. Yes. I have already moved an application before the Court for summoning of Daily Diary registers of P.S. Haripur and PP Haripur for 13.6.90 through the concerned Moharrirs which after examining I would place on record the relevant entries therein. Q. Do you wish to appear as your own witness on oath as required U/S. 340 (2) Cr.P.C.? A. Yes. Q. Do you add anything in our above statement? A. No, except, I may state before the Court on oath. R.O. & A.C. 11.11.91 Sd/- ASJ-I Haripur. 21. On on 6.1.1992, the joint statement of the appellants as well as their counsel. Mr. Mushtaq Ali Tahirkheli, Advocate Haripur, was recorded iPage-162 of the Print Book) by the trial Court. It would be appropriate to reproduce the same here:- Statement of accused and counsel for the accused on oath/' Muharrirs P.S. and O.O. Hrp. were summoned as D.Ws. to produce relevant entries of daily diary registers for bringing on those on record. The said registers were inspected by the counsel for the accused on 21.12.91 and_algo today i.e., 6.1.92. The previous pages and entriesijiavgjbeen taken of the record and new pages and entries Jiaye been made to support the prosecution evidence already adduced^ Hence the said witnesses are abandoned as D.Ws. We do not want to produce the rele^nt diaries and Muharrirs in our defence, however, we request the honourable courtjto__cail the said two Muharrirs alongwit? the^aU^_diary_regjsters_as C.Ws. to enable the defence to cross examine them with respect to the alteration/changes in the entries/pages of the said registers. An application to this effect has already heen moved before this Court i.e.. today on 6.1.1992." R.O. & A.C. Sd/- 6.1.1992 ASJ-I, Hrp. Sd/- Mazhar Iqbal accused (in English) Sd/- Muhammad Siddique (in Urdu) Sd/- Mr. Mushtaq Ali Tahir Kheli. Advocate Counsel, for the accused. 22. The trial Court, most, probably, keeping in view the serious allegations made against Gharib Shah, Madad Muharrir P.S. Haripur and Muhammad Sarwar, Madad Muharii P.P. Haripur, by the appellants and their counsel, in the joint statement, mentioned above, summoned the two F.Cs. as court witnesses, although they had been abandoned by the appellants to be produced/examined as defence witnesses. Both these witnesses were thus examined as C.W. 1 and C.W. 2 respectively on 21.7.92 and the appellants/complainant were allowed to cross-examine them (page 133-140 of the Print Book). 23. Thereafter, on 26.7.92, the appellants produced their defence evidence and the following persons were examined on oath:- D.W. 1 Shahzada s/o Faiz Aslain D.W. 2. Zarin s/o Juma Khan. 24. The case was then adjourned for recording the statements of the appellants u/S. 340(2) Cr.P.C. However, both of them refused to depose on oath and their statements (page-151), in this respect, were therefore recorded on 30.11.192 by the trial Court which are to the following effect: - "Statement of Mazhar Iqbal son of Fazal Dad, Caste Awan, r/o Dheenda presently Mankarai. Accused. I do riot want to give my satt: on oath. R.O. & A.C. Sd/- 30.11.92 ASJ-I, Hrp. "Statement of Muhammad Siddique s/o Abdul Salam, Caste Awn r/o Dheenda presently Mandarai. Accused. I do not want to give my statt: on oath. R.O. & A.C. Sd/- 30.11.92 ASJ-I, Hrp. ' Mr. Mushtaq Ali Tahir Kheli advocate, learned counsel for the izceZireibed his arguments for two days i.e. on 2.4.1997 and 3.4.1997. Mr Sir-:; Akhtar Khan advocate, learned counsel for the complainant jts^-ei :;• Mr, Muhammad Aslam Khan Tanoli advocate, learned counsel is heard on 4.4.1997. We have gone through the record of the case, with the assistance ;cd counsel for the parties, carefully. Ir. the main reliance has been placed on the direct evidence (eye Munti of complainant, F.C. No. 767, Ahdur Dilawar Shah, process W. 7i. F.C. No. 731, Abdur Rashid, Process Server (P.W. 8) .'.-.th the Court of EAC (I), Haripur, Abdul Salam s/o Nawab Khan, leshi. aged about 34 years (P.W. 9). recoveries i.e. revolver (Ex. P- '2 :":u: empties (Ex: P-3), two missed cartridges (Ex: P-4) and 9 live :-ir:r.i;e5 Ex: P-3), two missed cartridges (Ex. P-4) and 9 live cartridges zjl P-5 Hood stained chhuri (Ex. P-l), blood stained earth and stand (Ex. ?'-'.. Post-mortem report (Ex. P.M) and the confessional statements (Ex. ?"«V ~, 2 ir.d Ex: P.5/5) of the appellants, motive apart. . Let us proceed to discuss these one by one. Ocular evidence is taker. :r in the first instance. 29 There is no denying of the fact that the eye witness account has '- —r: finished by P.W. 7 to P.W. 9 One of them, i.e., Abdul Salam (P.W. 9) i; irimirtedly related to the deceased though distantly (Page-87) of the Print 3::k . Since he is an interested witness, therefore, his evidence would require to be put close and critical analysis. It is now settled principle of law :r.i~ if the statement of such a witness inspire confidence and if no other ir.d-pendeut witness is available even then the Court can rely on the testimony of the "interested witness" produced it is otherwise free from doubt, in case Roshan etc. vs. The State reported as P.L.D. 1977 Supreme Court 551 it was held:- "There is also no universal rule that the evidence of an interested witness must be invariable corroborated by independent evidence. If that were so then why should the court at all take into account the testimony of interested witness. Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, if would result in grave miscarriage of justice to insist upon independent, corrohoration. If that was the rule then the accused have only to destroy the evidence which may be used as corroborating am! get stui.-free regard]ess_of the quantum and quality of the oral evidence provided by the interested witness. It, therefore depends on the facts of each case and instances are not, wanting where, the Surjreme Court has upheld the conviction of the accused__based entirely on the testimony of the "interested" witnesses, 1 30. In another case. .Sharif and another vs. The State, reported as 1973 Supreme Court (M.R.) 83 it was observed by their Lordships of the Supreme Court as urider:- 'Corroboration may be offered by anything in circumstances of the case which tend to satisfy the mind of the court that the witness has spoken the truth." 31. In case, Niaz vs. The State P.L.D. 1960 Supreme Court 387, His Lordship, Mr. Justice Kaikaus had observed:- "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|n fact they saw the occurrence and were in a position to identity the culprits. If there is no reasons to doubt that they in fact witnesses the occurrence and were in a position to identify the offenders, a further question arises as to whether they can be relied upon for convicting the accused In cases where such interested witnesses charge one 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 truejiumber 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." 32. Similarly, in case Shihab Din vs. The State (P.L.D. 1994 Supreme Court 177), His Lordship, Mr. Justice Cornelius, Chief Justice, observed: - "The mere relationship of witness does not necessarily render a witness's account of the occurrence doubtful provided his presence on the spot is proved beyond doubt. In so far as there were injuries on the bodies of two witnesses and the number of persons accused was not out of proportion to nature of their enterprise and the results they produced the witnesses in the circumstances were entitled to be believed." 33. Keeping in mind the above mentioned principle as laid down by the august Supreme Court of Pakistan for appreciating the ocular testimony of the elated/interested witnesses, we find that the occurrence took place at day time (7.30 A.M.). Abdul Salam (P.W. 9) while deposing on oath supported the version of the prosecution case as disclosed in the F.I.R. (Ex. ? A. According to him, on the day of occurrence (13.6.90) he (Abdul Salam ?W. 9' and P.W. Abdul Qayyum (not produced) had accompanied Raja Zafar All deceased' to the Court, where the deceased was to appear in the C:un ;r. the case registered U/S. 307 P.P.C. pending against, him and the accused party. He further stated that when all of them reached the court premises, accused Mazhar Iqbal and accused Muhammad Siddique also reached There. According to P.W. 9, it was accused Mazhar Iqbal who fired :":::: shots at Raja Zafar AH (deceased) with which he was hit whereas a::\ised Muhammad Siddique gave him a chhuri blow on his abdomen; that :.e:.aYise of the firing and the chhuri blow Raja Zafar Ali sustained serious ;r.junes and fell down. That thereafter he was rushed to the Civil Hospital, Haripur. That after receiving first-aid the deceased, then injured, was referred to the D.H.Q. Hospital Abbottabad, P.W. (further stated that while : - his '.vas to Abbottabad, the deceased succumbed to his injuries and breath his last near a place called Shah Maqsood. That, therefore the dead body was brought back to the Civil Hospital, Haripur, This witness categorically stated T hat the motive for the commission of the offence was the criminal case, pending in the Court of EAC I between the accused party and the accused. 34 This witness was thoroughly cross-examined. In is his crossexamination he admitted that he was the maternal aunt's son of one Raja Fir. ez v.'h i was the brother-in-law of the deceased, (deceased's sister was ir.amed to Raja Pervez). He also admitted and, in point of fact, supported his :v.. n version, given in his examination-in-chief, that prior to the occurrence the deceased had injured on Khalid and was therefore, challaned U/S 307 ? PC Ke however refuted the suggestion that he was not present on the 51: --: and had not witnessed the occurrence. He also refuted the suggestion •ha: he was deposing flasely against the accused because of his relationship v.-nh the deceased. He further stated that it was incorrect to suggest that he T.al not accompanied the deceased, then injured, to the Civil Hospital, Hanpur. He also denied the suggestion that he was not present on the spot and that it was at about 12 Noon, on the day of occurrence, that he was summoned by the police for giving false statement. 35. Although this witness (P.W. 9) was subjected to lengthy crossexamination by the learned counsel for the appellant but nothing was brought on record to suggest, even remotely, that he was either planted witness or that he had any motive/enmity to depose against the accused falsely. The testimony of this witness therefore remains unshattered. 36. Next, we take up the eye version account of the complainant, F.C. No. 767 Dilawar Shah Process Server of the Court of EAC-I, Haripur. When examined on oath, as P.W. 7, he narrated the manner, in \vhich the occurrence took place, in detail. He stated that he was present out side the Court of EAC-I Haripur alongwith other Process Server, F.C. 731 Abdur Rashid (P.W. 8), when at about 7.30 A.M. Raja Zafar Ali (deceased) alongwith his two companions came there. All of them stood in front of the said Court. That in the meantime accused Mazhar Iqbal and accused Muhammad Siddique, present in the Court, also arrived there. He further stated that it was Mazhar Iqbal who fired four shots, with .32 bore revolver, at Raja Zafar Ali with which the deceased was hit. That accused Muhammad Siddique in the meantime stabbed the deceased with a chhurri on the left side of his abdomen. That due to the injuries the deceased fell down. He further stated that both the accused then tried to escape from the scene of the occurrence. According to him he over-powered accused Muhammad Siddique on the spot, alongwith blood stained chhuri (Ex. P-l), that accused Mazhar Iqbal ran away from the spot who was then chased by F.C. Abdur Rashid (P.W. 8) and apprehended near the gate of the Court. .32 bore revolver, alongwith 9 live cartridges, was recovered from his personal search, that the revolver contained 4 empties cartridges and two missed cartridges. He further stated that thereafter the police arrived at the scene of occurrence and he (P.W. 7) and Abdur Rashid (P.W. 8) handed over both the accused, alongwith the weapons of offence, to the police party, that the same were taken into possession by the Investigating Officer (P.W. 12). According to him, it was he who then reported the matter to A.S.I. Muhammad Nazir Khan (P.W. 12) on the spot, that his report was reduced into writing in the form of a murasila (Ex. P.A./I) which was read over and explained to him and he after admitting the same to be correct signed the same. He stated that the murasila was also signed by F.C. Abdur Rashid (P.W. 8) in token of its being correct. 37. This witness was subjected to length cross-examination by the learned counsel for the appellant. However nothing was brought on record to show that this witness was either an interested witness or had any enmity with the accused or any other motive to depose falsely against the accused. This witness, in his cross-examination, stated:- "It is correct that my companion Abdur Rashid had hauled up accused Mazhar Iqbal in the gate and other people when accd. Mazhar Iqbal was apprehended by Abdur Rashid. Since I was at the distance of 6 years I did not tiy to stop the accd from firing nor did I prevent Siddique accd from giving chhuri blow. I had kept the blood stained chhuri of Siddique accd with me for 10 to 15 minutes when the police i.e., to say the 1.0. arrived there. I had produced the chhuri to the I.O. in presence of many people who were present at the spot. Similarly, at. the same time Abdur Rashid F.C. produced the revolver and the cartridges to the I.O. in presence of many people who were present at the spot. "It is incorrect to suggest that I never knew the deceased or the accused prior to this occurrence and the entire story was concocted by the local police against Mazhar Iqbal arid the co-accused on account of previous strained relations of the police with the accused ................................................................................................ It is incorrect to suggest that none of the accd was present in the Court premisses but they were summoned from their houses in the P.P. where they were arrested. (The entire s \iggestion is incorrect). I do not know the names of all the persons when attend the Court daily in connection with their cases. It is incorrect to suggest that I was not present in the Court premises on the day of occurrence nor Abdur Rashid constable was present there at, that time. (The entire suggestion is incorrect). It is incorrect to suggest that since no disinterested person supports the prosecution version so we all the police men have been cited witnesses in the present court. (The entire suggestion is incorrect)." 3 ; . From the perusal of the cross-examination of this witness it has become crystal clear that .. W. 7 (complainant) had no enmity whatsoever -.'.in: -he accused for charging them falsely for killing Raja Zafar Ali ieceised In the circumstances it can be safely concluded that this witness ;j i Truthful witness and that his testimony can be relied upon. •In. F.C. Abdur Rashid, Process Server attached with the Court of E AC. '•!> Haripur was examined on oath as P.W. 8. In his examination-inchirf he supported, in toto, the prosecution version as contained in the F.I.R. He also corroborated the statement of the other two eye witnesses i.e., P.W. 7 and P.W. 9. This witness stated that he was present in the Court premises jr. the day of occurrence alongwrth Dilawar Shah F.C. (P.W. 7) when Raja Zafar Ali 'deceased) came there alongwith his two companions; that Thereafter accused Mazhar Iqbal alongwith accused Muhammad Siddique arrived there; that within his presence and sight accused Mazhar Iqbal effectively fired 4 shots at Raja Zafar Ali (deceased); that accused Muhammad Siddique gave the deceased a churri blow on the left side of his abdomen: that because of the said injuries Raja Zafar Ali fell down. According to this witness both the accused after committing the offence tried to decamp from the spot. However, accused Muhammad Siddique was apprehended by F.C. Dilawar Shah (P.W. 7) alongwith blood stained chhuri. Since Mazhar Iqbal accused had ran away from the spot, therefore, he was followed and apprehended by him (P.W. 8) near the main gate of the kutchcri. The witness further stated that he recovered .32 bore revolver from him which contained 4 empties and 2 missed cartridges. He further stated that the personal search of the accused Mazhar Iqbal led to the recovery of 9 live cartridges from his possession. According to him, on the arrival of A.S.I. Muhammad Nazir Khan (P.W. 12) he handed over the accused to him alongwith .32 bore revolver (Ex. P-2), 4 empties (Ex. P-3), two missed cartridges (Ex. P-4), 9 live cartridges (Ex. P-5). He corroborated the statement of P.W. 7 and stated that he (P.W. 7) handed over accused Muhammad Siddique, alongwith blood stained chhuri, to A.S.I. Muhammad Nazir Khan A.S.I. (P.W. 12) who took the same in his possession and sealed the same into a parcel. He further stated that Dilawar Shah (P.W. 7) then narrated the incident to A.S.I. (P.W. 12) who reduced his report into writing in the form of a murasila (Ex. P.A./l) and that the same was also signed by him in token of its being correct. According to him, the site-plan (Ex. PB), during the spot inspection, was prepared by the Investigating Officer on his and Dilawar Shah's pointation. He stated that his statement was also recorded by the Investigating Officer U/S. 161 Cr.P.C. 40. P.W. 8 was cross-examined thoroughly by the learned counsel for the appellant. At the out-set P.W. 8 stated that he had produced the record of his duty/presence within the court premises before the Investigating Officer. He also stated:- "I had apprehended Mazhar Iqbal accd in the Main Gate of the Kutcheri premises in the presence of large number of people. I had not prepared any recovery memo of the revolver, and the cartridges mentioned in my examinationin-chief after their recovery from the accd. It is correct that I had recovered the revolver and the cartridges from the accd Mazhar Iqbal in the presence of disinterested persons who were present in the Main Gate." 41. According to this witness, Muhammad Nazir Khan ASI (P.W. 12) had reached the spot 10/15 minutes after of the occurrence and that he (P.W. 8) had produced the revolver and the cartridges before the Investigating Officer. He admitted that before the arrival of the ASI the injured was removed from the spot. He also admitted that till 11.00 A.M. the ASI had not prepared the site-plan and that on the arrival of the SHO, the SHO had himself prepared the site-plan on their (P.W. 7 & P.W. 8) pointation. He refuted the suggestion that the report was not lodged on the spot and that the same was lodged in the PP City, Haripur. He also refuted the suggestion that the report was lodged after deliberation and consultation between the police official at 10 A.M. He stated:- It is incorrect to suggest that since no independent person, present on the spot at the time of occurrence, was going to support the false version of the prosecution so the I,O. and the SHO made the present case as policemen show and involved the present accused on account of previous ill-will." 42. A perusal of the entire cross-examination of this witness would reveal that he was quite consistent on all most all the material points. He not only corroborated the version of the complainant (P.W. 7) but also corroborated the other eye witness, Abdul Salam (P.W. 9). In fact he supported P.W. 7 and P.W. 9 on almost all the material points. Besides, it may be noted, that nothing could be brought on record to show that this witness had either any enmity with the accused or any ill-will implicate them in the present case falsely. Similarly the defence miserably failed to bring on record any evidence to show th t this itness had any motive to depose on oath against the accused appellant falsely. No reason exists and none indeed has been made out as to why the testimony of this disinterested/independent witness be discarded. 43. Muhammad Banaras, Traffic Head Constable Abbottabad (P.W. 4). while in the witness box, confirmed that F.C. Dilawar Shah (P.W. 7) had produced accused Muhammad Siddique, alongwith blood stained churri (Ex. P-l) to the Investigating Officer. He further stated that accused Mazar Iqbal was produced by F.C. Abdur Rashid (P.W. 8) before the Investigating Officer alongwith .32 bore revolver (Ex. P-2) containing 4 empties (Ex. P-3), two missed cartridges (Ex. P-4) and 9 live cartridges (Ex. P-5); that the Investigating Officer took the same in his possession Vide: Recovery memo: Ex. P.W. 4/1. He further stated that the said covery Memo: was duly signed by him as its marginal witness. According to him, he had also signed Recovery Memo: Ex. P.W. 4/2 as a marginal witness, Vide: which the Investigating Officer took into his possession the deceased's blood stained shirt (Ex. P-6), Shalwar (Ex. P-7), having corresponding cut marks, and the phial containing bullet led (Ex. P-8), produced before him by F.C. Abdul Latif (P.W. 6) and sent by the doctor. 44. When cross-examined this witness stated that the recoveries, Ex. P-l to Ex. P-5, were produced by the two F.Cs., in the Court premises at 7.45 A.M. whereas articles, Ex. P-6 to Ex. P-8, were produced before the Investigating Officer at about 10.30 or 10.45 A.M. He further stated that at that time Advocates including litigants were present on the spot. According to him, the Investigating Officer, had given him the murasila (Ex. P.A./1) for delivering the same at the Police Station. That he took the murasila to the Police Station where, on its basis, F.I.R. (Ex. P.A.) was duly registered. He further stated that after the registration of the case he brought a copy of the said F.I.R. to the spot at 10/10-15 A.M. He however, admitted that nothing was recovered from the accused in his presence but refuted the suggestion that he, being a Police Official, was falsely deposing against the accused. He also refuted the suggestion that Memo: Ex. P.W. 4/1 and Ex. P.W. 4/2 were prepared in the Police Post and that he had signed these documents there. 45. A.S.I. Muhammad Ilyas Khan was examined as P.W. 3. He stated that on the receipt of Murasila (Ex. P.A./l) he correctly incorporated its contents in the F.I.R. (Ex. P.A.). According to him the F.I.R. was correct and was duly signed by him. He further stated that after the registration of the case he sent a copy of the F.I.R. to the Investigating Officer for the investigation of the case. 46. Muhammad Saleem s/o Abdul Aziz, caste Turak aged about 50 years deposed on oath as P.W. 2. He stated that he was the marginal witness to Recoveiy Memo: Ex. 2/1 vide; which the Investigating Officer had taken in his possession the blood stained earth and sand from the spot who then sealed the same in a parcel. 47. Raja Pervez s/o Raja Khan Bahadur caste Turak, aged about 37 years appeared as P.W. 1. He had identified the dead body of the deceased in the Hospital at the time of Post-mortem examination. 48. The blood stained knife, blood stained earth, blood stained sand and blood stained shirt/S/?a/f{w of the deceased were sent to the Chemical Examiner/Serologist who opined:- "Chemical and Serological examination of the suspected blood stains on the articles contained in the above mentioned parcel revealed that IT WAS HUMAN BLOOD AND OF THE SAME GROUP." 49. Similarly four .32 bore crime empties marked Cl to C4, two .32 bore missed cartridges marked Ml and M2, one .32 bore revolver and one crime bullet marked B. were sent to the Fire-arm Expert for examination. His report is in the positive and is reproduced for the sake of convenience: - "Microscopic Examination of the case has revealed as under:- (1) The four crime empties of .32 bore WERE FIRED from the .32 bore revolver in question in view of the following major points that is striker pin marks and breach face marks etc. are similar. (2) On .32 bore crime bullet marked B WAS FIRE from the .32 bore revolver in question in view of the following major points that is number of land grooves and striation marked etc. are similar; (3) The two .32 bore miss cartridges marked Ml and M2 lack sufficient identificable data for examination and comparison hence NO OPINION can be expressed as to whether or not they were missed from .32 bore revolver in question." 50. Muhammad Naseem Khan M.I.C. Haripur empowered U/S 30 Cr.P.C. deposed as P.W. 5. It was he who had recorded the confessional statements of accused Mazar Iqbal (Ex. P.W. 5/2) and accused Muhammad Siddique (Ex. P.W. 5/5) after observing all the legal formalities 51. The Magistrate was subjected to length cross-examination by i lie learned counsel for the accused. In his cross-examination he refuted the suggestion that both the accused were produced before him at the same rime. He stated that he was the Illaqa Magistrate of the area where the occurrence hand taken place. He refuted the suggestion that after hearing the report of fire-shorts he had gone to the scene of occurrence alongwith other Magistrate/Advocates. According to him he remained in side his Court Room and did not leave it. The Magistrate 1st Class further stated that when jhe accused were produced before him for recording their confessional statements, he fully know that they (accused) had remained in police custody for about 24 hours, that he knew about this fact because he was the Illaqa Magistrate. He stated that no signs of violence were present on the accused. He however admitted that he had not mentioned anywhere in the questioneer that he had personally checked the persons of the accused. He admitted that he had not mentioned, while recording the confessional statements, that the accused were given "three warnings" before their confessional statements were recorded. He also admitted that he had not enquired from the accused if they were given oath for becoming approver. He further admitted that the weapons of offence were not produced before him by the police at the time of recording the confessional statements of both the accused. 52. He stated that:- "It is incorrect to suggest that I copied out the statements of the accused recorded in police files and it is also incorrect to suggest that the statements of both the accused appears to be parrot like narration and is similar with the police statement." 53. The Magistrate further stated that after he had recorded the confessional statements of the two accused, he handed them over to the Judicial Guard. It may be pointed out that the learned counsel for the accused patently failed to bring on record anything which might have E persuaded us to "believe that the Magistrate \£. Class was ntfi a \TO\ftnri ^ witness and that therefore his testimony did not inspire confidence. 54. Dr. Noor Wahab Shah, Medical Officer/Incharge Civil Hospital, Haripur (P.W. 11) had in the first instance, examined the deceased (then injured) on 13.6.90 and found him to be unconscious, restless and in shock. After giving him emergency treatment the doctor sent him (deceased) to the D.H.Q. Hospital, Abbottabad. 55. On the same day, after the death of the deceased his post­ mortem examination was conducted by the said doctor at 10 A.M. He found the following on:- EXTERNAL EXAMINATION: 1. Firearm entrances wound 1/3" x 1/3" on the right side of the chest in the middle. Charring marks were present. 2. Stab wound on the left side of hypochondrium 2" x 1/2" entering the plureal cavity, Omentum was seen protruding out of the wound. 3. Firearm entrances wound on the left side of neck 1/3" x 1/3". Charring marks present. 4. Firearm exit wound on the back of right side neck 1/2" x 1/2" and continuous with injury No. 3. 5. Firearm entrances plus Exit wound which considers each other on the left side of head 2" x l/%" underlying bone was found fracture and brain was injured. Charring marks present. 6 Firearm grazing wound on the palm of right hand 1% x %" x 1/3". INTERNAL EXAMINATION Abdominal wall, peritonium, disphram left side injured, small instestine, large intestine, and splene are also injured. Stomach was found in act and full of semidigested goods. Scalpe and partial bone of the skull on the left side were found fracture. Membran and rain were injured Pleura (right side) chest wall on the right • side were injured. Trachea right lung were also injured. Caroted and mesenteric blood vessels were also injured. 56. In the opinion of the doctor the death was the result of shock and haemorrhage due to fracture of the skull and injuries to the brain, lung, spleen, and intestines by fire-arm and sharp edged weapon. Probable time that elapsed between injury and death was about 1% hour and death and P.M. about one hour. 57. Although the doctor was cross-examined at length and most of his cross-examination consists of question and answers, nothing was brought ~ to record to suggest that he was not a truthful witness or that he had not conducted the post-mortem examination properly. In the circumstances his testimony stands unshettared and cannot be brushed aside. 58. A.S.I. Muhammad Nazir Khan (P.W. 12), who had mainly investigated the present case, stated on oath that on 13.6.90 he was on patrol duty when he learnt about the occurrence. Accordingly he rushed to the spot. He stated that F.C. Dilawar Shah (P.W. 7) and F.C. Abdur Rashid (P.W. 8) met him in the Court premises; that the matter was reported to him by Dilawar Shah (P.W. 7); that he scribed the murasila (Ex. P.A/1) which duly signed by Dilawar Shah (P.W. 7). Additionally it was signed by F.C. Abdur Rashid (P.W. 8). He further stated that at the time of lodging the report F.C. Dilawar Shah (P.W. 7) produced blood stained churri (Ex. P-l) whereas F.C. Abdur Rashid (P.W. 8) produced .32 bore revolver (Ex. P-2), tour empties i£x. P-3>. two missed empties (Ex. P-4) and nine live cartridges Ex. P-5 i before him. that he took the same into possession Vide: Recovery Memo: 'Ex. P.W. 4/l> in the presence of its marginal witnesses. He stated " that after arresting both the accused he sent the murasila to the Police Station for the registration of the case; that he then left for the Hospital •.vhere he prepared the injury-sheet (Ex; PM/1) and the inquest report (Ex. j PM 2> of the deceased. He further stated that initially the murasila was drafted U, S. 307/34 P.P.C. read with 13 A.O. but later the offence was changed Vide: his application (Ex. P.W. 12/1) because the injured and expired. He also stated that he prepared the sketch of revolver and churri on he back side of Recovery Memo: (Ex. PW 4/1). According to him when S.H.O. Fareed Khan (P.W. 10) arrived at the scene of occurrence he handed over the remaining investigation to him. He further stated that on 14.6.90, -he S.H.O. handed over both the accused to him for getting their confessional statements recorded. 59. This witness was thoroughly cross-examined (page 110 to 125 of the Print Book) but nothing was brought on record to show that he had any motive or enmity with the accused for concocting a false case against them. Besides, nothing was brought on record to show that he had investigated the case dishonestly. His testimony, in the circumstances, remains unshattered and is fully supported/corroborated in substance by the other P.Ws. The contention of the learned counsel for the defence that this witness had investigated the case dishonestly is without any force and is accordingly repelled. 60. S.H.O. Muhammad Fareed Khan, who had partly investigated he case, appeared as P.W. 10. He stated that on the eventful day he was on atrol duty in Haripur City when he was informed about the occurrence that n receipt of said Information he straight-away went to the Court premises where the occurrence had taken place. According to him, during the court of investigation, he took into his possession blood stained earth and blood stained sand (Ex. PW 2/1) from the scene of occurrence and sealed the same into a parcel. He further stated that on the pointation of P.Ws. he prepared the site-plan (Ex. PB) with all its foot notes etc. correctly. According to him, F.C. Abdul La'if (P.W. 6) had handed over the blood stained shirt (Ex. P-6), blood stained Shalwar (Ex. P-7) of the deceased having corresponding cut marks and a phial containing bullet led (Ex. P-8) to him, sent by the doctor and that he took all these articles into his possession Vide: Recovery Memo: Ex. P.W. 4/2. He stated that later on, these articles were sent for chemical analysis/blood grouping Vide: his application Ex. PW 10/1. He further stated that the Chemical Examiner's report (Ex. P.W. 10/2) was received by him in respect of the said items which was in the positive. He further stated that he had recorded the statements of the accused U/S. 161 Cr.P.C., that most of the investigation in the case, was carried out by A.S.I. Muhammad Aziz Khan (P.W. 12) and that after the completion of the investigation, he had submitted complete Challan against the accused for trial. 61. It may be noted that this witness was also cross-examined at length (page 90 to 107). However, the defence failed to bring anything n record to show, even remotely, that this witness had some ulterior motive or ill-will towards the accused as a result of which he was prompted to involve them in the case falsely. Similarly there is nothing on the record to establish that the S.H.O. hand investigated the case dishonestly. We are, therefore, of the view that the testimony of this witness inspires confidence and can be A relied upon safely especially when the same is in line with the unshattered testimony of the rest of the P.Ws. 62. After having gone through the evidence prod ced by the prosecution, in minute details, we are of the considered view that the proseciition has proved its case against the appellant-accused beyond reasonable doubt. 63. On the other hand, the accused produced evidence in their defence and tried their level best, to make out a new case i.e., that it was the deceased who had tried to kill them with a pistol; that in order to save their skin the accused-appellants had grappled with him and that in the process, the deceased was killed with his own pistol. In support of their contention they produced the following witnesses:- D.W. 1 Shahzada s/o Faiz Aslam. D.W. 2 Zarin s/o Juma Khan. 63-A. It would be sufficient to say that the D.Ws. do not seem to be truthful witness in the circumstances of this case. Firstly, because if they had seen the occurrence, as alleged by them, then they should have been produced by the appellants before the Investigating Officer during the course of investigation. Secondly, the conduct of both the D.Ws., immediately after the occurrence, seems to us to be most un-natural. Shahzada (D.W. 1) in his examination-in-chief stated that during the grappling between accused Mazhar Iqbal and Raja Zafar Ali (deceased), the pistol kept on discharging and as a result of which Raja Zafar Ali was hit and fell down and that thereafter both the accused decamped from the scene of occurrence. He further stated that Raja Zafar Ali was then taken by some persons, present in the Court premises, to the Hospital and that those persons had also taken away the pistol with them. According to him, after staying for about 1/10 minutes on the spot he went away to his house. 64. To the same effect is the statement, of Zarin (D.W. 2). The relevant portion of his examination-in-chief, in this respect, is produced as under:- "... In the mean time, scuffle started between Raja Zafar on one side Mazhar and Siddique on the other. Mazhar was trvine to snatch the pistol from Zafar while Siddique had held him from the back. During the scuffle pistol kept discharging and Raja Zafar fell down. On this Mazhar and Siddique] decamped from the spot. The public present in the Court premises took Raja Zafar to the Hospital. They had also taken away the pistol. I stayed there for about 5/10 minutes and sent away to my house." 65. Both the D.Ws., in their cross-examination, stated that they had met one Gul brother of accused Muhammad Siddique and had informed him ~.:\n' they had seen the occurrence. They further stated that they were icpearmg as D.Ws. as requested by Gul in the interest of justice. 66. We fail to understand as to what had prevented the said D.Ws. from appearing before the Investigating Officer during the course of investigation, which took quite some time. No explanation whatsoever is fnnh-coniing in this respect. Accordingly we have no hesitation to hold that the D.Ws are compulsive liars and their testimony hardly inspires confidence. The same is accordingly discarded. 67. Similarly in their statements, recorded U/S 342 Cr.P.C., both the accused alleged that Raja Zafar Ali (deceased) was killed with his own firing. We are afraid that this is not true. Firstly, because the accused did not cross-examine the P.Ws.; especially the eye witnesses (P.W. 7 and P.W. 9), on this score and secondly no sane person would believe the stoiy advanced by the accused that the deceased during the grappling with the appellants, had kept on firing and resultantly injured himself as a consequence thereof he was killed. The nature of injures, mentioned in the Post-mortem report, totally belie this fact. The assertion of the appellant is accordingly discarded being fanciful and untrue. 68. In the circumstances and in view of what, has been discussed above we hold that the appellant was rightly convicted/sentenced by the trial Court. This appeal is without any substance and is accordingly dismissed. 69. Since one of the appellants who had effectively fired at the deceased with the pistol and who was sentenced to death, has already expired in the Death Cell, and the appellant who was charged only for giving churri blow to the deceased, we feel that the sentence of life imprisonment awarded to him meets the ends of justice and it would not be appropriate to enhance his sentence to Death. The Criminal Revision is therefore, dismissed. 'K.K.F.) Appeal dismissed.

PLJ 1988 Cr PLJ 1988 Cr.C. ( Lahore ) 752 Present: DR. khalid RANJHA, J. MUHAMMAD ARSHAD-Petitioner versus STATE-Respondent Crl. Misc. No. 6269-B/97, accepted on 12.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- ..._S. 497-Bail-Grant of-Prayer for-Offence U/S. 302/148/149 PPC-Two opposing factions are being accused for death of deceased—Two version, in fact, mutually exclude each other-More-over FIR lodged at the instance of father of deceased does not explain injuries suffered by petitioner-All accused belonging to complainant party are on bail-Under the doctrine of consistency, petitioner is admitted to bail-Bail granted. [P. 755] A & B Hafiz Abdul Rehman Ansari, Advocate for Petitioner. Ms. Tasnim Arnin, Advocate for the State. Mr. Iqbal Mahmood Awan, for Complainant. Date of hearing: 12.3.1998. order Muhammad Arshad, petitioner, seeks post-arrest bail in case registered on 19.11.1996 vide FIR No. 441/96 at Police Station, Saddar Mandi Bahauddin under section 302/148/149 PPC on the statement made by Col. (Retd.) Muhammad Sadiq. 2. According to this FIR, Muhammad Arshad and his father Bati together with Iftikhar and his father Inayat as well as Muhammad Aslam all armed with 12 bore guns accompanied also by Sikandar armed with a sola came to the plot of land which the complainant had purchased from Mst. Rasoolan Bibi. They first of all threw away the boundary wall bricks of the plot and thereafter started ploughing the same. Complainant's son Muhammad Abdullah Sadiq alongwith Allah Yar and Sarwar came there to restrain Arshad-petitioner and another from illegally ploughing their land. This resulted in an altercation between Muhammad Abdullah Sadiq on one hand and the aforesaid accused on the other. Allah Yar and Sarwar tried to intervene, at which Muhammad Arshad-petitioner, son of Bati fired with his 12 bore gun hitting Muhammad Abdullah Sadiq at the stomach. The second fire was shot by Bati which also hit Muhammad Abdullah Sadiq at the stomach. He fell down after receipt of the fire-arm injuries. Thereafter, Asiam gave a Butt blow to Allah Yar on the head and Sikander gave a Dang blow to Sanvar on his hand. Thereafter they all ran away. The motive behind this occurrence disclosed in the FIR was that the complainant had purchased the share of land of Mst. Rasoolan Bibi which was jointly owned with the accused. He got this area demarcated by a brick wall. The accused were unhappy about this and on that account they had launched an assault resulting in death of Muhammad Abdullah Sadiq and injuries to Allah Yar and Sanvar. 3. In the course of investigation, it. transpired that Muhammad Arshad-petitioner. and Muhammad Inayat were also injured. They had received injuries both by fire arms and blunt weapons, but had not been explained by the first informant or the witnesses produced by him in support of his version set out in the first information report. 4. The Investigating Officer recorded the statement of Muhammad Arshad (petitioner). While giving his side the stoiy (Muhammad Arshad petitioner) stated that his father Bati owned 4 kanals and one marla of land jointly with Mst. Rasoolan Bibi daughter of Gaman. Her entitlement was only 10 marias. Allah Yar son of Ghulam Qadir had deceitfully got the same transferred to himself. Mst. Rasulan Bibi feeling aggrieved filed a civil suit against said Allah Yar. It was further stated by him that on the day of occurrence, he along with his father Bati and his paternal uncle Inayat went to plough their above plot of land when Allah Yar son of Ghulam Qadir and Muhammad Abdullah Sadiq 'deceased) armed with guns while Sanvar Aurangzeb, Anar, Qadir, Javed and Munawar all armed with sotas came there and started to beat them. Muhammad Inayat was given a sola blow on the neck of Sarwar while Aurangzeb gave him a sota blow but he wielded off the same with the barrel of his gun. As a result of which his gun was broken. He and Inayat started grappling with Abdullah Sadiq. Allah Yar grabbed the gun from Abdullah Sadiq and fired at them. The pellets hit him as well as Muhammad Inayat and Abdullah Sadiq. In the meantime, Muhammad Aslam. his uncle, gave a sota blow on the head of Allah Yar and the gun fell down from his hand. According to Arshad (petitioner), it was as a result of the fire shot of Allah Yar that Abdullah Sadiq had been killed. On the above statement of Muhammad Arshad (petitioner,), a cross case was set up and investigated as if it was an independent FIR. This version of the petitioner stood the motions of investigation and finally a challan was submitted in terms of the above statement on 6.6.1997, in the Court of Judicial Magistrate. Charge against all the eight accused has since been framed. In this case the learned Addl. Sessions Judge granted bail before arrest to seven of the accused referred to above. Allah Yar, who was assigned the role of having fired the shot, causing injuries to Arshad (petitioner), Inayat and the deceased-Abdullah Sadiq. He was however, latter granted bail after arrest in November, 1997. 5. The accused arraigned in the FIR lodged at the instance of Col. (Retd.) Muhammad Sadiq were also challaned in terms of the allegations levelled in the said FIR. The same is pending in the Court of learned Addl. Sessions Judge, Gujrat. As both the sides are accusing each other for the murder of Abdullah Sadiq, the learned Addl. Sessions Judge has ordered for the transfer of the challan submitted on the report of the petitioner from the Court of Judicial Magistrate to be tried along with the challan case based on the FIR lodged by Col. (Retd.) Muhammad Sadiq. 6. The learned counsel canvassing for the bail of Arshad (petitioner), submits that the role assigned to him is the same as that to Bati, who has been granted bail by this Court already on the ground that there is only one fire arm injury on the person of Abdul Sadiq and the same has been attributed to the petitioner as well as his father Bati. At the trial only, would it be determined as to who amongst the two were liable for this injury. It was as such the matter of further inquiiy qua both the petitioner and his father- Bati. As Bati has been already granted bail by this Court, the petitioner is also entitled to bail on the principle of consistency. He relies on Abdul Salam . The State (1980 SCMR 142), Muhammad Naseem alias Naseemo u. The State (1996 P.Cr.L.J. 1302) and Muhammad Ashraf v. The State 1997 MLD Karachi 2725) to argue that the principle of consistency is well entrenched in our Corpas Juris. In the alternatively, he has been submitted on behalf of the petitioner that as his injuries as well as those on the person of Muhammad Inayat have suppressed by the prosecution be-speaks for the fact that the complainant party was the aggressor and eight persons of the complainant party have been duly challaned by the police and charged by the trial Court. 7. It is further argued that the learned Addl. Sessions Judge has ordered both the challans to be tried together, obviously to resolve as to whether the petitioner, or Bati or for that matter Allah Yar was responsible for the solitary fire arm injury suffered by Abdullah Sadiq (deceased). Allah Yar, who had alleged to have fired a shot resulting in the fire-arm injuries to the petitioner, his uncle Inayat and the deceased, was released on bail by the learned Addl. Sessions Judge in November, 1997. It is urged that the law equires that, parity inter se the parties ought to be maintained in the matter of grant of refusal of bail. According to Col. Muhammad Sadiq, Abdullah Sadiq was hit by the fire-shot of the petitioner and Batti his father whereas jrding to the case registered at the behest of the petitioner, it was the fire ih :t of Allah Yar which resulted in injury to him, Inayat and Abdullah Sadiq ::eceasedi. The learned trial Court is seized of both the versions and it is in he event of trial Court that it would be determined as to whether, it was Allah Yar, who fired shot or it was the petitioner or his father Bati, who had hit Abdullah Sadiq (deceased). Both Allah Yar and Batti were on bail. Applying the principle of parity, it would be equitable to gram; the concession jf bail to the petitioner. 8. The learned counsel for the complainant, on the other hand, lacing reliance on Abdul Hayee and 2 others u. The State (1996 SCMR 555) submits that this is no stage for deeper appreciation of evidence and determining the role of the accused in relation to the medical evidence. He fiuther relied on Jazib Khan and 3 others i>. The State (1996 MLD 166) wherein it was held that where both the parties were armed with fire-arms and sharp-edged weapons which were freely and extensively used by them resulting in the death of one person and injuring three persons from one side and five persons from the other side, it was not advisable to determine as to which party had aggressed. In this case, however, both the parties were refused bail. 9. In the case in hand, however, the view in Jazib Khan's case < supra) cannot be applied because all the eight, persons arraigned as accused by the petitioner have already been granted bail by the trial Court. Two pposing factions are being accused for the death of Abdullah Sadiq. The two versions, in fact, mutually exclude each other. More-over the FIR lodged at the instance of father of Abdullah Sadiq (deceased) does not explain injuries suffered by the petitioner and Muhammad Inayat which incidently happened to be both by fire-arm and by blunt, weapon. All the accused belonging to the complainant party are on bail. 10. Considering all the above-referred circumstances and also to maintain parity inter se the parties as well as giving the petitioner benefit of the doctrine of consistency, he is admitted to bail provided he furnishes bail bond in the sum of Rs. 2,00,000/- (rupees two lac) with two sureties in the like amount to the satisfaction of the trial Court. None of the observations made above would prejudice the case of either party during the trial which should be held expeditiously as required under Chapter 24-B of the Rules and Orders of the Lahore High Court. iK.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 756 Prese.nt: SARDAR jawaid nawaz gandapur, J. MUHAMMAD KHALID-Appellant versus STATE-Respondent Crl. Appeal No. 47 of 1997, accepted on 17.12.1997. Prohibition (Enforcement of Hadd) Order, 1979- —Art 3/4—Heroin—Recovery of—Conviction for—Challenge to—Persons from public being available and present, were not even called upon to become recovery witnesses, therefore, mandatory provisions of Section 103 Cr.P.C. were definitely violated-Allegation of appellant that Investigating Officer was on inimical terms with him and his family and had falsely implicating him fully established from cross-examination—A.S.I, is himself a complainant and has also acted as an Investigation Officer-This fact by itself, has rendered very trial of case a sheer mockery-Appellant was tortured brutely by complainant A.S.I, is fully established by statement of Doctor—Held: Prosecution evidence produced is discarded and appeal is accepted-Conviction and sentence awarded is set aside. [Pp. 760, 761 & 762] A to E Mr. Azmat Ullah Malik, Advocate for Appellant. Mr. Ghulam Mohyuddin, Advocate for State. Date of hearing: 17.12.1998. judgment The prosecution stoiy as reflected from the F.I.R. (Ex. P.A), in brief, is that on 26.3.1996 complainant A.S.I. Ghazanfar Khan (PW 4), alongwith I.H.C. Aurangzeb (PW 3), L.H.C. Akhtar Hussain and F.C. Ahmed Nawaz were on the 'gasht' of the Ilaqa, when in the meantime they came across the appellant. On seeing the police party the appellant tried to run away. However, the police party over-powered him. When searched by I.H.C. Aurangzeb (PW 3) heroin powder, wrapped in an envelope, was recovered from his side pocket. The same was weighed. It was found to be 25 grams. Since the appellant, could not show that he was in lawful possession of the same, therefore, he was arrested. 2. The heroin powder in question was taken into his possession by A.S.I. Ghazanfar Khan (PW 4) vide recovery memo: (Ex. PW 3/1) in the presence of its marginal witnesses i.e., I.H.C. Aurangzeb (PW 3) and L.H.C. Akhtar Hussain (not prodiiced). Heroine powder weighing one gram was separated and sent to Forensic Science Laboratoiy, Peshawar for chemical examination whereas the remaining 24 grams was sealed in an envelope. 3. Thereafter the A.S.I., Ghazanfar Khan (PW 4) scribed murasila Ex. P.W. 4/D-2 and sent the same through F.C. Muhammad Nawaz (not vnducedi. to Police Station Khanpur where, on its basis, F.I.R. No. 90 (Ex. ?A i was registered U/A 3/4 Prohibition (Enforcement of Hadd) Order, 1979 ieainst the appellant. 4. After the completion of the usual police investigation charge sheet U S. 173 Cr.P.C. was submitted against the appellant by the local police in the court of Ilaqa Magistrate under Articles 3/4 of the Prohibition Order, 1979. The Magistrate, in turn, forwarded the same for trial to the Sessions Judge U/S. 190(3) Cr.P.C. 5. The prosecution, in order to establish its case, produced as many as five witnesses, all police officials. 6. In addition to his statement recorded U/S. 342 Cr.P.C., the ppellant was also examined U/S. 340(2) Cr.P.C. on oath as his own witness. In his statement he refuted the charges levelled against him and attacked the validity of the statements of all the P.Ws. on the grounds that, all of them, being police officials, were interested witnesses and could not be relied upon afely in the absence of any other independent/distinterested witnesses. The alleged recovery of heroin powder effected from the possession of the appellant by the Investigating Officer was denied in toto. He specifically alleged that there was previous enmity/ill between him/his family and complainant A.S.I. Ghazanfar Khan (PW 4) and that therefore, the complainant had involved him in this case falsely and with ulterior motive. 7. Appellant Khalid Mahmood was tried by the Additional Sessions Judge. Haripur (Mr. Anwar Hussain). After the conclusion of the trial the Additional Sessions Judge found him guilty and by his judgement, recorded on 22.9.1997, convicted and sentenced him to undergo two years R.I. and to pay a fine of Rs. 500/-or in default thereof to undergo further R.I. for 15 clays. 8. Feeling aggrieved the appellant has challenged his conviction and sentence by way of this appeal. 9. I have heard Mr. Azmatullah Malik, Advocate, learned counsel fo the appellant and Mr. Ghulam Mohy-ud-Din, Advocate, learned counsel for the State and have also gone through the record of the case with some degree of care. 10. It is now well- proposition of law that in criminal cases the burden of proving its case rests on the prosecution which is duty bound to prove its case, against the accused, beyond reasonable doubt. This duty, it ay be mentioned, does not, change or vary even in a case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxta-position with the prosecution case and, in the final analysis, if defence plea is proved or accepted then the prosecution case would stand discredited/shattered. However, if the defence plea is substantiated to the extent of creating doubt in the creditability of the prosecution case, then in the case too, it would be enough. It may be noted that in case it is not. established, at all. no benefit would accrue to the prosecution on that account and its duty to prove its case beyond doubt would not be diminished even if the defence plea is not proved or is found to be palpably false. Reliance may be placed on case titled Ashiq Hussain vs. The State, reported as 1993 Supreme Court (Monthly Review) 147 wherein it was held:- "(c) S. 302-Defence Plea-Defence plea is to be considered in juxtaposition with prosecution case and in the final analysis if defence plea is proved or accepted then prosecution case would stand shattered and discredited-If defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case that would be enough but in case it is not established no benefit accrues to the prosecution on that account and its duty to prove the case beyond doubt would not be diminished even if defence plea is not proved or is found to be palpably false." 11. Similarly, it was held, in case titled Hakim Ali and 4 others vs. he State reported as 1971 Supreme Court, (Monthly Review) 432 that in riminal trials the onus always lies on the prosecution to prove its case and he prosecution has to succeed upon the strength of its own case and not on he weakness of the defence. 12. Keeping in view the dictum as laid down by the Honourable Supreme Court of Pakistan in the cases, referred to above, I would ow discuss the evidence produced by the prosecution in support of its case. 13. At the outset, the learned counsel for the appellant stated that the case in hand was concocted and the version given in the F.I.R. (Ex. PA) \ was absolutely incorrect and false. He further stated that A.S.I. Ghazanfar Khan (P.W. 4) has suppressed the facts because nothing was recovered from the possession of the appellant as has been depicted by him. He further contended that it was for the reason that no body from the public was associated with the recovery process although quite a few persons were present on the spot when the recovery of contraband heroin powder was allegedly effected from the possession of the appellant. 14. T'he learned counsel further submitted that the perusal of the recover memo: (F:>. P.W. 2/1) would show that it is absolutely silent as to when, where a..d at what time the recovery was allegedly effected. In the above back ground the veracity of the recovery memo (Ex. P.W. /1) was questioned vehemently. 15. Besides, the learned counsel contended that it is now well settled principle of law that if the law provided that an act should be done in a particular manner, then in that case, it shall be done in that manner and not in any other way. In support of his contention he placed reliance on the following case law:- 1. 1996 P.Cr.L.J. 514 Ghulam Hussain and others vs. The State "(f) Where the law provides a particular manner then that thing should be done in the prescribed manner and not in any other way." 2. 1985 P.Cr.L.J. 1985, Muhammad Rafiq vs. The State. "(c) Ss. 342 & 364-Trial Court failing to comply with provisions of S. 364 Cr.P.C. and affixing stamp of certificate instead of writing such certificate in his hand-Held, where law provides a procedure for doing a thing in a particular method, that thing should be done in prescribed manner and in no other way or it should not be done at all." 16. According to the learned counsel for the appellant the A.S.I. Ghazanfar Khan (P.W. 4), the head of the police patrolling party, failed to associate even one independent witness from the public with the arrest of the appellant and the recovery of heroin powder from his possession even though the alleged incident, took place near grave-yard of Tofkian. This fact alone would render the prosecution case highly doubtful and would support the claim of the appellant that the case against him was concocted. Further it has not been made clear by the prosecution as to what prevented the Investigating Officer (P.W. 4) from associating anybody, from the public, to witness the recovery of heroin powder from the possession of the appellant. In fact the evidence on the file would show that no attempt whatsoever was made by the Investigating Officer (P.W. 4) to get the recovery witnessed by an independent/disinterested person. In this setting of facts, the accusation, on the veiy face of it, is a vague as it is ambiguous. Reliance may be placed on case reported as titled Qaloo vs. The State 1996 P.Cr.L.J. 496. It was held:- "Arts. 3 & 4-Criminal Procedure Code (V of 1898), S. 103-Appreciation of evidence-Persons from the public despite being present and available having not been called upon to become recovery Mashirs, mandatory provisions of S. 103 Cr.P.C. stood violated—Excise Inspector who was the complainant in the case and recorded the F.I.R. had himself acted also as Investigating Officer and his evidence in circumstances required independent corroboration which was not available, rather besides having contradicted himself he was contracted by other prosecution witness in the matter of the case given to the accused, presence of persons at the time of incident and the distance between the place of incident and the village of the accused-Patrol party consisting of seven members could not be believed to have allowed the accused to escape-No independent evidence was available regarding recovery--Benefit of doubt was given to the accused in circumstances and he was acquitted accordingly." 16. In my opinion since the persons from the public, being available and present, were not even called upon to become the recovery witnesses, therefore, the mandatory provisions of section 103 Cr.P.C. were definitely violated. 17. Beside this in this case the allegation of the appellant that the , Investigating Officer (P.VV. 4) was on inimical terms with him and his family and had a motive for falsely implicating him in this case is fully established from the cross-examination of the 1.0. (P.W. 4). The same is reproduced as under:- "It is correct that prior to this occurrence on 12.12.1992 I had gistered a case against the brother of accused namely Arab Zaman vide F.I.R. No. 221 which is Ex. D.5. Similarly I had recorded F.I.R. and registered a case against another brother f accused namely Maqsood vide F.I.R. No. 18 dated 10.12.92 which is Ex. D.6. on 10.12.92 I had also registered a case vide. F.I.R. No. 219 of P.S. Khanpur against Arab Zaman the real brother of accused which is Ex. D. 7. It is correct that the said Arab Zaman arid Maqsood against whom I registered the case, are real brothers of the accused. It is correct that on 20.4.96 the real brother of accused Khalid namely Maqsood was murdered by the police in his house in the limits of P.S. Khanpur. It is correct that a private complaint has been filed by the brother of deceased namely Sardar against e and S.H.O. namely Mehmood Hussain, which is pending before the learned Sessions Judge, Haripur. It is incorrect to suggest that in all the cases registered by me against the brothers of accused Khalid they have been acquitted being false cases and the present case is also a chain of the said false cases. It is further incorrect to suggest that nothing was recovered from the accused and I planted the said recovery just to counter the acquittal orders of his brothers." 18. In addition to this, it may be observed, that A.S.I. Ghazanfar Khan (P.W. 4) is himself a complainant and has also acted as an Investigating Officer. Legally he could not assume this dual function and it was incumbent upon him to have entrusted the investigation of the case to another disinterested police officer. This fact by itself, has rendered the very trial of the case a sheer mockery. Additionally, it may be pointed out that if such a procedure-practice is allowed to continue, it would give a licence to the police to involve innocent people in false/fake case according to their whims. This turned, in my opinion, is extremely dangerous and is accordingly depreciated with contempt. In this respect I am also, to a great extent, supported by the following cases: - 1. 1996 P.Cr.L.J. 440 Muhammad Altafvs. The State. "Art. 4-Appreciation of evidence-Complainant: police official also acting as Investigating Officer-Although the evidence of a complainant police official who also becomes the Investigating Officer is admissible in evidence yet for safe administration of justice for sustaining the conviction of an accused such evidence should be corroborated by independent evidence." 2. 1996 P.Cr.L.J. 496 Qaloo vs. The State "(b) Arts 3 & 4-Evidence-Complainant also acting as Investigating Officer-No specific bar exists under the law against complainant Officer becoming the Investigating Officer, but being the complainant it cannot be expected that as an Investigating Officer he will collect any material which goes against the prosecution or gives any benefit to the accused- Evidence of such Officer, therefore, is a weak piece of evidence and for sustaining a conviction it would require independent corroboration and will be scrutinized with great care and caution." 19. Needless to mention here that in the case in hand the fact that the appellant was tortured brutely by the complainant/I.O. A.S.I. Ghazanfar Khan (P.W. 4) is fully established by the statement of Dr. Shaukat Hussain (C.W. 1). The Doctor stated:- "On 31.3.96 I examined Khalid Mahmood son of Sain Mehboob, r/o Village Tofkian, P.S. Khanpur brought by Imtiaz Ahmad F.C. at 01.30 P.M. and found the following:- 1. Scattered small bruises on the left side of back of chest. Bluesh black discolouration. 2. Scattered multiple bruises 4" x 1" and 6" x 1" diamension on the right buttock, scattered all over buttock. Redish blue discolouration. All blunt simple injuries with duration No. 1 more than 5/7 days and No. 2 % days duration. I have seen my report Ex. P.W. 4/D-5/C.W. 1/1 whichis correct and bears may signature correctly. XX-for accused. It is correct that I had examined Khalid Mahmood on the orders of Senior Civil Judge/Ilaqa Magistrate Haripur, vide application Ex. P.W. 4/4-4. I have also signed on both sides of the said application. It is correct that, Khalid Mehmood was produced by the local police for his medical examination. I had gone through the Medical Jurisprudence Books i.e.. Moodi, Tariq etc. It is correct that bruise changes its colour by the passage of time. Within 24 hours its colour remains red, while the bluesh colour starts after 48 hours after its infliction. The bruises remain bluesh from 3 to 6 days and after that it starts brownish and after lapse of about 10 to 12 days it stalls black and remain so for 3 to 4 weeks. It is incorrect that bluesh colour after lapse of 72 hours changes its colour in black according to Moodi. I did not mention the word about while giving duration of injury No. 1.1 found the 2nd injury as fresh within duration of 1 to 2 days. I do not know the name of a counsel who was with complainant at the time of his medical examination. I.O. of the present case was also present in the hospital at the time of examination Khalid Mahmood. It is correct that Azmattullah Malik Advocate was not present at the time of medical examination of Khalid Mehmood, nor he had request for any favour to Khalid Mehmood. XX By the A.P.P. All the injuries were on the back side of the body of the examine. The injuries can occur due to falling or slipping unintentionally. The injurs can be the result of beating of any stick etc." 20. On the other hand, the learned counsel for the State when confronted with the above situation, could not rebut the position emerging from the above line of reasoning. Resultantly, the prosecution evidence produced in this case is hereby discarded. The appeal is accepted and the conviction and sentence awarded by the Additional Sessions Judge, Haripur, vide his judgment, dated 22.9.1997 is set aside. The appellant shall be set at liberty forthwith if not required in any other case. 21. A copy of this judgment alongwith the copies of the statements of A.S.I. Ghazanfar Khan (P.W. 4), Dr. Shaukat Hussain (C.W. 1) and the appellant recorded, on oath, U/S. 340(2) Cr.P.C. shall be sent to Inspector General of Police N.W.F.P. (by name) with the directions to take appropriate action against the said A.S.I. Ghazanfar Khan (P.W. 4) as he had not acted in the discharge of his duties honestly beside torturing the appellant while he was in his custody. The police have no power/authority or right, whatsoever, to torture the person who are in its custody for investigation. The action so taken shall b,e intimated to this Court within a period of one month positively. (K.K.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 763 [ Multan Bench] Present: mansoor ALAMGIR QAZI, J. MUHAMMAD BUX etc.-Petitioners versus STATE-Respondent Cii. Revision No. 30 of 1998 dismissed on 5.3.1998. Surety Bond- —Surety Bond-Foreiture of-Question of-Sureties have not shown any extra-ordinary reason why they could he exonerated of their liability neither they have made any request that amount of forfeited bond be reduced nor they have claimed insolvency—Petition without force is dismissed. [P. 764] A Malik Faiz Rasool Rajwana, Advocate for Petitioners. Date of hearing : 5.3.1998. order Abdul Majeed accused was granted bail by he learned Additional Sessions Judge, Vehari vide order dated 19.8.1994 and was directed to furnish bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount. On 19.1.1995 in compliance to the said order Muhammad Bakhsh and Muhammad Asghar petitioners submitted the surety bonds in the court for release of the said accused which were accepted and Abdul Majeed accused was released on bail. 2. The accused absented himself from court on 8.12.1996 and surfaced on 22.12.1997. However, on 1.11.1997 the surety bond was forfeited and notice was sent to the surety for 22.11.1997 on which date none appeared. On 22.12.1997 the accused appearing seeking pre-arrest bail, the petition was rejected and he was despatched to the judicial lock up by the learned Additional Sessions Judge. The sureties appearing before the court on 15.1.1998 and they accepted their liability and begged to be pardoned. They did not give any reason or explanation. Their statements were recorded on 15.1.1998. Thereafter they were ordered to deposit Rs. 50,000/- each in the Government treasury on or before 17.2.1998. 3. Through the present petition the sureties have challenged the impugned order and the main thrust of learned counsel for the petitioners is that vide order dated 1.11.97 only Muhammad Bakhsh surety was given notice when his bond was forfeited while Muhammad Ashgar surety was not given any notice before forfeiting his bond. However, on 5.1.1998 when Muhammad Asghar appeared before the court he accepted his liability and did not raise any objection that he had not been served with a notice before the forfeiture of the bond. He admitted that the accused for whom he was surety had absented himself and he begged to be pardoned. From the perusal of the interim orders of the court, it reveals that almost for complete one year the accused remained absent and as a last resort the bail bonds were forfeited and non-bailable warrants for arrest of Abdul Majeed accused were issued. 4. Both the sureties have not shown any extraordinary reason whereby they could be exonerated of their liability neither they have made any request that the amount of forfeited bond be reduced nor have they claimed insolvency. The conduct of the accused which is apparent from the " interim order sheet indicates that he has been deliberately absenting without any legal or moral justification and has not shown any respect towards the court which is another factor weighing and influencing while deciding this criminal revision filed by the petitioners. This petition is without force and is thus dismissed. The petitioners are directed to deposit in government treasury the amount of forfeited surety bonds within one week from today. The record is directed to be returned to the learned trial court alongwith a copy of order disposing of the current revision filed by the sureties. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Peshawar ) 764 (DB) Present: sardar muhammad raza and shakirullah jan, JJ. Malik MUHAMMAD YOUNAS and others-Petitioners versus UMER HAYAT and STATE-Respondents Cr. Misc. No. 225 of 1997 accepted on 15-1-1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 337 and 338-Tender of pardon to accomplice-Tender of pardon to an accused has been made subject, to permission to that effect by victims or their heirs-Such permission should be given before an authority who is competent to tender pardon after due and meticulous application of mind—Any pardon tendered and declaration as approver of an accused, by an authority other than District Magistrate and SDM is void-afo initio. [P. 766] A & B (ii) Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Qanoon-e-Shahadat Order, 1984, Art 43-Offence U/s 324/120- B/216/34 PPC-Bail after arrest-No overt act of firing is attributed to petitioners-Even charge of conspiracy against them is brought by confessing co-accused--Such confession are not corroborated by any independent evidence, occular or circumstantial-No doubt an inculpatory confession is made admissible against a co-accused, but such result can be successfully achieved only when confessions are proved in the very terms of Art. 43 of Qanoon-e-Shahadat Order 1984-Petitioners being implicated by co-accused alone entitled to be released on bail. [P. 767] C Mr. Mushtaq All Taker Khe.li. Advocate for Petitioners. Mr. Saer.d Akhtar Khan, Advocate for Respondent No. 1. Malik Manzoor Hussain, AAG for State. Date of hearing : 15-1-1998. judgment Sardar Muhammad Raza J.-Pir Sabir Shah MPA along with his companions Dr. Haroon, Abdul Ghaffar, Haji Ghulam Mustafa and driver Umar Hayat, on 30.8.1997 at 2110 hours, was on his way back to Ghazi from village Pipliala after attending a marriage ceremony. Double Cabin Pick up No. BLN 1848 was being driven by Dr. Haroon. Pir Sabir Shah was seated in the front while two companions and the driver were occupying the rear seat. When the vehicle reached near the gate of Intermediate College at 2110 hours, some assailants opened fire at them from automatic weapons. Umar Hayat got injured at right ankle while Pir Sabir Shah was injured at left thigh. Vehicle was rushed to R.H.C. Ghazi. 2. S.H.O. Ghazi, on receiving information, reached R.H.C. where at 2125 hours. Umar Hayat lodged report as aforesaid charging none for the attempted at their lives, for, they apparently had no enmity with anyone. Injury sustained by Pir Sabir Shah was the result of no fire arm impact but was due to the glass splinters. 3. One Aurangzeb was arrested on suspicion on 31.8.1997; another Azmat Shah on 12.9.1997; still another Tariq on 11.9.1997. First two made a confession before magistrate on 12.9.1997 and 17.9.1997 respectively while Tariq, having been tendered pardon with the consent of the victims, became on approver purportingly under section 337 Cr. P.C. and gave his statement on 15.9.1997. 4. Individual, as well as collective impression of the aforesaid three statements was that the deponents above, the approvers, another Malik Mohammad Younus and Malik Abdur Ra/aq alongwith Qamar Zaman absconder etc. hatched a conspiracy to scare Pir Sabir Shah MPA and to teach him a lesson because he had totally ignored his faithful political allies and was instead partronising Dr. Haroon and further had shown luke warm attitude over the transfer of a D.S.P. in which the accused were interested one way or the other. 5. Besides Aurangzeb; Azmat Shah, Tariq, the two others namely Malik Younas and Malik Abdur Razaq were resultantly arrested, Tariq being in custody otherwise as approver. The remaining were refused bail by he learned Sessions Judge/Special Judge Haripur. Malik Younus and Abdul Razaq seek bail through instant petition No. 225/97 while Azmat Ali shah and Aurangzeb have file separate one as 244/97, while also shall be disposed off through this single order. 6. We would first attend to the approver Tariq's statement with reference to section 337 and 338 of the Cr.P.C. The pardon was tendered and - the statement was recorded by Mr. Azeemullah Mishwani Civil Judge cum- judicial Magistrate Ghazi. The permission to tender pardon to the would-beapprover was given by the victims before the police and not before the Magistrate. In the given undeniable circumstances, we are constrained to observe that the procedure adopted, has been so manifestly mala fide and patently illegal that an observation to that effect cannot be avoided even at bail stage. 7. Through an amendment in the section concerned the tender of pardon to an accused has been made subject to a permission to that effect by1 the victims or the heirs of the deceased, as the case may be. Such permission I obviously should be given before an authority who is competent to tender !pardon after due and meticulous application of mind. In the instant case the permission was accorded by the victims before police and no direct opportunity was afforded to the competent authority to apply its own independent mind and to practically ascertain as to whether the permission was infact given by the victims themselves. Serious laxity in this behalf renders the veiy permission invalid. 8. Factor, even more important than the above, is that of the authority competent to tender pardon to and to record statement of the accused, after declaring him as an approver. The veiy nature of the act involved gives a crystalline indication that tender of pardon to and declaration as approver of an accused in an act of State. Such act is subject to scrutiny by a judicial forum subsequently at trial. It is in this back ground that, for the purpose in question, that legislature has omitted to authorities the trial court and even the Court competent to take cognizance of the offence, like normally, the magistrate of the first class. The legislature instead, under section 337 Cr. P.C, has specified such authority in numbigous sterms, and to the exclusion of all others, to be the District Magistrate and Sub-Divisional Magistrate. Thus, any pardon tendered and the declaration as approver of an accused, by an authority other than the District Magistrate and the Sub Divisional Magistrate is void-ab-initio. So is the case in hand where the services of a Civil Judge cum-Judicial magistrate ^ were utilized. The renders of pardon, the declaration of Tariq as an approver and his subsequent statement, as such, are taken completely out of consideration. These are void and without jurisdiction. 9. Coming to the accused Malik Younus and Malik Abdur Razaq, no overt act of firing is attributed to them. Even the charge of conspiracy against them is brought about by the confessing co-accused Aurangzeb and Azmat Shah. Such confessions are not corroborated by any independent evidence, ocular or circumstantial. No doubt, an inculpatory confession is made admissible against a co-accused as well, under Article 43 of Qanoon-e- Shahadat but such result can be successfully achieved only when the confessions are proved, in the very terms of the article; and the occasion of proof or otherwise would come only at trial. Till the conduct of trial, the aforesaid accused are entitled to be released on bail, being implicated by the co-accused alone. 10. Net are Aurangzeb and Azmat Shah. Despite the fact that no one was even suspected in the F.I.R., it is still a mystery as to how the police reached Aurangzeb the same night. Though he has expressed himself to be innocent yet during the narration of facts, he has inculpated himself prima facie by performing the role of a carrier of the assailants to the spot in this vehicle knowing the fact that they have planned to criminally intimidate (in their view) the non-cooperating M.P.A. At this stage the evidence qua torture and undue influence is lacking and thus both shall have to face the consequences of their confession till the conduct of trial. 11. Learned counsel for the complainant objected to the entertainment of bail application because, according to him, the challan has been put in court. This is factually incorrect because the challan is though completed yet not put in court. Rather, under the law, it was bond to be submitted within fifteen days. Thvis, we contemplate no harm in entertaining the petitions. 12. Learned counsel for the petitioner seriously assailed the site plan, the recovery of Klashnikov at the instance of Tariq accused, the involved excesses exhibited by the Investigating Agencies and the fact that how could the accused by launching an armed attack in the dark of night and by concealing their identity could achieve the desired result of intimating and scaring a victim without disclosing as to who has done it any why. All these questions require deep appreciation of facts of the case and hence we would avoid commenting thereon, considering of course, that other material is sufficient for the disposal of these bail petitions. 1 . It was to this consequence that application of Malik Younus and Malik Abdur Razaq was accepted and that of Aurangzeb and Azmat-Shah was rejected through our short order dated 15.1.1998. These are our detailed reasons for such order. (MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C ( Peshawar ) 768 Present: sardar jawaid nawaz khan gandapur, J. Mst . SULTAN BIBI etc.-Petitioners versus STATE-Respondent Cr. M.B.A. No. 1268 of 1997 dismissed on 20-2-1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Offence u/S. 9 read with S. 51 Control of Narcotic Substance Act, 1997-Bail-Grant of-Prayer for-Punishment provided for offences, is either death or life imprisonment because quantity of narcotics recovered for more then one kilo gram—Petitioners cannot be, therefore, released on bail as laid down in S. 51 of Act-Petition is without any merit and is accordingly dismissed. [P. 768] A Irntiaz Shahid Qureshi , Advocate for Petitioner. Munir Khan, Advocate for the State. Date of hearing : 20-2-1998. judgment The petitioners who are ladies with suckling babies stand charged for having committed an offence punishable u/S. 9 of the Control of Narcotic Substance Act, 1997, Vide : F.I.R. No. 16 dated 27.8.1997 registered at Police Station, Narcotics, Kohat because they were apprehended red handed while transporting Charas , weighing 5 K.Gs . each, hidden beneath their shirts. 2. Admittedly, the punishment provided for the offences, mentioned above, is either death or life imprisonment because the quantity of the narcotics recovered from their possession exceeds for more than one Kilo gram. The petitioners cannot be, therefore, released on bail as laid down in section-51 of the said Act which reads : - Section-51. No bail to be granted in respect of certain offence : - (1) Notwithstanding any thing contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2) In the case of other offence punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount. 3. This bail petition is without any merit and is accordingly lisinissed . 4. Since petitioners are both ladies, with suckling babies of tender age. and are behind the bar for the last 6 months, accordingly, the prosecution is directed to submit complete challan against them in the Court of Special Judge, Kohat within a period of 15 days failing which the petitioners shall be entitled to move the court for their bail. 5. It may also be remarked that when the challan is submitted in the rail court, as directed, then the trial court shall dispose of the said case within a period of 3 months positively. Failing which the petitioners shall be entitled to move the trial court for bail. 6. The office is directed to send the record to the quarter concerned immediately. iK.A.B .) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 769 Present: iftikhar hussain chaudhry, J. AMANAT-Petitioner versus STATE-Respondent Crl . Misc. No. 168-B 1997 accepted on 19.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Grant of-Prayer for-Offence U/s. 302/324/452/34 PPC-- Petitioner was found innocent during investigation conducted and has not been challaned to court-Petitioner in view of the matter is allowed to bail-Bail granted. [P. 770] A Haji Rana Muhammad Azhar , Advocate for Petitioner. Masood Sadiq Mirza , Advocate for State. Date of hearing : 19.11.1997. order Petitioner seeks post arrest bail in case FIR No. 80 dated 16.3.1997 under section 302/324/452/34 PPC Police Station Lundianwala , District Faisalabad. According to allegations contained in the FIR Amanat son of Amir . Boota , Ahsan and an unknown person armed with hatchet and sticks trespassed into the house of complainant and gave blows to Nazir Ahmad, Mst . Kariman and Taj Bano and Mat. Farida as well as the complainant. Later, after registration of case petitioner was named as fourth accused in the case. 2. Petitioner was arrested and has applied for grant of bail to him. 3. Learned counsel for the parties have been heard in the matter. 4. The petitioner was found innocent during investigation conducted and has not been challaned to court. Petitioner in this view of the matter is allowed bail in the sum of Rs . 50,000/- with one surety in the like amount to the satisfaction of trial court. (A.P.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Peshawar ) 770 Present: sardar jawaid nawaz khan gandapur, J. JHANDA-Petitioner versus -Respondents Crl . Misc. Application No. 241 of 1997 accepted on 16.12.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Grant of-Prayer for-Medical ground and old age-Offence U/Ss. 302/34 PPC-Petitioners, an old man of 82 years, is a sick person and is suffering from serious disease known as "Parkinson"— Held : Sufficient grounds to extend him concession of bail—Bail granted. [P. 771] A Mr. Shad Muhammad Khan, Advocate for Petitioner. Mr. Ghulam Mohyuddin , Advocate for State. Date of hearing : 16.12.1997. judgment The petitioner after having failed to obtain bail from the lower courts has come to this Court for the redress of his grievance saying that he is a sick man of 82 years of age and therefore, entitled to be released on bail on medical ground. 2. Learned counsel for the petitioner as well as the State present and heard. 3. The application of the complainant's counsel for the adjournment of the case has been turned down and placed on file. 4. Admittedly, the petitioner is directly charged for having committed an offence punishable under section 302/34 P.P.C. vide F.I.R. No. 298, lodged in Police Station, Shinkiari on 15-6-1996. After his arrest he applied for bail to the lower Courts but they refused to release him on bail on merits. Accordingly, he submitted an application to the lower Court on r. ;e:iical grounds. He prayer was turned down vide; Magistrate's order dated l^-S-1996. The petitioner then approached the Sessions Judge for the repress of his grievance and there too he failed to get his grievance redressed r.ence this petition. 5. The photo copy of the petitioner's National Identity Card No. 123- 15-226850 shows that he is an old man of 82 years of age. Beside this the medical certificates, the one issued by the Medical Board on 28-11-1996 and the second by the Medical Officer, Central Prison Hospital , Haripur on 29-11-1997. would show that the petitioner, an old man, is a sick person and is suffering from a serious disease known as " Parkison ". In the circumstances, I iin of the view that the Sessions Judge, while deciding his bail petition, has not applied his judicial mind in as much as he has not taken into consideration the reports of the medical officers. Similarly he has failed to notice that the petitioner is an old man of 82 years of age. Old age, as well as know, by itself brings infirmity and senility with it, therefore, in my opinion :;ld age of the petitioner, the ailment from which he is suffering from, are sufficient grounds to extend him the concession of bail on these grounds. In holding so I am supported by the following cases : - 1. 1973 P.Cr . L.J. 397 ( Lahore ) Sakhi Muhammad vs. The tate . Criminal Procedure Code (V of 1898), S. 498-Bail- Murder Case-Accused an old man of 68-70 years although not suffering from any ailment yet old age by itself brings infirmity and seniority-No reasonable ground existing to believe accused being guilty of an offence punishable with death or transportation for life-Bail already granted confirmed. 2. N.L.R. 1996 Criminal 359 Supreme Court (Full Bench) ( i ) Arshad Mehmood vs. Sarfraz (ii) Muhammad Feroze vs. The State. Ss. 497/498 Accused who is old man of about 75 years with poor physique and general hygienic condition etc, would be entitled to bail. 6. This bail petition is accepted. The petitioner shall be released forthwith, if not required in any other case, provided he deposits Rs . 30,000/-as bail money in this Court. 'K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 772 Present: MUHAMMAD NASEEM CHAUDHRI, J. MUHAMMAD SHARIF etc.-Petitioners Versus STATE-Respondent Crl. Misc No. 823-B of 1998 dismissed on 12-3-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Offence U/S. 10/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-In abduction cases, people do not rush to police and try to first exhaust all their sources to trace out abductee and accused—As such, delay in registration of cases in such like cases is not fatal to prosecution-As per Rule 22 of Police Rules, 1934, no examination by a Medical Officer of a living women's person shall be made without her consent and without a written order from a Magistrate hence, absence of medical examination is not enough to make High Court exercise of discretion for granting bail to petitioners—FIR and statements of PWs including abductee are enough to pritna fade connect petitioners/accused with occurrance-Abductee was detained by petitioner/accused for a sufficient time which is a strong circumstance against him towards commission oizina. [P. 773] A to D Mr. Shah Ahmad Khan Baloch, Advocate for Petitioners. Mr. Afighat AU Hiujra, Advocate for State. Mr. (iulzar Khan LaKhari, Advocate for Complainant. Date of hearing : 12-3-1998. judgment About the abduction of his wife Mst. Sakina Bibi for the purpose of illicit relations on 2.10.1995 Shaukat Ali complainant got recorded FIR No. 148 dated 14.3.1996 at Police Station Tandlianwala, District Faisalabad under Articles 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance. 1979. He alleged that Muhammad Sharif and Kalu petitioners-accused alungwith Ayuh, Sadi Ahmad, Fateh Bibi and Mst. Ghulam Fatirna took away his wife who were seen by Nazir Ahmad and Muhammad Akbar P.Ws. while going away when they were told by Mst. Sakina Bibi that she was going alongwith the aforesaid persons to see her ailing father. Mst. Sakina Bibi managed to escape and on 12.6.1997 her statement was got recorded from a Magistrate Ist-Class under section 164 of the Code of Criminal Procedure when she named the aforesaid persons who fraudulently took her away. She alleged that Muhammad Sharif petitioner, Sadi Ahmad and Ayub committed fornication with her. Both Muhammad Ayub and Kalu petitioner-accused were arrested on 19.6.1997 whose bail plea has been rejected by the learned Addl. Sessions judge, Faisalabad . They have filed this petition before this Court for their admission to bail. 1. I have liLai 1 the learned counsel for the parties as well as the '.time.! State Counsel and gone through the record before me. Learned ; o'.'.nsel for the petitioners has argued that the alleged abduction is stated to nave taken place on 2. ID. 1995 while the matter was reported to police on 14 3.1996 and thus the delay in the matter of registration of the case is fatal :: the prosecution case on the basis of which the petitioners are entitled to he admitted to bail. I do not agree with him as I hold a different view. In this regard I would express that it. is u matter of common knowledge that in abduction cases when the honour of the family is involved the people in the country do not rush to the police and try to first exhaust all their sources to r race out the whereabouts of ahductee and the accused. As such this assertion is ignored. 3. It was next contended that Mst. Sakina Bibi was not got medically examined and the prosecution version finds no support from the medical evidence. It would be proper to express at this stage that according to Rule 22 Chapter XXV of the Police Rules. 1934 no examination by a Medical Officer of a living woman's person shall be made without her consent and v.i" h out a written order from a Magistrate addressed to the Medical Officer directing him/her to make such examination. Mst. Sakina Bibi is a married lady and was having a son when allegedly she was enticsed away. As rightly pointed out by the learned State Counsel the absence of evidence of the ir.edical examination of Mst. Sakina Bibi, a married lady, is not enough to make me exercise the discretion in favour of the petitioners for their admission to bail. 4. Lastly learned counsel for the petitioners argued that the petitioners were arrested on 19.6.1997, that there was no allegation of Zina against Kalu petitioner-accused and that (lie solitary statement of Mst. Sakina Bibi is not enough for the purpose of attraction of Articles 16/10 (3) of the Offence of Zina (Enforcement of IJudood) Ordinance, 1979. These assertions are held to be without legal weight as it, has rightly been pointed out by the learned State Counsel that the FIR and the statements of the ?.\Vs. including Mst. Sakina Bibi are enough to prima facie connect Muhammad Sharif and Kalu petitioners-accused with the occurrence. 5. Muhammad Sharif petitioner is the principal accused and Kalu petitioner facilitated him in the matter. Mst. Sakina Bibi was detained by Muhammad Sharif petitioner-accused for a sufficient time which is a strong circumstance against him towards the commission of Zina. 6. For what has been said above, I hold that it is not a fit case for the admission of these petitioners to bail. Consequently I dismiss this petition. i MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 774 Present: muhammad naseem chaudhri, J. KAZIM ALI-Pemioner Versus STATE-Respondent Crl. Misc No. 862-B of 1998 accepted on 10-3-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Offence U/s 337-A <ii)/337-L<ii)148 and 149 PPC-Petitioner is alleged to have inflicted one blow with hatchet and did not repeat it-­ There is no question of forming an unlawful assembly as accused persons were already raising construction of wall and had not arrived there within purview of definition of 'unlawful assembly" and that offence does not fall within prohibited clause-Grant of bail in offences punishable with imprisonment for less than ten years is a rule and refusal an exception--Bail granted. [P. 775] A PLD 1995 SC 34 ref. Syed Ehtesham Qadir Shah, Advocate for Petitioner. Mr. Mazhar Sajjad Sheikh. Advocate for State. Date of hearing : 10.3.1998. judgment Kazim Ali petitioner-accused alongwith his co-accused was raising the construction of wall while armed with weapons on 28.8.1997 at 2.00 P.M. which was objected to by Muhammad Nawaz on the ground that the area being included beyond the wall as 'Shamlat Deli'. An altercation took place. Kazim Ali petitioner-accused is said to have inflicted the hatchet blow which fell on the left ear of Muhammad Nawaz. He did not repeat the blow. However, his co-accused also injured Muhammad Nawaz. About the occurrence Crime Case No. 231 dated 31.8.1997 stands registered at Police Station Garh Maharaja District, Jhang at the instance of Muhammad Nawaz son of Allah Bakhsh, a 'Bhanja' of Muhammad Nawaz (injured) son of Ghulam Muhammad, under sections 337-A(ii)/337-L(ii)/148 and 149 Pakistan Penal Code. The occurrence is said to have been seen by Muhammad Nawaz complainant. Allah Ditta and Khuda Bakhsh P.Ws. 2. The injured Muhammad Nawaz son of Ghulam Muhammad was medically examined by he Medial Office Rural Health Centre Radoo Sultan District Jhang who found six injuries on his person on 29.8.1997 caused by sharp edged and blunt weapons. The aforesaid injury attributed to Kazim Ali petitioner-accused has been declared as 'Shajjah-i-Mudihah' prima fade falling under section 337-A(ii) Pakistan Penal Code. The bail application of the petitioner has been dismissed by the learned Area Magistrate as well as by the learned Additional Sessions Judge. Kazim Ali petitioner has filed this petition before this Court to tiy his luck to be admitted to bail. 3. I have heard the learned counsel for the petitioner as well as th'e Iea.rr.ed State counsel and gone through the record before me. I am in full agreement T .vith the learned counsel for the petitioner who canvased before me that Kazim All petitioner is entitled to be admitted to bail on the grounds that he is alleged to have inflicted one blow with hatchet and did not repeat the same, that there is no question of forming an unlawful assembly as the accused person were already raising construction of the wall and had not arrived there \ithin the purview of the definition of "unlawful assembly" and that an offence under section 337-A(ii) Pakistan Penal Code does not fall -.vithin the prohibitory clause as the maximum punishment, is R.I. for a renxl of five years and the punishment under section 337-L(ii) Pakistan Penal Code is two years. According to the dictum enunciated in Tariq Bashir z r .d 5 others versus The State, (PLD 1995 Supreme Court 34) grant of bail in cifences punishable with imprisonment for less than ten years is a mle and refusal an exception. The offence does not fall within the prohibitory clause and no exceptional matter has been brought to the notice of this court to pass the order of dismissal of this application. It would be instructive to express that instead of writing the laboured orders, the efforts should be made to get and acquire the wealth of the case law which is available pertaining to such matters for the guidance of the subordinate Courts in view of the aforesaid reasoning I do not give weight to the assertion raised by the learned counsellor the State that the petitioner is not entitled to be admitted to bail on the ground that his name is mentioned in the FIR and that specific role has been attributed to him. 4. For what has been said above, I accept this petition and admit Kazim Ali petitioner-accused to bail in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail. iMYFK ) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 775 [ Multan Bench] Present: M.A. QAZI, J. MUHAMMAD ABBAS-—Petitioner versus ADEEL AKHTAR etc.-Respondent, Crl. Misc. No. 243-C/B/96 dismissed on 24.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 (5)--Bail--Cancellation of-Prayer for-Offence U/ss. 337-F(vi), 337A(i)/302/148/149/452 PPC-Doctor opined that none of injuries wen sufficient o cause death-Injuries No. 1, 2 and 3 were serioiis in nature which were specifically attributed to co-accused of respondents and it was also case of rosecution that deceased developed complications who died of cardiac arrest-Both parties stand challaned and both versions are before court-Complainant party is also on bail-It is yet to be determined which party is aggressor and there are reasonable grounds to believe that it is a case of further inquiry-There is also no evidence on record to establish that respondents have misused concession of bail-Petition dismissed. [Pp. 777 & 778] A Sahibzada Farooq All Khan, Advocate for Petitioners. Maulvi Sultan Alain, Advocate for respondents. Mehr Muhammad Saleem, Advocate for State. Date of hearing : 24.2.1998. order Adeel Akhtar, Muhammad Aslam and Muhammad Hanif respondents were granted pre-arrest bail vide order dated 10.1.1996 by the learned Additional Sessions Judge, Mailsi, while Muhammad Suleman, Muhammad Ali and Ihsan-ul-Haq co-accused were refused bail vide the same order, in case FIR No. 333/95 dated 11.11.1995 under sections 337- F(vi)/337-A(i)/302/148/149 PPC registered at Police Station Mitru on the statement of Muhammad Abbas for having caused injuries to Ali Muhammad his father. 2. Feeling aggrieved Muhammad Abbas complainant filed this petition seeking cancellation of bail. Allegation against the respondents, as narrated in the FIR, is that on 10.11.1995 at 6.30 A.M. the respondents armed with Sotas in prosecution of common object of the unlawful assembly trespassed into the house of the complainant in Chak No. 69/WB and inflicted injuries on the person of Ali Muhammad who died on 27.11.1995. 3. As per medical evidence Ali Muhammad deceased sustained six injuries on this person out of which injuries No. 4, 5 and 6 are contusion marks on the right arms, left and right sides of the buttock Out of injuries No. 1, 2 and 3, the clavicle bone was found fractured under injury No. 1 and these here injuries were attributed to Muhammad Ali, Muhammad Sulernan and Ihsan-ul-Haq co-accused of the respondents whose bail was refused on 10.1.1996. Out of the respondent Muhammad Hanif is attributed Lalkara while Adeel Akhtar was attributed injury No. 4 and Muhammad Aslam, an injury on the right side of the chest. The deceased was admitted in the hospital where he remained for three days, fromwhere he was shifted to District Headquarters Hospital , Vehari, where he underwent operation and lateron developed gangrence in his large intestine. On 27.11.1995 he developed dysentry and due to cardiac arrest died in the hospital on 27.11.1995 at 7.45 P.M. The doctor has opined that injuries No. 1 and 2 were r.: sufficient to cause death in the ordinary course of nature. The deceased ••vii 75 years old and had developed complications. 4. In the course of investigation of the case, on 12.11.1995 Adeel Akhtar get his statement recorded and a cross-version was placed before the police in support whereof Zahida Parveeu. Muhammad Sharif and Muhammad Arshad were examined as witnesses. Adeel Akhtar was found to have three injuries on his person while Zahida Parvecn also carried three injuries. The police, on 26.6.1996. prepared report under section 173 Cr. P.C. From the complainant side Ghulani Muhammad, Muhammad Anwar and Muhammad Khursheed were found guilty, therefore, were ehallaned under section 337-A<ii)/34 PPC while Ali M hammad, Muhammad Akbar and Jan Muhammad were declared innocent. On the other hand the respondents were ehallaned alongwith Muhammad Saleem and Ihsan- l-Haq under section 337-F(vi)/34 PPC while Ali Muhammad co-accused was found innocent and discharged. Sections 302/452/148/149 PPC were found to have not been established in the course of investigation arid there being no evidence on record to substantiate these offences, the same were deleted. 5. Record has been perused and arguments heard. Learned counsel for the complainant-petitioner submits that on 10.1.1996 when the prearrest bail of the respondents was confirmed, sections 302/452 PPC stood added as death of the deceased had occurred on 27.11.1995 and that the same fact is established from the incomplete challan prepared by the Investigating Officer on 19.1.1996; that in such a case the accused/ respondents were not entitled to the concession of confirmation of pre-arrest interim bail and prays that, the order dated 10.1.1996 be recalled. 6. Learned counsel for the respondents while controverting these arguments has submitted that the injuries on the person of Addeel Akhtar and Zahida Parveen have been explained by the complainant party; they have suppressed important piece of evidence and have not come to the court with clean hands. Further submits that version of the respondents has been upheld and the complainant party stands equally ehallaned on the same footing before the court of law. Also submits that no doubt the deceased died n 27.11.1995 and Sections 302/452 PPC stood added on the day on which re-arrest bail of the respondents was confirmed, yet mere addition of an offence is no ground for refusal or grant of bail unless and until it is seen that there was material substance and the said offence prima facie proved to connote the accused with the crime. In the present circumstances, the doctor has opined that none of the injuries were sufficient to cause death. Injuries No. 1, 2 and 3 were serious in nature which were specifically attributed to the co-accused of the respondents and it was also case of the prosecution that the deceased developed complications who died of cardiac arrest. It is not denied that both the parties stand challaned and both the versions are before the court. The complainant party is also on bail. It is yet to be determined which party is the aggressor and there are reasonable grounds to believe that it is a case of further inquiry. Furthermore, there is not evidence on record to establish that the respondents have misused the concession of bail granted to them by the subordinate court. The documents produced by learned counsel for the parties have been perused and placed on the record of this file. I do consider it a fifth case for recalling the order dated 10.1.1996 passed by the learned Additional Sessions Judge and this petition being without force is dismissed. (K.K.F.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 778 (DB) [ Multan Bench] Present : ZAFAR PASHA CHAUDHRY AND MANSOOR ALAMGIR QAZI, JJ. NAZIR etc.-Petitioners versus STATE-Respondent M. Reference No. 1997 of 1994 and Crl. Appeal No. 146 of 1995 decided on 24.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)- —S. 302/34-Murder-Offence of-Conviction for-Challenge to-Contention that medical evidence does not specifically state as to what injury was cause of death although death was resulted as a cumulated effect of all injuries and in the absence of motive sentence of death cannot be imposed—Learned counsel for appellants has not contested his case for acquittal of appellants but has prayed for non-confirmation of death sentence-Medical evidence does not specify as to which injury was cause of death nor motive to have been established beyond doubt-Held : It is well established principle of law that when motive is not proved beyond doubt capital sentence of death should not be imposed-Secondly according to opinion of doctor death occurred as a result of collective effect of all three injuries and thus, none of them can be individually, independently attributed or burdened for causing death and awarding maximum sentence of capital punishment-Death sentence converted into life imprisonment-Murder Reference answered in negative-Benefit of Section 3S2-B ex-Tended to appellants. [P. 782] A, B, C & D Mr, PcrraizAftab. Advocate for Appellants. Mr. Zahid Khan, Advocate for State. Sh. Muhammad Rahim, Advocate. Date of hearing : 24.2.1998. judgment Mansoor Alamgir Qazi, J.--Nasir and Abdul Sattar appellants were challaned in the said case and sent up for trial before the Sessions Judge. Rajanpur, who vide judgment dated 30.8.1994 convicted both the appellants under Sections 302/34 PPC and sentenced them to death. Both of them were directed to pay Rs. 20.000/- each as compensation to the legal heirs of the deceased or in default of payment of the said compensation to further undergo S.I. for 5 months each. 2. The State has fded Murder Reference No. 197/94 praying for the confirmation of the death sentence awarded to the appellants while the appellants have challenged the impugned judgment and have prayed that they be acquitted of the charge. Through this single judgment the murder reference and the criminal appeal are proposed to be disposed of. 3. The unfortunate occurrence took place on 10.3.93 at 7.30 A.M. in the area of Mauza Shikarpur at a distance of 16^ K.M. from Police Station Saddar Rajanpur, in which Sobedar son of the complainant was murdered by the appellants. FIR Ex. PF was lodged by Bashir Ahmed PW-7 (father of the deceased) at the said police station which was reduced into writing by Ashiq Hussain S.I./SHO on 10.3.93 at 9.30 A.M. and the same was read over to the complainant who thumb marked it in token of its correctness. 4. Briefly the facts as narrated by the complainant in the FIR are that early in the morning by sons Islam-ud-Din and Sobedar (deceased) and my relative Abdul Rehman and I were going to our land in Chah Nai Wala from our house in Shikarpur town. When we reached near one deserted Khola of Raunaq Shah in the limits of Shakarpur estate at about 7.30 A.M. my son Sobedar stopped behind with an urge to urinate but we three of us moved ahead. We had hardly taken a few steps ahead, when attracted by alarm raised by Sobedar. We looked behind and saw that Abdus Sattar armed with hatchet and Naser armed with Sofa, who are sons of Jameel Rajput and launched attack upon my son Sobedar. In our view Abdus Sattar gave hatchet blow to Sobedar which hit on his head on the front side. He fell clown after receiving the injury and when he was so laying, Naser gave him many blows with Sota and these hit Sobedar on the shin of his left leg and on the right arm. We tried to seize the accused but they threatened if any body came near, he would also meet the same fate. Both the accused, alongwith their weapons of offence fled away towards west. We proposed Sobedar. He was drenched in blood but due to these injuries, he died. Motive for this offence is that about four or five days back, an altercation had taken place over the turn of water between the aforesaid accused and my son Sobedar and this had culminated into a fight and for this reason, the accused nursed a grudge against Sobedar. Due to this grudge, both the accused as a result of premeditation have murdered my son with hatchet and Sota blows. After leaving my companions at the sport with the custody of dead body I reached the Police Station for making the report and lodged report Ex. PF. 5. Dr. Azhar Hxissain. Medical Officer appeared as PW-5 and stated that he conducted autopsy on the dead body of Sobedar deceased on 10.3.93 and found the following injuries on his person :- (1) An incised wound 6 c.m. x 1 c.m. x bone deep lying obliqually on the right side of the head front to it. Three cm. above the anterior air line. The margins were clearly cut and there were gapping in between the edges. (2) Three small lacerated wounds 1 c.m X 1 c.m each on the outer aspect of the right arm. It was muscle deep. The margins were lacerated. (3) Three small lacerated wounds on the front and on the medical side left leg with multiple fractures (deformity) of leg. In his opinion death occurred in this case due to severe shock and haemorrhage and a result of injury Nos. 1 to 3. All these injuries were collectively sufficient, to cause death in the ordinary course of nature. Injury No. 1 was caused by sharp-edged weapon while injuries No. 2 and 3 were caused by blunt weapon. All these injuries were ante-mortem is nature. The duration between injuries and death was half to one hour that between death and post-mortem examination was 4 to 4^ hours. He also medically examined Naser accused on 18.3.93 and found the following injury on his person :- (1) An old lacerated scare mark 3 c.m. in length on the left side of the head above the left ear. It was caused by blunt weapon. The duration between the injury and the medical examination was 14 to 15 days. Ex PL is the medico-legal certificate issued by him. 6. In course of investigation the injury statement Ex. PD and inquest report Ex. PE in respect of the dead body were prepared and the same was sent for post-mortem examination. The blood-stained earth was collected from the spot. It was made into a sealed parcel and taken into possession vide memo Ex. PH which was attested by Abdur Rehman and Islam-ud-Din PW-8. Naser appellant appeared before Ashiq Hussain S.I./SHO (PW-9) on 17.3.1993 and he produced blood-stained Sota PI which as made into a sealed parcel and taken into possession vide memo Ex. PB :n presence of Abdul Latif PW-3 and Bashir Ahmed PW-7. On 21.3.93 Abdul Sartar appellant was arrested by Ashiq Hussain S.I./SHO and in course of investigation the accused/appellant while in police custody led to a place situated in Rakh Kotla Hussain Shikarpur and from a bush got recovered blood-stained hatchet P2. It was made into a sealed parcel and taken into possession vide memo Ex. PG in presence of Abdur Rehman and Islam-ud- Din PW-8. All these articles are sent to the office of Chemical Examiner. After completion of the investigation the appellants were challaned and sent, up for trial. Formal charge under Sections 302/34 PPC was framed against the appellants. Both of them pleaded not guilty and opted to be tried. To prove the prosecution case 10 witnesses were produced. The prosecution case was closed and the reports of the Chemical Examiner Ex. PM and Ex. PX while that of the Serologist Ex. PO and Ex. PP were tendered in evidence. Both the accused were examined under Section 342 Cr. P.C. and <•- they denied the prosecution case. Both of them in answer to question why this case you and why the PWs deposed against you they have replied separately as under :- "I am quite innocent persons. I have been falsely involved due to our enmity within Latif Larnbardar on the flow of our dirty water through eh house of Latif Larnbardar as we live on the upper story while the said Latif live on the ground of the said house. The said Latif is the most influential person. He and the complainant who is his close relative, have involved us in this false case. All the PWs are closely related mter-se-and also with the deceased, so they have deposed against me." They did not produce any defence evidence nor did they appear as their own • witnesses as required under Section 340(2) Cr. P.C. 7. With the assistance of the learned counsel for the appellants we have gone through the paper book and scrutinised and perused the entire record of the case. 8. Learned counsel for the State has argued and prayed for upholding of the judgment of the learned lower court. He has supported the judgment of the learned trial Court. 9. Learned counsel for the appellants has argued that in the present case the motive is not established on record and is not proved beyond doubt. The quarrel took place before 4/5 days prior to the occurrence on account of turn of water between the deceased and the accused and had ended in appling. There is no evidence adduced on record to prove whether the accused and the complainant party are having the facility of irrigation their lands through the same water channel nor any Warebandi has been produced neither any witness has been produced who had witnesses this quarrel and separated the parties. Thus, from these circumstances merely that Naser accused bore one injury on his person and merely because it was 14/15 days old cannot be connected as to have been sustained by him in course of that grappling with the deceased and has in no way be attracted to ( establish and prove the motive adduced by the prosecution. Arguing his case further the learned counsel has very candidly submitted that since the medical evidence does not specifically state as to which injury was the cause of death although the death has resulted as a cumulated effect of all the injuries. Thus, it is not a case where sentence of death could be awarded to both the appellants and that in absence of motive too the sentence of death cannot be imposed. Learned counsel for the appellants has not contested his case for the acquittal of the appellants but has prayed that he would be satisfied if the sentence of death is not confirmed and is reduced to imprisonment for life under the present circumstances. 10. We have given anxious thought to the arguments advanced by the learned counsel for the parties and we find that the medical evidence does not specify as to which injury was the cause of death nor do we find the motive to have been established beyond doubt on record of the case and it is mere wild assertion and attribution made by the complaint who was not even present when the said quarrel took place between the accused and the deceased 4/5 days prior to the occurrence. 11. It is well established principle of law that when the motive is not proved beyond doubt the capital sentence of death should not be imposed. Be that as it may, in the present case it is also the prosecution case that both the accused caused injuries on the person of the deceased but the death - according to the opinion of the Doctor occurred as a result of the collective effect of all the three injuries and thus, none of term can be individually, independently attributed or burdened for causing the death and awarded the maximum sentence of capital punishment. Under these circumstances, we are of the confirmed view that it is a case here the conviction of the appellant sis proved beyond doubt and should be maintained under Sections 302/34 PPC while the sentence of death awarded to the appellants can not be confirmed. It is a case where the sentence of imprisonment for life to each appellant would adequately meet the ends of justice so we order accordingly. The appellants are directed to pay Rs. 20,000/- each as compensation to the legal heirs of the deceased, in default of payment of the said compensation to further undergo S.I. for 5 months. Both the appellants are extended the benefit of Section 382-B Cr. P.C. with this modification in the quantum of sentence the appeal of the appellants is dismissed. The murder reference is answered in the negative. (K.K.F.) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 783 [ Multan Bench] Present: M.A. QAZI J. Mst . TAJ MAI alias TAJO-Petitioner versus STATE-Respondent Crl . Misc. No. 341-B/98, dismissed on 19-3-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Accused a woman-Offence u/S. 302/34 PPC-Contention that deceased was living in a separate house in company of accused (woman) and he died in the house of accused and thus onus to extricate herself from offence is very much on accused (woman) as death has been found to be result of poison-Further contended that challan has been submitted in court and trial court has taken cognizance—Held : Petitioner is prirna -facie, connected with offence committed and no reasonable grounds for further inquiry are available- Even being a woman cannot be considered as a ground for grant of bail as she is involved in an offence which is punishable to death or imprisonment for life and cannot be extended any such concession as deceased breathed his last in her house in her presence and under circumstances which show that he was poisoned to death and her conduct indicates that she deliberately did not provide or arrange to provide any edical aid or facility to deceased—Petition dismissed. [P. 784] A Sahibzada Farooq Ali Khan, Advocate for Petitioner. Mr. Bashir Ahmad Bhatti , Advocate for Complainant. Sh . Muhammad Rahim , Advocate for State. Date of hearing : 19.3.1998. order Mst . Taj Mai alias Tajo petitioner through this petition seeks post arrest bail in case FIR No. 460/97 registered at Police Station Kot Addu on 25.11.1997 under Sections 302/34 PPG for an occurrence which took place on 26.2.97, wherein Qadir Bakhsh father of Ijaz Hussain complainant wsa poisoned to death. On 26.2.97 at 5.30 P.M. the post mortem was conducted on the o^gad body of Qadir Bakhsh and since no visible signs of violence were available on the body of the deceased. Viscera of the deceased was sent to the office of the chemical examiner who after analysis found the contents to contain poison. Mst . Taj Mai petitioner was arrested on 10.12.97 and in course of investigation two tablets were recovered from the residential room of the accused/petitioner which were made into a sealed parcel and taken into possession. 2. It, is stated that about 2% years prior to this occurrence the deceased had married with Mst . Taj Mai accused/petitioner after divorcing his first wife and that he had at the time of nikafi given 6 kanals of land to Mst Taj Mai accused as her dower money and it is stated that she had sold this land to aznoor Hussain with whom she is stated to have illicit relations. 3. It has argued before me that Manzoor Hussain has been found innocent by the police and that Mst . Taj Mai accused/petitioner has also been challaned on the insistence of the complainant party and the same is so recorded in the case diary dated 10.12.97. It has been further argued that the accused/petitioner had spent the money which she had got by selling her 6 kanals of land on the welfare of the deceased and arranging for him medical treatment. 4. Learned counsel for the complainant and the State have opposed the bail petition tooth and nail and have argued that the deceased was aged 50/55 years, he was of robust health and was not having any history of ailment. That the deceased was living in a separate house in company of the accused/petitioner and died in the house of the accused/petitioner and thus the omis to extricate herself from the offence is very much on the accused/petitioner as the death has been found to be a result of poison. It is further argued that the challan has been submitted in court since 17.1.98, where the trial court has taken cognizance of the matter. For the time being the petitioner is, prirrta facie, connected with the offence committed and no reasonable grounds for further inquiry are available to her. Even being a woman cannot be considered as a ground for grant of hail as she is involved in an offence which is punishable with death or imprisonment for life and cannot be extended any such concession as the deceased breathed his last in her house in her presence and under circumstances which show that he was poisoned to death and her conduct indicates that she deliberately did not provide or arrange to provide any medical aid or facility to the deceased. The petition is dismissed. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Peshawar) 785 [Appellate Jurisdiction] Present: sardar javaid nawaz khan gandapur, J. BASHIR-Petitioner versus STATE-Respondent Criminal Misc/ B.A. No. 1275 of 1997, accepted on 15.1.1998. Criminal Procedure Code, 1898 (V of 1898) .... s. 497-Offence u/S. 324/34 PPC-Bail-Grant of-Prayer for-Petitioner is alleged to have effecting fire at complainant from distance of 70 paces- Doctor, in his medico-legal report, mentioned that complainant had charring marks-Complainant mentioned in F.I.R. that occurrence had been witnessed by M and U-However, when both witnesses were examined u/S. 161 Cr.P.C. they stated that they had not seen occurrence and were informed by complainant that he was fired upon by accused- Final assessment/evaluation of evidence is to be done by trial Court which has still to record evidence of witnesses—High court has only to make tentative assessment of evidence against accused available on record—Held : Reasonable ground do not exist for believing that petitioner is connected with offence charged with and case is of further enquiry-Petition accepted & bail allowed. [Pp. 786 & 787] A, B, C & D. "" «« PLD 1997 SC 347. Mr. Sikandar Khan, Advocate for Petitioner. Mr. Zia-ur-Rehman, A.A.G. for State. Date of hearing: 15.10.1998. judgment The petitioner stand charged for having committed an offence punishable U/Ss. 324/34- P.P.C. Vide: F.I.R. No. 191 dated 3.9.1997 -•gistered in Police Station, Alpuri. 2. When arrested the petitioner applied for bail to the Illaqa , Alpuri who by his order dated 17.9.1997 extended the concession of .» to the petitioner. ggrieved by the said order respondent No. 2, complainant, filed bail cancellation application before Zaila Qazi/Sessions Judge, Shahangla. The said application was accepted by the Zaila Qazi and the bail granted to the petitioner was recalled. Hence this petition. 3. Mr. Sikandar Khan. Advocate, for the petitioner and Mr. Ziaur Rehman Khan Asstt: Advocate General for the State present and heard. 4. At the very out-set the learned counsel for the petitioner submitted that the Zila Qazi/Sessions Judge had acted in haste and had recalled the bail granted to the petitioner inspire of the fact that he had not mis-used the concession of bail extended to him. He. therefore, submitted that the order of the Zaila Qazi being without jurisdiction, be therefore, set aside. According to the learned counsel for the petitioner, the petitioner was even otherwise entitled to be released on bail inasmuch as reasonable grounds do not exist for believing that he is connected with the commission of the offence with which he is has been charged. He drew my attention to the site-plan and stated that he petitioner is alleged to have effectively fired at the complaint from a distance of 70 paces. On the other hand, when the complainant was examined by the Doctor, the Doctor, in his medico-legal report, mentioned that the complainant had charing marks. Beside this my attention was also drawn to the fact that the complainant has mentioned in the F.I.R. that the occurrence had been witnessed by Multan S/o Amani Gul and Umar S/o Jammroz. However, when both the witnesses were examined U/S. 161 Cr.P.C., they stated that they had not seen the occurrence and that were informed by the complainant that he was fired upon by the accused. 5. The learned counsel for the State placed reliance on case titled Nasir Ahmad....Vs...The State reported in P.L.D. 1997 Supreme Court 347 wherein it was held:- "S. 497... Bail application...Court at the time of heang of bail application is supposed to do tentative assessment of the material available on the record ............................................. Trend that eye-witnesses take a somersault and give statements which were different from prosecution case and file affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail was deprecated by Supreme Court with the observation that Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the Trial Court Mind of the Court has to be satisfied where about-turn of ome of the eye-witnesses in such a manner shakes up the whole prosecution case from the point of vie'.. of credibility of the remaining material Each case, in such a situation has to be decided on its own merits." 6. In the circumstances mentioned above and keeping in view the dictum laid down by the Supreme Court of Pakistan I do not want to go deep into the merits of the case as the final assessment/evaluation of the evidence is to be done by the trial Court which has still to record the evidence of the witnesses. This Court, at the moment, has to see as to whether or not sufficient material is available on the record to connect the accused with the commission of the offence charged with. Resultantly, this Court has only to make a tentative assessment of the evidence against the accused available on the record. 7. In view of the record, available on the file, I am of the opinion that reasonable ground do not exist for believing that the petitioners is connected with the offence charged with and that his case is that of further enquiry. 8. Accordingly this bail petition is accepted. The petitioner shall be released forthwith, if not required in any other case, provided he eposits Rs. 30,000/- (Rs. thirty thousand only) as bail money in this Court. (E.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Peshawar) 787 Present: sardar javaid nawaz khan gandapur, J. JAMIL SHAH-Petitioner versus STATE-Respondent Criminal Misc/B.A. No. 14 of 1998, dismissed on 15.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Grant of bail-Prayer for-Petitioner has been directly charged in promptly lodged F.I.R. and has also made judicial confession furnishing full accounts of occurrence wherein two other accused were also named, from whose possession stolen property was duly recovered-Held: Reasonable grounds do exist for believing that petitioner is connected with offence charged with and was rightly refused bail by Addl. Session Judge-Petition devoid of merits, is accordingly dismissed. [P. 788] A. Mr. Assadullah Khan, Advocate for Petitioner. Date of hearing: 15.1.1998. judgment There is no need to give brief facts of the case in hand as the same have been given in detail in para-2, of the impugned order recorded by the Addl. Sessions Judge, Nowshera (Mr. Muhammad Bashir Khan) on 15.11.1997. Since the petitioner has been directly charged in the promptly lodged F.I.R. and has also made a judicial confession furnishing full accounts of the occurrence wherein two other accused were also named i.e., Manawar Kamal and Wajid, from whose possession the stolen property was duly recovered, therefore, in the circumstances, I am of the view that reasonable A grounds do exist for believing that the petitioner is connected with the offence charged with and that he was rightly refused bail by the Addl: Sessions Judge. No ground has been made to show as to why the decision of j the Addl: Sessions Judge be interfered with. This petition is devoid of merits and is accordingly dismissed in limine. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 788 Present: sardar javaid nawaz khan gandapur, J. NASIB-UR-REHMAN-Petitioner versus NAZAR MUHAMMAD etc.-Respondent. Criminal Misc. No. 693 of 1997, dismissed on 15.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- — -S. 497 (5)-Offence u/S. 337-A(2)-Bail-Cancellation of-Prayer for- Respondent has been charged U/S. 337-A(2) for having injured petitioner, by hitting him with back side of axe, whereas, according to medico legal report, petitioner has been shown to have been injured with sharp edged weapon-Held : Zaila Qazi/Sessions Judge was justified in holding that case of petitioner was that of further enquiiy and have extended concession of bail to petitioner-Petition without merit is accordingly dismissed. [P. 789] A & B 1968 SCMR 1168. Mr. Attaullah Khan, Advocate for Petitioner. Date of hearing: 15.1.1998. order I have gone through the judgment of the Zaila Qazi, Dir, at Taimargara, recorded on 19.5.1997 and have perused the record of the case carefully, Respondent No. 1 Nazir Muhammad has been charged vide F.I.R. No. 124 dated 27.2.1997 registered in P.S. Ouch District Dir u/S. 337-A(2) for having injured the petitioner by hitting him with the back side of an axe whereas, according to the medico legal report the petitioner has been shown to have been injured with a sharp edged weapon. Resultantly, the Zaila Qazi/Sessions Judge was justified in holding that the case of the petitioner was that of further enquiry and to have extended the concession of bail to the petitioner. The apex Court of the Country in case Ijaz Ali Khan v. The State reported in 1968 Supreme Court (M.R.) 1168, had held:- "The petitioner- who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in section 497 Cr.P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." Accordingly I am of the view that this bail cancellation petition does not merit consideration and is dismissed in limine. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 790 Present: muhammad naseem chaudhri, J. MUHAMMAD NADEEM-Petitioner versus STATE-Respondent Crl. Misc No. 931-B of 1998, accepted on 19.3.1998. Criminal Procedure Code, 1898 (V of 1898)--

—-S. 496-Offence under Ss. 320 & 322-Death of two persons due to rash and negligent driving-Bail-Grant of-Which of sections is attracted- Section 320 or 322 PPG and whether non-possession of driving licence ff precludes court to grant hail especially when statutory rights has also accured to petitioner-A case of rash and negligent driving prima facie falling u/S. 320 P.P.C which according to schedule II to Criminal Procedure Code, 1898 is bailable-Contention that petitioner was without driving licence and for that reason he is not entitled to be admitted to bail due to prima facie attraction of section 322 P.P.C. has no legal force-At bail stage petitioner-accused is prima facie liable u/S. 320 P.P.C. which is ^ -~ bailable-Maximum punishment of Section 322 P.P.C. is payment of Diyat which does not fall within prohibitory clause even though same is not bailable-Where criminal liability of accused of offence is Diyat only, offence does not fall within prohibitory clause-Continuous period of ^ detention of petitioner has exceeded one year and he has earned valuable right for his admission to bail in terms of section 497 of Cr. P.C. who cannot be termed to be hardened, desperate or dangerous criminal-Held : Where offence does not fall within prohibitory clause, acceptance of bail is - • rule and rejection is exception-Held further : Petitioner is entitled to be ^ admitted to bail as of right as contemplated u/S. 496 Cr. P.C.- Application accepted and petitioner admitted to bail. [Pp. 792, 793 & 794] A, B, C, D, E, F & G PLD 1979 Lahore 941; PLD 1995 S.C. 34. Ch. Ghulam Sabir Sulehria, Advocate for Petitioners. Syed ZulfiqarAli shah Bokhari, A.A.G. for State. Date of hearing: 19.3.1998. judgment Case FIR No. 156 dated 19.3.1997 stands registered at Police Station Pasrar District Sialkot under section 320 Pakistan Penal Code at the instance of Ghulam Mustafa complainant who alleged that on the same date at 7.00 P.M. he was present at his shop of saw machine alongwith his brother Ghulam Murtaza and cousin Muhammad Bilal where they were working. In the continuous tea stall his father Abdul Majeed and his son Abdul Jabbar were taking the tea. Abruptly one 'Dalah' (vehicle) bearing No. PRH 1068 being driven rashly, negligently and carelessly by Muhammad Nadeem petitioner-accused son of Muhammad Ashraf caste Jat resident of Chowk Bairiwala arrived and within their sight crushed to death his brother Abdul Majid and son Abdul Jabbar. 2. Muhammad Nadeem petitioner-accused is said to have been arrested on 17.3.1997 whose bail application was initially dismissed on 22.3.1997 by the learned Area Magistrate with the reasoning that it is a case of Qatl-bis-Sabab" prima facie falling under section 322 Pakistan Penal Code and that while driving the vehicle the petitioner was not in possession of a driving licence. Thereafter on 30.4.1997 the learned Additional Sessions Judge Sialkot dismissed the bail application of this petitioner on the ground that he was driving without licence and without route permit issued to him by the competent authority. On 9.8.1997 another bail application filed by Muhammad Nadeem petitioner was dismissed by the learned Judicial Magistrate Section 30 Pasrur with the reasoning that Section 322 Pakistan Penal Code is prima facie attracted which falls within the prohibitory clause. The learned Additional Sessions Judge, Pasrur dismissed another application of Muhammad Nadeem petitioner on 4.12.1997 by expressing that there was no fresh ground for filing the bail application as the one moved earlier was dismiss by his learned predecessor. Muhammad Nadeem petitioner has filed this petition to try his luck to be admitted to bail. 3. I have heard the learned counsel for Muhammad Nadeem petitioner as well as the learned Assistant Advocate General and gone through the record before me. The contention of the learned counsel for the petitioners is that it is a case prima facie falling under section 320 Pakistan Penal Code which is bailable and that section 322 containing the punishment for "Qatl-bis-Sabab" is not attracted. He added that section 322 Pakistan Penal Code provides "whoever commits "Qatl-bis-Sabab" is liable to "Diayat" and thus an offence under section 322 Pakistan Penal Code does not fall within the prohibitory clause. He continued that Muhammad Nadeem petitioner was arrested on 17.3.1997 while today is 19.3.1998 whose continuous period of detention has exceeded one year and the trial has not concluded whereby he has earned valuable right of his admission to bail. He added that if the petitioner was not having the licence to drive, yet this aspect of the matter cannot be considered at the time of the disposal of the bail application which may be taken into account while determining the quantum of punishment in case of conviction of the petitioner. On the contrary learned Assistant Advocate General laid the emphasis that two persons lost their lives when Muhammad Nadeem petitioner was driving the vehicle without the licence and thus the learned lower Courts have rightly dismissed his bail applications successively. 4. Before appreciating the arguments addressed by the learned counsel for the parties it is proper to reproduce section 320 to section 322 Pakistan Penal Code as under :- "320. Punishment for qatl-i-khata by rash or negligent driving.--Whoever commits qatl-i-Khata by rash or negligent driving shall, having regard to the facts and circumstances of the case, in addition of diyat, be punished with imprisonment of either description for a term which may extent to ten years. 321. Qatl-bis-Sabab. -Whoever, without any intention to cause death of, or cause harm to, any person does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab. 322. Punishment for qatl-bis-sabab. -Whoever commits qatlbis-sabab shall be liable to diyat." 5. I would express that a perusal of the FIR has made out that it is an alleged case of rash and negligent drivingprima facie falling under section 320 Pakistan Penal Code which according to Schedule II to the Criminal Procedure Code, 1898 is bailable. I would be glossing over an important aspect of the matter by expressing that it is a matter of common knowledge that whenever an offence of alleged rash and negligent driving resulting in the death of person(s) by drivers has been made non-bailable, the same is objected to and restned by the transporters who observe strikes and through amendment the offence is again declared as bailable. It also happened at the time of the initial enforcement of Qisas and Diyat Ordinance, 1990 which position is still holding the field i.e. section 320 Pakistan Penal Code is bailable. A perusal of the FIR has made out that there was no previous nimosity between, Muhammad Nadeem petitioner-accused on the one side and both the deceased Abdul Majid and Abdul Jabbar as well as Ghulam Mustafa complainant on the other side. 6. The contention that Muhammad Nadeem petitioner was without a driving licence and for that reason he is not entitled to be admitted to bail due to prima facie attracted of section 322 Pakistan Penal Code has no legal force. I would reproduced as under the last but one para from the ruling published as Muhammad Bakhsh etc. versus The State (PLD 1979 Lahore 941) which has settled this type of aspect of such matter :- "Whether Muhammad Bakhsh petitioner had the authority to take out the car from the garage or not would be a subject matter of departmental inquiry or disciplinary action and it does not aggravate the offence under section 304-A, P.P.C. so as to convert it into an offence under section 304 P.P.C. Similarly, the fact that Sajid Mahmood did not possess a driving licence would not convert the offence under section 304-A, P.P.C. to one under section 304 P.P.C. The gravamen of the offence under section 304-A P.P.C. is related to "rash or negligent act" and not to the possession of a driving licence. If we were to accept the contention of the learned counsel for the complainant, it would mean that if a competent driver, who has not been able to renew his licence in time, unfortunately happens to meet an accident, he may be booked for a murder, which would be an absurdity." 7. It shall not be out of place to express that omitted section 304-A Pakistan Penal Code stands substituted by Section 320 Pakistan Penal Code dealing with the cases of death allegedly committed through rash and negligent driving. Thus the dictum enunciated in the aforesaid ruling is also applicable in this case. The non-production of the driving licence by Muhammad Nadeem petitioner is no ground to withhold the discretion in his favour with respect to a bailable offence. 8. About the prima facie attraction of section 322 Pakistan Penal Code wherein the punishment of payment of Diyat by the offender to the heirs of the victim due to "Qatl-bis-Sabab" is incorporated, suffice it to express that the bail application is to be disposed of within the framework of the provisions of section 497 Pakistan Penal Code. Section 322 PPC, the maximum punishment of which is the payment of Diyat, does not fall within the prohibitory clause even though the same is not bailable. The offences punishment with death or life imprisonment or ten years fall within the prohibitory clause as contemplated under section 497 of the Code of Criminal Procedure. Thus where the criminal liability of an accused of an offence is Diyat only the offence does not fall within the prohibitory clause, Where an offence does not fall within the prohibitory clause, the acceptance of bail is the rule and the rejection is an exception in view of the ruling published as Tariq Bashir and others versus The State (PLD 1995 Supreme Court 34). 9. This is the proper stage to express that the salutary principle for the interpretation of Penal Law, as is evident from "Maxwell on the Interpretation of Statutes (Twelfth Edition) by P.St. J. Langan, page 239" is reproduced below :- "The principle applied in construing a penal Act is that if, in construing the relevant provisions, 'there appears any reasonable doubt or ambiguity', it will be resoled in favour of the person who would be liable to the penalty" (1953 1 W.L.R. 312). If there are two interpretations possible, I am persuaded to accept that interpretation which is more lenient and favours the accused person. Technically speaking the sentence for the commission of an offence under section 320 Pakistan Penal Code is graver being in addition to diyat with imprisonment for a term which may extend to ten years while under section 322 Pakistan Penal Code the accused of qatl-bis-Sabab is liable to ditfyt only. However, section 320 Pakistan Penal Code is bailable which prima facie is attracted in cases of death by alleged rash and negligent driving. Thus the matter has to be considered and processed with in this perspective in favour of the petitioner-accused. 10. From what has been expressed above, it can safely be held even at this bail stage that Muhammad Nadeem petitioner-accused in prima facie liable under section 320 Pakistan Penal Code which is bailable and he is entitled to be admitted to bail as of right as contemplated under section 496 Pakistan Penal Code. 11. This petitioner was arrested on 17.3.1997 while today is 19.3.1998. The Area Magistrate is said to have been transferred without substitute. There is no likelihood of the conclusion of the trial in the near future. The continuous period of detention of Muhammad Nadeem petitioner has exceeded one year and he has earned a valuable right for his admission to bail in terms of Section 497 of the Code of Criminal Procedure who cannot be termed to be a hardened, desperate or dangerous criminal. 12. For what has been said above, I hold that it is a fit case for the admission of Muhammad Nadeem petitioner to bail. Consequently I accept this application and admit Muhammad Nadeem petitioner to bail in the sum of Rs. 1,00,000/- (One Lac) with one surety in the like amount to the satisfaction of the learned Senior Civil Judge/Judicial Magistrate Section 30 r. P.C. Sialkot with the direction to appear before the learned trial Court on every ate of hearing failing which he shall be liable to be proceeded against in accordance with law. After attestation of bail bond the papers shall be sen to the learned Area Magistrate by the learned Senior Civil Judge/ Judicial Magistrate Section 30, Sialkot for attaching the same with the challan file. (B.T.) Petition accepted

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 795 Present: MUHAMMAD NASEEM CHAUDHRI, J. KAUSAR MAHBOOB-Petitioner Versus STATE-Respondent Crl. Misc No. 934-B of 1998, dismissed on 17.3.1998 Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 324 & 337-F(iii)-Bail--Grant of-Prayer for-Intention of accused with respect to murderous assault on person of injured stands projected by alleged fact that he fired twice at him-There is othing on record to make out fact that intention of assailant was to fire at leg and thigh of injured as he was not having intention to effect murderous assault on him-It was chance that victim received injuries on thighs and legs-Role attributed to petitioner has made prima facie murderous assault upon injured-Under Islamic Law, with respect to Anatomy court shall have to come out of interpretation of vital and nonvital parts of body while taking of cases of this nature registered after firing is effected by accused-Weapon of offence is also said to have been produced by petitioner before police-Held: Petitioner-accused is Prima facie also liable under section 324 P.P.C. which falls within prohibitory clause-Petitioner is not entitled to be admitted to bail-Petition dismissed. [Pp. 797 & 798] A, B, C & D Mr. Ijaz Ahamd Chaudhri, Advocate for Petitioner. Mr. Shafqat Hayat Baluch, Advocate for State. Date of hearing : 17.3.1998. judgment Some days before 6.8.1997 a dispute arose between Kausar Mahboob petitioner-accused and Safdar Injured son of Dost Muhammad complainanl in a cricket match whereby Kausar Mahboob petitioner was annoyed. Due tc the aforesaid motive Kausar Mahboob petitioner is alleged to have surprisec Safdar injured on 5.8.1997 at 6.00 p.m. in front of the house of Abdul Aziz ir Mauza Sandanwala within the area of Police Station Harnoli, Distric Mianwali while Kausar Mahboob petitioner was armed with double barrel 12-bore gun. Kausar Mahboob petitioner-accused raised the lalkara that he would teach him (Safdar injured) a lesson for insulting him and abruptly fired twice at Safdar which hit his upper leg, thing and knee joint. Safdar fell down. Dost Muhammad complainant, Sher Muhammad and Fateh Muhammad PWs saw the occurrence. Kausar Mahboob petitioner succeeded in making good his escape. Dost Muhammad complainant, father of Safdar, got recorded FIR No. 100 dated 6.8.1997 at 8.30 p.m. at Police Station Harnoli, District Mianwali under sections 324/337-F(iii) Pakistan Penal Code. 2. Safdar injured was examined by Dr. Maqbool Mubarak CMO, District Headquarters Hospital, Mianwali on 5.8.1997 at 8.15 p.m. who found four entry wounds, five exist wounds and one grazing wound on the lateral upper leg, posterior upper leg and lateral thigh. The knee joint was also found to have been hit. In all ten injuries were found by the medical witness. The injured was taken to the emergency while feeling the pains and in severe discomfort when he was examined by the Medical Officer. 3. Kausar Mahboob petitioner-accused was arrested on 23.8.1997 who produced double barrel gun before the police on the said date which was taken into possession vide memo prepared by the Investigating Officer. 4. The bail application of Kausar Mahboob petitioner-accused had been dismissed by the learned Area Magistrate as well as by the learned Additional Sessions Judge with the reasoning that he is prima facie liable under section 324 Pakistan Penal Code in view of the injuries found on the person of Safdar injured which falls within the prohibitory clause. Kausar Mahboob has filed this petition before this Court for his admission to bail. 5. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that in view of the seats of injuries section 324 Pakistan Penal Code is not applicable and keeping in view the fact that on the medico legal report it is narrated that the injuries are Mutalahimah falling within the purview of section 337-F(iii) Pakistan Penal Code, the petitioner is entitled to be admitted to bail as the maximum punishment for the aforesaid offence is three years as 'Tazir'. He added that in view of the seats of the injuries section 324 Pakistan Penal Oode is not applicable and that even otherwise in case any injurv falls under in independent penal section which in the instant case is section 337-F(iii), section 324 of the Pakistan Penal Code would not be applicable. In short he anvassed that the attraction of section 324 Pakistan Penal Code is a juestion of further inquiry. On the contrary learned Counsel for the State laid the emphasis that in view of the motive and the role attributed to Kausar Mahboob petitioner-accused who fired twice on Safdar injured who received ten injuries with fire arm, he \sprima-facie liable under section 324 Pakistan Penal Code as well as under section 337-F(iii) Pakistan Penal Code. He added that section 337-F(iii) Pakistan Penal Code is prima-facie applicable in addition to section 324 Pakistan Penal Code. Before making the analysis and appreciation of the dispute in hand I would like to reproduce as under section 324 Pakistan Penal Code for the sake of convenience so that the true picture emerges :- "324. Attempt to commit Qatl-i-amd. --Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i-amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused : Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years". 5. A perusal of the aforesaid section has made out that in case an accused is found liable under section 324 Pakistan Penal Code in addition to the imprisonment and fine as aforesaid provided under section 324 Pakistan Penal Code he shall also be liable to the punishment provided for the hurt caused. It means that the specific section provided in Pakistan Penal Code for the hurt caused shall be in addition to section 324 Pakistan Penal Code simultaneously and section 324 Pakistan Penal Code shall not stand eclipsed. The provisions of section 324 Pakistan Penal Code initially at the time of the enforcement of the Qisas and Diyat Ordinance; 1990 did not contain the words "in addition to the imprisonment and fine as aforesaid" after the words "the offender shall". As such the reasoning adopted by the learned counsel for Kausar Mahboob petitioner-accused has no blessing from the law of the land applicable at present. As such this contention is ignored. 6. Learned counsel for Kausar Mahboob petitioner argued that the attraction of section 324 Pakistan Penal Code is a question of further inquiry as the injuries found on the person of Safdar victim-injured by the medical witness are on the upper legs and thighs which is not upper part of body and for that reason the petitioner is entitled to be admitted to bail. I do not agree with him. As rightly pointed out by the learned Counsel for the State the intention of the accused with respect to the murderous assault on the person of Safdar injured stands projected by the alleged fact that he fired twice at him. There is nothing on record to make out the fact that the intention of the assailant was to fire at the leg and thigh of the injured as he was not having the intention to effect the murderous assault on himT It was a chance that the victim received the injuries on the thighs and the legs. The role attributed to the petitioner has made me to express the view that Kausar Mahboob prima facie made the murderous assault upon Safdar injured. It was next contended by the learned counsel for the petitioner that the thighs and the upper legs of a person are not a vital part of the body and the injuries received by the victim cannot be termed to be within the purview ofthe murderous assault. On the basis of the reasoning adopted by the learned State Counsel I have to express that under the Islamic Law .with respect to the Anatomy we shall have to come out of the interpretation of vital and non-vital parts of the body while taking up the cases of this nature registered after the firing is effected by the accused. The fact of the matter is that Kausar Mahboob fired twice on the person of Safdar injured and both the shots hit him directly on the front portion of his body. It is important to note that it is a single accused case. The weapon of offence is also said to have been produced by Kausar Mahboob petitioner before the police. With my aforesaid reasoning I hold that Kausar Mahboob petitioner-accused is prima facie also liable under section 324 Pakistan Penal Code with falls within the Prohibitory Clause and, as such, is not entitled to be admitted to bail. 7. For what has been said above, I dismiss this bail application. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 798 Present: muhammad naseem chaudhri, J. ABDUL HAQ-Petitioner Versus STATE-Respondent : Criminal Misc. No. 277-B/98, dismissed on 4.3.1998. Criminal Procedure Code, 1998 (V of 1898)-- !-S. 497-Offence u/S. 302 P.P.C.--Bail--Grant of-Prayer for-Whether opinion of two DSPs declaring petitioner as innocent is binding on Court-Question of-Petitioner is principle accused as he allegedly fired at deceased and was only person having used firearm at elevant time of occurrance-Two co-accused are stated to have been got discharge while third co-accused has been admitted to bail-In view of role attributed to petitioner-accused, who practically is alleged to have committed murder of deceased, it can be safely held that he isprima facie liable for murder of deceased-Held : Petitioner is not entitled to benefit of consistency as case of prosecution against petitioner falls within prohibitory clause- Held further : Opinion about innocence of petitioner-accused, keeping in view material collected by Police at initial stage, can be termed to be of the legal value and not binding on court-Not fit case for grant of bail to petitioner-Petition dismissed. [P. 800] A, B & Mr. TahirMahmood Gondal, Advocate for Petitioner. Kh. Muhammad Iqbal Butt, Advocate for State. Date of hearing : 4.3.1998. judgment Ghulam Rasool complainant got recorded FIR No. 59 dated 13.1.1995 at Police Station Malakwal District Mandi Baha-ud-Din under sections 302/452/34 P.P.C. with the allegation that on the mid-night falling between 30/31.1.1995 Abdul Haq petitioner-accused armed with 12-bore gun in the company of his co-accused Zafar armed with 7 MM rifle Ghulam Nabi armed with hockey and Khizar Hayat empty handed knocked the door of the 'Baithak 1 which was opened who trespassed the same and that within his sight Adbul Haq petitioner-accused fired at this son Mukhtar Ahmad which hit has neck and crossed through and through. At that time a guest named as Jan Muhammad was also present in the 'Baithak'. His alarm attracted Khizar Hayat and Allah Bakhsh who saw the accused persons running from the spot. Mukhtar Ahmad died there and then. It is proper to express that Mukhtar Ahmad was an Army Jawan and was availing two months leave. 2. Abdul Haq petitioner-accused was arrested whose bail plea has been rejected by the learned Additional Sessions Judge, Mandi Baha-ud-Din and he has filed this petition with the same desire. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The contentions of the learned counsel for Abdul Haq petitioner ware that in two investigations he has been declared as innocent by two D.S.Ps, that Khizar Hayat co-accused has been held to be the assailant and that the co-accused Zafar and Ghulam Nabi have been got discharged. He added that the involvement of Abdul Haq petitioner-accused is a question of further inquiry. I do not agree with him. As rightly pointed out by the learned counsel for the State Abdul Haq petitioner is the principal accused as he allegedly fired at Mukhtar Ahmad deceased and was the only person having used the firearm at the relevant time of the occurrence. Zafar and Ghulam Nabi co-accused are stated to have been got discharged while Khizar Hayat co-accused has been admitted to bail. In view of the role attributed to Abdul Haq petitioner-accused who practically is alleged to have committed the murder of Mukhtar Ahmad deceased it can safely be held that he is prima facie liable for the murder of Mukhtar Ahmad deceased who is not entitled to be benefit of rule of consistency as the case of the prosecution against him falls within the prohibitory clause. 4. At this stage I am tempted to express that during the arguments it was brought to the notice of this Court that two D.S.Ps. declared Abdul Haq petitioner as innocent. The present texture of the working of the police and the experience shows that the accused persons are declared innocent whenever the investigation is transferred from the local police to a superior Police Officer and it is the high time that the frequent transfer of Investigations is avoided and checked and that the superior Police Officers refrain from taking the undue advantage of their status and position in the matter of grant of wrongful gain to the accused persons and wrongful loss to the complainant party. It is a matter of common knowledge that the initial investigation conducted at the level of the Station House Officer of the concerned Police Station is mostly a source of better results about the administration of justice to reach at the right conclusion and whenever the matter is transferred to the higher Police Officers the tables are turned in majority of cases. As such the opinion about the innocence of Abdul Haq petitioner-accused, keeping in view the material collected by the police at the initial stage, can be termed to be of no legal value and not binding on the Court. Hence it follows that the true picture shall emerge after the conclusion of the trial. 5. For what has been said above, it is not a case for the admission of Abdul Haq petitioner to bail and I dismiss this petition. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. Lahore 801 ( Multan Bench) Present : ZAFAR PASHA CHAUDHRY, J. MUNIR AHMAD and another-Petitioners versus STATE-Respondent Crl. Misc. No. 1223/B of 1997, accepted on 16.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Grant of-Prayer Offence u/s 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Challan was submitted in court but inspite of pendency of case for about six months not a single witness has been recorded-Petitioner No. 2 being woman is entitled to concession of bail as admissible to her under proviso to section 497 Cr.P.C.-Offence is not covered by prohibitory clause, therefore petitioner cannot be kept in confinement for indefinite period nor they can be punished for slackness on the part of prosecution-Either of petitioner has no criminal history-Bail granted. [P. 801] A Mr. Tariq Muhammad Iqbal Chaudhry, Advocate for Petitioners. Mr. Muhammad Rafiq, Advocate for State. Date of hearing: 16.10.1997. order Submits that petitioners are involved in case F.I.R. No. 162/96 dated u /s 16/7/79. The case was registered on 10.7.96 on the statement of Muhammad Usman that one year prior to the occurrence when he was out" of the house his wife nad been taken away and ultimately the accusation fell on the petitioner. Petitioners No. 1 and 2 claim themselves to be married as husband and wife which fact is controverted by the complainant. The petitioner was arrested on 2.3.97. The challan was submitted in court on but inspite of pendency of the case for about six months not a single itness has been recorded so far. Petitioner No. 2 being woman is entitled to concession of bail as admissible to her under proviso to section 497 Cr.P.C. The alleged offence is not covered by the prohibitory clause therefore the petitioners cannot be kept in confinement for indefinite period nor they can be punished for the slackness on the part of the prosecution. Either of the petitioner has no criminal history. 2. This petition is, therefore, allowed and the petitioners are admitted to bail on their furnishing bail bonds in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of the learned trial court. (AAJS) Bail granted

PLJ 1998 Cr PLJ 1998 Cr. C. Lahore 801 ( Multan Bench) Present : ZAFAR PASHA CHAUDHRY, J. MUNIR AHMAD and another-Petitioners versus STATE-Respondent Crl. Misc. No. 1223/B of 1997, accepted on 16.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Grant of-Prayer Offence u/s 16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Challan was submitted in court but inspite of pendency of case for about six months not a single witness has been recorded-Petitioner No. 2 being woman is entitled to concession of bail as admissible to her under proviso to section 497 Cr.P.C.-Offence is not covered by prohibitory clause, therefore petitioner cannot be kept in confinement for indefinite period nor they can be punished for slackness on the part of prosecution-Either of petitioner has no criminal history-Bail granted. [P. 801] A Mr. Tariq Muhammad Iqbal Chaudhry, Advocate for Petitioners. Mr. Muhammad Rafiq, Advocate for State. Date of hearing: 16.10.1997. order Submits that petitioners are involved in case F.I.R. No. 162/96 dated u/s 16/7/79. The case was registered on 10.7.96 on the statement of Muhammad Usman that one year prior to the occurrence when he was out" of the house his wife nad been taken away and ultimately the accusation fell on the petitioner. Petitioners No. 1 and 2 claim themselves to be married as husband and wife which fact is controverted by the complainant. The petitioner was arrested on 2.3.97. The challan was submitted in court on but inspite of pendency of the case for about six months not a single itness has been recorded so far. Petitioner No. 2 being woman is entitled to concession of bail as admissible to her under proviso to section 497 Cr.P.C. The alleged offence is not covered by the prohibitory clause therefore the petitioners cannot be kept in confinement for indefinite period nor they can be punished for the slackness on the part of the prosecution. Either of the petitioner has no criminal history. 2. This petition is, therefore, allowed and the petitioners are admitted to bail on their furnishing bail bonds in the sum of Rs. 50,000/- each with one surety each in the like amount to the satisfaction of the learned trial court. (AAJS) Bail granted PLJ 1998 Cr. C. (Peshawar) 802 (DB) Present : MALIK HAMID SAEED, SHAH JEHAN KHAN YOUSAFZAI (DB) ' )N <X)NTRARY CONCLUSION OF DB. THE MATTER WAS REFERRED TO SARDAR jaw aid nawaz khan gandapur, J. SAKHI ZAMAN & 2 others-Petitioners versus STATE and another-Respondents Crl. Misc-/B No 275 of 1997. decided on 2.3.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- - S. 497/498-Suppression of Terrorist Activities Act (V of 19751. S. 5(8-A)-- Bail-Grant of-Prayer for-It is true that petitioners are directly named in F.I.R. for effectively firing at complainant duly witnessed by PW Haji Sher Nawaz, but since victim/complainant had received two wounds on his person and that too on non-vital parts of his body, therefore, it is difficult to hold that from whose shot he was injured—Besides, injured/complainant, had since been discharged from Hospital on 15.12.1997 and petitioners are behind bai-s since 10.7.1997, i.e. for last five months-Above all, all eleven accused of cross-case FIR No. 79 had since been enlarged on bail and principle of consistency demands that petitioners be treated at par with them-It is job of trial court to ascertain that, who amongst two parties was aggressor and aggressed upon—Held : All these facts bring case of petitioners within ambit of further inquiryntitling them to concession of bail-Application accepted-Per : Malik Hamid Saeed, J. [P. 805] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- S. 497/498-Suppresion of Terrorist Activities Act (V of 1975) S. 5 (8-A)~ Bail-Grant of-Prayer for-On tentative assessment of Prosecution evidence, though Medical officer has noticed two entrance wounds on person of complainant, but five stamps of bullets were also found on walls ut height of 2-4 foots and 27 empties of Kalashnikov in scattered form were recovered from spot-In these circumstances, non of petitioners can be exonerated from role of effective firing-Even if firning of any of petitioner if proved ineffective could not escape from conviction as under section 34 P.P.C. all accused shall/be responsible for act done by one of them in furtherance of common object and intention-Ocular testimony duly corroborated by large number of empties of 7.62 bore, two spent bullets, medical evidence coupled with absconsion of petitioner immediately after commission of offence establish prima facie against them-If prosecution evidence as it is left unrebutted at trial, all accused individually and collectively may be punished for committing attempt Qatl-e-Arnd of petitioner with common object and intention-Number of enquiries by different police officials were conducted on applications ol complainant in F.I.R. No. 79, but in non of enquiry complainant of instant case has blamed for aggression, rather repeated applications by complainant in F.I.R. No. 79 seems to be effort to restore FIR No. 79-Those findings of enquiiy officers have no impact on fate of case- Held : Exercise of discretion to grant bail to petitioners cannot be applied in circumstances-Petition dismissed-As Per : Shah Jehan Khan Yousafzai J. [P. 808] B, C & D (iii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497/498-Suppression of Terrorist Activities Act (V of 1975), S. 5 (8-A)- -Bail-Grant of--Concept--It is now well settled principle of law that in non-bailable offence punishable with imprisonment for less than 10 years, rule is bail and not jail--As for as non-bailable offence punishable with death/Imprisonment for life/imprisonment for 10 years are concerned, refusal of bail is rule whereas grant of bail is exception- Provisions of section-497(l) Cr.P.C. are not punitive in nature as there is no concept of punishment before judgment either in criminal law or in Islamic jurisprudence, therefore, question of grant/refusal of bail has to be enuinely/judiciously determined by court keeping in view i'acts and circumstances of each case—As Per • Sardar Jawaid Nawaz Khan Gandapur, J. [Pp. 809 & 810, K & V (iv) Criminal Procedure Code, 1898 (V of 1898) - —-S. 497-Bail-Grant of-Benefit of reasonable doubt-Extention of-hi out country there is tendency to involve innocent persons with actual cuJpnt-- Therefore, benefit of reasonable doubt about manner in which offence was committed, identity of accused, his presence 011 spot, but allegedly played by him and above all his vicarious liability etc. would invariably go to him even at bail stage-Whenever reasonable doubt arises legarding participation of accused person in commission of crime, he shall be entitled to concession of bail not as matter of grace, but as matter of right, because there is wide difference between jail life and free life-Held . Bail cannot be withheld as punishment. [Pp. 810 & 811] G PLD 1995 S.C. 34. (v) Criminal Procedure Code (V of 1898)— —- S. 497/498-Suppression of Terrorist Activities Act (V of 1975), S. 5 (8-A) Bail-Grant of-Prayer for-My learned brothers, Mr. Justice Hamid Saeed Malik, on examination of record, is of opinion that reasonable grounds do not exist for believing that petitioners have committed offence--0n other hand, on examination of same material, other learned judge, Mr. Justice Shah Jehan Khan Yousafzai, has come to different conclusion i.e. that there are reasonable grounds to believe that petitioner are connected wit 1 : commission of offenc 0 charged with—Mere fact that two learned judges have arrived at different conclusion would automatically make existence of reasonable grounds to connect petitioners with commission of crime pretty doubtful-Held : Petitioners would be entitled td benefit of doubt because they have successfully made &it case of further inquiry within meaning of section 497(2) Cr.P.C.-- Entitling them to be released on bail-Petition accepted. [P. 811] H & Mr. Dost Muhammad Khan, Advocate for Petitioners. Mr. Ghazanfar All Bangash, Advocate for State. Pir Liaquat All Shah, Advocate for Complainant. Date of hearing : 11.2.1998. judgment Malik Saeed, J.--This bail application filed by Sakhi Zamari and j two others was commonly heard together with Honourable Justice Shah Jehan Khan in a Division Bench and after considering the arguments advanced at the bar, I came to the irresistible conclusion that the petitioners are entitled to the concession of bail, while my learned brother was holding a different view. Therefore, my independent view is based on the following facts and circumstances of the prosecution's case :- 2. According to the first information report lodged by Muhammad Shakeel complainant on 14.8.1997 at 0820 hours, on the eventful day he was going towards his fields and on reaching the 'Chowk r of his village, he noticed Sakhi Zaman and Akhtar Zaman, sons of Mir Sahib Khan and another Hamidullah Khan son of Khan Zaman standing near the grave-yard. On seeing the complainant, all the three armed with Kalashnikovs opened fire at him with which he was hit on right leg and hand and fell to the ground, whereafter they decamped from the spot. Motive for the offence was disclosed to be previous blood-feud enmity between the parties and the occurrence was stated to have been witnessed by Haji Sher Nawaz son of Sher Zaman, their co-villager. 3. On the same day, one Muntazir Khan a close-relative of the petitioners lodged a cross-report bearing No. 79 in the same police station charging as many a= elevent persons for attempting at the life of the complainant and PWs by firing at them ineffectively with their Kalashnikovs. 4. fter the occurrence, both the parties applied for bail-beforearrest to the learned Special Judge Bannu which though was initially allowed but subsequently recalled vide his order dated 23.9.1997. Thereafter, both the parties independently filed post-arrest bail applications before the same Court and the learned Special Judge vide his separate orders dated 24.10.1997 admitted the accused of the cross-case FIR No. 79 to bail but declined the same concession to the accused/petitioners, who have now come up to this Court through the application in hand 5. Learned counsel for the petitioners prayed for their release on bail on the following grounds that three persons are charged for inflicting two wounds on the person of the victim/complainant; 1. That the injuries sustained by the complainant were on non-vital parts of his body; 2. That the empties recovered are from point 'B' which is shown close to point '3' within a radious of eight feet; 3. That the petitioners are behind the bars for the last five months; 4. That though the petitioners are charged for effective firing at the complainant, but it cannot be said with certainity that whose shot proved effective; 5. That the instant case is a cross, one to FIR No. 79 and the accused charged therein had since been released on bail and the rule of consistency, therefore, demands that the petitioners should be given the same treatment, and lastly; 6. That it is highly improbable at this stage that who amongst the parties was aggressor and aggressed upon coupled with the fact that the victim had since been discharged from hospital on 15.12.1997. In the aforesaid circuit .ances, he was of the view that the case of the petitioners is of further inquiry entitling them to the concession of bail. 6. In rebuttal, learned counsel for the complainant and State opposed the aforesaid contentions by contending that the petitioners are directly charged for committing the offence in a broad-day light; duly supported by the PW and the medical evidence is in line with the prosecution version not entitling the petitioners to the concession of bail. 7. I am of the view that from the facts and circumstances of the case, a case for bail is made out. It is true that the petitioners are directly named in the FIR for effectively firing at the complainant duly witnessed by the PW Haji Sher Nawaz, but since the victim/complainant had received two wounds on his person and that too on non-vital parts of his body, therefore, it is difficult to hold that from whose shot he was injured. Besides, the injured/complainant had since been discharged from the hospital on 15.12.1997 and the petitioners are behind the bars since 10.7.1997, i.e. for the last five months. Above all, all the eleven accused of the cross-case FIR No. 79 had since been enlarged on bail and the principle of consistency demands that the petitioners be treated at par with them. It is the job of the trial Court to ascertain that who amongst the two parties was aggressor and aggressed upon. All these facts when judged together brings the case of the petitioners within the ambit of 'further inquiry' entitling them to the concession of bail. 8. In consequence, this application is accepted and the petitioners are directed to be released on bail provided they furnish bail bonds in the sum of Rs. fifty thousands with two sureties each in the like amount to the satisfaction of trial Court, who shall see that the sureties are local, reliable and men on means having considerable landed property on their names. Shah Jehan Khan, J.~Petitioners being charged for committing an offence punishable under sections 324/34 PPC vide FIR No. 78 dated 14- 84997 of Police Station Kakki on their arrest applied for post arrest bail to the Special Judge, Bannu. which was refused to them vide order dated 24- 10-1997, have come to this Court for the said relief. 2. In nutshell the prosecution case is that Muhammad Shakeel lodged the report in injured condition, disclosing therein that on the eventful day at 07.15 hours he was going to his field to bring grass, on reaching the chowk of his village he noticed that the three accused-petitioners were standing near by graveyard and on seeing him all the three opened fired at him with the result that he sustained injury on his right leg and hand, and fell down on the ground. The occurrence was reportedly witnessed by Haji Sher Nawaz Khan who happened to be present near the Chowk. The motive behind the occurrence is bloodfeud enmity. The site plan was prepared at the instance of eye witness Haji Sher Nawaz Khan. During spot inspection the I.O. took into possession 27 empty shells of 7.62 bore spread over an area of eight feet from the place allocated to accused-petitioners. The I.O also noticed five marks of bullets on the wall of bathroom at the height of 2/4 feels and in 3 feet circular. Two spent bullets were also found beneath the wall. 3. The injured complainant was examined by Medical Officer on 14- 8-1997 at 09.00 hours and found the following injuries : 1. One F.A. I entry wound measuring l/3"x.L/3" on the lower and of the right arm, posteromedial aspect. 2. One F.A. I exit 2"xl''on the hack of elbow joint. 3. One F.A. I entry wound l/3"xl/3" on the lower portion of right thigh front ('Anterior aspect). 4 One F.A 1 exit wound 2"x2" on the front of right leg mid portion. The condition of injured complainant was not found very satisfactory and was kept under observation. 4 The I.O also examined Haji Sher Nawaz eye-witness mentioned m F.l.R. who suggested in toto the version of complainant. 5. All the three accused-petitioner went in abscondance and were proceeded under sections 87 and 204 Cr.P.C. Subsequently they applied for d-interim pre-arrest bail on 9-9-1997 which was granted but lateron recalled on 23-9-1997. On the same day i.e 14-8-1997 at 10.40 hours one Nazar Khan also lodged a separate FIR bearing No. 79 for indiscriminate ineffective firing through Kalashnikovs against eleven persons. The same FIR was also investigated by I.O. But nothing to corroborate the alleged ineffective firing was detected. Neither any empty nor any mark of bullet of the indiscriminate firing through Kalashnikovs was found. The parties in both the FIRs are not the same and even the site plan of both the occurrence are not the same. After conducting a thorough investigation FIR No. 79 was cancelled being a false counter-blast against FIR No. 78 of the instant case. 6. The learned counsel for the petitioner seeks the concession of bail on three fold grounds; firstly that due to counter-version of the incident, the responsibility of aggression cannot be placed at the shoulders of petitioners; secondly that the entrance wounds on the person of complainant does not commensurate with the number of accused; and thirdly that non of the petitioners has been specifically attributed the two inlet wounds caused to complaint. In these rcumstances he maintained that case against the petitioners require further enquiry. 7. The learned counsel for the complainant while refuting the contentions of counsel for the petitioners argued that all the three accused- petitioners are reasonably connected with the commission of offence. Case FIR No. 79 cannot be t""vted as cross case because neither the parties nor the vanue of occurrence is the same. Further submitted that points raised by opposite side amounts to dep appraisal which unwarranted at this stage and placed reliance on Shahzaman and 2 others vs. The State and another (PLD 1994 SC 65). 8. The learned Assistant Advocate General opposed the concession of bail to the petitioners. 9. We heard the learned counsel at the bar and perused the record with the valuable assistance of the learned counsel. The contension of counter-version is without substance simply for the reasons that neither the petitioners nor the complainant/eye-witnesses of instant case FIR No. 78 are mentioned in FIR No. 79. Eleven persons are charged in FIR No. 79 by the complainant have no mentioned in the instant case. The two cite plans prepared by I.O at the pointation of eye-witnesses of the respective FIRs do not tally to each other. In these circumstances FIR No. 79 may be the out come of instant case but not cross to it. 10. The second and third contentions of the petitioner's counsel cannot be considered at bail stage, because deep appreciation of evidence is not required so that the trial should not be adversely effected. On tentative assessment of r.ho prosecution evidence, though the Medical Officer has B noticed two enlruace wounds on the person of complainant, but five stamps of bullets were also found on the walls at the height of 2-4 feets and 27 empties of Kalashnikov in scattered form were recovered from the spot where presence of the three petitioners. In these circumstances non of the petitioners can be exonerated from the role of effective firing. Even if the firing of any of the petitioner if proved ineffective could not escape from conviction as under section 34 PPC all the accused shall be responsible for the act done by one of them in furtherance of common object and intention. The ocular testimony duly corroborated by large number qf empties of 7.62 bore, two spent bullets, medical evidence coupled with absconsion of petitioner immediately after the commission of offence establish a prima facie, case against them. If the prosecution evidence as it is left unrebutted at the trial all the accused individually and collectively may be punished for committing attempt to commit Qatl-e-Amd of petitioner with common object and intention. 11. This is also pertinent to be noted that a number of enquires by different police officials were conducted on the applications of complainant in FIR No. 79 but in non of the enquiry complainant of the instant case has been blamed for aggression, rather the repeated applications by complainant in FIR No. 79 seems to be an effort to restore FIR No. 79. Those findings of enquiry officers have no impact on the fate of present case. For the aforesaid discussion I am not inclined to exercise the bail discretion in favour of accused-petitioners. Consequently the instant bail petition is dismissed. Sardar Jawaid Nawaz Khan Gandapur, J.--In the case in hand, the petitioners stand charged for having committed an offence punishable U/Ss 324/34 PPC vide: F.I.R. No. 78 registered at Police Station, Kakki, District Bannu on 14.8.1997. 2. The petitioners applied for bail but the Special Judge, Bannu (Mr. Abdul Sattar Khan) by his judgment recorded on 24.10.1997 refused to extend the concession of bail to them. Hence, they have approached this Court for the redress of their grievance and have prayed that, they be released on bail as they were innocent and falsely charged and were accordingly entitled to be released on bail not as a matter of grace but as a matter of right. They have further alleged that the complainant party has already been extended the concession of bail by the same Judge in the cross- case, registered Vide: F.I.R. No. 79 dated 14.8.1997 U/Ss 324/148/149 PPC, therefore, keeping in view the golden principle of consistency in granting bail, they too were entitled to be granted bail. 3. The bail petition was heard by a Division Bench of this Hon'ble Court, comprising of His Lordships Mr. Justice Hamid Saeed Malik and His Lordship Mr. Justice Shah Jehan Khan Yousafzai. 4. Mr. Justice Hamid Saeed Malik on examination of the F.I.R. statements of the PWs recorded u/s 161 Cr.P.C. and the other material collected during the course of investigation came to the conclusion that the case of the petitioners was that of further inquiry within the meaning of sub­ section (2) of section-497 Cr.P.C. and, therefore, they were entitled to be released on bail. Accordingly he allowed bail to the petitioners in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Illaqa Magistrate by his judgment recorded on 11.2.1998. 5. A contrary view was taken by His Lordship Mr. Justice Shah Jehan Khan Yousafzai after having gone through the same material/record. His Lordship came to the conclusion that there were reasonable grounds to believe that the petitioners had in fact committed the alleged crime and, therefore, they were not entitled to be released on bail. He by his judgment dated 10.2.1998, declined to release the petitioners on .bail. 6. The contrary conclusions arrived at by the two Hon'ble Judges of this Court necessitated the matter to be referred to his Lordship Mr. Justice Mehbub Ali Khan, the Hon'ble Chief Justice for further directions. 7. As directed by the Hon'ble Chief Justice, the Additional Registrar (Judl) Peshawar High Court, Circuit Bench, D.I. Khan (Mr. Naseer-ud-Din Khan Gandapur) has placed this matter before me for decision. 8. Pir Liaqat Ali Shah, Advocate learned counsel for the complainant/respondent No. 2 (Muhammad Shakeel) failed to appear in the Court and his request for the adjournment of the bail petition was declined because he had not produced any Medical Certificate to show that he was sick and unable to attend the court to argue the matter. 9. Mr. Dost Muhammad Khan, Advocate learned counsel for the petitioners and Mr. Ghazanfar Ali Bangash, Advocate learned counsel for the State present and heard at length. 10. I am quite conscious of the fact that the petitioners stand charged with for having committed a serious offence, therefore, I have gone through the record of the case as well as the two bail orders recorded by my learned brothers with great care. 11. It may be stated at the out-set that non-bailable offence can be divided into two distinct categories which are :-- Firstly, the offence which are punishable with death, imprisonment for life or imprisonment for 10 years; and Secondly, the offence which are punishable with imprisonment for less than 10 years. 12. It is now well settled principle of law that in non-bailable offence punishable with imprisonment for less then 10 years, the rule is the bail and E not the Jail. In other words, bail may be declined only in extra­ ordinary/exceptional cases some of which maybe enumerated as under :-- (i) Where there is likelihood of abscondence of the accused; (ii) Where there is an apprehension of the accused tampering with the prosecution evidence: (hi) Where there is danger of the offence being repeated if the accused is released on bail; and (iv) Where the accused is a previous convict. 13. As for as the non-bailable offence punishable with death/imprisonment for life/imprisonment for 10 years are concerned, refusal of bail is the rule whereas grant of bail is an exception. It may. however, be noted that the Provisions of Section-497 (1) Cr.P.C. are not punitive in nature as there is no concept of punishment before judgment either in the criminal law or in the Islamic Jurisprudence, therefore, the question of grant/refusal of bail has to be genuinely /judiciously determined by the Court keeping in view the facts and Circumstances of each case. It would therefore, follow that :— (i) where the prosecution convinces the Court that there are reasonable grounds to believe that the accused has committed the crime charged with then the Court must refuse to extend the concession of bail to the accused; and (ii) where the accused convinces the Court that reasonable grounds do not exist for believing that he has committed the offence/crime with which he lias been charged then the Court must release him on bail. 14. It is therefore not incumbent upon the Court to conduct a preliminary trial. It has only to look into the material collected by the Investigating Officer for and against the accused and to see as to whether or not uprirna facie case is made out against the accused which, if not rebutted, may lead to the conclusion/inference that the accused has in fact committed the crime. Since deeper appreciation of evidence, available on the record, is not permissible at the bail stage, therefore the court shall not examine the merits of the case minutely. In the main, the Court has to look for reasonable grounds, which may or may not connect the accused with the commission of the offence charged with. Reasonable grounds would, of course, mean grounds which may appeal to a reasonable/prudent man. In other words the bail order has to be a balanced order which is drafted carefully and weighed in the scale of justice/requirement of relevant provision of law (Cr.P.C.). 15. It is pointed out, with concern, that in our countiy there is a tendency to involve innocent persons with the actual culprit. Therefore the benefit of reasonable doubt, about the manner in which the offence was committed, the identity of the accused, his presence on the spot, the part allegedly played by him and above all his vicarious liability etc., would invariablly go to him even at bail stage. It may be remarked that whenever reasonable doubt arises regarding the participation of an accused person in the commission of the crime he shall be entitled to the concession of bail not as a matter of grace but as a matter of right because there is a wide difference between the Jail life and a free life. As mentioned earlier the bail cannot be with-held as punishment. If an authority is needed, I am fully supported by case Tanq Bashir and 5 others versus The State, reported as PLD 1995 Supreme Court Page-34. 16. In the case in hand one of my learned brothers, Mr. Justice Hamid Saeed Malik, on the examination of the record, is of the opinion that reasonable grounds do not exist for believing that the petitioners have committed the offence. On the other hand, on the examination of the same material, the other learned Judge, Mr. J\istice Shah Jehan Khan Yousafzai, has come to a different conclusion i.e., that there are reasonable grounds to believe that the petitioners are connected with the commission of the offence charged with. 17. In may humble opinion, the mere fact that the two learned Judges have arrived at different conclusion would automatically make the existance of reasonable grounds to connect the petitioners with the commission of the crime pretty doubtful. Accordingly the petitioners would be entitled to the benefit of doubt because they have successfully made out a case of further inquiry within the meaning of section-497 (2) Cr.P.C. entitling them to be released on bail. 18. In view of what has been stated above I agree with Hon'ble Mr. Justice Hamid Saeed Malik that the petitioners are to got bail. 19. This bail petition is therefore accepted. The petitioners shall be released forthwith, if not required in any other case, provided each one of them deposits bail money amounting to Rs. 25,000/- (twenty five thousand) with the Nazir of this Court. i B.T.i Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 811 (DB) Present : IFTIKHAR HUSSAIN CHAUDHRY & GHULAM SARWAR SHEIKH, JJ. SAEED AHMAD & another-Appellants versus STATE-Resporident Cr. A. SC(T) No. 17-97/BWP, dismissed on 14.1.1998. Anti-Terrorism Act, 1997-- —-S. 25-Murder-Offence of-Conviction for-Challenge to-Owner of lands adjacent to place of occurrence was working there when attracted to scene on cacophony-Neither his ownership to lands adjacent to venue of occurrence has been disputed nor any animosity or rancour towards accused has been suggested to him-Thus he is natural and independent witness who saw assailants perpetrating double murder, convincingly testified 1 in court and successfully withstood gruelling cross examination-­ Complainant, eye-witness not only re-iterated account of occurrence as detailed by him in F.I.R. but also gave reason of his being with his son at time of incident as both of them going to Basti to visit his daughter, sister of Rasool Bakh-Even this witness has no previous enmity with accused/appellants-Ocular account is fully corroborated by medical evidence-Blackening around injuries both deceased proves to hilt that shots at them were fired from very close range as PWs during cross examination, doctor confirmed that shots might have been fired within yard-As necessaiy corollary, version advanced by prosecution is not only proved beyond any manner of doubt by statement of Mst. Shazia, ocular evidence, medical evidence, recoveries and motive, but also, when put and placed in juxta-position with story dvanced bv appellant is seemingly plausible and sounds to reason-Held : Occxurence had taken place in manner as set up by prosecution-Held further : Appellants were rightly adjudged to be guilty for having caused injuries to both deceased in furtherance of their common intention-Appeal of Noor Muhammad, appellant dismissed while death sentence of Saeed Ahmad converted to imprisonment for life due to absence of direct motive-Appeals dismissed with modification. [Pp. 815, 816 & 817] A, B, C, D & E Mr. Mumtaz Mustafa and Mr. M.A. Mannan, Advocates for Appellant. Ch. Muhammad Bashir, A.A.G. and Mr. Sardar Ahmad Khan, Advocate for State. Date of hearing : 14.1.1998. judgment Ghulam Sarwar Sheikh, J.--This judgment will dispose of Murder Reference as well as appeal under section 25 of Anti-Terrorism Act, 1997 against judgment dated 5.11.1997 passed by learned Judge, Special Court, Bahawalpur, constituted. under said Act, whereby appellants were convicted under section 302/34 PPG and sentenced to death while their co-accused Ghulam Sarwar was acquitted. 2. Facts, as unfolded in FIR Ex. PB/1 formally drawn upon statement Ex. PB, re-affirmed at trial, by PW2 Haji Mark complainant, father of Rasool Bakhsh deceased, in brief, are that few days prior to the occurrence, Noor Muhammad appellant exposed his suspicion about Rasool Bakhsh's illicit intimacy, relations and liaison with his wife namely, Gul Khatoon daughter of Taj Muhammad, Haji Mark accosted Noor Muhammad appellant to vouch for the innocence of his son. But sceptic husband did not agree. Then father or concerned woman was approached. He, too, refused to listen and rather proclaimed revenge. 3. On 24.9.1990, at 10 A.M., the fate-ful day, complainant and his son Rasool Bakhsh deceased while going towards "basti" from their house were ambushed, near the house of Dost Ali Chacher, from behind a jal (Peelu) tree by Noor Muhammad and his brother Saeed Ahmad, while armed with pistols. A motor cycle was also there. 4. Both the appellants resorted to firing aiming at Rasool Bakhsh. A shot fired by Noor Muhammad hit him at his back, whereas, one fired by Saeed Ahmad injured his right arm. Noor Muhammad repeated the shot, which, hit front left side of hand of victim. Ghulam Sarwar, their co-accused standing near-by exhorted them not to let Rasool Bakhsh escape alive. Besides the complainant, occurrence was witnessed by Muhammad Shafi PW3, Muhammad Ismail PW4 and Allah Dad, who, when threatened by appellants, did not dare to intervene. 5. However, in the mean-time, Mst. Shazia aged 11/12 years, a cousin sister of deceased, hearing alarm, rushed to the scene, threw herself on the injured and received fire-arm injuries and lateron succumbed to the same, in the hospital. Alongwith their weapons Saeed Ahmad and Noor Muhammad accused fled away on motor-cycle whereas Ghulam Sarwar accused decamped towards Sem-Nala. Rasool Bakhsh expired at the spot. 6. Leaving eye-witnesses with dead body of Rasool Bakhsh and injured Shazia, complainant proceeded towards Police Station to report the matter. On the way, he met Muhammad Yousaf Inspector/SHO, Police S'adar Station Rahimyar Khan at the bridge of a Canal, where his statement Ex. PB was recorded. 7. PW 12 Ch. Muhammad Yousaf Inspector police visited the place of occurrence, inspected the spot, collected blood stained earth therefrom, made it into a sealed parcel and took the same into possession vide memo. x. PE. Empties P4 and P5 were secured from the spot, and taken into possession by means of memo. Ex. PF, after the same were made into sealed parcel. After preparing inquest report Ex. PI/2 of Rasool Bakhsh deceased and injury statement Ex. PH/1 of Mst. Shazia injured, the Investigating Officer despatched dead body to morgue for autopsy under the escort of Muhammad Riaz Constable (PW. 13) and sent injured Shazia to hospital for her examination and treatment. After reaching hospital, he made on application Ex. PL to the doctor on duty and sought necessary permission for recording her statement, which, was taken down after she was declared fit to make it. On 26.9.1990, she, breathed her last in the hospital and post mortem examination upon her dead body was performed by Dr. Abdul Wahid (PW. 10). Last worn clothes of Mst. Shazia and of Rasool Bakhsh were taken into possession by virtue of memos. Ex. PG and Ex. PK respectively. Sealed parcels were duly deposited with Moharrir for safe custody. 8. Noor Muhammad and Saeed Ahmad appellants were arrested on 4.10.1990 and Motor-cycle was recovered at the instance of Saeed Ahmad. On 7.10.1990. while in police custody, aforesaid Saeed Ahmad led to the recovery of Pistol P6 and live cartridges P7 from his house. Same were taken into possession vide memo. Ex. PC. On same day, Noor Muhammad appellant also led police to the recovery of pistol P8 and two live cartridges P9 and PlO from his house. Same were also taken into possession through memo. Ex. PD. Site plan Ex. PJ and Ex. PJ/1. were got prepared from Peeran Ditta Patwari PW. 11. On completion of investigation, rercr as envisaged hy section 173 Cr.P.C. was submitted. 9. Accused including appellants, pleaded not guilty and claimed trial. 10. Prosecution examined as many a^ 13 witnesses to prove its case Haji Mark PW. 2. the complainant. Muh:-:m,nad Sharif PW. 3 and Muhammad Ismail PW T . 4 testified in Court as eye witnesses, whereas medical account was furnished by D. Gul Iftikhar-ul-Hassan PW. 1. Dr. Abdul Wahid PW r . 10 and Lady Dr. Tasneem Kamran PW. 9 out of whom first two conducted post mortem upon dead bodies of Rasool Bakhsh and Shazia respectively, whereas the third one had examined Shazia when alive. for her injuries. Blackening around the wounds of both the deceased was observed by the Doctors. Recoveries of weapons of offence were proved by Karim Bakhsh PW. 5, Khalil Ahmad PW. 6 and Lai Bakhsh PW. 7. PW. 12 Muhammad Yousaf, Inspector/SHO deposed about several steps of investigation carried out by him. Mushtaq Ahmad father of Shazia deceased deposed as Court witness to explain as to now the statement of Shazia was recorded. Rest of evidence is of formal nature. 11. When examined under section 342 Cr.P.C. appellant Saeed Ahmad and Ghulam Sarwar (acquitted accused") denied all the incriminating circumstances figuring against them in the prosecution evidence, professed innocence and alleged false implication due to their relationship with Noor Muhammad accused, who, however, took the plea as under :-- "Mst. Gul Khatoon is my wife and I have four sons and 5 daughters from this wed-lock. On the day of occurrence my wife was not present in my house. I searched for her and going to the house of Dost Ali Chacher. when I reached near abandoned poultry farm, I saw my wife and Rasool Bakhsh deceased was in compromising position. I entered in that poultry farm but both of them made there escape. I chased them and fired at Rasool Bakhsh, which, hit on his hand he also tired at me but his fire hit Mst. Shazia, who received injury. Then I again fired at him as a restilt he died at the spot. My wife made her escape good. I myself appeared before the police and produced the pistol Ex. P3 weapon of offence to the police. Alleged recovery of weapon of offence was planted by the police with the connivance of complainant later on." 12. None of them, however, opted to appear as his own witness to disprove the allegations as envisaged by Section 340(2) Cr.P.C. No evidence was led in defence either 13. Out of two versions advanced at the trial, learned trial Court believed the prosecution evidence, adjudged both the appellants as guilty. proceeded to convict and sentence them as indicated and noted above. Ghulam Sarwar accused was, however, given benefit of doubt and thus acquitted. 14. Learned counsel representing the appellants has lambasted the verdict by pointing out that same is rife and replete with legal and technical snags and infirmities, which, unfortunately escaped notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. Main attack, inter alia, rests upon the grounds; i.e. the witnesses are inimical, interested and closely related to the deceased. FIR was recorded after spot inspection, due deliberations and consultation with active opponents of appellants; presence of alleged eye-witnesses at the spot is not proved or atleast is not believable; presence of Haji Mark complainant at the spot is excluded not only by so-called dying declaration of Mst. Shazia but also, by testimony of PW. 3 Muhammad Shafi and PW. 4, uhammad Ismail; alleged eye-witnesses have improved their version and thus impaired the prosecution case beyond repair; learned trial Court has proceeded to convict the appellants upon far-fetched presumptions and probabilities keeping out of consideration golden Principles laid down by august superior Courts; learned trial Court has failed to appreciate the data and material on record, of-course, in its true perspective and rather counter version has irregularly been used to fill in lacunae of prosecution case; evidence of recovery of pistols is not free from doubt, only two empties against three shots allegedly fired were recovered medical evidence cannot be taken to be in line with the prosecution version and that statement o ? CW-1 should have served as impartial, unbiased and clear version of 'Jj rcinent. Also it has been impressed that statement of Shazia was not recouu-<'i trueiv, honestly and in accordance with law inasmuch as the doctor attend;?^ .Shazia, the injured, was not associated in the process and as such stattvurnt by nn stretch of imagination can be used as dying declaration ai;'l is of'- •, ' olp to the cause of prosecution. 15. Various factors have been high-lighted to remark, cui;vor.->eiy. that the appellants being responsible for gruesome and cold bkwn ders are liable to be awarded extreme penalty, 16. Arguments have been considered in light of recorded perused with able assistance of learned counsel for the parties. It is a broyu d;\y-light. occurrence. An owner of lands adjacent to the place oi' occurrence' Muhammad Shafi PW. 3 was working there when attracted to the scene on cacophony. Neither his ownership to the lands adjacent, to the venue of I occurrence has been disputed nor any animosity or rancour towards accused has been suggested to him. Thus, he is natural and independent witness who saw the assailants perpetrating double murder, convincingly testified in Court and successfully withstood gruelling cross examination. Haji Mark, the complainant eye-witness not only re-iterated the account of the occurrence as detailed by him in FIR but also gave the reason of his being with Rasool Bakhsh his son at the time of incident as both of them were going to "Basti" to visit his daughter, sister of Rasool Bakhsh. Even this witness has no previous enmity with the accused/appellants. Muhammad Shafi and Muhammad Ismail PWs are resident of the vicinity where the occurrence had taken place. Mere relationship with the complainant does not make them interested witnesses. Ocular account is fully corroborated by medical evidence. Blackening around the injuries of both deceased proves to the hilt that shots at them were fired from very close range as deposed by PWs. During cross-examination PW. 1. Dr. Gul Iftikhar-ul-Hassan confirmed that the shots might have been fired within a yard. 17. Statement under section 161 Cr.P.C. of Mst. Shazia reproduced by Muhammad Yousaf PW. 12 and which for all intents and purposes can be taken to be almost dying declaration not only full implicates the appellants but also belies the defence version altogether. It is pertinent to note that Mst. Shazia is related to accused in nearer degree than the deceased as conceded by her father Mushtaq Ahmad CW-1. 18. Plea of Noor Muhammad accused of having seen his wife Mst. Gul Khatoon in compromising position with Rasool Bakhsh deceased, is rendered to be an after-thought affair and figment of imagination on the bare aspect that neither Mst. Gul Khatoon received any injury nor such a picture was painted or even hinted at by Mst. Shazia. As a necessary corollary, version advanced by the prosecutor is not only proved beyond any manner of doubt by statement of Msf. Shazia, ocular evidence, medical evidence, recoveries and motive, but also, when put and placed in juxta­ position with the story advanced by Noor Muhammad appellant is seemingly plausible and sounds to reason. We, therefore, hold that the occurrence had taken place in the manner as set up by the prosecution, same stands conceded by appellant Noor Muhammad, time and venue thereof have not been disputed either. Appellants, accordingly were rightly adjudged to be guilty for having caused injuries to both the deceased in furtherance of their common intention. 19. Noor Muhammad appellant responsible for double murder was rightly convicted under section 302/34 PPG for committing Qatl-e-Amd of two persons and sentenced to death, to be hanged by his neck till he be dead on each count. However, keeping in view the role ascribed to appellant Saeed Ahmad, injuries suffered at plan by Rasool Bakhsh deceased at his hands, and absence of direct motive with him, call for, lesser penalty to him on account of mitigating circumstances enumerated above. As such, death sentence awarded to Noor Muhammad appellant is CONFIRMED while that of Saeed Ahmad appellant is altered from death to imprisonment for life. Benefit of provisions of section 382-Cr.P,C. shall also be extended while computing the period of sentence. 20. With this modification instant appeal merits dismissal and is hereby dismissed. Murder Reference is answered accordingly. (B.T.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. Lahore 817 (Multan Bench) Present: RAJA MUHAMMAD SABIR, J. RIAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 714-B/1997, accepted on 15.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Bail-Grant of-Prayer for-Further inquiry and rule of consistency-Ground of-Offence u/s 302/34/109 PPC-Allegation of abetment-In jail for the last 11 months-Two co-accused found innocent during investigation-Petitioner was neither present at the spot nor he caused any injury to deceased—Allegations needs leading of evidence-- Prima facie such allegations are not sufficient to keep petitioner in jail for an indefinite period without trial-Allegation against co-accused were similar granted bail by Sessions Judge-Rule of consistency-Bail granted. [Pp. 818 & 819] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Mr. Ahmad Usman, Advocate for State. Date of hearing : 15.9.1997. order Petition seeks bail in a case registered vide FIR No. 157 dated 6.9.1996 under Sections 302/34/109 PPC at police station Sahooka, Tehsil Burewala, District Vehari. 2. Brief facts of the case are that complainant's brother Allah Ditta was married with Mst. Saddan Bibi daughter of Allah Bakhsh Darkhan whereas sister of complainant was given in exchange to the son of Allah Bakhsh. On the day of occurrence some quarrel took place between Allah Ditta and Saddan Bibi on some domestic problem which came in knowledge of Riaz petitioner who is brother-in-law of Allah Ditta aforesaid. In the evening at about sun set time petitioner, his wife, Ghulam Qadir and Ghulam Fareed sons of Khuda Bakhsh residents of Naushehra Jamlaira came in the house of the complainant and started quarrelling with them. Riaz, Ghulani Qadir and Ghulam Fareed gave beating to father of the complainant whereas the complainant side also abused them. On hue and cry people of the village gathered who patched up the matter but accused threatened that they will take revenge of their insult. After the said quarrel Muhammad Afzal, and Ali Muhammad husbands of complainant's sisters also reached their house. While they were sitting in the house and talking about the quarrel which had taken place earlier at about 10 PM accused reached raising lalkaras. Father of the complainant Muhammad Yar, complainant and his sisters husbands Muhammad Afzal and Ali Muhammad opened the chain of the door to go outside the house. After going outside the house they saw that accused Ghulam Fareed armed with 12-bore gun and Ghulam Qadir armed with pistol were standing on the road. Ghulam Fareed fired with his gun which hit father of the complainant Muhammad Yar on his chest who fell on the ground and succumbed to injuries. Complainant saw the occurrence in the light of electric bulb light and tried to catch the accused whereupon Ghulam Qadir fired in the air with his pistol. Thereafter accused ran away with their arms. Father of the complainant died at the spot. It is alleged that Ghulani Qadir and Ghulani Fareed with connivance of Allah Bakhsh and Muhammad Riaz petitioner committed the murder of father of the complainant. 3. Two of the accused Ghulam Qadir and Allah Bakhsh were found innocent during investigation and Allah Bakhsh was granted bail on 8.4.1997. Petitioner was arrested on 1.10.1996 and since then he is in jail. Trial of the case has not commenced so far. 4. Learned counsel for the petitioner content that four accused have been involved in this case. Deceased received 12-bore gun shot injury on his person which is attributed to Ghulam Fareed. Petitioner was neither armed nor he participated in the occurrence. He is alleged abetment of the murder only. 5. Learned counsel for the State opposed the grant of bail to the petitioner on the ground that on his instigation Ghulam Fareed fired the fatal shot on the deceased. 6. I have heard the learned counsel for the parties and perused the record. Allegation against the petitioner is of mere abetment. He is in jail since 1.10.1996. Two of the co-accused Ghulam Qadir and Allah Bakhsh ave been found innocent during investigation. Petitioner was neither present at the spot nor he caused any injury to the deceased. It is veiy easy to make the allegation of conspiracy in order to enlarge number of the accused in the FIR. Allegation of the prosecution needs leading of evidence. Prima fade, such allegations are not sufficient to keep the petitioner in jail for indefinite period without trial. Case of the petitioner is of further inquiry. Allegation against the co-accused of the petitioner namely Allah Bakhsh are exactly similar in nature who has been granted bail by the learned Additional Sessions Judge, Burewala on 8.4.1997. Keeping in view the rule of consistency petitioner is allowed bail in the sum of Rs. 1,00,000/- (Rs. One lac) with on surety in the like amount to the satisfaction of the learned trial coiut. (AAJS) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. Lahore 819 ( Multan Bench) Present: SH. ABDUR razzaq, J. MAHBOOB ALI-Petitioner versus STATE-Respondent Crl. Misc. No. 941-B-97, accepted on 24-7-1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Bail-Grant of--Prayer-Further inquiry-Ground of-Offence u/S. 16/10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979- Occurrence had taken place 20/25 days prior to registration of F.I.R.- Statement of abductee has not been recorded under section 164 Cr. P.C.- Not medically examined-Petitioner in jail for the last 7 months- Abductee again left the house of her parents and complainant has again initiated proceedings against petitioner-Case of further inquiry-Bail granted. [P. 820] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Mr. Qarnar-ul-Hassan Thaeem, Advocate for State. Date of hearing : 24.7.1997. order The petitioner stands charged under Section 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide. FIR No. 245/96 dated 6.8.1996 alongwith Mst. Rajan Bibi and Muhammad Nawaz, for abducting Mst. Sakina Bibi daughter of complainant Qasim Ali and thereafter subjecting her to Zina Bil-Jabr. 2. It is submitted by learned counsel for the petitioner that there is a delay of 20/25 days in lodging the FIR, that alleged recovery of Mst. Sakina Bibi had not been effected from the petitioner, that no statement of alleged abductee had been recorded under Section 164 Cr.P.C., that even the medical examination of the alleged abductee had not been carried out, that the alleged abductee has again left the house of her parents and another complaint has been lodged against the present petitioner and others which has been filed by the investigating agency, that petitioner was arrested on 23.12.1997 and since then is in judicial lock up. He thus submits that the petition may be accepted and the petitioner be admitted to bail. 3. On the other hand bail application has been opposed by learned counsel for the State. 4. A perusal of the FIR shows that occurrence had taken place 20/25 jdays prior to the registration of the FIR dated 6.8.1996. It is also evident I from the record that statement of alleged abductee has not been recorded under Section 164 Cr.P.C. and similarly she has also not been medically examined. Again there is nothing on the record to show that alleged abductee was produced by the petitioner. The petitioner has been arrested on 23.12.1996 and since then is in judicial lock up. Again it has come on record that even after the registration of this case the alleged abductee Mst. Sakina Bibi has again left the house of her parents and the complainant has again initiated proceedings against the petitioner and others and that the said complaint has been filed by the investigating agency being false. All these facts make the case of the petitioner open for further inquiry. Accordingly petition is accepted and the petitioner is admitted to bail in the sum of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 820 Present: MUHAMMAD naseem CHAUDHRI, J. ZAFAR IQBAL-Petitioner versus STATE-Respondent Crl. Misc. No. 727/B/1998. dismissed on 16-2-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 498-Offence u/S. 324/337-F (IV)(V)/148/149 PPC-Bail after arrest granted by Area Magistrate-Cancellation of-Application for Pre-arrest bail-According to FIR Mst. M and M.F. were injured with fire-arm- Duririg investigation, petitioner-accused has been held and declared to be assailant-Fact that both injured received fire-arm injuries, is enough to hold that prima facie section 324 PPC is attracted qua petitioner-AS J was not. bound with misconceived opinion of Area Magistrate, neither Area Magistrate could be a hurdle or barrier towards competence and jurisdiction of ASJ-In a case prima facie falling under prohibitory clause of S. 497 Cr.P.C., grant of bail before lapse of a period of one year for an offence not punishable with death would be pre-mature-Order about ancellation of bail affirmed-etition dismissed in limine -Petitioner arrested. [P. 822] A Ch. Muhammad Ishaquc Khokhar, Advocate for Petitioner. Date of hearing : 16-2-1998. order Zafar Iqbal petitioner-accused armed with automatic rifle alongwith his co-accused is said to have fired at Mst. Mahwash .daughter of Muzaffar Iqbal complainant which hit her right front chest and went through and through. She also received three other fire shots. Farooq Ahmad, a brother of Muzaffar Iqbal complainant, was also fired at which hit his right foot whereby the bone was fractured. Thereafter the accused persons made good their escape. Farooq Ahmad and Mahboob Alam alongwith Muzaffar Iqbal complainant are said to have seen the occurrence which took place within the area of Nokhar Police Station Kot Ladha District Gujranwala on 9.12.1996 at 7.30 P.M. Muzaffar IQbal complainant got recorded FIR No. 159 dated 10.12.1996 under sections 324/337-F (iv)(v)/148/149 P.P.C. Both the injured were medically examined. Zafar Iqbal petitioner was arrested on 26.12.1996 who led to the recovery of .222 rifle on 27.12.1996 while under police arrest. He was admitted to bail by the Area Magistrate on 28.1.1997. The complainant made an application before the learned Court of Session at Gujranwala for the cancellation of bail which was accepted on 8.8.1997 by a learned Additional Sessions Judge, Gujranwala with the reasoning that the petitioner has been declared as the assailant-accused during the investigation who stood linked with the commission of the crime and that his pre-mature admission to bail in an offence falling under prohibitory clause was not justified. 2. The learned Additional Sessions Judge did not pass the order for the arrest of Zafar Iqbal accused after the dismissal of his bail on 8.8.1997 who has not been arrested by the police. Apprehending his arrest Zafar Iqbal petitioner filed this application on 16.2.1998 for his admission to pre-arrest bail on the grounds that section 324 Pakistan Penal Code is not attracted against him and thus he was not involved in a case falling under the prohibitory clause and that he was admitted to bail by the Ilaqa Magistrate on the ground that his involvement was a question of further inquiry and thus the bail granted to him on the aforesaid ground could not be cancelled. He prayed for setting aside impugned order dated 8.8.1997 passed by the learned Additional Sessions Judge and for his admission to pre-arrest bail. 3. I have heard the preliminary arguments addressed by the learned counsel for Zafar Iqbal petitioner-accused who mainly canvassed that the attraction of section 324 Pakistan Penal Code is uncalled for and that the bail granted to the petitioner could not be cancelled. He added that the Police has proceeded against this petitioner with mala fide intentions and it is a case where honour and reputation of the petitioner may be protected and preserved. It would be a palpable error to agree with him in the canvassing made by him. According to the recitals of the FIR Mst. Mahwash and Muhammad Farooq were injured with fire-arm. During the investigation Zafar Iqbal petitioner-accused has been held and declared to be the assailant. In addition to the attraction of the aforesaid Section 337-F (iv)(v) Pakistan Penal Code with the material collected by the police, Zafar Iqbal petitioner is also prima facie liable under section 324 Pakistan Penal Code keeping in view the law of the land prevalent and operative at present. The fact that both the aforesaid injured received the fire-arm injuries is enough to make me hold that prima facie section 324 Pakistan Penal Code is attracted qua Zafar Iqbal petitioner-accused. If the Area Magistrate has expressed that the involvement of Zafar Iqbal petitioner-accused is that of further inquiiy, that is misconceived opinion and the learned Additional Sessions Judge was not bound thereof. Further the aforesaid observation of the Area Magistrate could not be a hurdle and barrier towards the competence and jurisdiction of the learned Additional Sessions Judge to make the analysis and dissection of the merits of the matter. I deem it proper to express that in a case prima facie falling under the prohibitoiy clause in terms of section 497 of the Code of Criminal Procedure, the grant of bail before the lapse of a period of one year for an offence not punishable with death would be pre-mature. Keeping in view the recitals of the FIR and the material collected by the Investigatirg Officer which stands projected from making a perusal of the aforesaid order dated 8.8.1997 which has to be adduced in evidence during the trial; I affirm the order dated 8.8.1997 about the cancellation of bail of Zafar Iqbal petitioner by the learned Additional Sessions Judge. 4. At this stage I would express that an accused admitted to bail by the Area Magistrate whose bail is cancelled by the Court of Session and is not got arrested after the announcement of the order cannot claim unnecessary harassment at the hands of the police for the purpose of his admission to pre-arrest bail so as to avoid his arrest by the police. The order dated 8.8.1997 was passed after hearing the parties and considering all the merits of both the contesting parties. In this state of affairs the extra­ ordinary relief of pre-arrest bail cannot be granted to Zafar Iqbal petitioner as the merits of the matter cannot be analysed and weighed at this stage. I would be glossing over an important aspect of the matter by expressing that the bail allowed to Zafar Iqbal petitioner-accused on 28.1.1997 was cancelled on 8.8.1997 who was not got arrested by the learned Additional Sessions Judge. He remained in-active to seek further relief and became ugitive of law. He moved this petition on 16.2.1998 before the High Court for his admission to pre-arrest bail whose application is being disposed of today (16.2.1998) by this Court. An accused of the category/ilk of Zafar Iqbal petitioner, in the circumstances of the matter, cannot claim unnecessary harassment at the hands of the police so as to make him entitled to be admitted to pre-arrest bail. 5. At this stage I have to record my surprise as to why Zafar Iqbal petitioner-accused was not got arrested by the learned Additional Sessions Judge on 8.8.1997 after the cancellation of his bail. Legally an accused who has been arrested in a criminal case, who is bailed out and afterwards whose bail is cancelled has to be sent to the judicial lock up with the direction to be produced before the trial Court on a particular date. It would be instructive to express that the law has to take course in the matter and the subordinate courts should keep in mind that the law of the land has to steal the eminence and is entitled to paramount consideration. If the Appellate Court/Revisional Court feels that an accused has been admitted to bail without the legal and factual justification the bail has to be cancelled and the accused has to be got arrested to be sent to the judicial lock up. I have to express this aspect of the matter as this type of practice has become quite in rife in the subordinate courts in view of my own experience which should be avoided. There cannot be any diplomacy in the judicial hierarchy keeping in view the shape of scale of justice and the fact that the complainant is also not devoid of the justice of the Court even though an accused may be a favourite child of law. I am tempted to express that such a working at the end of the subordinate courts is also one of the reasons for the worsening of law and order situation. The accused of the cases of the instant nature, if not entitled to enjoy the concession of bail, have to be sent tc the judicial lock up to face the trial. 6. In view of what has been expressed and held above, I dismiss this petition for pre-arrest bail in limine. 7. Zafar Iqbal petition-accused has been put under the custody of the Naib Court after his arrest who shall be sent to the Central Jail, Gujranwala for his detention therein with the direction to the Superintendent of the said Jail to make arrangement to produce him before the learned Area Magistrate Police Station Kot Ladha District Gujranwala on 25.2.1998 and thereafter on eveiy date to be fixed by the aforesaid Magistrate. The necessary warrant shall be got issued from the office. This petition stands disposed of. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 823 Present: M.A. QAZI, J. MUHAMMAD AYYUB-Petitioner versus STATE etc.-Respondents Criminal Appeal No. 4 of 1996, dismissed on 9-2-1998. Pakistan Penal Code, 1860 (XLV of I860)- —S. 182 read with Rule 24.7 of Police Rules, 1934-Registration of FIR u/S. 324/506/148/143 PPC-Cancellation thereafter-Proceedings against complainant u/S. 182 PPC--Acquittal of Complainant on application u/S. 249-A Cr.P.C.--Challenge to-Complainant produced four witnesses before I.O. who supported his case but complainant clearly stated that parties are closely related, elders of family had patched up differences and matter had been compounded, so he did not want to pursue-against accused/appellant-Inspite of this statement, DSP observed in case diary that case according to his investigation was found to be false-SHO was directed to report for cancellation of case and to take action against complainant-Nowhere an order from a Court of law on cancellation report prepared by I.O. as required by law, (Rule 24.7 of Police Rules 1934) is available-In absence of such order, case could not deem to have been cancelled nor further proceedings against complainant u/S. 182 PPC could be held to be maintainable-Kalandra and trial on basis thereof u/S. 182 PPC held to be without lawful authority and jurisdiction-Appeal dismissed being not competent. [Pp. 825 & 826] A to C Muhammad Islam, Advocate for Appellant. Syed Shifaat Hussain, Advocate for State. Date of hearing : 9-2-1998. judgment Sh. Muhammad Younas respondent got registered FIR No. 581 at Police Station Mumtaz Abad, Multan on 28.11.1994 under Sections 324, 506, 148, 149 PPC against Muhammad Ayyub appellant and 5 others. The accused seeking pre-arrest bail surrendered before the Special Court , they were allowed interim bail and confirmation of the said bail application was still pending while the case was investigated and finalised on 14.2.1995 whereby it was recommended that the case being false be cancelled and Sh. Muhammad Younas complainant be proceeded under Section 182 PPC. On the instructions of the DSP/SDPO, Ejaz Shafi, Inspector/SHO, Police Station Mumtaz Abad prepared a Kalandra under Section 182 PPC and submitted the same before the trial court. It was entered in the court register on 7.3.1995, the accused was summoned and formally charged on 17.4.1995. The accused submitted an application under Section 249-A Cr.P.C. and vide order dated 20.11.1995 he was acquitted of the charge. 2. Feeling aggrieved by this order Muhammad Ayyub filed the present appeal and also filed Crl. Misc. No. 1/96 praying for condonation of delay in filing the said appeal. Crl. Misc. No. 1/96 was listed for hearing today but learned counsel for the parties agreed to argue the main appeal as well, so the same has been got listed for hearing today. 3. With the assistance of learned counsel for the parties, record of the case has been perused and scrutinised. Apart from the fact that the impugned order was passed on 20.11.1995 and the appeal against the said order was filed on 3.1.1996, it could have been conveniently dismissed on the ground of limitation as the appellant has not for each day's delay given any cogent reason justifying why the delay was occasioned. Anyhow in the larger interest of justice the application for condonation of delay is accepted and the appeal is proceeded to be heard for deeper and better appreciation of the merits of the case. 4. On perusal of the police file it transpired that the complainant produced four witnesses before the investigating officer on 28.11.1994 who supported his case. On 20.12.1994, the parties appeared before the DSP/SDPO where Sh. Muhammad Younas very clearly stated that the parties are closely related, the elders of the family had patched up the differences and the matter had been compounded and that now he did not want to pursue the case against the accused. Inspite of this statement, the DSP in the case diaiy dated 2.2.1995 observed that the case according to his investigation was found to be false and the accused were innocent. The SHO Mumtaz Abad was directed and instructed to report for cancellation of the case and to take action against the complainant under Section 182 PPC and that the record of the case be also produced before the Special Court. The last case diary dated 14.2.1995 on the file indicates that the Inspector/SHO prepared the cancellation report in the light of order given by the DSP/SDPO and also prepared Kalandra on the same day against Sh. Muhammad Younas complainant and submitted the same before the DSP Legal who forwarded it to the learned trial Court. Police rule 24.7 Chapter XXIV of the Police Rules 1934 is reproduced :-- "24.7 Unless the investigation of a case is transferred to another police station or district, no first report can be cancelled without the orders of a Magistrate of the 1st Class. When information or other intelligence is recorded under section 154 Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake of law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction and being a magistrate of the first class, for orders of cancellation. On receipt of such an order the officer in charge of the police station shall cancel the first information report by drawing a red line across the page, nothing the name of the magistrate cancelling the case with number and date of order. He shall then return the original order to the Superintendent's office to be filed with the record of the case". and in light of this rule and with the assistance of learned counsel for the parties, each and every paper submitted by the investigating officer in the. Kalandra and also the case diaries have been minutely examined butjgjj nowhere an order from a court of law on the cancellation report prepared by the investigating officer, as required by law, is available and in the absence of such an order upholding the cancellation report prepared by the police, the case could not dem to have been cancelled nor in absence of any such order further proceedings against the complainant under Section 182 PPC could be held to be maintainable. Both the learned counsel are in complete agreement on this point. The learned trial court has somehow been oblivious of this fact. It has not either been properly assisted by counsel for the parties appearing there or has not properly applied its mind. So for the said reason alone submission of the Kalandra and the trial on the basis thereof are held to be without lawful authority and jurisdiction, hence this appeal is not competent. It is hereby dismissed. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 826 (DB) Present : MUHAMMAD NASEEM CHAUDHRY AND RAJA MUHAMMAD SABIR, JJ. MUHAMMAD AKRAM-Petitioner versus STATE-Respondent Crl. Misc. No. 282-B of 1998, allowed on 25-2-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 498-Bail-Pre-arrest-Offence u/S. 3/4 of Explosive Substances Act, 1908 and S. 285/286/188 PPC-Petitioner deals in combustible items used in Atishbazi and a licence is issued for carrying on such a business-­ It is not a case ofprima facie attraction of Ss. 3/4 of Explosive Substances, Act-Narration about attraction of these sections in FIR is transgression of police officer who raided shop of petitioner-Sections 285 and 286 PPC are bailable, whereas maximum punishment for offence u/S. 188 PPC is six months, but is non-bailable-There is no material with police file to justify attraction of this section-In bailable offences, it is the right of an accused to be admitted to bail as contemplated u/S. 496 Cr.P.C.-FIR quashed to the extent of charge u/S. 3/4 of Explosive Substances Act, 1908-Bail allowed. [Pp. 827 & 828] A to C Mr. Nadeem Ashraf Chughtai, Advocate for Petitioner. Kh. Muhammad Iqbal Butt, Advocate for State. Date of hearing: 25-2-1998. judgment Muhammad Naseem Chaudhri, J.--FIR No. 194 dated 15.12.1997 stands registered at Police Station Akbari Gate, Lahore under sections 3/4 of the Explosive Substances Act and sections 285/286/188 Pakistan Penal Code at the instance of Abid Hussain ASI with the allegation that in violation of the Prohibitory Order issued under section 144 of the Code of Criminal Procedure whereby manufacturing and sale of the Combustible items was banned; Muhammad Akram petitioner-accused was making sale of the items of Atishbazi when the raid was effected who made good his escape. Thereafter the combustible items were taken into possession vide, memo prepared by the raiding police officer who prepared the site plan. He sent the complaint and thereafter the aforesaid FIR was drafted. Apprehending his arrest Muhammad Akram petitioner moved the first petition before the Court of competent jurisdiction for his admission to pre-arrest bail which was disposed of by the learned Addl. Sessions Judge-I, Lahore/Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on the ground that no mala fides on the part of the police have been brought to the notice of the Court. 2. This petitioner was not arrested who apprehending his arrest has filed this petition before this Court for his admission to pre-arrest bail and has been allowed the interim relief. 3. We have heard the learned counsel for the petitioner as well as the State counsel and gone through the record before us. It has been argued by the learned counsel for the petitioner that it is not a case falling under sections 3/4 of the Explosive Substances Act, 1908 and that at best it is a case prima facie falling under sections 285 and 286 Pakistan Penal Code which are bailable and for that reason the petitioner is entitled to be admitted to pre-arrest bail. On the contrary the contention of the learned counsel for the State is that due to the recovery of combustible items the petitioner is also liable under sections 3/4 of the Explosive Substances Act, 1908. We hold the view that the recital of the FIR have to steal the eminence for the proper disposal of the petition. A perusal of the FIR has made out that the petitioner deals in combustible items used in Atishbazi and we can express that even the licence is issued for carrying on such a business. A perusal of the police file has made out that a copy of the restraint order said to have been issued by the competent authority under section 144 of the Code of Criminal Procedure banning the manufacturing, displaying and selling of combustible items used in Atishbazi does not from part of the same. Without such an order the attraction of section 188 Pakistan Penal Code can be ignored even at this initial stage. Both the said sections 285 and 286 Pakistan Penal Code are bailable according to the relevant Schedule annexed with the Code of Criminal Procedure. We are in full agreement with the learned counsel for the petitioner who canvassed that it is not a case of prime facie attraction of sections 3/4 of the Explosive Substances Act, 1908. We would rather express that in view of the facts of the matter in hand it is a case wherein the attraction of the aforesaid sections 3/4 of the Explosive Substances Act, 1908 is in the eyes of law, simply unjustified. We would rather express and hold that the narration about the attraction of the aforesaid sections 3/4 of the said Act is transgression on the part of the police officer who raided the shop of this petitioner and we quash the FIR to the extent of the aforesaid charge under sections 3/4 of the said Act. 4. The maximum punishment for an offence under section 188 Pakistan Penal Code is six months which otherwise is non-bailable, but we have already expressed that there is no material with the police file to justify the prime facie attraction of the same. 5. In bailable offences it is the right of an accused to be admitted to bail as contemplated under section 496 of the Code of Criminal Procedure. Further in view of the quantum of maximum sentence of six months under section 188 Pakistan Penal Code the discretion in the matter can be exercised in favour of the petitioner in the circumstances narrated above. 6. Finding it to be a fit case we accept this petition and confirm the interim pre-arrest bail allowed to Muhammad Akram petitioner. Consequently he is admitted to pre-arrest bail in the sum of Rs. 20,000/- (Rupees Twenty thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate on the Executive side, Police Station Akbari Gate, Lahore. He shall submit the bail bond etc. within a period of seven days from today. 7. Copydasti. (MYFK) Bail allowed.

PLJ 1998 PLJ 1998 Cr. C. ( Lahore ) 828 (DB) ( Multan Bench) Present : ZAFAR PASHA CHAUDHARYAND M. A. QAZI, JJ. NASEER HUSSAIN SHAH-Appellant versus STATE-Respondent Criminal Appeal No. 109 of 1993, dismissed on 10-2-1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)- —S. 302-Murder-Offence of-Conviction for—Appeal against- Accused/Appellant admits occurrence to have taken place in the house of deceased in his presence and there is not an iota of enmity alleged against eye witnesses by appellant-There is no reason to disbelieve ocular account nor has accused put across any cogent reason as to why he has been implicated in this case-Appellant's statement indicates that weapon of offence used on deceased was a carbine in his presence, so no negative inference can be drawn even if crime empty and weapon were sent together to Forensic Science Laboratory-Held : Prosecution version carry reason and weight supported by evidence adduced on record- Appellant has been unable to establish his case to reap any benefit- Appeal dismissed. [Pp. 833 & 834] A, B & D (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- ----S. 302--Murder--Offence of-Conviction for-Revision against for enhancement of sentence-In absence of motive being proved, capital sentence cannot be awarded-Complainant has failed miserably to show, how motive stands proved against deceased-Thus there is no force in criminal revision petition, hence, dismissed. [P. 834] D Mr. Peruaiz Aftab, Advocate for Appellant. Sh. Muhammad Farooq, Advocate for Complainant. Shaukat Ali Kharal, Advocate for State. Date of hearing : 10-2-1998. judgment M. A. Qazi, J.--Naseer Hussain Shah, 25 years, appellant was challaned and sent up for trial in the instant case. The learned Additional Sessions Judge, Multan convicted the appellant under Section 302 PPC and sentenced him to imprisonment for life and also ordered that he shall pay a fine of Rs. 10,000/- or in default of payment of fine to undergo further R.I. for three months. It was also directed that the appellant shall pay Rs. 25,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default thereof to undergo further S.I. for six months. He was also convicted under Section 452 PPC and sentenced to three years R.I. and a fine of Rs. 500/- or in default thereof to further undergo R.I. for one month. Both the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C.. was also extended to the appellant vide judgment dated 28.2.1993. 2. Feeling aggrieved the appellant has challenged his conviction and sentence through this appeal while the complainant has filed Criminal Revision No. 91/93 seeking enhancement of sentence awarded to the appellant. The criminal revision was admitted to regular hearing with notice to the respondent-appellant vide order dated 21.6.1993. 3. The unfortunate occurrence took place on 8.5.1990 at 8.30 A.M. in the house of the complainant Ghulam Mustafa (PW2) situated in Mauza Almadi Sura at a distance of about 4 Km from Police Station Saddar Multan. The complainant lodged report (Ex. PA) at 3.50 PM on the same day which was reduced into writing at the police station by Muhammad Ashraf H.C. (PW8). 4. The motive, as stated by the complainant in Ex. PA is that the appellant entered his house in the presence of Syed Mohsin Ali Shah (uncle) and Syed Mazhar Ali Shah (deceased, father) and said to the complainant that since he had turned out of his house Mst. Alia his relative after giving her beating, he would teach him a lesson and would not allow him to go alive today. 5. Briefly, the facts of the case are that after extending threat to the complainant the appellant fired a short at Syed Mazhar Ali Shah with the carbine which hit him at his right thigh and bladder who fell down and received an injury on his arm as well. The entire occurrence was witnessed by Syed Mohsin Ali Shah, Mst. Saeeda Bibi wife of the deceased and the omplainant. The appellant departed from the place of occurrence alongwith the weapon of offence. Syed Mazhar Ali Shah was removed to the hospital where he was medically examined at 9.00 A.M. by Dr. Altaf Hussain (PW5) and medicolegal certificate (Ex. PE) was issued. FIR (Ex. PA) was lodged under Section 307/452 PPC. On 13.5.1990 Syed Mazhar Ali Shah died in the Nishtar Hospital Multan and vide report (Ex. PN), the offence was thereafter amended to Section 302/452 PPC. 6. The medicolegal examination was conducted by Dr. Muhammad Altaf (PW5) on 8.5.1990 at 9.00 A.M. and he found the following injuries on his person :-- 1. Multiple uncountable lacerated wounds of fire-arm entry 1/3 cm diameter in the whole of front and medial aspect of right thigh, which were more dense-in middle 1/3 area and on the testies and penis. 2. A contusion 3 cm x 2 cm on the outer front of right upper arm. On 14.5.1990 autopsy on the dead body of Syed Mazhar Ali Shah was conducted by the same doctor and he found the following injuries :— 1. Multiple uncountable lacerated wounds of fire arm entry 1/3 cm diameter on the whole of front and medial aspect of right thigh, more dense in middle 1/3 area, and testies and penis. There was operate wound 18 cm long bearing 8 stitches on the front of right side abdomen with an incision 1 cm on the right side of abdomen for drainage tube. He was operated on 8.5.1990 at 8.00 PM Exploratory leprotmy was done with the finding heamo paritonism and multiple small purforation starting from the Deodenial-jungum junction to iles caecal junction and three purforation on the mesentary. Death in the opinion of the doctor occurred due to septiccaemia and shock caused by injury No. 1 which was sufficient to cause death in the ordinary course of nature. The injury was antemortem and caused by firearm. Time between injury and death was 5 to 6 days and between death and postmortem 12 to 18 hours. 7. In the course of investigation, on 8.5.1990 blood stained earth was taken from the spot. It was made into a sealed parcel and secured vide memo Ex. PB. Crime empty Ex. PI was taken into possession vide memo Ex. PC. Recovery memos were attested by Ghulam Mustafa (PW2) and Saeed Alam Baig S.I. (PW12) while Mohsin Ali Shah was not produced by the prosecution. 8. The appellant was arrested on 19.5.1990 and on 25.5.1990 while in police custody he led to the recovery of .12 bore carbine (PW) from the graveyard in area of Suraj Miani. The recovery was witnessed and attested by Syed Tufail Hussain Shah (PW4) and Saeed Alam Baig (PW12) while Haji Shah was not produced. On 2.6.1990 the crime empty (Pi) and .12 bore carbine (P4) were sent to the forensic science laboratory for comparison and in the report (PQ) it was opined that the crime empty was fired from .12 bore carbine (P4). 9. After completion of the investigation, challan was prepared and the accused was sent up for trial. The prosecution produced 13 witnesses to prove the charge. Report of the Chemical Examiner (PO), report of the Serologist (PP) and that of the technical expert (PQ) were tendered in evidence by the prosecution and the case was closed. 10. The appellant was examined under Section 342 Cr.P.C. and in answer to question No. 2 he admitted that Mst. Alia was his close relative and that she was the wife of Ghulam Mustafa (PW2) and daughter-in-law of late Syed Mazhar Hussain Shah deceased. In answer to question No. 12 the accused has deposed as under "All the PWs are related inter-se and inimical against me. In fact, there was a dispute between complainant and his wife Mst. Alia on a house as dower which was already pledged by the deceased fraudulently. Mohsin Shah, Zawar Shah, Amir Shah and deceased were present at the time of occurrence who sided with the wife of the complainant as she protested for falsely entering the house as dower in the Nikahnama which was already pledged. This fact was disclosed by me. Mst. Alia and her parents were told these facts by me before few days of the occurrence. The complainant party bore grudge against me and was dagger drawn against me, taking as the real cause of dispute between the spouses. Mst. Alia at the time of occurrence got up and started to leave the house of the complainant. The matter flared up. The complainant mishandled Mst. Alia his wife and tried to drag her away so that she may not leave the house and accompany the aforementioned persons including her father Zawar Shah. The complainant brought a carbine and fired at his wife saying that it is better that she should died than to leave the house. Deceased intervened and came in front of his daughter in law Mst. Alia. The fire hit him. The deceased was the chronic patient of Harnia and also developed jaundic. 'He was operated upon and due to complications died on latter stage. It was later on that the complainant in connivance with the local police to gave himself and to further camoflage his own crime, falsely involved me. Mst. Saeeda Bibi PW was not present at the spot at the time of occurrence." He did not produce any defence evidence nor did he appear as his own witness as required under Section 304(2) Cr.P.C. 11. With the assistance of the learned counsel for the appellant we have traversed the entire length and breadth of the paper book. While cruising through and perusing the record the learned counsel for the parties have very vigilantly highlighted facts and circumstances to each others favour and thus all nooks and corners were probed to the satisfaction of the learned counsel for the parties present and all of them have been heard at length. 12. The opening argument of the learned counsel for the appellant was that it is a casein which intention and knowledge of the appellant was not established on record and thus the question of sentence meted out to him does not commensurate with the offence and that the appellant is in no way responsible for the murder of the deceased and thus to establish and explain his contention he has referred us to the statement of Dr. Muhammad Altaf Hussain PW-5, wherein the doctor has stated the death occurred due to septicaemia and shock caused by injury No. 1 (injury to Gut) which was sufficient to cause death. The doctor has also stated that the Gut in the right scrotem was perforated because of the pellet injury as the patient was suffering from hernia. Had the deceased been not the patient of hernia the gut would not have been in the scrotem and as such there was no possibility of same being injured by firearm. Furthermore, the doctor has stated that had the deceased been not a patient of hernia the possibility of survival was there. To further elucidate his case the learned counsel has stated that the type of cartridge used in the weapon of offence was one which carried small pellets in a large number. The most important aspect of all which the learned counsel has mphatically argued is that the appellant did not have any prior knowledge that the deceased was a patient of hernia. He has also urged that the injury being on the non-vital part was never repeated. To substantiate his contentions and fortify them the learned eoxmsel has referred before us case law Mst. Farooq Jan vs. Ilyas and two others (1980 SCMR 214), Muhammad Hanif vs. The State (1975 P.Cr.L.J. 918), Muhammad Anwar and two others vs. The State (PLJ 1965 Cr. C. Lahore 521), The State vs. Aman Ullah (PLD 1959 (W.P.) Peshawar 128) and Dhani Bux vs. The State (PLD 1964 Karachi 265). Developing his arguments in light of the case law referred the learned counsel for the appellant emphatically stressed that it is a case which on all fours is supported by the case law referred and requires to be decided in light of the precedents referred. Controverting this argument, learned counsel for the State and the complainant have unanimously stated that the case law referred does not on all fours fits in with the circumstances of this case. Each case has it own merits and demerits and has to be assessed in light of the evidence adduced in course of trial. It is submitted that the appellant admits his presence at the spot. Ke has also admitted in his statement that the injury to the deceased v,-as caused by a carbine. The most important fact is that he has unequivocally admitted that he had knowledge of the fact that the deceased was chronic patient of hernia and thus, he cannot at this stage say that he did not have the intention and knowledge that if an injury was caused on the puciic area or on the right thigh it would not cause the death of the person a:;i :hus. the portion of statement of the Doctor PW-5 on which the accused appellant has tired to build and rest his case falls flat by his own admission when examined under Section 342 Cr.P.C. Learned counsel for :he complainant has urged that the death was the direct result of injury cause: a: the hands of the appellant and thus the precedents referred by the learned counsel for the appellant are of no avail or benefit to him and not worth consideration even. 13. tj dispel the evidentiaiy value of the eye witnesses, the learned counsel could not add much except to say that both the witnesses were closely related to the deceased and no independent witness has been prodiie-ed to prove the case against the appellant. The learned counsel from the other side have ontroverted and stated that both these PWs are natural witnesses of the place of occurrence. The accused/appellant admits the occurrence to have taken place in the house of the deceased in his presence and mere is not an iota of enmity alleged against these witnesses by the accused appellant who happens to be dmittedly closely related to the wife of GhuJara Mustafa Shah PW-2. Furthermore, there is no reason to disbelieve or discredit the ocular account nor has the accused put across any cogent reason as to why he has been implicated in this case. 14. Learned counsel for the appellant has also urged before us that the crime empty PI was though taken into possession on 8.5.90 while the carbine P4 was recovered from the appellant on 25.5.90 and both articles were sent together for examination on 2.6.90, thus the positive report of the expert of the Forensic Science Laboratory cannot be relied upon. Controverting this argument the learned counsel from the other side have stated that no doubt the empty and carbine were taken into possession on different dates and were sent together for examination. Yet according to the categorical statement made by the appellant indicates that the weapon of offence used on the deceased was a carbine in his presence. Thus the B accused/appellant cannot avail any benefit from this lapse, if at all. No negative inference can be drawn even if the crime empty and weapon were sent together. 15. While putting across his arguments in favour of the criminal revision seeking enhancement of sentence the learned counsel for the complainant has stated that there are cases where motive is shrouded in mystery or motive not being proved beyond doubt but then it cannot be a basis to discredit the ocular cannot of witnesses or other evidence nor can it be a ground for acquittal for the appellant neither for lesser sentence. To a certain extent the argument advanced by the learned counsel carries weight and we are of the view that no doubt the other evidence does not lose its credence. It is also a well settled principle of law now that in absence of motive being proved capital sentence cannot be awarded. In the present case in the absence of the motive the learned counsel has failed miserably to show us how the motive stands proved against the deceased. Thus there is no force in the criminal revision petition filed by the complainant which is dismissed being devoid of weight. . 16. Learned counsel for the State has, however, vehemently argued and supported the judgment. He has also argued and prayed that the conviction and sentence awarded to the applicant be maintained. 17. After carefully giving our anxious thought to all that has been said and discussed above and also after reading the entire case law referred before us. we are inclined to hold that the arguments and reasons advanced by the learned counsel for the State and the complainant carry reason and weight and are on all fours supported by evidence adduced on record. The appellant has been unable to establish his case to reap any benefit. 18. We are, therefore, of the view that the conviction of the appellant is justified from record and the sentence awarded to him adequately meets and commensurates with the offence committed. Thus we feel no hesitation to order that the appeal of the appellant is dismissed as being devoid of force on law and facts. (MYFKt Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 834 (DB) Present : MUHAMMAD NASEEM CHAUDHRI AND RAJA MUHAMMAD SABIR, JJ. ISHTIAQ NAZIR etc.-Appellants versus STATE-Respondent Criminal Appeal No. 47-J of 1995, dismissed on 26-2-1998. Pakistan Penal Code, 1860 (XLV of I860)— -—S. 392/411-Robbery-Offence of-Conviction for-Appeal against- Appreciation of evidence-Complainant who is star witness did not touch point of identification parade in Examination-in-chief—In cross examination he stated that he could not identify any of accused- Statements of other PWs are contradictory qua each other as well as identification parade proceedings, hence, reliance cannot be placed on identification proceedings-Place of recovery was neither owned by appellants nor under their possession-Held : Prosecution failed to prove guilt of appellants who are entitled to be acquitted-Appeal accepted. [P. 838] A to C 1991 SCMR 331 rel. Mr. Abdul Khaliq and Mian Muhammad Bashir, Advocate for Appellants. Sh. Khali! Ahmed, Advocate for the State. Date of hearing : 26-2-1998. judgment Muhammad Naseem Chaudhri, J.--This appeal is directed against judgment dated 16.7.1995 passed by the Judge, Special Court, Suppression of Terrorist Activities, Faisalabad and Sargodha Divisions at Faisalabad whereby Ishtiaq Nazir, Iftikhar Hussain Khair Muhammad and All Asghar appellants were convicted and sentenced to R.I. for a period of ten years each and to pay a fine of Rs. One lac each or in default of its payment to further undergo R.I. for a period of one year eacli under sections 392/411 Pakistan Penal Code. 2. The facts giving rise to this appeal aie narrated in complaint Ex. PA got recorded on 23.4.1992 at 8.45 P.M. by Maqbool Ahmad complainant PW. 5 before Muhammad Aslam Inspector/SHO Police Station Peoples Colony, Faisalabad P.W. 7 wherein he narrated that on 23.4.1992 at 7.50 P.M. he was a driver of Sh. Bashir Ahmad P.W. 3 resident oiKothi No. 187- Saeed Colony Faisalabad. On 23.4.1992 he had gone to a Hakeem alongwith Begum Sh. Bashir Ahmad in car No. FDO-9942 valuing Rs. 4 lacs. He returned to the Kothi where four persons were standing. He blew the horn of the car and the gate of the residence was opened by Noor Muhammad Chowkidar. He entered in the residence when four persons, whose particulars are mentioned in complaint Ex. PA, entered the same while they were armed with pistols and the remaining four persons were armed with 7 MM rifles. Muhammad Mustafa P.W. 3 and Muhammad Abbas P.W. (given up) were present in the plot who were being served with dinner. Begum Sh. Bashir Ahmad was brought out of the car at pistol point and they all were taken to T.V.. lounge. One person stood to guard them while the remaining persons made illegal search of the house. In the meanwhile Shoaib Bashir P.W. 6 son of Sh. Bashir Ahmad was brought alongwith Ghulam Rasool Cook P.W. (not produced). Pistol valuing Rs. 10,000/- owned by Sh. Bashir Ahmad, his wrist watch valuing Rs. 800/- Rado wrist watch of Sh. Bashir Ahmad of the price of Rs. 10,000/- and twenty bangles weighting 30 tolas, one locket weighing 2 tolas and one pair of ear rings of the weight of 1 tolas all made of gold valuing Rs. One Lac were forcibly snatched. Thereafter those persons took away 12-bore gun lying in the gate and drove away in car No. FDP 9942 owned by Sh. Bashir Ahmad. Ex. PA was sent to Police Station Peoples Colony Faisalabad where Jaffar Ali ASI P.W.I prepared formal FIR Ex. PA/1. From the place of recording the statement Ex. PA of Maqbool Ahmad complainant, Muhammad Aslam SHO went to the place of occurrence and made the spot inspection. He prepared site plan Ex. PD of the place of occurrence. On 24.4.1992 car No. FDD 9942 (Pi) was found parked near Moti Mosque Satiana Road, Faisalahad which was taken into possession by Muhammad Naeem S.I, P.W. 8 vide memo Ex. PD attested by Muhammad Nawaz Constable P.W. 2 and Faryad Ali Constable P.W. (given up). He prepared site plan Ex. PB/1 of this place of recovery. 3. Muhammad Sarwar Inspector C.I.A. Lahore P.W. 9 received a secret information about the presence of certain accused persons on Defence Road, Lahore where he reached alongwith the police officials of Police Station Manga Mandi. The road was blocked by those persons with wood. Those seven persons were armed with deadly weapons who were arrested. 12-bore gun P2 removed from the place of occurrence was recovered from Khair Muhammad appellant while revolver P3 removed from the place of occurrence was taken into possession from Ali Asghar. During the investigation the aforesaid arrested persons made the disclosure with respect to the possession of the case property. On 5.5.1992 he went to the house of Amer Rana situated in Kasurpura, Lahore. Iftikhar ussain appellant led to the recovery of four bangles and one pair ofKantas made of gold which were secured vide memo Ex. PE and Ex. PF. He prepared site plan Ex. PE/1 and Ex. PF/1 of the respective place of recovery. Pervaiz Akhtar absconder accused led to the recovery of Rado watch which was taken into possession vide memo Ex. PG. He also led to the recovery of four bangles made of gold which were taken into possession vide memo Ex. PH. He prepared site plans Ex. PG/1 and Ex. PH/1 respectively. Khair Muhammad appellant led to the recovery of four bangles PI made of gold which were taken into possession vide, memo Ex. PI when the site plan Ex. Pl/1 of the place of recovery was prepared by him. A watch was also got recovered by Khair Muhammad appellant which was taken into possession vide memo Ex. PJ when its site plan Ex. PJ/1 was prepared. Ishtiaq Nazir appellant led to the recovery of four pairs of bangles made of gold which were secured vide memo Ex. PK and site plan Ex. PK/1 was prepared. This appellant also led to the recoveiy of gold locket which was taken into possession vide memo Ex. PL. The site plan Ex. PL/1 of this place of recoveiy was prepared. Ali Asghar appellant led to the recoveiy of four bangles made of gold which were secured vide memo Ex. PM when site plan Ex. PM/1 was prepared. Muhammad Farooq S.I. C.I.A. Lahore P.W. 10 signed the aforesaid memos. Muhammad Sarwar Inspector P.W. 9 handed over the aforesaid recovered case property to Muhammad Hussain Moharrir C.I.A. Lahore P.W. 12 on 16.5.1992 who later on delivered the aforesaid case property to Muhammad Naeem S.I. P.W. 8 vide Memo Ex. PC which was identified by Maqbool Ahmad complainant P.W. 5. 4. Muhammad Naeem S.I. P.W. 8 moved Mr. Tariq Zaman Judicial Magistrate, Lahore for holding the identification parade of Ishtiaq Nazir, ftikhar Hussain, Khair Muhammad and Ali Asghar appellants. Sh. Bashir Ahmad P.W. 3, Syed Muhammad Mustafa P.W. 4, Maqbool Ahmad P.W. 5 and Shoaib Bashir P.W. 6 participated the proceedings of the identification parade conducted in Camp Jail, Lahore on 2.6.1992 and identified the appellants. The said Judicial Magistrate (P.W. 12) prepared his report Ex. PN/1 on which he gave his certificate Ex. PN/2. 5. After completion of the investigation the challan was submitted before the trial Court. All the four appellants and Pervaiz Ahmad absconding accused were charged under section 392 Pakistan Penal Code. Except Pervaiz Ahmad the appellants who were present at that time did not plead guilty thereto and claimed to be tried. At the trial the aforesaid P.Ws stood in the witness box and supported the prosecution case. Sh. Bashir Ahmad P.W. 3 state that he identified Iftikhar Hussain and Khair Muhammad appellants as well as Pervaiz Ahmad (absconder), Syed Muhammad Mustafa P.W. 4 stated that he identified Ali Asghar, Khair Muhammad and Ishtiaq Nazir appellants as well as Pervaiz Akhtar absconder, Maqbool Ahmad complainant P.W. 5 stated in his cross-examination that he joined the identification parade but he could not identify any of the accused persons. In his Examination-in-Chief he did not touch this part of the prosecution evidence. Shoaib Bashir P.W. 6 stated that he identified Khair Muhammad appellant in the identification parade. 6. When examined under section 342 of the Code of Criminal Procedure all the four appellants claimed to be innocent and stated about their non-participation in the occurrence. They termed the aforesaid recovery of the case property as false and did not claim the same. They did not appear in their own defence under section 340(2) Cr.P.C. on oath. The did not produce the defence evidence. Learned trial Court gave the weight to the evidence produced by the prosecution and convicted the aforesaid four appellants as narrated above who have preferred this appeal which has been resisted by the State. 7. We have heard the learned counsel for the appellants as well as the learned State counsel and gone through the record before us. We are in full agreement with the learned counsel for the appellants who canvassed before us that the prosecution has failed to establish the charge framed against the appellants beyond reasonable doubt. It would be proper to touch the identification parade proceedings Ex. PN/1 first of all. Maqbool Ahmad complainant P.W. 5 who is the star witness, did not touch the point of identification parade in the Examination-in-Chief. In the cross-examination he particularly stated that he could not identify any of the accused at the time of the identification prade. Sh. Bashir Ahmad appeared as P.W. 3 who did not name Ishtiaq Nazir and Ali Asghar appellants with respect to the identification made by him during the identification parade. Shoaih Bashir appeared as P.W. 6 and stated that he could identify only Khair Muhammad appellant. Thus their statements are contradictory qua each other as well as the identification parade proceedings Ex. PN/1. In this view of the matter the contention of the learned counsel for the State that in the identification prade the appellants were correctly identified has no legal force. Consequently we hold that the reliance cannot be placed on the identification prade proceedings Ex. PN/1. 8. With respect to the alleged recovery of the case property on 4.5.1992 at the instance of the appellants we have to agree with their learned counsel who laid the emphasis that the place of recovery was the house of one Amer Rana which was neither owned by appellants nor under their possession. In such a state of affairs the benefit of Article 40 of the Qanoon-e- Shahadat Order, 1984 cannot be derived by the prosecution. It can well be expressed and held that the respective recovered articles were not within the exclusive possession of each of the appellants and the possession of the same was not within their exclusive knowledge. We place the reliance on ArifAli versus Muhammad Ramzan alias Janan and 4 others (1991 SCMR 331) wherein it has been held that the recovery made from a place accessible to every one in the house could not be used as a proof of the said fact. With the material produced by the prosecution in the matter of recovery, the appellants cannot be held liable. On this ground the mere assertion of the learned counsel for the State that the respective recovery of the respective case property attributed to each of the appellants has the force need not be given the legal weight. 9. We, therefore, hold that the prosecution has failed to prove the guilt of the appellants who are entitled to be acquitted. We, therefore, accept this appeal, set aside the impugned judgment and acquit all the four appellants namely Ishtiaq Nazir, Iftikhar Hussain Khair Muhammad and Ali Asghar. They are said to be detained in jail undergoing the sentence and they shall be set at liberty forthwith, if not required to be detained in any other case. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 839 ( Rawalpindi Bench) Present: raja muhammad khurshid, J. MUNIR HUSSAIN etc.-Petitioners versus STATE-Respondent Grim. Misc. No. 1227/B-1997, accepted on 13-2-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 147/148/324/337-A (ii)/337-F (iv) PPC--Bail~Grant of--Prayer for-Two versions-Case of--Since there are two versions about same occurrence for which a complaint has already been instituted in which otherside has been summoned, therefore, question as to which of paiiies was aggressor is yet wide open thereby opening scope of further enquiry-Deeper appreciation of merits of case cannot be under taken at bail stage lest it may prejudice trial itself-IT is enough to say that a general role is attributed to petitioners during assault; that there is counter version about same occurrence; that there is no enmity between parties; that no recovery of weapon of offence has been made; that there is no conviction to credit of petitioners; and that they have been in judicial lock-up since after cancellation of their bails, hence they have a good case to be released on bail-Bail granted. [P. 841] A Sardar Muhammad Ishaque, Advocate for Petitioner. Ahmad Raza Kasuri, Advocate for Complainant. Syed Nayyar Hussain, Advocate for State. Date of hearing: 13-2-1998. order A case under Sections 147/148/324/ 337-A(ii)/337-F(iv) PPC is registered against the petitioners and others vide FIR No. 260 dated 24.4.97 at P.S. Civil Lines, Rawalpindi on the report of one Muhammad Rafique. It was contended in the report that the petitioners while armed with 'Dandas' opened attack with their co-accused and 15/20 persons who remained un­named in the FIR. All of them were armed with 'Dandas' and 'Sarias' (iron bars). During the transaction, Amir Rafique suffered three simple injuries with blunt weapon, Muhammad Rafique sustained eight simple injuries of blunt weapon including one on his head and Wajid Rafique suffered seven simple injuries including one injury on head with blunt weapon. 2. The petitioners with others filed pre-arrest bail before the learned Addl. Sessions Judge which was dismissed on 10.5.97. They were taken into custody and were sent to the judicial lock-up. They applied for post arrest bail to the Haqa Magistrate which was granted on 25.5.97. The complainant side applied for cancellation of bail which came up for hearing before the learned Addl. Sessions Judge who cancelled the bail of the petitioners vide order dated 5.12.97. Hence this petition was filed for the grant of bail by the petitioners. 3. Learned counsel for the petitioners contended that the injuries on the person of victims were simple and caused with blunt weapon; that a general role was ascribed to the petitioners during the occurrence alongwith 15/20 assailants who remained un-named in the FIR; that the weapons of offence were never recovered from the petitioners to link them with the occurrence; that they had caused injuries with 'Dandas'; that Aziz Haider with almost similar role was admitted to bail and that the case of the petitioners was not distinguishable from him; that the post arrest bail granted to the petitioners by the Trial Magistrate was good in the eyes of law and the order passed by the learned Addl. Sessions Judge on 5.12.97, whereby, those bails were cancelled was not good in the eyes of law as it did not fulfil the test laid down for the cancellation of bail; that a complaint was also filed containing the counter version against the complainant side in which the accused from the complainant side have also been summoned vide order dated 30.9.97; that there is a cross-version and it is yet to be determined as to which one of the two versions is more plausible; that the question of aggressor and aggressed is also wide open to be determined during the trial and such, it becomes a case of further enquiry. 4. Learned counsel for the complainant contended that the petitioners are named in the FIR and they assaulted the victims with 'Dandas' causing them injuries on various parts of their person including head; that the injuries on the vital part of the body such as head will burden the petitioners with the intention to commit murderous assault upon the victims; that the case falls within the prohibitory clause for an offence under Section 324 PPG and as such, the bail was not to be granted ordinarily; that the cancellation of bail of the petitioners was rightly ordered by the learned Addl. Sessions Judge as the case falls within the rohibitory clause, and also because a plea was taken that the petitioners were threatening the complainant side; finally it was contended that the petitioners were not entitled to bail at this stage. Learned counsel for the State also supported the contentions raised by the learned counsel for the complainant at the Bar. 5. I have considered the forgoing submissions and find that the trial Court had admitted the petitioners to bail against which the petition for cancellation was moved which remained pending for about six months, whereafter, the bail was cancelled. It is true that the plea was taken in the petition for cancellation that the accused side was threatening the complainant after getting the bail but according to the learned counsel for the petitioners this plea was not pressed and as such, this was not taken into consideration even in the impugned order and that the same cannot be agitated at this stage. This being so and since there are two versions about the same occurrence for which complaint has already been instituted in which the other side has been summoned, therefore, the question as to which of the parties was aggressor is yet wide open thereby opening the scope of further enquiry. The deeper appreciation of the merits of the case cannot be undertaken at this stage lest it may prejudice the trial itself. It is enough to say that a general role is attributed to the petitioners during the assault; that there is a counter version about the same occurrence; that there is no enmity between the parties; that no recovery of the weapon of offence has been made; that there is no conviction to the credit of the petitioners; and that they have been in judicial lock-up since after the cancellation of their bails, hence they have a good case to be released on bail. I, therefore allow the bail application and admit each of the petitioners to bail in the sum of Rs. 25,000/- with a surety each in the like amount to the satisfaction of the trial Court. 6. The challan has not yet been sent to the Court concerned which speaks for the casual attitude of the police towards the provisions contained in proviso to Section 173(1) Cr.P.C. which says that where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the Officer Incharge of the Police Station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the from prescribed by the Provincial Government. This should be brought to the notice to the S.S.P., Rawalpindi who shall call upon the Investigating Officer as to why the provisions of the aforesaid Section were not complied with. He shall also examine the issue deeply and will take concrete steps to ensure that the provisions contained in the aforesaid Section shall be meticulously followed in future by the police officers under his control. Any action taken in this regard by the S.S.P., Rawalpindi shall be intimated to this Court through the Deputy Registrar (Judl), Lahore High Court, Rawalpindi Bench, Rawalpindi within one month of the communication of this order to him. Meanwhile, the SHO concerned is directed to submit the challan in this case to the Court concerned within two weeks without fail. (K.A.B.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 842 Present: DR. KHALID RANJHA, J. GHULAM YASEEN-Appellant versus MUHAMMAD NAWAZ-Respondent Crl. Misc. No. 675-CB/98, dismissed on 16.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497 (5)--Bail--Cancellation of-Prayer for-Offence u/s 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Bail application ofMst. R. (Respondent No. 2) had earlier been dismissed by Mr. Q, Additional Sessions Judge in view of law laid down in Zubair's case (PLJ 1986 SC 369) both petitions (petition of respondent No. 1) merit to be transferred to court of Mr. Q, ASJ for disposal-Learned Trial Judge Mr. A, declined to entertain this objection on the ground that Mr. Q, ASJ had dealt with bail application of one of accused (Respondent No. 2) before filing of challan-Now that case had been entrusted to him for trial, he had jurisdiction to entertain bail application also-Petition for cancellation of bail was admitted only to consider question whether impugned order was hit by dictum laid down in Zubair's case-Held: Once trial court had taken cognizance of case then all applications pending trial were to be dealt with by him-Principle of accused following Judge for purpose of bail as laid down in Zubair's case has a bearing only to High Court and ceases to apply once case is entrusted for trial at Session level--If principle laid down in Zubair's case was pressed even after assumption of a case; it would present an anomalous situation-An accused person facing trial before one Court would be required to seek bail pending trial from another court which during investigation might have attended to his bail application or that of his co-accused at one stage-It would be relevant to advert to.a circular of High Court No. 10174 MIT/HC/Cr. Misc. 383- CB/94 dated 4.7.1997 wherein it has been directed that: " Rule in Zubair's case should he applied as far as possible-However after commencement of trial all bail applications arising out of case should be entrusted to trial Court-Appeal dismissed. [Pp. 843 & 844] A, B & C Mr. Akhtar Masud, Advocate for Petitioner. Syed Hussain Ali Shah, Advocate for the State. Mr. Abdul Nasir Jasra, Advocate for Respondent. Date of hearing: 16.4.1998. order FIR No. 240/9" dated 3.8.1997 was registered at Police Station. Sahiwal District Sargodha under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the statement of Ghulam Yasin wherein he alleged that on the night between 29/30.7.1997 when he returned home at 10 p.m. he found his daughter Mst. Rasulan Bibi (respondent No. 2) committing zina with Muhammad Nawaz. When he surprised them, they both ran away. At the behest of Muhammad Nawaz, Mst. Rasulan Bibi also lodged a case for dissolution of marriage. 2. Pursuant to this FIR both Muhammad Nawaz and Mst. Rasulan Bibi were arraigned and the challan was sent up against both of them to the Sessions Court on 5.9.1997. The learned Sessions Judge referred the case for trial to Mr. Muhammad Aslam, learned Addl. Sessions Judge on 12.9.1997, who summoned the accused on the same day and framed the charge on 19.11.1997 and fixed the case for evidence. However, as the complainant and Khdua Dad PW did not turn up to give evidence despite service, the learned trial Judge had to issue their bailable warrants for 17.3.1998. 3. While the matter was pending investigation Mst. Rasulan Bibi (respondent No. 2) had applied for her bail before arrest. The same was marked Mr. Abdul Qayyum Raja, learned Addl. Sessions Judge, who declined the same. She applied for a bail after arrest, which was also dismissed by Mr. Abdul Qayyum Raja, ASJ. 4. After the submission of the challan and entrustment of case to Mr. Muhammad Aslam Chaudhry, ASJ, respondent No. 2 again moved bail application on 21.9.1997 disclosing, of course, that earlier her bail had been rejected by Mr. Abdul Qayyum Raja, ASJ. The same was marked by the learned Sessions Judge to Mr. Muhammad Aslam, ASJ as he was seized of the trial. Similarly Muhammad Nawaz (respondent No. 1) also moved for post arrest bail after submission of the challan. This was also marked to the learned trial Court (Mr. Muhammad Aslam, ASJ). Bail application of both the respondents were clubbed together for disposal by the learned trial Judge. 5. The learned counsel for the complainant raised objection before the learned trial Judge that as bail application of Mst . Rasulan Bibi (respondent No. 2) had been earlier dismissed by Mr. Abdul Qayyum Raja, ASJ in view of the law laid down in Zubair's case, (PLJ 1986 SC 369) both the petitions merit to be transferred to the Court of Mr. Abdul Qayyum Raja, ASJ for disposal . The learned trial Judge (Mr. Muhammad Aslam Chaudhry), however, declined to entertain this objection on the ground that Mr. Abdul Qayyum Raja, ASJ had dealt with the bail application of one of the accused (respondent No. 2) before filing of the challan. Now that the case had been entrusted to him for trial he had the jurisdiction to entertain the bail applications of the accused and dispose them of in accordance with law. Mr. Muhammad Aslam, ASJ learned the trial Judge granted bail to both the respondents vide order dated 13.11.1997. 6. The petition for cancellation of the bail of respondents was admitted only to consider the question whether the impugned order was hit by the dictum laid down in Zubair's case (supra) 7. I have heard both the parties at some length. It is my considered view that Zubair's case has no application to the aforesaid facts. Once Mr. Muhammad Aslam, ASJ had taken cognizance of the, case then all the applications pending trial were to be dealt with by him. The principle of accused following the Judge for the purpose of bail as laid down in Zubair's case has a bearing only to High Court and ceases to apply once the case is entrusted for trial at the Sessions level. After the learned Addl. Sessions Judge (Ch. Muhammad Aslam) assumed cognizance of this case, the rigours of Zubair's case were no longer attracted. If these principles were pressed even after assumption of the cognizance of a case; it would present an anomalous situation. An accused person facing trial before one Court would be required to seek bail pending trial form another Court which during investigation might have attended to his bail application or that of his coaccused at one stage. It would be relevant to advert to a circular of this Court No. 10174 MIT/HC/Cr. Misc. 383-CB/94 dated 4.7.1997 wherein it has been directed that:- "Rule in Zubair's case should be applied as far as possible. However, after commencement of trial, all bail applications arising out of the case should be entrusted to the trial Court." There is as such nothing exceptionable about the impugned bail granting order in favour of the respondents. Dismissed. (A.P.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 844 Present: M. A. qazi, J. MUHAMMAD AYUB-Appellant/Petitioner versus STATE-Respondent Criminal Appeal No. 04 of 1996, dismissed on 9.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 182--Recommendation of Police for cancellation of F.I.R. being false and proceedings against complainant u/S. 182--Acquitted u/S. 249-A Cr.P.C. by trial court-Challenge to-According to Police rule 24.7 of Police Rule, 1934, unless investigation of case is transferred to another Police Station or district, no first report can be cancelled without orders of Magistrate of first class-Each and every paper submitted by investigating officer in Kalandra and also case diaries have been minutely examined but nowhere order from court of law on cancellation report prepared by investigating officer as required by law, is available and in absence of such order upholding cancellation report prepared by police, case could not deem to have been cancelled nor in absence of any such order further proceedings against complainant u/S. 182 P.P.C. could be held to be maintainable-Held: Submission of kalandra and trial on basis thereof are without lawful authority and urisdiction-Appeal not competent and accordingly dismissed. [Pp. 846 & 847] A, B & C Muhammad Islam, Advocate for Appellant. Syed Shifaat Hussain, Advocate for State. Date of hearing: 9.2.1998. judgment Sh. Muhammad Younas respondent got registered FIR No. 581 at Police Station Mumtaz Abad, Multan on 28.11.1994 under Sections 324, 506, 148, 149 PPC against Muhammad Ayub appellant and 5 others. The accused seeking pre-arrest bail surrendered before the Special Court , they were allowed interim bail and confirmation of the said bail application was still pending while the case was investigated and finalised on 14.2.1995 whereby it was recommended that the case being false be cancelled and Sh. Muhammad Younas complainant be proceeded under Section 182 PPC. On the instructions for the DSP/SDPO, Ejaz Shafi Inspector/SHO Police Station Mumtaz Abad prepared a Kalandra under Section 182 PPC and submitted the same before the trial court. It was entered in the court register on 7.3.1995, the accused was summoned and formally charged on 17.4.1995. The accused submitted an application under Section 249-A Cr.P.C. and vide order dated 20.11.1995 he was acquitted of the charge. 2. Feeling aggrieved by this order Muhammad Ayyub filed the present appeal and also filed Crl. Misc. No. 1/96 praying for condonation of delay in filing the said appeal. Crl. Misc. No. 1/96 was listed for hearing today but learned counsel for the parties agreed to argue the main appeal as well, so the same has been got listed for hearing today. 3. With the assistance of learned counsel for the parties, record of the case has been perused and scrutinised. Apart form the fact that the impugned order was passed on 20.11.1995 and the appeal against the said order was filed on 3.1.1996, it could have been conveniently dismissed on the ground of limitation as the appellant has not for each day's delay given any cogent reason justifying why the delay was occasioned. Anyhow in the larger interest of justice the application for condonation of delay is accepted and the appeal is proceeded to be heard for deeper and better appreciation of the merits of the case. 4. On perusal of the police file it transpired that the complainant produced four witnesses before the Investigating Officer on 28.11.1994 who supported his case. On 20.12.1994, the parties appeared before the DSP/SDPO where Sh. Muhammad Younas veiy clearly stated that the parties are closely related, the elders of the family had patched up the differences and the matter had been compounded and that now he did not want to pursue the case against the accused. Inspite of this statement, the DSP in the case diary dated 2.2.1995 observed that the case according to his investigation was found to be false and the accused were innocent. The SHO Mumtaz Abad was directed and instructed to report for cancellation of the case and to take action against the complainant under Section 182 PPC and that the record of the case be also produced before the Special Court. The last case diary dated 14.2.1995 on the file indicates that the Inspector/SHO prepared the cancellation report in the light of order given by the DSP/SDPO and also prepared Kalandra on the same day against Sh. Muhammad Younas complainant and submitted the same before the DSP Legal who forwarded it to the learned trial Court. Police rule 24.7 Chapter XXIV of the Police Rules 1934 is reproduced :- "24.7. Unless the investigation of a case is transferred to another police station or district, no first report can be cancelled without the orders of a Magistrate of the 1st Class. When information or other intelligence is record under section 154 Criminal Procedure Code, and, after investigation, is found to be maliciously false or false owing to mistake or law or fact or to be non-cognizable or matter for a civil suit, the Superintendent shall send the first information report and any other papers on record in the case with the final report to a Magistrate having jurisdiction and be in a Magistrate of the First Class, for orders of cancellation. One receipt of such an order the Officer Incharge of the Police Station shall cancel the first information report by drawing a red line across the page, noting the name of the magistrate cancelling the case with number and date of order. He shall then return the original order to the Superintendent's office to be filed with the record of the case." and in light of this rule and with the assistance of learned counsel for the parties, each and every paper submitted by the Investigating Officer in the Kalandra and also the case diaries have been minutely examined but nowhere an order form a court of law on the cancellation report prepared by the Investigating Officer, as required by law, is available and in the absence of such an oi-der upholding the cancellation report prepared by the police, the case could not deem to have been cancelled nor in absence of any such order further proceedings against the complainant under Section 182 PPC could be held to be maintainable. Both the learned counsel are in complete agreement on this point. The learned trial court has somehow been oblivious of this fact and it has not either properly assisted by counsel for the parties appearing there or has not properly applied its mind. So for the said reason alone submission of the Kalandra and the trial on the basi thereof are held to be without lawful authority and jurisdiction, hence this appeal is not competent. It is hereby dismissed. (B.T.) Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 847 Present: DR. MUNIR AHMAD MUGHAL , J. ASAD ALI-Petitioner versus STATE-Respondent Criminal No. 2062/B-97, accepted on 14.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Case u/s 12 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with section 377 PPC--Bail--Grant of-Prayer for- Tentative assessment of material available on record is that coming of report of Chemical Examiner of victim examined after 10 days having semen, makes case that of further inquiry-Petition accepted & petitioner granted bail. [P. 848] A Syed Murtaza All Zaidi, Advocate for Petitioner. Mr. Ibrahim Farooq, Advocate for State. Date of hearing: 14.1.1998. order The petitioner is involved in a case under section 12 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with section 377 PPC, registered vide FIR No. 167 of 1997 dated 31.8.1997 with Police Station Shahkot, Tehsil Chichawatni District Sahiwal. 2. According to FIR, on 21.8.1997 at about 3 PM while Yasir Zeb, the son of the complainant, was going back to his home Asad Ali, the petitioner, invited him into his Behtak, bolted the door and thereafter committed sodomy with Yasir Zeb on hue and cry, the PWs Tariq Raza and Muhammad Shafique were attracted out the accused ran away. The matter was reported to the Police after 10 days and that the victim was also medically examined after 10 days. 3. Bail is pressed on the grounds that the petitioner has been falsely involved in the case due to previous enmity and even earlier a false case vide FIR No. 26 of 1992 dated 23.2.1992 under sections 337/A, 337/B, 337/F and 34 PPC was registered on the statement of Muhammad Shafi who is also a witness in the present FIR and that another FIR No. 196 of 1997 dated 25.9.1997 under sections 382 and 337/H-II PPC has been registered against and his brother which was found false and that the delay of 10 days in lodging the FIR and medical examination of the victim has not been explained. In the alternative, it has also been argued that there is no allegation of abduction and the voluntarily accompanying of the victim with the accused brings the case under section 377 PPC which offence is not covered by the prohibitory clause of section 497 Cr.P.C. It is also submitted that the petitioner is behind the bar since 15.10.1997, the investigation is complete and the object is merely to harass, humiliate and disrepute the petitioner and his family. 4. The petition is opposed on the grounds that the petitioner is named in the FIR with specific role and that the medico legal report is positive. 5. I have heard the arguments of learned counsel on both the sides and have gone through the police file. The tentative assessment of the material available on the record is that coming of the report of the Chemical Examiner of a victim examined after 10 days having the semen makes the case that of a further inquiry. In this circumstance, the petitioner is granted bail subject to his furnishing bail bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial Court. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 848 (DB) Present: hamid saeed malik and shah jehan khan yousafzai, JJ. MUHAMMAD ZAMAN-Petitioner versus GHULAM HAIDER ETC.-Respondent Crl. M/B.C. No. 18 of 1997, accepted on 12.2.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497 (5)-Bail-Cancellation of-Prayer for-Admitted to bail on old age 68 years and sickness-Offence u/S. 302/34 PPC-Accused/respondent is not suffering from uncurable disease and he could be properly treated in jail and gravity of sickness is also not such, which could entitle him to concession of bail-Accused/respondent on general appearance is not of a weak built-Mere on the ground that accused/respondent is stated to be 68 years of age does not entitle him to concession of bail-Bail cancelled. [P. 849] A & B Mr. Dost Muhammad Khan, Advocate for Petitioner. Mr. Muhammad K. Anjum Qasuria, Advocate and Mr. Shaukat Khakwani, Advocate for State. Date of hearing : 12.2.1998. judgment Shah Jehan Khan Yousafzai, J.--Muhammad Zaman son of All Khan father of Ah<h! Hamid complainant in case FIR No. 400, dated 10-11- 1991 registered .it Police Station Naurang, District Lakki Marwat, under sections 302 34. PPC. has filed the instant application for cancellation of the bail allowed to Ghulam Haider Khan accused/respondent No. 1 herein by the learned Special Judge, Lakki Marwat per his order dated 15-1-1997 impugned herein. 2. The accused-respondent has been admitted to bail on ground of old age and sickness. Relevant portion of the medical certificate on the basis of which the learned Judge below granted bail to the accused-respondent indicates as under : -- "Found that he is about (68) years old from external appearance. He is of weak built and severely anaemic. He is also an old case of Asthmatic Bronchites." The medical certificate is totally silent as to whether the said ailment requires special treatment which is not possible in jail. 3. The accused-respondent was arrested on 18-12-1996 and was examined by the medical officer, District Headquarter Hospital, Kakki on 21- 17-1996 and as per his endorsement on the order pertaining to police custody opined that accused-respondent is medically fit while the above said certificate dated 23-12-1996 speaks altogether otherwise. 4. The accused-respondent is not suffering from uncurable disease and he could be properly treated in jail and gravity of sickness is also not such, which could entitle him to the concession of bail. 5. The accused-respondent on general appearance is not of a weak built. Mere on the ground that accused-respondent is stated to be of 68 years of age does not entitle him to the concession of bail. Consequently, this application is accepted and the bail granted to the accused-respondent namely Ghulam Haider son of Muhammad Ayaz Khan by the Court below per his impugned order is recalled. He js present in Court, taken into custody and sent to jail as an under trial prisoner. Record of the case be sent back forthwith to the Court concerned.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 850 Present: RAJA MUHAMMAD KHURSHID, J. ZAMEER KHAN-Petitioner versus STATE-Respondent Crl. M. No. 1005-B/1996, accepted on 16.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- _—S. 497--Bail--Grant of--Prayer for--Further enquiry-Offence u/S. 324/34 PPC--Two Investigating officers have held that petitioner is innocent whereas remaining two have held him guilty having been fired at the victim-Last Investigating Officer is of the view that matter still needs further probing-Case of further inquiry-Bail granted. [P. 851] A Mian Jamil Akhtar, Advocate for Petitioner. Ch. Muhammad Ilyas Jhimat, Advocate for State. Date, of hearing: 16.3.1998. order A case under Section 324/34 PPC was registered against the petitioner and two others at the report of Manzoor Hussain a brother of the injured Akhtar Abbas. According to the FIR. The petitioner while armed with a 12 bore gun had fired at the aforesaid Akhtar Abbas thereby causing firearm injury on the back side of his left chin. The occurrence had taken place on 9.7.1997 at 7.15 PM, whereas the FIR was lodged after the delay of 4 days on 13.7.1997. 2. The learned counsel for the petitioner has submitted that the parties are inimical to each other and that the case has been cooked up in order to trap the petitioner falsely. In this respect, it is alleged that the FIR in this case was delayed by about 4 days; that the petitioner was found innocent by the first Investigating Officer namely Ahmad Khan ASI as according to him the occurrence had taken place because the gun of the victim had accidently went off. The investigation was then entrusted to Muhammad Riaz, DSP, HQ, Sargodha who believing the prosecution witnesses came to the conclusion vide report dated 20.8.1997 that the petitioner was found linked with the occurrence as he had injured the victim. The investigation was once again transferred and handed over to Abdul Qadir DSP, Sillanwali who vide his report recorded in the case diary dated 2.10.1997 came to the conclusion that the petitioner was innocent and be got discharged from the case. After the aforesaid investigation, the case was handed over to Khalid Bashir, Inspector Crime Branch for further investigation, who came to the conclusion that the petitioner and his coaccused were guilty according to the evidence brought on record by the rosecution. In this respect he recorded his finding in the case diary dated 28.11.1997 with the observation that the matter still needs further probing. 3. In view of the above facts, the learned counsel for the petitioner has submitted that it is a case of further inquiry as the Investigating Officers have not come to any penultimate conclusion regarding the guilt or innocence of the petitioner or his co-accused. However, an incomplete report under Section 173 Cr.P.C. has been sent to the court concerned. 4. The learned counsel for the State has submitted that though there is delay of about 4 days in filing the FIR, but the same has been explained in the FIR itself as the accused side was trying for a compromise and had as such gained time which delayed the filing of FIR; that after the aforesaid explanation for delay, the same would not remain material; that the investigation conducted by the last Investigating Officer had found the petitioner and his co-accused linked with the occurrence and as such the petitioner would have not case for bail at this stage. 5. I have considered the foregoing submissions made at the Bar. As already pointed out that two Investigating Officers have held that the petitioner is innocent whereas the remaining two have held him guilty having been fired at the victim. The last Investigating Officer is of the view that the matter still needs further probing. In such a situation, it will be a case of further inquiry , and the petitioner would be entitled to bail particularly when hg is behind the Bars since his arrest on 5.8.1997. Accordingly this petition is allowed and the petitioner is admitted to bail in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial court. (T.A.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 851 Present: RAJA MUHAMMAD KHURSHID,'J. ABDUL RAZZAQ-Petitioner versus STATE-Respondent Crl. Misc. No. 5719/B/1997, accepted on 16.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail-Grant of--Prayer for-Further enquiry-Offence u/s 420/337- J/392 PPC-Complainant and his brother fell unconscious as they ate intoxicated biscuits of accused and they were deprived of Rs. 10,45000/~ Allegation of--There is delay of 12 days in lodging F.I.R.-Mere fact that co-accused namely Y and M had played main role and have not since been arrested would not dis-entitie petitioner to concession of bail particularly when no active role is attributed to him qua his co-accused-Petitioner was not attributed any overt act as compared to his co-accused, he has a case of further enquiry-Bail allowed. [P. 852] A Mian Muhammad Aslam, Advocate for petitioner. Malik Abdul Saleem, Advocate for State. Date of hearing: 16.3.1998. order A case under Sections 420/337-J/392 PPC is registered against the petitioner and others at P.S. Saddar Renala Khurd, District Okara vide FIR No. 136 dated 27.4.97 on the ground that the petitioner with three others while travelling in a taxi cab gave some intoxicated biscuits to the complainant and his brother while all of them were travelling in the cab. The complainant and his brother fell unconscious and in the meanwhile, they were deprived of Rs. 10 ,45,000 /- which they were carrying in their pockets after having drawn from different banks at Lahore . 2. Learned counsel for the petitioner has submitted that the FIR was delayed by about 12 days without any plausible explanation; that no overt act is attributed to the petitioner as his co-accused Muhammad Younas had served tea to the complainant and his brother with the intoxicated biscuits; that there was no proper identification of the petitioner and as such, the case against him was doubtful; that the provisions under Section 392 PPC were not attracted as the petitioner was not armed with any weapon nor it is so alleged even in the FIR; lastly, it was contended that the petitioner was not a previous convict and that the petitioner is behind the bars for the last several months. 3. The learned counsel for the State has stated that the delay in filing the FIR is explained by the complainant as he regained consciousness after three or four days of the occurrence. Thereafter, they have been looking for the culprits who had deprived them of their money and had located a gang of cheats of which the petitioner was one of the member . Hence it was submitted that the delay in lodging the FIR having been explained does not remain to be crucial so as to create any extenuate ng circumstance for the petitioner. It was also contended that though the petitioner is not a previous convict but his co-accused namely Muhammad Younas and Mushtaq Ahmad are involved in some other case of similar nature and are yet at large. It is, therefore, submitted that the petitioner is not entitled to bail at this stage. 4. I have considered the foregoing submissions and find that the provisions of Section 392 PPC are not prima facie attracted to the facts of this case. There is delay of 12 days in lodging the FIR. The mere fact that the co-accused namely Muhammad Younas and Mushtaq Ahmad had played the main role and have not since been arrested would not disentitle the petitioner to the concession of bail particularly when no active rule is attributed to him qua his co-accused. It has not been explained by the learned counsel for the State as to why the two other co-accused have not so r been arrested although their antecedents are not very clean as they are involved in some other cases of similar nature and had also been attributed active role in this case. In such a situation, and particularly when the petitioner was not attributed any overt act as compared to his co-accused, he has a case of further enquiiy. 5. The petition is allowed and the petitioner is admitted to bail in a bit heavier amount keeping in view the circumstances of this case. The petitioner shall be released on bail provided he furnishes two sureties of Rs. 300.000/- each to the satisfaction of the trial court. (T.A.F.i Bail granted.

J 1998 Cr J 1998 Cr. C. ( Lahore ) 853 [ Rawalpindi Bench] Present: raja muhammad khurshid, J. ABDUL MAJEED and 2 others-Petitioners versus STATE-Respondent Crl. Misc. No. 1236/B-1997, decided on 17.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail--Grant of-Prayer for-Offence u/S. 324/34/337-A (ii), (iii), 337-F-ii PPC-Greivous injury on vital part of body of victim i.e. forehead is attributed to petitioner A-He is, therefore, not entitled to bail at this stage whereas other two petitioners are ascribed injuries which are simple and on non-vital parts of body of victim-Question of vicarious liability would remain open and could only be gone into at the time of trial-Petitioner M is a known case of hypertension and has weak muscles due to Proximal Myopathy and pneumonic consolidation of right lung-It was observed by Medical Board that he was unable to sit or stand without support-In such a situation keeping in view his advance age it can be safely said that he is sick and infirm person and as such his case would fall within proviso to section 497 Cr.P.C.-Bail granted except petitioner A-Bail granted. [P. 855] A & B Raja Abdul Aziz Bhatti, Advocate for Petitioner. Mr. Asif Taufeeq, Advocate for Complainant. Syed Nayyar Hussain, Advocate for State. Date of hearing: 17.2.1998. order A case under Section 324/34, 337-A (ii), (iii), 337-F-II/V PPG was registered against the petitioners vide FIR No. 116 dated 13.8.1997 at Police Station, Domaili, District Jhelum for an occurrence, which took place on 6.8.1997 in which the complainant Haji Muhammad Buksh was attacked hy the petitioners on the ground that he had purchased some land from Muhammad Zaman resident of Dhok Suba of which they felt aggrieved. Out of the petitioners Abdul Majeed was armed with a Lathi and Abdullah and Abdul Aziz both with hatchets. The attack was opened hy Abdul Aziz by giving a hatchet blow on the left elbow of the complainant. The other blow with the hatchet was given by Abdullah petitioner, which struck the forehead of the complainant. The 3rd blow was given by Abdul Majeed with the Lathi on the lower ribs of the complainant. Thereafter, another blow was given by Abdul Aziz injuring the right side of the right eye of the victim. The petitioner Abdullah gave second blow on the left wrist of the complainant whereupon he fell down. The petitioner Abdul Majeed thereupon repeated several blows of Lathi injuring the different parts of the body of the complainant. 2. The petitioners applied for bail, which was dismissed by the court below. 3. It is contended by the learned counsel for the petitioners that Abdul Majeed is an old man of about 60 years and the injuries attributed to him are simple and blunt, besides that he is sick and infirm as would be clear from the report of the Medical Board placed on record. Like-wise other petitioners namely Abdullah and Abdul Aziz are also attributed injuries allegedly with hatchets but no specific injury is pointed out, qua them. Since they are assigned general role in causing injuries to the complainant/victim, therefore, they are also allegedly entitled to bail; that the FIR was the result of due deliberations being delayed by about 7 days; that petitioners have no previous history and are in judicial lock-up and their persons are no more required. 4. The bail petition is opposed by the learned counsel for the State assisted by the learned counsel for the complainant on the ground that there was a specific motive with the petitioners to cause injuries to the complainant; that while armed with deadly weapons, they had beaten the victim to the blue by giving him 13 injuries as per Medico Legal Report placed on record. Out of them injury on the forehead which is shown in the Medical Report as injury No. 1 has been declared as fracture and the intention of its maker could be easily inferred that he wanted to finish the man; that the other petitioners also showed common intention with the aforesaid author of the injury namely Abdullah and as such were liable; that the petitioner Abdul Majeed is also not entitled to bail on Medical Grounds. As per Medical Report he is not suffering from any disease which may show that he cannot be successfully treated in the Jail Hospital . It was, therefore, prayed that petitioners are not entitled to bail. 5. I have considered the foregoing submissions and find that grievous injury on the vital part of the body of the victim i.e. forehead is attributed to Abdullah i.e. petitioner No. 2. He is, therefore, not entitled to bail at this stage whereas other two petitioners are ascribed injuries which are simple and on the non-vital parts of the body of the victim. Question of vicarious liability would remain open and could only be gone into at the time of trial. Their case is, therefore, distinguishable from the aforesaid Abdullah i.e. petitioner No. 2. Like-wise the Medico Legal Reporting respect of Abdul Majeed shows that he was examined by three Medical Officers. Out of them one was Surgeon, the other was physician and the 3rd was Medical Superintendent. They have come to the following conclusion :— "Provisional diagnosis of this case is hypertension and Proximal Myopathy and pheumonic consolidation right lung". It shows that the aforesaid petitioner is a known case of hypertension and has weak Muscles due to Proximal Myopathy and pneumonic consolidation of ring lung. During the examination, it was observed by the Board that he was unable to sit or stand without support. In such a situation and keeping view his advance age it can be safely said that he is sick and infirm person as such his case would fall within the proviso to section 497 Cr.P.C. He entitled to bail even on that ground, but since it has been said above that and his co-accused Abdul Aziz are attributed simple injuries on non-vital irts of the body of the victim, therefore, on merits as well both of them deserve to be released on bail. I accordingly accept the bail petition to the extent of Abdul Majeed and Abdul Aziz petitioners Nos. 1 and 3 and admit them to bail in the sum of Rs. 30,000/- each with one surety each in the like amount to the satisfaction of learned trial court. 6. The bail petition to the extent of Abdullah i.e. petitioner No. 2 is d

wever, dismissed for the reasons stated above. T.A.F.) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 856 ( Bahawalpur Bench) Present: SHEIKH abdur razzaq, J. WAHID BAKHSH and another-Petitioners versus STATE-Respondent Crl. Misc. No. 94-B-98/BWP, dismissed on 16.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of--Prayer-Offence u/S. 16 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and Sections 380/148/149 PPC-Active and major role has been attributed to accused A, who enticed away Mst. Z-Presence of petitioners at that time borne out from contents of F.I.R.- bductee not recovered and whereabouts of co-accused, are not known-Petitioners being charged for commission of offences punishable with either description which may extend to seven years and being in jail less than two month and alleged abductee still not recovered, co-accused still at large, petitioners are not entitled to relief sought by them-Petition dismissed. [P. 857] A Malik M. H. Zafar Misson, Advocate for Petitioners. Mr. P.A. Farooqi, Advocate for A.A.G. on behalf of State. Date of hearing: 16.2.1998. order On 19-10-1997 at 1.30 P.M., Wahid Bakhsh, Akram, Muhammad Anwar, Abdul Majeed and Riaz, armed with lethal weapons and in prosecution of their common object, trespassed into the house of complainant Taj Muhammad, enticed away his daughter Mst. Zubaida and committed theft of her articles of dowery. Accordingly, FIR No. 71 dated 5-11-1997 under section 16, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 and sections 380/148/149 PPC was registered at P.S. Derawar Tehsil Yazman District Bahawalpur. 2. Petitioners, Wahid Bakhsh and Muhammad Anwar, moved an application for bail before arrest which was declined vide order dated 22-12- 1997. Thereafter their post arrest petition was also declined by the learned Additional Sessions Judge vide order dated 9-1-1998. Hence, this petition. 3. It is contended by the learned counsel for the petitioners that the mere fact that Ms?. Zubaida, the alleged abductee, has not been recovered, is no ground to keep the petitioners in jail for an indefinite period. He further canvassed that so-called articles of dowery, alleged to have been taken away by the petitioners, have not been recovered from them. As such, the ingredients of section 380 PPC are not made out against them. He next urged that Wahid Bakhsh petitioner had declared his son Akram as 'AAQ' in a proclamation issued a month prior to this incident, as such, he cannot be held responsible for the acts and omissions on his part. He further submitted that no father would join hands with his son in the commission of such offences and, as such, the prosecution story is not reliable and case of the petitioners is open for further inquiry. He relied upon Zulfiqar vs. The State (1997 P.Cr.L.J. 1517) and Qutab Din us. The State (1997 P.Cr.L.J. 1519). He further submitted that petitioners have been declared innocent, as such, they are entitled to the relief sought by them and in this respect, relied upon Munir Ahmad vs. The State (1997 P.Cr.L.J. 91). 4. Conversely, application has been vehemently opposed by the learned State counsel. It is asserted that the alleged abductee, Mst. Zubaida, is of 14 years and has been abducted by Akram, who is son of Wahid Bakhsh nd brothers of Muhammad Anwar, petitioners. He further contends that other accused named in the FIR, namely, Abdul Majeed and Riaz, have not so far joined the investigation and are still at large, that all the witnesses mentioned in the FIR have corroborated the prosecution version, that the mere fact that police has declared the present petitioners as innocent is no ground to release them on bail, as opinion of police is not binding on the Court and relied upon Muhammad Akram alias Gaman vs. The State (1995 Cr.L.J. 122). He further submitted that, as Mst. Zubaida, the alleged abductee, has not so far been recovered, so even on this account, the petitioners are not entitled to the relief of bail and relied upon Muhammad Akbar vs. The State (1987 MLD 3125). 5. The contents of FIR clearly reveal that both the petitioners alongwith Akram, Abdul Majeed and Riaz have been assigned a specific role in the instant occurrence culminating into the lodging of instant FIR. There is no doubt that an active and major role has been attributed to Akram, who is stated to have enticed away Mst. Zubaida at the time of occurrence. However, the presence of present petitioners at that particular point of time is borne out from the contents of FIR. dmittedly, Mst. Zubaida, the alleged abductee, has not been recovered so far and whereabouts of Akram alongwith Abdul Majeed and Riaz, co-accused of the petitioners, are not known. The petitioners being charged for the commission of offences punishable with either description which may extend to seven years and being in jail for less than two months and alleged abductee still not recovered from their co-accused Akram and other co-accused still at large, the petitioners are not entitled to the relief sought by them. Accordingly, petition fails and is hereby dismissed. (T.A.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 858 ( Bahawalpur Bench) Present: SHEIKH ABDUR RAZZAQ, J. MUHAMMAD TARIQ-Petitioner versus STATE-Respondent Crl. M. No. 20-B-98/BWP, dismissed on 19-2-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497/498-Bail-Grant of-Prayer for--0ffence u/s 302/324/34 PPC-Bail has been sought on the ground that petitioner did not cause any injury to deceased, that he did not restrict movement of deceased, that he has been found innocent as a result of investigation conducted by D.S.P-There is no doubt that petitioner was empty handed at the time of occurrence and he also did not restrict the movement of deceased-Does this conduct of petitioner entitle him to relief sought by him? Certainly not-Previous conduct of petitioner cannot be lost sight of, while taking into consideration his conduct at the time of occurrence-His previous conduct clearly indicates his common intention-At the time of occurrence petitioner alongwith his co-accused chased deceased and caught hold of complainant and thereby facilitated his co-accused to inflict a fatal blow on the person of deceased culminating into his death and that too in a busy bazar-There is dearth of authorities that opinion of police officers is not binding on court-Bail rejected. [Pp. 859 & 860] A & B Mr. Muhammad Farrukh Mahmood Malik, Advocate for petitioner. Mr. Muhammad Akhtar Qureshi, Advocate for State. Date of hearing : 19.2.1998. order Muhammad Tariq has applied for bail in a case registered under section 302/324/34 PPC vide FIR No. 675 dated 9-10-1997 at P.S. City Bahawalnagar for committing murder of Rizwan Anwar. 2. Succinctly stated the facts are that about 6/7 days prior to the occurrence, complainant Amir Umar alongwith Rizwan Anwar (since deceased) was present on his shop, when Abdul Jabbar alongwith his coaccused Muhammad Tariq came there on a car. They misbehaved with lady customers present on the shop. Rizwan Anwar restrained them from cutting jokes, upon which they felt annoyed and left the place issuing threats of dire consequences. On 9-10-1997 at 11.30 A.M. terror stricken Rizwan met the complainant at Bahawli Chowk and informed him (complainant) that he was being chased by Abdul Jabbar and Muhammad Tariq and he should accompany him to his house. The complainant alongwith Rizwan then proceeded to his house on motorcycle. When they reached City Chowk, both the accused reached there on a car and hit the same with the motorcycle of the complainant. Resultantly, Rizwan Anwar fell down. Muhammad Tariq petitioner raised Lalkara and caught hold of the complainant from his collar. Ahdul Jahbar brought out a dagger from the seat of car and inflicted a dagger blow on his left flank. Rizwan Anwar fell down. Both the accused then decamped from there. 3. Bail has been sought on the ground that petitioner did not cause any injury to the deceased, that he did not restrict the movements of the deceased, that he has been found innocent as a result of investigation conducted by DSP. who recorded the statements of Muhammad Sadiq, Sameedurehman, Shah Muhammad and two others, that as per investigation of DSP, it has been found that Aamir Umar complainant had a quarrel with Abdul Jabbar and Muhammad Tariq petitioner remained aloof at that time. In support of his contention, he has relied upon Rakhmat Hussam is. The State (1995 SCMR 310), Naqi Hussain Shah vs. The State (1992 SCMR 600) and Dr. Muhammad Aslam vs. The State (1993 SCMR 22881. 4. Conversely bail application has been opposed by the learned State counsel. His contention is that though the petitioner Muhammad Tariq has not caused any injury to the deceased, yet his presence with his co-accused Abdul Jabbar at the time of occurrence and their chasing the deceased in a car clearly proves that he shared common intention with his co-accused Abdul Jabbar and is equally responsible for the commission of this offence, that even the previous conduct of etitioner of visiting the shop of complainant and using threats of dire consequences to the deceased and complainant clearly proves his common intention with his co-accused, that the influence of DSP is based on the statements of witnesses whose presence is not proved from the statements of witnesses named in the FIR, that the inference based on such statements carries no weight. He placed reliance upon Nazir Muhammad vs. The State (PLD 1978 SC 236) to contend that where an accused shares common intention with the main accused, he is not entitled to the relief of bail. 5. I have considered the foregoing submissions and find myself unable to agree with the contentions raised by the learned counsel for the petitioner. There is no doubt that the petitioner was empty handed at the time of occurrence and he also did not restrict the movement of deceased. Does this conduct of petitioner entitle him to the relief sought by him? Certainly not. The previous conduct of petitioner can't be lost sight of, while taking into consideration his conduct at the time of occurrence. It is evident from the contents of FIR that petitioner with his co-accused visited the shop of complainant and both of them were restrained from misbehaving with lady customers. Again on the day of occurrence, petitioner alongwith his coaccused chased the deceased and terrified him to the extent that he had to seek the help of complainant even for reaching his own house. The matter did not end here. He (petitioner) alongwith his co-accused chased the deceased and caught hold of complainant and thereby facilitated his coaccused to inflict a fatal blow on the person of Rizwan Anwar culminating into his death and that too in a busy bazar. The conduct of the petitioner, as depicted above, clearly leads to an unresistable conclusion that he (petitioner) shared common intention with his co-accused and he was also in the know his co-accused was carrying a dagger with him at the time of occurrence. 6. The other ground urged is that petitioner has been found innocent by DSP. There is no dearth of authorities that opinion of Police Officers is not binding on the Court. Thus, no credence can be attached to such opinion and that too keeping in view the conduct of petitioner, who has been in jail for about 3 months only. Resultantly, petition fails and the same is hereby dismissed. (T.A.F.) Bail rejected.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 860 (Rawalpindi Bench) Present: RAJA MUHAMMAD KHURSHID, J. MEHRBAN HUSSAIN-Petitioner versus STATE-Respondent Crl. Misc. No. 1088-B-1997, allowed on 10-2-1998. (i) Criminal Procedure Code, 1898-- —S. 497-Offence u/S. 382 PPG read with section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979-Bail-Grant of- Prayer for-Petitioner not named in FIR-Contradiction in FIR and supplementary statement-Effect of-Petitioner is not named in FIR but only a suspicion was expressed against him which was elaborated through supplementary statement recorded after four days of the occurrence-Even in elaborated statement complainant had stated that he would be in a position to identify his culprits if they are produced before him-In the same statement he stated that through voices he could make out that occurrence was committed by the petitioner and 2 others-In such a situation and particularly when nothing is recovered from petitioner and he is behind bars for last about 8 months, it will be a case of further inquiry particularly in view of FIR and supplementary statement made by complainant after they are read together-Bail granted. [P. 862] A & B Raja Muhammad Aslam, Advocate for petitioner. Ch. Muhammad Ayub, Advocate for complainant. Sycd Nayyar Hussain, Advocate for State. Date of hearing : 10-2-1998. order A case under Section 382 PPC read with Section 17, Offences against Property (Enforcement of Hudood) Ordinance, 1979 was registered at the report of Muhammad Taqi son of Bahadar Khan vide FIR No. 31 dated 28.3.1997 at Police Station. Kallar Sayedan, Tehsil Kahuta District Rawalpindi in which the complainant had alleged that he was present in his house on 19.3.1997. After about Mugrab prayer on unknown person entered his house and introduced himself as Khalifa of some Pir. The complainant wel-comed the stranger by giving him warm hospitality. The aforesaid stranger went out of the house at 11.30 PM and after a short while again entered the house with two other strangers. All three of them over-powered the complainant and forcibly put cloth in his mouth. Thereafter, they removed Rs. 42.000 - from the pocket of his Salooka (wiast coat). They also snatched a wrist watch and also took away a brief-case from the room containing some documents. It was also contended that Khalifa of Pir along with a person namely Sufi had visited the house of the complainant a few days prior to the occurrence at the instance of his maternal uncle Muhammad Afzal as they were allegedly arranging for the marriage of the complainant who was about 65 years of age. 2. The complainant expressed his suspicion that the occurrence was committed by the Khalifa of Pir Sahib and the person named Sufi. However, a upplementary statement was made by the complainant on 23.3.1997 in which he submitted that the aforesaid Sufi and others had committed the occurrence. 3. The learned counsel for the petitioner has submitted that offence under Section 17 of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 was dropped and Section 392 PPC was substituted in its place while submitting report under Section 173 Cr.P.C.; that the petitioner remained un-identified throughout and was involved in the case due to suspicion; that the supplementary statement was made after four days of the occurrence and hence possibility could not be ruled out that it was tutored and deliberated; that the petitioner is behind the bars since after his arrest on 29.6.1997; that the investigation is complete and nothing has been recovered from the petitioner for the occurrence in question. It was, therefore, contended that the petitioner was entitled to bail particularly when the police never got identification parde conducted so as to link the petitioner with the occurrence beyond any shadow of suspicion and doubt. 4. The bail petition was opposed by the learned State counsel assisted by the learned counsel for the complainant on the ground that though identification parade was never conducted to link the petitioner with the occurrence, but the complainant had clearly implicated him in the supplementary statement recorded after expiry of 4 days; that the remaining two accused are still at large and the police has not been able to arrest them; that challan is being sent to the court concerned for trial and as such the petitioner had no case for bail particularly when he was a history-sheeter from Azad Kashmir and was also declared ahsconder in a case registered against him vide FIR No. 190/97 dated 20.11.1997 at Police Station, KotLi Azad Kashmir. 5. I have considered the above submissions and find that the petitioner is not named in the FIR but only a suspicion was expressed against him which was elaborated through supplementary statement recorded after four days of the occurrence. Even in the elaborated statement the complainant had stated that he would be in a position to identify his culprits if they are produced before him. In the same statement he stated that through voices he could make out that the occurrence was committed by the petitioner and 2 others namely Muhammad Sarfraz and Muhammad Amir, who had earlier visited him on 17.2.1997 along with two women as they were arranging for his marriage in lieu of Rs. 30,000/- and that they had seen the aforesaid amount with him. Later on the day of occurrence they had removed Rs. 50,000/- from his Salooka although in the original FIR he had contended that he was deprived of Rs. 42,000/-. The perusal of supplementary statement aforesaid shows that the complainant came up with a different story and insisted that he would be in a position to identify the culprits correctly when they are produced before him. However, as stated above, the petitioner was never got identified from the complainant after his arrest. Likewise nothing was recovered from him. The remaining two accused are still at large and the police has not been able to lay their hands on them. There is no satisfactory proof that the petitioner is an absconder in some case or that he is a history-sheeter from Azad Kashmir. It is however, conceded that there is no conviction against him in the past. In such a situation and particularly when nothing is recovered from the petitioner and he is behind the Bars for the last about 8 months, it will be a case of further inquiry particularly in view of the FIR and the supplementary statement made by the complainant after those are road together. I accordingly accept this petition and direct that the petitioner shall be released on bail against heavier surety in the sum of Rs. 70,000/- with two surties each in the like amount to the satisfaction of learned trial court. (K.A.B.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 863 (DB) Present : MUHAMMAD NASEEM CHAUDHRI AND SH. ABDUR RAZZAQ, JJ. MUHAMMAD SIDDIQUE-Petitioner versus STATE-Respondent Crl. Misc. No. 39-B of 1998, allowed on 11-3-1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Suppression of Terrorists Activities Special Courts Act, 1975, S. 5- A(8)-Bail on statutory grounds-An accused being tried for a scheduled offence by STA court is entitled to be admitted to bail on merits and even on statutory grounds-High Court can admit a person accused of scheduled offence and facing trail before a special court (STA) to bail under S. 497 Cr.P.C.-Period of detention of petitioner exceeded one year and no other case of instant nature has been registered or pending against him-Bail granted. [P. 864] A Mr. Shabbir Hussain Dhillun, Advocate for Petitioner. Khawaja Muhammad Tahir Majeed, Advocate for State. Mr. Ghulam Hussain Malik, Advocate for Complainant. Date of hearing: 11-3-1998. judgment Muhammad Naseem Chaudhri, J.--On 31.10.1996 at 7.00 a.m. one Mst. Keejo sister of Muhammad Siddique petitioner-accused was found urinating in the fodder field owned by Abdul Aziz complainant and Muhammad Akbar injured PW. She was restrained when an altercation took place. At 10.30 a.m. both Abdul Aziz complainant and Muhammad Akbar injured PW-3 were cutting the fodder in their field where Muhammad Siddique arrived while armed with a pistol. He is alleged to have said that he would take the revenge as his sister Mst. Keejo had been insulted. Thereafter he fired twice at Muhammad Akbar which hit his front chest at right and left. Muhammad Anwar and Hafeez PWs saw the occurrence. Muhammad Siddique is said to have made good his escape. He was arrested on 17.11.1996. His bail plea was rejected on 26.11.1997 by the learned Additional Sessions Judge-I/Special Judge Suppression of Terrorists Activities, Mianwali. Muhammad Siddique petitioner has filed this petition before this Court to try his luck to be admitted to bail 2. At this stage it is propej to express that during examination by the Fire Arms Expert it was opim i tb--t the pistol taken into possession from the custody of Muhamn a<) S sd ^qae petitioner-accused is serviceable and semi-automatic. 3. We have heard the learned counsel for the parties as well as learned State Counsel and gone through the record before us. The main point stressed by the learned counsel for Muhammad Siddique petitioner is that he was arrested on 17.11.1996 and the continuous period of his detention has exceeded one year and thus he has earned a valuable right of admission to bail within the purview of clause i a i to Proviso III of sub-section (1) of section 497 of the Code of Criminal Procedure especially when there is no material with the proseciition to make out that the petitioner is a hardened, desperate or dangerous criminal. On the contrary it was canvassed on behalf of the prosecution and the complainant that the petitioner is involved in a case under section 324 Pakistan Penal Code who used the semi automatic pistol and that under section 5-A<8> of the Suppression of Terrorists Activities (Special Courts) Act, 1975 this Court has no jurisdiction to admit Muhammad Siddique petitioner to bail. At this stage we would like to record that the trial Court did not exercise the discretion in favour of the petitioner on the statutoiy ground by expressing the opinion that his jurisdiction was barred under section 5-A(8) of the aforesaid Act. \Ve express the view that the case law is not bereft of the judicial decisions to the effect that an accused being tried for a scheduled offence by the Special Court constituted under the Suppression of Terrorists Activities (Special Courts) Act, 1975 is entitled to be admitted to bail on merits and even on statutory ground. It has been ruled in Asif Ali Zardari vs. The State (KLR 1991 Criminal Cases 385 (Karachi) (D.B.) that the High Court can admit a A person accused of a scheduled offence and facing trial before a Special Court under the Suppression of Terrorists Activities (Special Courts) Act, 1975 to bail under section 497 of the Code of Criminal Procedure. Keeping in view the admitted position that Muhammad Siddique petitioner was arrested on 17.11.1996 while today is 11.3.1998 and the continuous period of his detention has exceeded one year and that no other case of the instant nature has been registered or pending against him he is held entitled to enjoy the concession of bail than to remain in Jail. 4. We, therefore, accept this application and admit Muhammad Siddique petitioner-accused to bail in the sum of Rs. 50,000/- (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned Additional Sessions Judge-I, Mianwali or due to his non-availability to the satisfaction of the learned Sessions Judge, Mianwali with the direction to appear before the trial Court on every date of hearing failing which the learned trial Court may cancel his bail. (MYFK) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 865 Present: RAJA MUHAMMAD SABIR, J. DILAWAR MUHAMMAD-Appellant versus STATE-Respondent Criminal Appeal No. 187 of 1995, accepted on 23.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)— —-S. 409-Prevention of Corruption Act (II of 1947), S. 5(2)-Collection of land revenue by patwari instead of /ambardar-Allegation-Appreciation of evidence-Departure of rule for collection of land revenue by Patwari is not understandable-If there was any special order for such purpose, then it ought to be placed on record showing that appellant was deputed to recover land revenue instead of village headman-No such order or any receipt has been placed on record to show that any amount of land revemie was collected by appellant (patwari) from land owners-It is unsafe to convict appellant on basis of same evidence which has already been disbelieved qua co-accxised-Held : Entrustment of amount allegedly embezzled by appellant has not been proved on record-Held further : Prosecution having failed to prove its case, benefit of doubt will go to accused-Appeal accepted and appellant acquitted of charge. [Pp. 867 & 868] A, B, C & D Mr. Ghulam Hussain Qureshi, Advocate for Appellant. Ch. Muhammad Ilyas Jhumat, Advocate for State. Date of hearing : 23.2.1998. judgment The appellant, Dildar Hussain alongwith Allah Lok and Muhammad Anwar, was challaned for having misappropriated an amount of Rs. 91,995.94 of land revenue while posted as Patwari Halqa Chunnu and Shirian Tehsil and District Okara in collusion with each other for the crops of Rabi 1985 to Rabi 1987 from the land owners of the aforesaid Mauzas. Muhammad Anwar Lambardar, co-accused of the appellant, died before framing of the charge whereas Allah Lok, co-accused, has been acquitted by the learned Special Judge, Anti Corruption, Lahore vide the impugned judgment. Dildar Hussain, appellant, was convicted under section 409 PPC read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced to one year R.I. and fine of Rs. 100,OOO/- and in default of payment of fine, he was ordered to undergo additional R.I. for six months vide judgment dated 22.3.1995 which has been challenged in the instant appeal. 2. Brief facts of the case are that in a written complaint Ex. PW6/1 filed by Tehsildar Okara, it was alleged that Dildar Hussain, appellant, while posted as Patawri and Allah Lok as his helper, collected and misappropriated land revenue amounting to Rs. 91,995.94 from the land owners of the said mauzas for the crops from Rabi 1985 to Rabi 1987. The amount so collected was never deposited in the government treasury by the accused for which an enquiiy was conducted and they were found guilty by the Inquiry Officer. The Inquiry Officer submitted his report to A.C. Okara. He marked the same to Muhammad Naseem Sadiq, MIC, Okara who lodged the FIR (Ex. PW6/2) with the police. A challan after registration and investigation of the case was submitted in the trial court against all the aforementioned three accused. 3. The prosecution produced as many as 10 witnesses to prove guilt of the accused. PW. 1 Shabbir Ahmed Patwari stated that Dildar Hussain, appellant, had been collecting land revenue alongwith Lambardar but he did not know whether the accused deposited the so collected amount in the government treasury or not. He further stated that the collection related to the year from 1985 to 1987. PW2 Lai Chowkidar stated that Dildar, appellant, alongwith Gulzar Naib Qasid had been coming to their village frequently to collect the land revenue. He did not know whether the accused did or did not deposit the collected amount in the treasury. PW. 3 Muhammad Yousaf stated that both the accused had been collecting land revenue from Mauza Sharian jointly as well as individually. PW. 4 Noor Ali stated that Dildar and Chowkidar Lai came to him 5/6 years back and got land revenue of Rs. 117/- from him for one crop against receipt. He further stated that both the accused had been receiving land revenue from other zamindars also. PW. 5 Wallia stated that about two years back accused Dildar and Chowkidar Lai received land revenue amounting to Rs. 200/- on one occasion and Rs. 100/- on another occasion from him. PW. 6 Muhammad Ismail ASI, lodged formal FIR Ex. PW6/2 on receipt of the complaint. PW. 7 Mian Mohsin Rashid, Tehsildar stated that on receipt of enquiiy report from Naib Tehsildar, he drafted complaint Ex. PW. 6/1 and directed the police to register a case against the. accused PW. 8 Skindar Ali stated that Gulzar peon received Rs. 223.49 as revenue from him for which Dildar accused executed the receipt. PW. 9 Ghulam Nabi, S.I. stated that in the year 1990 he was posted as Sub Inspector at P.S. Gogera and he partly investigated the case. He also stated that he arrested the accused Anwar, Gulzar Naib Qasid and Dildar Patwari. He further stated that after receipt of sanction order Ex. PW. 9/1 his successor Yar Muhammad submitted final challan against to accused in the court. PW. 10 Muhammad Nawaz, however, not supported the prosecution version and he was declared as hostile. 4. Dildar Hussain appellant pleaded innocence in his statement under section 342 Cr.P.C. and stated that recovery of land revenue was the duty of the Lambardar only. Lambardars of the village were defaulter, therefore, they were not delivered Dhal Bash for recovery of the land revenue. Instead Tehsildar deputed his subordinates Naib Qasid Yousaf and Gulzar to recover the said amount, who might have recovered the amount themselves. However, the land owners complained to him that they were receiving excess amount from them and he brought this fact to the notice of higher officers. Tehsildar got annoyed with him and falsely implicated him in this case. Dildar accused also produced two witnesses in his defence. DW1 Abdul Aziz and DW2 Muhammad Iqbal, both stated that Dildar Patwari never received any land revenue from them or the land owners of the village during the period from 1985 to 1987. 5. Learned counsel for the appellant contends that to recover the land revenue is the duty of the Lambardar concerned and the Patwari has no authority whatsoever to collect the same. No documentary evidence has been produced on record to show that the appellant received even a single penny from any land owner. The prosecution has miserably failed to establish guilt of the accused. The evidence relied upon against the appellant has been disbelieved as against co-accused Allah Lok who has been acquitted by the learned trial court. The order of his acquittal has not been challenged by the state, hence he is also entitled to acquittal. 6. Learned state counsel has, however, supported the conviction of the appellant. 7. I have heard the learned counsel for the appellant as well as state counsel at length and perused the available record. It is the duty of the village headman to collect the land revenue from the land owners under the Land Revenue Act. The statement of the appellant that Lambardar of the village was not collecting the land revenue satisfactorily, therefore, Tehsildar deputed his subordinates Naib Qasids to effect the recovery and deposit in the government treasury, is not without substance. The Naib Qasids might have received the amount under the directions of the Tehsildar but the prosecution has failed to produce any document to show that the appellant was deputed to recover the land revenue. No receipt has been produced by any of the land owner showing the signatures of the appellant in token of receipt of any amount of land revenue by him. The entrustment of the amount allegedly embezzled by the appellant has not been proved on record. 8. The ocular account furnished by the PWs has been disbelieved qua Allah Lok, co-accused who has been acquitted by the learned trial court. B Therefore, it is unsafe to convict the appellant on the basis of the same evidence which was already been disbelieved qua the co-accused. 9. Departure of a rule for collection of land revenue by Patwari is not understandable in the present, case. If there was any special order for such purpose, then it ought to be placed on record showing that appellant was deputed to recover the land revenue instead of the village headman. No such order or any receipt has been placed on record to show that any amount of land revenue was collected by the appellant from the land owners. I have scanned the entire evidence and failed to find out any document connecting the appellant with the commission of the crime. The prosecution evidence does not inspire confidence and it has been disbelieved by the learned trial court qua the co-accused, the same cannot be relied upon in this case unless there are any differentiating factors therein. It was the duty of the prosecution to prove its case against the accused beyond any shadow of doubt. The prosecution having failed to prove its case, the benefit of doubt will go to the accused. For the reasons stated above, this appeal- is accepted and the appellant is acquitted of the charge. He is already on bail by this court. His surety and bail bonds shall stand discharged. ' (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 868 Present: SHARIF HUSSAIN BOKHABT, J. Haji RASHEED AHMAD & another-Petitioners versus STATE-Respondent Criminal Revision No. 52 of 1998, dismissed on 4.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 540-Pakistan Penal Code (XLV of 1860), S. 302-Application for summoning investigating officer as court witness declined—Challenge to— There is no cavil with proposition that court has power under section 540 Cr.P.C. to summon any person at any stage of inquiry or trial, as court witness and is obligatory to summon and examine such person, if it appears to court that evidence of such witness is essential to just decision of case-There was no bar for making second application for summoning DSP as court witness, but no purpose would be served in so doing as it was not shown that any particular fact relating to case was in his knowledge or any evidence was in his possession, which otherwise could not have been brought on record through Investigating officer, who had previously appeared-Held : Even if DSP summoned as court witness, his evidence would be inadmissible and irrelevant-Held further : It would not help petitioner nor serve any useful purpose—Petition without force is accordingly dismissed. [Pp. 570, 571 & 572] A, B & C 1992 SCMR 2055. Mr. Masood Mirza and Mr. Zafar Iqbal Chohan, Advocates for Petitioners. Kit. Muhammad Sharif, A.G. with Mr. Abdul Karim Bhutta, Law Officer, Sardar Muhammad LatifKhan Khosa, Advocate for Complainant. Date of hearing : 4.3.1998. order Through this Crl. Revision Petition the order dated 16.2.1998 of the learned Sessions Judge, Okara has been challenged, whereby the last Investigating Officer, namely, Rana Shahid DSP was not summoned as court witness, rather the petitioner was allowed to summon him as his defence witness. 2. The brief facts are that FIR No. 136/94 was registered on 7.4.1994 at Police Station Basirpur, District Okara under Sections 302/34 PPC against four persons, namely, Rasheed Ahmad, Saleem Dad, Naseer Ahmad alias Naju and Zafar Hayat, Zafar Hayat, accused is still absconding whereas other three accused persons are in custody. Initially after completing investigation, the challan was sent up by the learned Illaqa Magistrate on 1.5.1994. However, on the order of the S.P., Okara dated 31.12.1995, the reinvestigation was ordered which was entrusted to Rana Shahid, DSP, Depalpur, District, Okara. According to the learned counsel for the petitioner, he found the present petitioner innocent during his investigation. However, his report was not submitted to the Court because the challan was earlier submitted to the Court. 3. The order for re-investigation and its entrustment to DSP Rana Shahid was challenged by the complainant-party in this Court through Writ Petition No. 381/96 pleading that the challan had already been submitted to the Court who had recorded the prosecution evidence and that Rana Shahid, DSP the newly appointed Investigating Officer, was related to Saleem Dad, accused. This Court passed the order on 30.1.1996 directing Rana Shahid, DSP to complete re-investigation within ten days. This order was impugned before the Hon'ble Supreme Court and vide order dated 13.2.1996 passed in C.A. No. 726-L/96, the Hon'ble Supreme Court stayed the re-investigation and allowed the learned trial Court to proceed with the trial but not to announce the final judgment. Finally this appeal was withdrawn by the complainant-party from the Hon'ble Supreme Court on 17.12.1997. 4. Meanwhile, the prosecution evidence was closed on 17.7.1997 while defence evidence was not closed. The present petitioner submitted an application to the learned trial Court, on 14.6.1997 under Section 540 Cr.P.C. for summoning DSP Rana Shahid as court witness contending that he had in his investigation found the petitioner and co-accused Zafar Hayat innocent. This application was contested by the complainant-party and vide order dated 21.6.1997 was dismissed by the learned trial Court, observing that "the application for summoning of the witnesses as Court witnesses is devoid of any force, which is dismissed accordingly. However, the defence is at liberty to summon them as DWs." The defence evidence, thereafter, was closed on 25.9.1997 and the case was fixed for final arguments on 3.2.1998. The petitioner made another application under Section 540, Cr.P.C. requesting the Court to summon DSP, Rana Shahid as Court witness. This application was also contested by the complainant-party and finally rejected by the learned trial Court, vide impugned order dated 16.2.1998, observing as under:-- "Since there exists no ground for summoning required witness as CW and I am afraid that I am in a position to recall my order dated 21.6.1997. However, for the ends of justice, if inadvertently or advertently witness has not been produced as DW, the defence is given a more chance to produce him as DW as Counsel for the complainant has no objection. Therefore, application for summoning Rana Shahid DSP as CW is devoid of force. It is dismissed. However, accused is at liberty to summon him as DW through Court before the date fixed for arguments". 5. Feeling dissatisfied with this order the petitioner filed the present revision petition. Learned counsel for the petitioner submitted that Rana Shahid, DSP could not be cited as witness in the calendar of witnesses because the challan had earlier been submitted to the Court before he was entrusted with the investigation of the case. He, therefore, submitted that under Section 540 Cr.P.C., the learned trial Court ought to have summoned him as Court witness in order to arrive at the just decision of the case, as his evidence was essential. In support of his contention he relied on "Mehrzad Khan versus The State" (PLD 1991 S.C. 430). "Hakim Khan and 4 others versus The State" (PLJ 1993 S.C. 33), "Muhammad Ayub versus The State" (1987 P.Cr.L.J. 779), "Mst. Amana Bibi versus Kashif-ur-Rchman and another" (1995 P.Cr.L.J. 730) "Muhammad Israr and 5 others versus The State" (1987 P.Cr.L.J. 244) and "Bashir Ahmad versus The State (1988 MLD 2435). Learned counsel for the petitioner vehemently argued that Rana Shahid, DSP coxild be summoned as Court witness at any stage of the trial/notwithstanding the fact that the prosecution and defence had closed their evidence. 6. There is no cavil with the proposition that the Court has the power under Section 540, Cr.P.C. to summon any person at any stage of the inquiry or trial, as Court witness and is obligatory to summon and examine such a person, if it appears to the Court that the evidence of such a witness is A essential to the just decision of the case. However according to the learned counsel for the petitioner. Rana Shahid, DSP was one of the Investigating Officers and was not himself a witness in the case, nor cited in the calendar of witnesses. The judgments cited at. the bar by the learned counsel for the petitioner are distinguishable as in all the precedent cases the witnesses who were directed to be summoned as Court witnesses, were the witnesses themselves, of facts and circumstances and were cited in the calender of witnesses, not. were given up or not summoned. 7. With regard to the earlier order dated 21.6.1997. Hereby the first application under Section 540 Cr.P.C. of the petitione 1 ' for summoning Rana Shahid, DSP as Court witness, was dismissed and not challenged, the learned counsel submitted that after the withdrawal of the appeal from the Supreme Court by the complainant party, the right accrued to the petitioner to file a fresh application under Section 540 Cr.P.C. He further submits that even otherwise there was no bar to file fresh application for summoning Rana Shahid as Court witness. 8. On the other hand Sardar Muhammad Latif Khan Khosa, Advocate, learned counsel for the complainant submits that the Court had earlier dismissed the application of the petitioner on 21.6.1997 and on the same grounds second application was not competent, particularly when on merits the first application was dismissed by the learned trial Court. He adds that in the interest of justice, the learned trial Court had also allowed the petitioner to produce Rana Shahid, DSP as defence witness, therefore, the grievance of the petitioner is not justified. He further submits that even if Rana Shahid, DSP, Investigating Officer was produced, his statement would be of no legal value as his evidence is inadmissible and irrelevant for the purpose of this case, in the light of the judgments of the Hon'ble Supreme Court in the case of "Farman Ali vs. The State" (1992 SCMR 2055) and the earlier case of "Moonda us. The State" (PLD 1958 S.C. 275). In the former, it is observed that, "Such an opinion of the Investigating Officer is not only irrelevant but inadmissible...." 9. Learned counsel for the complainant also cited at the bar the judgment, of the Supreme Court in "Muhammad Alam vs. Addl. Secretary.... "(PLD 1987 S.C. 103), in support of his contention that the reinvestigation and cancellation of the case after the trial had commenced, was not permissible under Section 173, Cr.P.C. In this judgment reference to a Full Bench judgment of this Court in "Wazir vs. State" (PLD 1962 Lah. 405) is also made. 10. Even if I agree with the learned counsel for the petitioner that in the circumstances of this case, there was no bar for making second application for summoning Rana Shahid, DSP as Court witness, I am not satisfied, as to the purpose that would be served by summoning Rana Shahid DSP as a Court witness as it was not shown to the learned trial Court nor to me that any particular fact relating to the case was in his knowledge or any evidence was in his possession, which otherwise could not have been brought on record through the Investigating Officer, who had previously appeared, or the defence witnesses. 11. Under Section 540, Cr.P.C. no doubt that at any stage of the trial and even after closing of the evidence, the Court has power to summon any person and examine him as a witness. But in the present case the Court has ot declined to summon Rana Shahid, DSP as Court witness on the basis that the evidence stood closed. On the contrary, the Court was not satisfied that the evidence of DSP, Rana Shahid was essential to the just decision of the case, as he was only one of the Investigating Officers, although disputed by the learned counsel for the complainant, and had no personal knowledge about the facts of the case. However, in the light of the aforesaid Supreme Court, judgment in Farman Ali supra (1992 SCMR 2055), such evidence would he inadmissible and irrelevant. Therefore, it would not help the petitioner nor serve any useful purpose, even if he was summoned by the learned trial Court, as a Court witness. 12. Learned Advocate General Punjab and Mr. Abdul Karim Bhutto, learned State Counsel who appeared on behalf of the State supported the order passed by the learned Sessions Judge on 16.2.1998, as according to them also, this order was valid and proper in the circumstances of this case. 13. In the light of the above discussion, this petition has no force and is accordingly dismissed. (T.A.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 872 ( Rawalpindi Bench) Present: raja muhammad khurshid, J. MUHAMMAD ASIF-Petitioner versus STATE-Respondent Crl. Misc. No. 41/B-1998, dismissed on 4.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail--Grant of-Prayer for-Offence u/S. 392/411 PPC read with S. 17 cf Offences Against Property (Enforcement of Hudood) Ordinance, 1979-Night time dacoity-Minute details of features of petitioners were to given in F.I.R. by complainant but they were, however, identified by complainant when they were taken into custody by police upon suspicion alougwith Taxi Car and other articles of complainant--As such petitioner prima facie is liable for offences-It was a night time robbery committed in the garb of passengers while hiring a taxi car from complainant, but deprived him of his belongings on pistol point-There is no extenuating ground so as to admit petitioner to bail-Bail refused. [P. 874] A Ch. Fazat-ur-Rchrnan. Advocate for Petitioner Mr. Muzahir A. Naqvi, Advocate for State. Date of hearing : 4.2.1998. order The petitioner alongwith others was arraigned for an offence under Section 392/411 PPC read with Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as they hired a taxi from the complainant/driver. The took him at a deserted place and' deprived him of the Taxi Car and cash of Rs. 157/- and his National Identity Card. Thereafter they sped away with the taxi leaving behind the complainant. They were however, intercepted hy the police and on getting suspicious they were taken into custody. In the meantime the complainant saw the police party alongwith the petitioner and his co-accused. He thereupon informed the police that the petitioner and his co-accused had deprived him of the Taxi Car and other articles as stated above, while all of them were allegedly armed. 2. The petitioner applied for bail which was declined by the learned Additional Sessions Judge, Rawalpindi vide the impugned order. 3. It is submitted by the learned counsel for the petitioner that the FIR is silent about the description of the physical features of the petitioner nd his co-accused nor any identification parade was held so as to link the petitioiur and his co-accused with occurrence; that the petitioner and his accomplices were already in police custody when the police party came into contract with the complainant and that the identification of the petitioner alongwith other co-accused was not good in the eyes of law in that situation. 4. Lastly it was contended that the petitioner is not involved in any other case and that he is behind the Bars since his arrest in June, 1997. It was contended that complainant is the sole witness of the occurrence and as such the requirement of Section 17 of the Offences Against Property (Enforce .iient of Hudood) Ordinance, 1979 have not been complied with and as such that provision of law is not available to the prosecution to make out a case of Haraba. Hence it was prayed that the petitioner be admitted to bail. 5. The learned counsel for the State contended that although the description of the petitioner of his co-accused was not given in the FIR, but keeping in view night time it was not possible for a taxi Driver to minutely note the physical features of the petitioner or his accomplices. However, within half an hour the petitioner alongwith co-accused was taken into custody iiy the police while they were travelling in the Taxi Car which they had snatched from the complainant and instantaneously they were identified by the complainant, therefore, there was no need of any separate identification parade. All the offenders were caught alongwith weapons of offence and the booty thereby linking them with the occurrence. fi. Lastly the learned counsel for the State contended that accordingly to the police record, offence under Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 has already been dropped vide entry at serial No. 2 of the case diaiy dated 12.10.1997, but the offence under Section 392 PPC is punishable upto 14 years R.I. and as such the petitioner is not entitled to bail as a matter of routine. 1. I have considered the foregoing submissions and find that although minute details of the features of the petitioner was not given in the FIR by the complainant, but that was not practicable on account of night time particularly when the offenders were travelling in a Taxi Car hired by them. They were however, identified by the complainant when they were taken into custody by the police upon suspicion alongwith Taxi Car and other articles of the complainant. As such the petitioner prima facie is liable for offence under Section 392/411 PPC as he acted alongwith co-accused while armed with a pistol to deprive the complainant of his aforesaid belongings. It was a night time robbery committed in the garb of passengers while hiring a taxi car from the complainant, but deprived him of his belongings on pistol point. There is no extenuating ground so as to admit the petitioner to bail at this stage. This bail petition is, accordingly dismissed. (K.K.F.) Bail refused.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 874 Present: AMIR-UL-MULK MENGAL, C.J. MALIK AMANULLAH-Applicant versus STATE-Respondent Crl. Bail Application No. 405/1997, accepted on 8.12.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)-Bail--Grant of-Prayer for-Offence u/s 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979-Bail rejected on two previous occasions since witnesses had not been examined by trial court, therefore, High court on basis of 161 Cr.P.C. statements refused bail-Court can examine statements recorded under section 161 Cr.P.C. only when witnesses have not been examined by Court-However, when such witnesses are examined by court then it is statements recorded by trial court which shall be relevant for purpose of assessment whether to grant or refuse bail-Applying this principle to facts of present case, statements which have been recorded by trial court shall have to be considered for purpose of grant or refusal of bail-While rejecting bail at two previous occasions since witnesses had not been xamined by trial court, therefore, this court on basis of 161 Cr.P.C. statements refused bail to petitioner-But all four witnesses have now prima-facie not implicated present accused, therefore, his case falls within categoiy of subsection (2) of section 497 Cr.P.C. [P. 876] A Mr. Naec.m Akhtar, Advocate for Appellant. Mr. Abdul Karim Khan Yousafzai, Advocate for State. Date of hearing : 8.12.1997. order By this order I intend to dispose of Criminal Bail Application No. 405 of 1997 filed by Malik Amanullah who is involved for an offence under section 17(3) of Offences Against Property (Enforcement of Hadood) Ordinance 1979. Brief facts are that the applicant was arrested in F.I.R. No. 121 of 1996 filed with Kuchlak Police Station upon the report of one Ahmedullah with alleging that a truck containing 530 bags of sugar was stopped on the way from Kuchlak to Cheman by some dacoits on gun point, who forcibly took away the truck and the sugar. However, subsequently sugar bags were recovered from the shopkeepers who disclosed that the same were handed over to him by the accused/applicant. After investigation the police put up challan which is pending before Additional Sessions Judge-I, Quetta where bail application filed by Amanullah was rejected. This court also refused to grant him bail vide two successive orders dated 12-9-1997 and 13-10-1997. However, in bail application No. 312 of 1997 this Court observed that matter is since pending, therefore, the Presiding Officer was directed to examine the relevant witnesses within a period of 20 days whereafter the petitioner may move fresh application for bail. After such order P.W. 1 Ahmed Ullah, P.W. 2 Jan Muhammad, P.W. 3 Noor Muhammad and P.W. 4 Fazal Muhammad were examined by the Court. These were relevant witnesses after whose deposition a fresh bail application was moved which was also rejected. Hence this application for grant of bail. Heard Mr. Naeern Akhtar, Advocate for petitioner and Mr. Abdul Karim Khan Yousafzai for the State. Mr. Naeem Akhtar contended that P.W. 1 Ahmadullah has not nominated Amanullah accused in his statement before the Court. P.W. 2 Jan Muhammad stated that he was not in the truck and he was declared hostile. P.W. 3 Noor Muhammad deposed that since the accused persons had muffled their faces he did not identify them. Likewise P.W. 4 Fazal Muhammad has not implicated Amanullah. Similarly Ainuddin has filed an affidavit, that he has not named the accused, so also Bakht Muhammad. In the circumstances a prayer was made that since prima-facic the main witnesses have not implicated Amanullah, with the commission of offence, his case, therefore, falls within the categoiy of section 497(2) Cr.P.C. as a case of further inquiry. Learned State counsel, however, opposed grant of bail on the ground that this Court has already refused to grant bail to Amanullah and successive bail applications be discouraged. According to State Counsel although the witnesses have turned hostile in Court but their 161 Cr.P.C. statement are pertinent on the basis whereof this Court refused to grant bail to the accused. While supporting the order whereby bail was refused, the counsel contended that learned court has taken into consideration the remaining evidence and has rightly refused bail. I have considered the arguments so advanced. I had already refused bail to the accused on the basis of statement of witnesses recorded under section 161 Cr.P.C. I directed that the eye witnesses be examined whereafter the accused would be entitled to file a fresh bail application. Accordingly the trial court examined 4 witnesses and all of them prima facie did not implicate the accused before the trial court. The principle governing bail is that a tentative assessment has to be made of the statement of witnesses in order to reach a eonchision whether the accused has made out a ground for bail or not. The court can examine statements recorded under section 161 Cr.P.C. Only when the witnesses have not been examined by the Court. However, when such witnesses are examined by the court then it is the statements recorded by the trial court which shall be relevant for the purpose of assessment whether to grant or refuse bail. Applying this principle to the facts of the present case, the statements which have been recorded by the trial court shall have to be considered for the purpose of grant of refusal of bail. While rejecting bail at two previous occasions since the witnesses had not been examined by the trial court, therefore, this court on the basis of 161 Cr.P.C. statements refused bail to the petitioner. But all the four witnesses have now prima-facic not implicated present accused, therefore, his case falls within the category of subsection (2) of section 497 Cr.P.C. In the circumstances I grant bail to the accused who shall be released subject, to his furnishing security in the sum of Rs. 2,00,000/- (Rupees two lacs) with two sureties of Rs. 1,00,000/- (Rupees) one lac) each and P.R. of like amount to the satisfaction of the trial court. He shall be so released if not required in any other, case. (K.K.F.I Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 876 Present : RAJA FAYYAZ AHMED, J. Mst. RAZIA and another-Applicants versus STATE-Respondent Crl. Bail Application No. 371 and 372/97, accepted on 18.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of Prayer for-Offence u/S. 13/14 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Supply, girls to people for zina against consideration of money-Allegation of-"Dummy customers is only substantial link and basis of prosecution case in respect of so called transaction; who has not been examined, recovery of marked notes from possession of accused S or arrival of both accused on rickshaw at given site would not create/or be a reasonable round available with prosecution to hold that prima facie case for commission of alleged offence stands made out against accused. [P. 879] A Mr. Muhammad Rafique Ch. , Advocate for Applicants. A.G. for State. Date of hearing : 18.11.1997. judgment This application u/S. 498 Cr.P.C. on behalf of the accused for her release on bail has been moved in connection with the case registered against her with the P.S. Bijli Road , Quetta under crime case No. 85/97 dated 1-10- 1995 U/Ss. 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It may be noted that alongwith the applicant Mst. Razia, accused Sakhawat Hussain, has also been arrested and detained in connection with the above noted, crime, who has separately moved bail application No. 372/97 and both the applications came up for hearing before this court simultaneously. The bail plea of both the applicants has been rejected by the learned Sessions Judge-IV Quetta vide order dated 27-10-1997 passed in bail application No. 304/97 and 305/97. The stated facts of the case as disclosed by the complainant Malik Slier Afzal Awan IP/CIA Circle City Quetta in the report registered on the Murasila transmitted by him to the police station, are to the effect that he received special spy information that accused Sakhawat supplies girls to people for Zina against consideration of money, whereupon; the complainant approached the AC/SDM Saddar Quetta and told to him the facts in this behalf; who handed over to the complainant two currency notes of Rs. 1000/- denomination each by putting his (AC/SDM) initials on the notes whereupon; the complainant handed over the initialled notes to the decoy customer who contacted the accused Sakhawat in the manner he was told by the spy and the accused after satisfying himself about the dummy customer asked about the registration number of his vehicle which was told to the accused by such customer and the accused told to him (the dummy customer) to be present at 8.30 p.m. at Pishin Bus Stop near to the marriage hall and that it was settled with the accused that he would provide girl for Zina to the stated customer on receiving Rs. 2000/- as consideration of the transaction. According to the complainant/case of prosecution for before the appointed time DSP/CIA City, DSP/CIA Sariab, the complainant alongwith a lady constable in civil dress, in the supervision of AC/SDM Saddar kept the secret vigilence of the pointed/settled site and at 8.30 p.m. the special spy accompanying them, by pointing out that the person who alongwith the girl has alighted from the rickshaw stopped in front of them, is the Sakhawat, to whom the dummy customer met with and the said notes were handed over to Sakhawat accused by the said customer who accordingly provided to him the girl. According to the case of the prosecution, as soon as this transaction was matured, the AC/SDM, the CIA staff including the complainant cordoned off the accused Sakhawat and the girl and from the personal search of the accused Sakhawat two initialed notes of Rs. 1000/- denomination each, duly identified by the AC/SDM, were recovered which were taken into possession vide, recovery memo. It has been alleged in the report that the accused Sakhawat admitted before the raiding Magistrate at the spot that against consideration of money he used to supply girls for Zina to people and similarly the accused, Mst. Razia also admitted her guilt before the said magistrate at the spot that every year she comes from Punjab to Quetta and stays with accused Sakhawat and by mutual consent she is used to be supplied to people for committing Zina and they both equally distribute the amount they obtain/receive for such purpose. On such allegations both the accused have been booked for the commission of offence u/s 13/14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1978. I have heard the learned counsel for the applicant and the learned Advocate General, who on court notice, besides the learned counsel Mr. Sultan Mehmood, Advocate appeared. The complainant IP/CIA and the Investigation Officer of the crime were also called on to attend the court. The record/papers of the investigation of the case were also perused. The learned Advocate General was asked to satisfy the court about the incriminating evidence if any is available on the record of the case in respect of the involvement of the accused for commission of the offence, to which they are charged. The learned Advocate General on the basis of available record conceded that except the recovery of marked notes from the possession of the accused Sakhawat there is no such evidence. The complainant i.e. IP/CIA on being enquired by this court stated that the accused are involved and indulge frequently in such activities but they are so clever and intelligent that despite best efforts; police remain un­successful to apprehend them red handed and so was the explanation offered by the investigating officer. Apart from the merits of the case this leads me to the conclusion that, the accused have been deliberately prompted to commit the proposed illegal act; which is not so permissible in law and is an actionable wrong, in as much as; an act punishable under law. No police officer, authority or any Governmental Agency is licenced to induce, activate, prompt accelerate, aid or assist in any manner or by any means or to act in any manner directly or indirectly which may consequently result or cause to result into commission of any offence; conversely it is the legal duty of the agencies responsible for enforcing law and maintaining law and order, to check, control and extinguish crime and to take all necessary measures to curtail, apprehended and arrest recurring of any offence. Adverting on merits of the case, the stated dummy customers is the only substantial link and basis of the prosecution case in respect of the so called transaction; who has not been examined, the recovery of marked notes from the possession of the accused Sakhawat or arrival of the both the accused or rickshaw at the given site would not create/or be a reasonable ground available with the prosecution to hold that prima facie case for commission of the alleged offence stands made out against the accused." In view of above legal and factual position, the instant bail application and the connected bail application No. 372/97 were allowed by my short order dated 18-11-1997 and both the accused were accordingly admitted to bail; and the above are the reasons for such order. (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 879(DB) Present: IFTIKHAR MUHAMMAD CHAUDHARYAND amanullah khan yasinzai, JJ. ABDUL GHANI-Appellant versus STATE-Respondent Crl. Appeal No. 324/1997, dismissed on 15.1.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 164(3>-Confessional Statement-Pre-requisites-If statement of Magistrate is unchallenged, it is not possible to presume that Magistrate had recorded statement without complying with requirements of law as laid down under Section 164(3) Cr.P.C. and inference would be that accused made confessional statement voluntarily and has deposed truth. [P. 886] B (ii) Criminal Procedure Code, 1898 (V of 1898)-- --S. 164(3)-Confessional statement-Pre-requisite--Appellant has given detailed account of incident and there is nothing on record to discredit credibility of confession-Held : Retracted confession will be considered true. [P. 886] C (iii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. Ifi4(3)--Confessional statement-Pre-requisites-It is well settled that when an accused person retracted or resiles from his confession, then onus lies on him that he did not record any confession-Appellant has brought nothing on record to show that confession was not voluntary or same was obtained through coercion or nducement-Held : Confession will lie considered voluntary and true. [P. 886] D (iv) .lurisdiction-- —-Jurisdiction-Challenge to-Appellant throughout proceedings did not raise question of jurisdiction, moreover learned counsel of appellant failed to ahmv as to what prejudice has been caused to appellant-Objection of jurisdiction is devoid offeree hence repelled. [P. 882] A Mr. K. N. Kohli, Advocate for Appellant. Mr. Noor Muhammad Achakzai, Advocate Addl. A.G. for State. Date of hearing : 23.12.1997. judgment Amanullah Khan Yasinzai, J.--Appellant Abdul Ghani has assailed the judgment dated 5-11-1997 passed by Additional Sessions Judge, Khuzdar whereby he has been convicted u/s 302-B PPC to suffer life imprisonment for committing the murders of deceased persons AH Hassan and Saadullah. 2. Briefly stated the facts of the case are that PW-1 Sayeed Khan lodged report with Levies Thana Tehsil Zehri district Kauzdar on 28.12.95 stating therein that he was going towards Bazaar and near the water-tank he saw two persons lying one of them was dead and the other was injured, who told his name as Saadullah and stated that persons of Batyar tribe had fired upon them due to which Ali Hasan died on the spot. It is further stated that the injured Saadullah knew the names of the assailants. On this report the investigation of the case was entrusted to PW-5 Muhammad Uma Naib Tehsildar Zehri. He arrested the appellant, recorded statements of the rosecxition witnesses and submitted challan before Addl: Sessions Judge Khuzdar for trial of the case. 3. Charge was framed on 14-5-97 to which the appellant did not plead guilty. To substantiate its case, the prosecution produced PW-1 Sayeed Khan who stated that on the day of incident he saw deceased Ali Hasan and injured Saadullah near water-tank and thereafter he lodged report Ex. P/l- A and Tehsildar inspected the site and prepared inquest report of the deceased Ali Hasan vide Ex. P/l-B.PW-2 Abdul Ghani Naib Tehsildar stated that he arrested the ppellant on 15-2-97 and submitted incomplete challan Ex. P/2-A. PW-3 Karim Bakhsh, Levies sepoy stated that he accompanied the Tehsildar on 23-12-95 to the place of incident where the dead-body of the deceased Ali Hasan was laying. Tehsildar took possession of coat of deceased and nine empty cartridges of Klashinkov Rifle vide Ex. P/3-A. PW-4 Asmatullah Judicial Magistrate Khuzdar stated that the appellant was produced before him by Naib Tehsildar Zehri on 17-2-97 for >ecording confessional statement. He further stated that before recording the confessional statement of the appellant, he fulfilled all the requirements of section 164 Cr.P.C. He recorded the confessional statement vide ExP/4-A and also issued certificate ExP/4-B. In cross-examination he stated that after recording the confessional statement, the appellant was sent to judicial lock­ up. He further stated that it took him about 40 minutes to record the statement. He denied that the appellant was of unsound mind at the time of recording his confessional statement and he also denied that the appellant did not record his confessional statement voluntarily PW.5 Muhammad Uniar Naib Tehsildar Zehri investigated the case. He stated that, on 23-12- 1995 011 the report of PW-1 Sayeed Khan he registered FIR Ex. P/l-A, went, to the place of incident, recorded the statement of the injured Saaclullah who later on succumbed to the injuries. He further stated that Saadullah told him that Ata Muhammad and Muhammad Hayat son of Shando and another unknown person had attacked upon them. He stated that the dead-body was handed over the legal heirs of the deceased without post mortem, i'idc receipt ExP/5-A and thereafter he was transferred. The appellant was examined U/S. 342 Cr.P.C but he did not, record his statement on oath nor produced any defence evidence. 4. After assessing the evidence on record, the learned Additional Sessions Judge. Khuzdar vide judgment, dated 5-11-97 convicted the appellant as mentioned hereinabove. 5. We have heard Mr. K.N. Kohli Advocate for the appellant and Mr. Nocir Muhammad Achakzai, learned Additional Advocate General for the State. 6. Mr. K.N. Kohli Advocate stated that since Klashinkov was used n the commission of offence; as such the offence being a schedule one, only the STA Court had jurisdiction to try the case; as such trial of the case before Addl: Sessions Judge was without jurisdiction. The learned counsel further contended that, the trial Court has wrongly convicted the appell nt on the ole basis of confessional statement. As the confessional statement has not been corroborated as such the conviction is not sustainable under the law. The learned counsel further stated that, the cause of death was not known as the medical certificates have not been produced; as such on this score also the conviction was not sustainable. 7. Mr. Noor Muhammad Achakzai, learned Addl: Advocate General while supporting the judgment of the trial Court argued that as far as jurisdiction of the Addl: Sessions Judge. Khuzdar is concerned, no objection was raised before the Additional Sessions Judge. Kbuzdar. The appellant submitted to the jurisdiction of the said court. Besides, no prejudice has been caused to the appellant. The learned A.G. regarding the confession of the appellant stated that it was rightly believed by the trial Court being voluntary in nature and the appellant has given truthful account of the incident and further that conviction can be based on the sole confessional statement provided the same bears truth and is confidence inspiring. Regarding medical certificate he stated that the relatives of the deceased did not want that post mortem be conducted; as such the medical certificate could not be produced and besides, unnatural death of the deceased persons has not been denied by the defence. 8. We have perused the record and have considered the arguments of the learned counsel for the parties. 9. Adverting to the objection of Mr. K.M. Kohli Advocate that since Klashinkov was used and being a scheduled offence the case was exclusively triable by STA Court, the learned Additional Sessions Judge had no jurisdiction to try the case. It may be observed that it is well-settled that the jurisdiction of the court to tiy the case is to be determined on the basis of the allegations contained in the FIR and material collected by the prosecution atthe time of submission of the challan. In the case in hand in the FIR Ex. P/l- A there is no mention of use of Klashinkov and in recovery memo Ex. P/3-A, it is only mentioned that 9 empties of 7.62 rifle were taken into possession. The word Klashinkov has been used for the first time during the trial by PW-3 Kaleem Bakhsh wherein he stated that 9 empties of Klashinkov were taken into possession from the place of incident vide recovery memo ExP/3- A. Further in the confessional statement of appellant ExP/4-A, which was produced by PW-4 Asmatullah wherein it has been stated that Klashinkov was used. Thus in our considered opinion the challan was rightly submitted before the Additional Sessions Judge, Khuzdar as when the trial commenced there was nothing on record to show that the case was triable by the Special Court; we are fortified by the dictum laid down in Allah Din & 18 others vs. The State & Another 1994 SCMR 717. 10. It may be pointed out that the jurisdiction of the learned Additional Sessions Judge was not challenged, the appellant submitted to the jurisdiction of the ordinary court and throughout the proceedings did not raise the question of jurisdiction, Moreover the learned counsel for the appellant failed to show as to what prejudice has been caused to the appellant. Thus the argument of Mr K.N. Kohli, learned counsel objecting to the jurisdiction of ASJ, Khuzdar is devoid offeree, hence repelled. 11. Turning to the next limb of arguments that conviction cannot be based on the sole confessional statement, it may be observed that the incident was unwitnessed; there is no ocular evidence of the incident and after commission of the offence, the appellant alongwith the co-accused absconded. The appellant was arrested on 15-2-97 and his confessional statement was recorded on 17-2-97. The appellant has been convicted on the sole basis of his confessional statement which has retracted at the trial. As mentioned hereinabove, there was no direct evidence against the appellant as the incident was unwitnessed. The arguments of Mr. K.N. Kohli Advocate that conviction cannot be based on sole confessional statement has no substance. It is well-settled now that conviction can be based on the sole confessional statement provided the same is voluntary and true, though as a rule of prudence, corroboration of the confessional statement is sought when there is no other evidence. Reliance is placed on the following cases : (it Sycd Mehr Gul vs. The State, PLD 1962 Peshawar 91 wherein it has been held :— "Conviction of an accused person can be based on his retracted confession if it is found to be voluntary and true and is not hit by any of the factors that might legally vitiate it although as rule of prudence, the courts do also look for its corroboration. In the present case, we do not find any circumstance to hold the confession otherwise than as voluntary and true." (ii) State us. Minhan alias Gul Hassan PLD 1964 SC 813. In this case the Hon'ble Supreme Court observed :-- "As for the confession the High Court, it appears, was duly conscious of the fact that retracted confessions whether judicial or extra-judicial could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now wellsettled that as against the maker himself, his confession, jtidicial or extra judicial, whether retracted or not retracted can in law validly from the sole basis of his conviction if the court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement". (iii) Wazir Khan vs. State 1989 SCMR 446. In this case the Hon'ble Supreme Court, held :-- "There is no legal bar for recording a conviction on a confession which is subsequently retracted if it is voluntary and true. We have not come across any infirmity in the confessional statement of the appellant to render it is unacceptable. On the other hand, we are of the view that the appellant had told the truth." <iv) State through A.G. NWFP, Peshawar vs. Waqar Ahmed 1992 SCMR 950. In this case the Hon'ble Supreme Court made the following observations :-- "When an accused has given on account of the incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration. There is no basic difference between a confession or a retracted confession, if the element of truth is not missing. It is always a question of fact which is to be adjudged by the courts on the attending circumstances of a particular case. In this case we have come to the irresistible conclusion that the confessional statement of the accused is true and voluntary and conviction could be recorded on such statement." (v) Behadur Khan vs. The State, 1995 Law Notes (S.C.) 567. It was observed :-- "It is well-settled that retracted confession should be accepted only if it is corroborated by clear, cogent and independent evidence. Although there is no such provision to accept retracted confession on the basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The court ought to examine whether a confession is made voluntarily, free from coercion and torture and also examine the circumstances under which it. was made and retracted. However, if the reason given for retracting is pulpably false, absurd and incorrect, the court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessaiy to seek some corroboration for retracted confession." 12. The main point to the determined in the case in hand is, as to whether the confessional statement believed by the trial Court is upto the required standards laid down by the Superior Courts. As there is no ocular evidence of the incident and the case of prosecution entirely depends upon the retracted confession of the appellant, thus the confessional statement, requires close scrutiny. 11. To begin with the confessional statement, the appellant stated before the Committing Magistrate that the deceased Ali Hasan had murdered his brother Manzoor Ahmad and thereafter the deceased alongwith Amanullah and Nazar Khan murdered our relatives Rasool Bakhsh and Bahadur Khan. To avenge the said murders he alongwith Sayeed Khan, Juma Khan and Ata Muhammad planned to murder deceased Ali Hussain and Saadullah. On the day of incident, both the deceased persons had gone to Gulzar and we way-laid them on the road. While they were coming from Gulzar to Bazar Zehri, we fired upon them with Kalashinkov and they succumbed to the injuries. Thereafter he alongwith Ata Muhammad and Sayeed Khan and Juma Khan took motor-cycle of the deceased persons from Kohan to Zehri and at Zehri they left Juma Khan and he alongwith the other three accused persons went to Mangochar near Kalat and sold the Motor-cycle to one Afghan Muhajir for Rs. 38,000/- and thereafter went to Nawab Shah, Sind where his father is residing in Goth Ghulam Hyder at Nawab Shah. He further stated that Ata Muhammad has gone to Masqat while Sayeed Khan and Juma Khan are in Zehri. As it has been observed, the appellant after commission of the offence absconded alongwith the other co-accused and he was arrested on 15-2-1997 and in his confessional statement he has also given the detailed account of his absconsion. 12. The appellant was produced before the Magistrate for recording of his confessional statement after two days of his arrest. Before the Trial Court, the Magistrate deposed that he took all necessaiy pre-cautions as required under the law. He further stated that after being satisfied that the appellant was recording his confession voluntarily and without coercion and inducement, he proceeded to record the same. He further stated that he asked the appellant whether he has been tortured by the Levies to which the appellant replied in negative. The Magistrate was not cross-examined on the point that, the confessional statement was not voluntary and no question was put to him in cross-examination that he had recorded the confessional statement without complying with the pre-requisites of law. Where the statement of Magistrate is unchallenged as in the case in hand, it is not possihle to presume that the Magistrate had recorded the statement without 8 complying with the requirements of law as laid down under section 164(3) Cr.P.O. and inference would he that the accused made the confessional statement voluntarily and has deposed the truth. 13. The appellant recorded his confessional statement after two days of his arrest and in his statement has given the motive for firing at the deceased persons. The motive which was only known to him, came from the mouth of the appellant and he alonee had knowledge about the previous enmity and has also given the account of his absconsion as after commission of the offence he absconded to Nawab Shah, Sind. Thus in our considered opinion, the retracted confession of the appellant rings true even intrinsically as he was given the detailed account of the incident and there is nothing on record to discredit the credibility of the confession. 14. The appellant has retracted his confession when he was examined U/S 342 Cr.P.C. He only stated that he did not record any confession, without assigning any reason retracted the same. It is wellsettled that when an accused person retracted or resiles from his confession, then the onus lies on him that he did not record any confession. The appellant has brought nothing on record to show that the confession was not voluntary or the same was obtained through coercion or inducement. Thus in our considered opinion the retraction of the same seems to be pulpably false, absurd and incorrect, we find the confession as weighty evidence against the appellant, thus there is nothing to hold the confession otherwise than as voluntary and true. 15. Coming to the argument of Mr. K.N. Kohli Advocate that the cause of death was not known, it may be observed that the unnatural death of the deceased persons has not been disputed throughout the trial. Even the IO stated that the dead-bodies of the deceased persons were handed over the their legal heirs on their request that they did not want any post-mortem; hence for the afore-said reasons, the contention of the learned counsel has no substance, thus not tenable. 16. For the fore-going reasons we see no merits in the appeal. Consequently the same is dismissed and the impugned judgment dated 5-11- 1997 passed by the Trial Court is upheld. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 894 (DB) Present : CH. IJAZ AHMAD AND MUHAMMAD NAWAZ ABBASI, JJ. MUHAMMAD NAWAZ & 4 others-Appellants versus STATE-Respondent Criminal Appeal No. 176 of 1992, decided on 13.8.1997. (i) Pakistan Penal Code (XLV of 1860)-- —S. 302, 324, 148 & 149-Appreciation of evidence-Motive not clear- Injuries sustained by both sides-Whether case of common object- Question of-Place of occurrence is in field and both parties having not disclosed true motive behind incident and original motive remained shrouded in mystery-Respective versions put forward by parties not appealable to mind happening of occurrence in true manner-Motive is always double edged weapon and even without motive, murder could have been committed-Keeping in view circumstances, manner of incident, injuries attributed to both parties, if put in juxta-position then it is crystal clear that it is free fight without premeditation-Held : Each and every one is responsible of his own individual act attributed to him. [Pp. 905 & 907] A & B 1972 SCMR 676, PLD 1962 SC 502. 1987 SCMR 1136. (ii) Pakistan Penal Code (XLV of 1860)-- —S. 302, 324, 148 & 149-Murder-Offence of-Conviction for-Challenge to- What offence had been committed by appellants, if not liable to commit Qo/77-z-Amrf-Question of-Bare reading of S. 324, it would be appreciated that where hurt had been caused to any person, offender was liable to punishment provided only for hurt caused and not for attempt to commit Qatl-i-Amd-lt was free fight, therefore, keeping in view ingredients of--Section 324 PPC, offenders are culpable and punishable not for attempt to commit Qatl-i-Amd, but for injuries actually caused by them on injured witnesses-Convictions of appellants u/S. 324/149 PPC and punishment awarded to them thereunder are set aside-Death sentences of Shaukat Hayat and Muhammad Sartaj on one count maintained. [Pp. 907 & 908] C & D Shahzada Raza A. Kasuri, Advocate for Appellant. Malik Safdar Hussain, Advocate for Complainant. Raja Ghazanfar, Advocate for State. Date of hearing : 13.8.1997. judgment Chaudhary Ijaz Ahmad, J.-Learned Sessions Judge, Chakwal, vide judgment dated 29.10.1992 has convicted and sentenced the appellants for the murder of Ghulam Abbas s/o Noor Khan aged 50 years and Atta Shabbir, aged 45 years, as follows :-- (1) Muhammad Sartaj (i) U/Ss. 302/149 PPC. Muhammad Iqbal. Death on two counts with a Shaukat Hayat. fine of Rs. 60,000/- each on two counts, or in default thereof, three years. R.I. on two counts. (ii) U/Ss. 324/149 PPC. Five years' R.I. each and a fine of Rs. 5,000/- each or in default thereof, one year's R.I. each on five counts. (in) U/S. 148 PPC Three years' R.I each and a fine of Rs. 2,000/-, or six months' further R.I. each. (4) Muhammad Nawaz (i) U/Ss. 302/149 PPC. Gulbaz. Life imprisonment each on two counts with a fine of Rs. 60,0007- or in default thereof three years' R.I. each on two counts. (ii) U/Ss. 324/149 PPC Five years' R.I. each and a fine of Rs. 5000/- each or in default of the payment of fine one year's R.I. on five counts. (iii) U/s. 148 PPC. Three years' R.I. and a fine of Rs. 2,000/- each or in default thereof, six months' further R.I. each 2. The fine awarded under sections 302/149 PPC. if recovered from the accused, half of it shall be paid to the legal heirs of Ghulam Abbas deceased and the remaining half to the legal heirs of Atta Shabbir deceased as compensation. Similarly, the fine if recovered under sections 324/149 PPC shall be equally distributed amongst Allah Dad, Mansab Khan, Taj Muhammad, Mst. Shafia Begum PWs and Mst. Kalsoom Bibi as compensation. 3. The convicts/appellants have filed Criminal Appeal No. 176 of 1992 against their convictions and sentences which is being disposed of alongwith Murder Reference No. 9 of 1993 seeking confirmation of the death sentence and Criminal Revision No. 41 filed by the complainant for the nhancement of sentence of Muhammad Nawaz and Gulbaz appellants from life imprisonment to death. 4. The occurrence took place on 8-11-1990 at 'Deegerwela' in the land of one Sarfraz Khan situated in Dhoke Galial Dakhli Mogla, District Chakwal, at a distance of seven miles from Police Station Tallagang. Allah Dad, real brother of the deceased, PW-10 reported to Sikandar Baig S.I. PW-17, who recorded the statement Ext. PM of Allah Dad on the same day at. 9-45 p.m. Subsequently, formal FIR Ext. PM/1 was recorded by Muhammad Asghar S.I. PW-9 on the same day at 10-00 p.m. 5. In the F.I.R. the occurrence is reported to have taken place allegedly that on 8-11-1990, at about 'Deegerwela', Allah Dad complainant and his brother Atta Shabbir were thrashing the peanut crop at their Thrashing Floor, West to Dhoke Galial Dhakli Mogla, within the jurisdiction of Police Station Tallagang while their bother Ghulam Abbas deceased and his daughter Mst. Shafia Begum and the complainant's sons and daughter Mansab Khan, Taj Muhammad Mst. Kalsoom Bibi were busy in collecting the peanut crop in their nearby field and taking it to the Thrashing Floor. As Ghulam Abbas deceased while on his way to the Thrashing Floor with a heap of cut peanut crop on his head, reached the deserted Well, Muhammad Nawaz with a Soti, Gulbaz accused with a hatchet, Shaukat Hayat accused carrying a Carbine, Muhammad Sartaj and Muhammad Iqbal accused armed with guns suddenly appeared at the scence and raised a Lalkara challenging him to get alert. Ghulam Abbas threw way the hurdle and started running towards his house. Shaukat Hayat accused fired at him twice hitting his left inasmuch as the August, Court had held that the accused had not come to the spot to murder Malik Muhammad Arif and therefore, the element of rnens rea being missing, conviction under Section 302 PPC cannot be maintained. (ii) It is an old occurrence. The appellant has undergone the agony of protracted trial; he is in death cell since his date of conviction i.e. 6.3.1989 and capital sentence is not called for. 10. Learned counsel for the appellant Muhammad Yousaf in Crl. A. No. 63 of 1996 submitted that the Hon'ble Supreme Court has held in Crl. A. No. 217 of 1992 that the element of common intention being missing, every accused was liable for his own act and appellant having been attributed a simple injury to a prosecution witness, his sentence be reduced to what he has already undergone. 11. Learned counsel for the complainant assisted by learned State counsel, on the other hand, have supported the impugned judgment in so far as the conviction and sentence awarded to Fazalur Rehman appellant is concerned but in case of Muhammad Yousaf appellant, they did not join issue with the proposition that since he is attributed a simple injury, the sentence already undergone would meet the ends of justice. 12. We have heard learned counsel for the appellants; learned Law Officer as also learned counsel for the complainant and have given anxious thoughts to the arguments addressed at the bar. 13. Much stress has been laid by both the learned counsel for the appellants on the judgment of the Hon'ble Supreme Court and rightly so, though the inference which is being drawn by them may not be in accord with the intent of the said judgment. It would therefore be of relevance to refer to the said judgment. Para 9 of the judgment at page 7 is the operative part and is being reproduced below :-- "We have tried to appraise the evidence which had come on record through eye-witnesses Muhammad Siddiq PW8, Muhammad Latif PW-10 and Yar Muhammad PW-9. The veiy persual of the FIR Exh. PH shows that the five assailants had not come with a pre-determined mind to kill Muhammad Arif or any of the witnesses. Prosecution case .in the FIR shows that Muhammad Arif was fired at because he made an effort to catch hold of Fazalur Rehman. The ocular evidence is also to that effect. In the circumstances there is no scope for application of either section 34 of PPC or section 149 of PPC. Consequently every accused is liable for his own act." The afore-referred observations indicate that the Hon'ble Supreme Court while extending credit to the prosecution evidence came to the conclusion that the element of common intention or of forming an unlawful assembly was missing and therefore, each accused was liable for his own act. There is evidence to the effect that Fazalur Rehman alias Peshay Khan came to the spot armed with Pistol, he is attributed two fatal shots to Malik Arif deceased, one on the temple and the other on the abdomen. There was blackening present around injury No. 1 which shows that it was a very close range shot and was fired with the intention to murder Malik Arif deceased. This intent is fully proved by the second shot fired by him which too was on the vital part of the body and was sufficient to cause death in the ordinary course of nature. Besides PW2 Muhammad Siddique, the ocular account consists of two injured witnesses namely, PW1 Muhammad Latif and Yar Muhammad PW9. Their credibility could not be shaken despite length crossexamination. The motive part of the prosecution story has also been proved by the statement of Masud Shah PW5 who stated that Fazalur Rehman and his co-accused had been conveying threats to him that they shall take revenge of their defeat. The ocular account has not only been corroborated ay the medical evidence; the evidence of motive but also finds corroboration Tom the fact that appellant Fazalur Rehman remained absconded for a seriod of more than three years. In Gul Hassan and another vs. The State (PLD 1969 Supreme Court 89) and Mst. Roheela vs. Khan Bahadur and another (1992 SCMR 1036) absconsion was considered to be a sufficient corroborative circumstance to sustain a conviction on a capital charge. Similarly there is evidence that Muhammad Yousaf appellant fired at Yar Muhammad PW9 which hit him on abdomen. The Hon'ble Supreme Court nd convicted his co-accused Haroon (who was attributed similar role) on he same set of evidence and sentenced to seven years R.I. under Section 307 PC. The prosecution case, therefore, against both the appellants Fazalur lehman and Muhammad Yousaf stands proved beyond a shadow of doubt, "here is no mitigating circumstance in case of Fazalur Rehman, appellant, iis appeal is therefore, dismissed and the Death Sentence awarded to him is ereby confirmed. Murder Reference is answered in positive. 14. So far as appellant Muhammad Yousaf is concerned, we find that he is in Jail since his arrest i.e. 1.2.1994. He is attributed a simple injury to a P.W. For afore-referred reasons, we partly allow his appeal and sentence awarded to him is reduced to what he has already undergone, shall be released forthwith if not detained in some other case. 15. For afore-referred reasons, CrI. Rev. No. 421 of 1989 and Crl. Appeal No. 208 of 1996 are hereby dismissed. (T.A.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 915 (DB) Present: muhammad naseem chaudhri and sh. abdur razzaq, JJ. KHALID NAWAZ-Appellant versus STATE-Respondent Criminal Appeal No. 928 of 1996, accepted on 18.3.1998. (i) Control of Narcotic Substances Ordinance, 1995 (VI of 1995)-- —-S. 9 read with Art. 21 & 22 of Ordinance-Recovery of heroin-Conviction and sentence-Challenge to-Whether A.S.I, was competent to search and arrest appellant for recovery of narcotics-Question of-Perusal of Art. 22 of Control of Narcotic Substances Ordinance VI of 1995 when read in light of Art. 21 of same Ordinance has made High Court to hold that A.S.I, was not competent and having authority to detain, search and arrest appellant for recovery of narcotics-Power and authority to set law in motion is linked with substantive jurisdiction without which proceedings could not be initiated and consequently could not be processed with by A.S.I-No person from public was joined-Alleged recovery witnessed by subordinate of A.S.I, shall have to be viewed with caution and same as such has no legal force-Held : Sentence recorded against appellant is illegal being coram nonjudice-Appeal accepted. [Pp. 917 & 918] A, B, C & E (ii) Qanoon-e-Shahadat 1984 (P.O. 10 of 1984)-- —Art. Special oath-Applicability in criminal cases-Keeping in view mandatoiy provisions contained under Art. 163 of Qanoon-e-Shahadat Order 1984, according to which acceptance or denial of claim on oath with respect to civil dispute has been provided and allowed while according to para-3 of aforesaid Article 163 "Nothing in this article applies to laws relating to Enforcement of Hudood or other criminal cases."-It means that criminal case could not be decided on special oath Aforesaid working, even if carried on, would have proved to be exercise in futility-Trial Court should refrain from deciding criminal cases on oath- Held : Working of trial court cannot be approved. [Pp. 917 & 918] D Mr. Munir Ahmad Bhatti, Advocate on behalf of Mr. Bashir Ahmad Bhatti, Advocate for Appellant. Miss Tasneem Amcen, Advocate for State. Date of hearing : 18.3.1998. judgment Muhammad Naseem Chaudhri, J.--This appeal is directed against the judgment dated 31.10.1996 passed by the learned Special Judge/Sessions Judge Okara whereby he convicted and sentenced Khalid Nawaz appellant son of Nawab caste Watto resident of Wan Mahteke, Tehsil Depalur, District Okara to undergo R.I. for a period of three years under section 9 of the Control of Narcotic Substances Ordinance VI of 1995. The appellant was allowed the legal benefit contained under section 382-B Cr.P.C. 2. The facts giving rise to this appeal are that on 26.8.1995 at 3.00 p.m. Muhammad Bashir ASI PW. 3 posted in Police Station Sadar Depalur was on Gashat of the area alongwith Abdur Razzaq Constable PW. 4 and Saeed Ahmad Constable PW (not produced). He was supervising the Nakabandi at Jasokedhone bridge when a person arrived on a cycle. He was found to be suspicious and stopped. He was Khalid Nawaz appellant. His person was searched when heroin wrapped in a polythene bag was recovered from the right flank pocket. Its weight was 12 grams. Two grams of heroin was sealed in one parcel while the remaining heroin was sealed in another parcel. The memo of recovery Exh. PB attested by Abdur Razzaq PW. 4 and Saeed Ahmad PW (not produced) was prepared. Site plan Exh. PC of the place of recovery was also drafted. Muhammad Bashir ASI complainant sent complaint Exh. PA to the SHO Police Station Sadar Depalur, District Okara where formal FIR Exh. PA/1 was prepared by Noor Muhammad Headconstable PW. 1. Both the sealed parcels containing the heroin were handed over to Noor Muhammad Headconstable PW. 1, He delivered one packet to Muhammad Anwar PW. 2 which he handed over in the office of Chemical Examiner, Lahore from where report Exh. PD was received in the positive. The challan was submitted before the trial Court. Khalid Nawaz appellant was charged under Article 9 of the Control of Narcotic Substances Ordinance VI of 1995 who pleaded not guilty thereto and claimed to be tried. 3. At the trial the aforesaid P.Ws stood in the witness box and supported the prosecution case. At one stage the effort was made to decide the case on special oath of Muhammad Bashir ASI complainant with respect to the recovery of the heroin which could not materialize. 4. When examined under section 342 of the Code of Criminal Procedure Khalid Nawaz appellant claimed to be innocent who termed theaforesaid recovery as false and concocted. He did not claim the heroin. He did not choose to appear in his own defence on Oath \mder section 340(2) of the Code of inalProcedure. In his defence he produced Ghulam Ali DW. . Jaffai Ali DW. 2 and Muhammad Hussain DW. 3 who stated about his nnocence and deposed that due to the enmity of Khalid Nawaz appellant ith one Falak Sher who was having the connection with Muhammad Ali Constable he was falsely involved. After hearing the parties the learned trial Court gave the weight to the recovery effected by Muhammad Bashir ASI and convicted Khalid Nawaz appellant as narrated above who has preferred this appeal which has been resisted by the State. 5. We have heard the learned counsel for Khalid Nawaz appellant as well as the learned State counsel and gone through the record before us. Learned counsel for the appellant has referred to Articles 21 and 22 of the Control of Narcotic Substances Ordinance VI of 1995 applicable on the relevant date of recovery (26.8.1995) and argued that an officer not below the rank of Sub-Inspector of Police could not seize in any public place or in transit the narcotics, drugs etc. and also could not detain or search any person whom he had reason to believe to have committed an offence punishable under the Ordinance who was not competent to arrest him. As against the aforesaid provisions of law learned counsel for the State could not bring to our notice any codified law. A perusal of Article 22 of the Control of Narcotic Substances Ordinance VI of 1995 when read in the light of Article 21 of the same Ordinance has made us to hold that Muhammad Bashir ASI was not competent and having the authority to detain, search and arrest Khalid Nawaz appellant for the recovery of the narcotics. We express the view that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings could not be initiated and consequently could not be processed with by Muhammad Bashir ASI. It would also be proper to refer the maxim :-- A communi observantia non est recedendum-Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful. If the working of Muhammad Bashir ASI is affirmed there would be administrative Chaos resulting in the judicial anarchy. This is the crux of the matter to make us pass the order of exoneration of Khalid Nawaz appellant. 6. The recovery memo Exh. PB is attested by Abdur Razzaq Constable PW. 4 and no person from the public was joined. Muhammad Bashir complainant had no jurisdiction to detain, search and arrest Khalid Nawaz appellant as expressed and held above. Viewed in this perspective, the alleged recovery witnessed by a subordinate of Muhammad Bashir ASI shall have to be viewed with caution and the same, as such, has no legal force. 7. We have seen with grave concern that an effort was made by the trial Court to decide the case on special oath of Muhammad Bashir ASI with espect to the recovery of the heroin. Initially Khalid Nawaz appellant agreed biit lateron resiled. In our view the aforesaid portion of the working of trial Court cannot be approved keeping in view the mandatory provisions contained under Article 163 of the Qanoon-e-Shahadat Order, 1984 according to which the acceptance or denial of claim on Oath with respect to a civil dispute has been provided and allowed while according to para 3 of the aforesaid Article 163 "Nothing in this article applies to laws relating to the Enforcement of Hudood or other criminal cases." It means that the criminal case could not be decided on the special oath of Muhammad Bashir ASI PW. 3. The aforesaid working, even if carried on, would have proved to be an exercise in futility. It would be instructive to pass the remark that trial Court should refrain from deciding the criminal cases on oath. 8. For what has been said above, we hold that Muhammad Bashir ASI PW. 3, Police Station Sadar, Depalpur District Okara had no jurisdiction to initiate the proceedings against Khalid Nawaz appellant. The sentence recorded against him is held to be illegal being coram non judice. We, therefore, accept this appeal, set aside the impugned judgment and acquit Khalid Nawaz appellant. He is enjoying the concession of bail. His bail bond is cancelled and surety, discharged. (B.T.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 918 Present: sharif hussain bokhari, J. DOST MUHAMMAD-Petitioner versus STATE-Respondent Criminal Misc. No. 6123-B of 1997, accepted on 22.1.1998. (i) Control of Narcotic Substances Ordinance, 1997 (XLIII of 1997)- —-S. 79 & 81-Prohibitation (Enforcement of Hadd) Order (1979), Art. 3 & 4-Recoveiy of 25 grams of heroin from accused-Which of law will be pplicable in case of accused when case Vas registered against him under Prohibition Order-Question of-Joint reading of section 79 and Section 81 of Ordinance makes it clear that provisions of ordinance had over­ riding effect for those matters not covered by proviso to section 79 thereof-Therefore, case against petitioner ought to have been registered under provisions of ordinance and same law would be followed for trial and conviction of petitioner-Held : Provisions of Ordinance, being more favourable and beneficial to accused should attract to and applied and cannot be left to discretion of prosecuting agency. [P. 920] A (ii) Criminal Procedure Code, 1908 (V of 1908)-- —S. 497-Prohibition (Enforcement of Hadd) Order (1979), Art. 3 & 4- Control of Narcotic Substance Ordinance (XLIII of 1997), S. 9-Recovery of 25 grams of heroin-Bail-Grant of-Prayer for-Section 9 of ordinance provides punishment of two years for person who is found in possession of heroin less than 100 grams-Allegedly, petitioner was found in possession of 25 grams of heroin and therefore, under section 9 of ordinance, petitioner can be awarded maximum punishment of two years-Held : Case of petitioner does not falll within prohibitory clause of section 497 Cr.P.C.--Petitioner admitted to bail. [P. 920] B Mian Muhammad Nawaz, Advocate for Petitioner. Mr. Muhammad Iqbal Khichi, AAG & Ch. Muhammad Nazir Ahmad, Advocates for State. Date of hearing: 22.1.1998. order FIR No. 105 was registered on 14.3.1997 at Police Station City Mianwali against the petitioner under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the Order) on the allegation that 25 grams of heroin was recovered from the possession of the petitioner on 14.3.1997. 2. Learned counsel for the petitioner, inter alia, submits that the Control of Narcotic Substances Ordinance (XLIII) of 1997 (hereinafter referred as "the Ordinance") was promulgated on 7.3.1997 which covered the subject matter and that under Section 9 thereof maximum punishment provided for the offence allegedly committed by the petitioner is two years as quantity allegedly recovered from the petitioner was less then 100 grams. He submits that in the presence of the Ordinance which override other laws according to Section 81 thereof, the provisions of the Order would not be applicable. On the other hand, learned AAG, who has entered appearance on Court call, submits that the present case has been registered under Articles 3 and 4 of the Order and, therefore, the petitioner would be tried and, if found guilty, convicted and punished under the Order which provides punishment of imprisonment for life to a person found in possession of more than 10 grams of heroin. Learned AAG has also referred to Section 26 of the General Clauses Acts which is as follows :— "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for same offence." He also submits that since the FIR has been registered under Articles 3 and 4 of the Order, the petitioner could be tried and punished under the same Order. 3. The learned Law Officer has not cited any authority on the point that notwithstanding the promulgation of the Ordinance on 7.3.1997, the petitioner could be challaned, tried and punished under the provisions of the Order. He relied on Section 26 of the General Clauses Acts and argued that the case against the petitioner was validly registered under Articles 3 and 4 of the Order. 4. Section 79 of the Ordinance is as follows :-- "If an offence punishable under this Ordinance, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Ordinance." Similarly Section 81 of the Ordinance provides that "the provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force." 5. The joint reading of Section 79 and Section 81 of the Ordinance makes it clear that the provisions of the Ordinance had over-riding effect for those matters not covered by proviso to Section 79 thereof. Therefore, the case against the petitioner ought to have been registered under the provisions of the Ordinance and the same law would be followed for the trial and conviction of the petitioner. Looking from another angle I am of the opinion that the provisions of the Ordinance, being more favourable and beneficial to the accused-petitioner, should attract to and applied in the present case and cannot be left to the discretion of the prosecuting agency. 6. Section 9 of the Ordinance provides the punishment of two years for the person who is found in possession of the heroin less than 100 grams. Allegedly the petitioner was found in possession of 25 grams of heroin and therefore, under Section 9 of the Ordinance the petitioner can be awarded maximum punishment of two years. Thus his case does not fall within the prohibitory clause of Section 497 Cr.P.C. The petitioner was arrested on 14.3.1997 and since then is behind the bars. The petitioner is, therefore, admitted to bail, subject to his furnishing bail bonds in the sum of Rs. 50,000/-(Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 920 Present: raja muhammad khurshid, J. MUHAMMAD SIQLAIN-Petitioner versus STATE-Respondent Crl. Misc. No. 843-B of 1997, dismissed on 16.2.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Offence u/S. 302/34 PPC-Bail-Grant of-Prayer for-Petitioner is named in FIR-He was armed with 12 bore gun and had initiated attack at deceased followed by his co-accused--There is nothing to suggest that occurrence was unseen-On contrary all three eye witnesses had implicated petitioner for committing murder of deceased alongwith his co-accused in their statement made before police-Even otherwise Medico Legal Report shows that injuries on person of deceased were caused by fire arms-Location of injuries prima facie corresponds to location given by eye witnesses in their statement-Presence of blackening over injuries and distance between assailants and victim cannot be appreciated without examining evidence at trial-Any attempt at deeper appreciation of such type of evidence may prejudice trial itself-Held : Offence is punishable with death or imprisonment for life-Petitioner has no case for bail at this stage-Petition dismissed. [P. 922] A Mr. Muhammad Amir Butt, Advocate for Petitioner. Mr. Muhammad Ilyas Siddiqui, Advocate for Complainant. Mr. Ayub Kiani, Advocate for State. Date of hearing: 16.2.1998. order A case under section 302/34 PPC is registered against the petitioner and three others vide FIR No. 86 dated 5.7.1996. lodged at Police Station Jatli District Rawalpindi for an occurrence, which took place on the same day at 6.00 PM in which IftiEhar Ahmad was murdered. The report was filed by Imdad Hussain complainant at 10.05 PM the same day, in which it was contended that the petitioner while armed with 12 bore gun came to the spot alongwith Qamar Zaman, Zahid both armed with 12 bore guns and Fakhar Zaman armed with pistol 30 bore. They raised lalkara that Muhammad Fazal who was injured by them earlier on the same day at 3.30 PM had survived but the deceased Iftikhar Ahmad should not be allowed to escape. Immediately thereafter, the petitioner opened fire from his gun hitting the deceased on his neck; the second fire was made by Qamar Zaman which injured left chest of the deceased while the 3rd fire was made by Zahid hitting the left shoulder of the deceased. The fire made by Fakhar Zaman missed the target. Thereafter all the 4 accused made their escape good. The occurrence was seen by Muhammad Fayyaz, and Abdul Khaliq PWs besides the complainant Imdad Hussain. 2. The petitioner applied for bail in the court of session , which was dismissed. Hence this bail petition. 3. The learned counsel for the petitioner has contended that the acclaimed eye witnesses were not present at the spot, hence it was an un­ seen occurrence; that there was delay in making the FIR which was ultimately registered at the spot after due deliberation and inquiiy; that locale of injuries will show that these were caused by one shot whereas according to the eye witnesses all three of the assailants had fired with 12 bore guns; that there was a blackening around the injuries, which showed that fire was made from the very close range whereas according to the investigation so far conducted and the site plan prepared at the pointation of the PWs showed that the distance between the assailants and the victim at the time of fire was 41 to 42 feet, hence there could be no blackening in view of that distance; that no weapon of offence was recovered from the petitioner, who had taken up the plea before the police that though he had reached the spot, but he was not armed and have been implicated in the case falsely on account of his close relationship with the assailants being their maternal uncle. As such it was contended that it was a case of further inquiry and the petitioner was entitled to bail. 4. The learned State Counsel assisted by the learned counsel for the complainant contended that the investigation in this case is complete and the challan has already been submitted to the court for trial which is likely to commence very soon; that deeper appreciation of the evidence cannot be made at this stage to show whether there was any contradiction between the medical evidence and the ocular account of occurrence; that there was no previous enmity between the parties so as to implicate the petitioner falsely in this case; that the antecedents of the petitioner were not clean in the past as he was involved in 7 similar type of case; that he remained under-ground for about 24 days after the occurrence and was ultimately arrested on 27.7.1996 and finally that there is nothing to suggest that the eye witnesses were not present at the spot. 5. I have considered the foregoing submissions and find that the petitioner is named in the FIR. He was armed with 12 bore gun and had initiated attack at the deceased followed by his co-accused. There is nothing to suggest that the occurrence was un-seen. On the contraiy all the three eye witnesses aforenamed had implicated the petitioner for committing the murder of the deceased alongwith his co-accused in their statements made before the police. Even otherwise the Medico Legal Report shows that the injuries on the person of the deceased were caused by fire-arm. The location of the injuries prima facie corresponds to the location given by the eye witnesses in their statements. The presence of blackening over the injuries and the distance between the assailants and the victim cannot be appreciated without examining the evidence at the trial. Any attempt at deeper appreciation of such type of evidence may prejudice the trial itself. The offence for which the petitioner is arraigned is punishable with death or imprisonment for life. The petitioner has, therefore, no case for bail at this stage. The bail petition is dismissed. (T.A.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 923 Present: sh. abdur razzaq, J. SALEEM RAZA KHAN-Appellant versus STATE-Respondent Criminal Appeal No. 147 of 1991, dismissed on 22.10.1997. (i) Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302--Murder--Offence of-Conviction for--Challenge to-Testimony of witnesses related to deceased—Evidentiary value of--Both eye witnesses are related to deceased, but record does not show that they are inimically disposed towards accused or had any reason for their false implication, as such their evidence does not require any independent corroboration-Eyewitnesses have unanimously impleaded appellant for causing fatal shot on deceased-Testimony of witness related to deceased cannot be discarded merely on account of his relationship with deceased—Such a witness would not normally allow real culprit to escape by impleading innocent person. [Pp. 930 & 931] A, B & D 1997 SCMR 1424. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-M.urder--Offence of-Conviction for-Challenge to-Effect of nonassociation of independent witness other than witness related to deceased-Incident took place at hotel and presence of other witnesses cannot be ruled out—However, failure of prosecution to cite or examine any witness from vicinity of place of ccurrence does not have any adverse effect, as it is matter of common knowledge that people from locality generally hesitate to come forward as witnesses in such cases for fear of reprisals from accused party. [P. 931] C 1997 SCMR 89. Mr. Ihtsham Qadir Shah, Advocate for Petitioner. Mr. Inayat Ullah Khan Niazi, Advocate for Complainant. Mr. J.V. Gardner, Advocate for State. Date of hearing: 22.10.1997. judgment This appeal is directed against the judgment dated 3.2.1991 passed by mr. Allauddin Arshad, Addl. Sessions Judge, Mianwali whereby convicted Saleem Khan aged 24 years Caste Pathan resident of Kamarmashani Tehsil Eisakhel District Mianwali U/S 302 PPC and sentenced him to imprisonment for life and a fine of Rs. 10,000/- or in default thereof R. I. for two years. It was further ordered that if the fine is realised, half of the amount shall be paid to the legal heirs of the deceased. Benefit of Section 382-B Cr.P.C. was also extended to the accused/appellant. 2. Briefly stated the facts are that on 13.12.1988 at 12.30 noon, Nazir Muhammad complainant alongwith his brother Mushtaq Khan and Rafiullah son of Khan Zaman, Faiz Muhammad son of Muqarab Khan were having tea sitting on a cot at the hotel of Muhammad Ali, situated at Bus Stand Kamarmashani. Saleem Khan accused/appellant and Khizar Hayat (acquitted accused! armed with .12 bore Pistols come there. Khizar Hayat kept, remained standing at some distance while Saleem Khan accused stood on their back and fired with his pistol, which hit Mushtaq Khan on his shoulder. Thereafter both Saleem Khan and Khizar Hayat fled towards their house. Mushtaq Khan rose up from the cot, but fell down due to injuries sustained by. him. He was then removed by the complainant alongwith Rafiullah and Faiz Muhammad to Police Station, where he succumbed to the injuries, as soon as he reached there. The motive behind this occurrence is that in February, 1984 Mushtaq Khan deceased had caused gun shot injuries to Khizar Hayat and a case u/S. 307 PPG was pending against him. To take revenge of that, both Saleem Khan and Khizar Hayat in furtherance of their common intention committed the murder of deceased Mushtaq Khan. On the statement of Nazir Muhammad complainant (PW 9), FIR Ex. PF was recorded by Nazar Hussain Shah SHO (PW 11) P.S. Kamarmashani. He prepared statement of injury and inquest report of the deceased Exh. PH and Ex. PJ respectively and despatched deadbody through Ata Muhammad Constable (PW 1) and Ali Muhammad Constable (PW 3) for P.M. examination. He then proceeded to the place of occurrence and collected blood stained earth and made a sealed parcel of the same vide memo Ex. PG and prepared rough site plan Ex. PK. After the P.M. examination Ali Muhammad Constable (PW 3) brought last worn clothes of deceased PI to P3 alongwith a sealed phial, which he produced before the I.O. who secured the same vide memo Ex. PA. On 16.12.1988 he got site plans Ex. PB and Pb/1 prepared from Mirza Zahiruddin drafts man (PW 4) and secured the same on 21.12.1988. On 21.12.1988 he arrested accused Saleem Khan while he was in possession of unlicensed Carbine P6 and live cartridges which he secured vide memo Ex. PE. He also prepared rough sketch of place of recovery Ex. PE/1. On 22.12.1988 he arrested accused Khizar Hayat who on 26.12.1988 led to the recovery of Carbine P4 and live cartridge P5 which he secured and made sealed parcel of the same vide memo Ex. PG and also prepared site plan of place of recovery Ex. PG/1. He then completed investigation and challaned the accused. 3. A charge u/S. 302/34 PPG was framed against both the accused Saleem Khan and Khizar Hayat (since acquitted), to which they pleaded not guilty and claimed trial. 4. In order to bring home guilt to the accused, prosecution examined PW 1 Ata Muhammad Constable who was given a sealed parcel of blood stained earth by Ghulam Qadir ASI Moharrir on 14.12.1988 for onward transmission to the office of Chemical Examiner which he delivered there intact. PW2 Muhammad Iqbal Constable was given a sealed parcel of pistol on 21.12.1988, which he delivered in the office of Forensic Science Laboratory on 23.12.1988. PW 3 AH Muhammad Constable was handed over deadbody on 13.12.1988 for taking to the mortury. After the P.M. examination he was handed over last worn clothes of deceased PI to P3 and a sealed phial which he produced before the I.O. who secured the same vide memo Ex. PA. PW Mirza Zahiruddin drafts-man visited the place of occurrence on 16.12.1988 and handed over site plans Ex. PB and PB/1 on 21.12.1988 to the Investigating Officer. PW 5 Muhammad Sharif ASI attested memo of recovery Ex. PC, through which pistol P 4 and live cartridge P 5 and secured which were produced by accused Khizar Hayat. PW 6 Dr. Sher Ali Khan conducted the P.M. examination on the deadbody of Mushtaq Khan son of Ghulam Muhammad Khan aged 33 years on 13,12.1988 at 4.00 p.m. He found nine wounds of injury of fire arm on the back of left chest in an area of 8 cm x 6 cm, 24 cm below acromiomprocess and 24 cm above iliac spine 13 cm away from mid-line. 8 cm posterior to left nipple. The edges of the wound were inverted. These were round and oval in shape. The wounds were not oblique. In his opinion the cause of death was due to shock and haemorrhage which was sufficient to cause death in the ordinary course of nature. Injury was antemortem and was caused by a fire arm. The probable time between injury and death was 15 minutes i.e. immediate and between death and P.M. was within 3% to 4% hours. He issued correct carbon copy of P.M. examination report Ex. PD and sketch Ex. PD/1 which bear his signatures. PW 7 Ghulam Qadir ASI deposed that on 13.12.1988 he was given a sealed parcel containing blood stained earth by Nazir Inspector for keeping the same in Malkhana. On 14.12.1988 he handed over the same to Ata Muhammad Constable for onward transmission to the office of Chemical Examiner, Lahore. On 20.12.1988 he was again given a sealed parcel of pistol which he delivered to Muhammad Iqbal Constable on 21.12.1988 for forwarding it to the office of Forensic Science Laboratory, Lahore. PW 8 Amir Muhammad deposed that Nazar Hussain Inspector conducted the personal search of accused Saleem Khan and secured pistol P6 and a live cartridge P 7 and made into a sealed parcel vide memo Ex. PE which bears his signatures. PW 9 Nazir Muhammad is the complainant and lias supported the prosecution version appearing in complaint Ex. PF. He further deposed that he had identified the dead-body at the time of P.M. examination. PW 10 Faiz Muhammad is an eye witness of this occurrence and lias corroborated the prosecution version appearing in FIR Ex. PF. He further deposed that on the same day he joined the police investigation and I.O. collected blood stained earth from the spot and made it into a sealed parcel vide memo Ex. PG. PW 11 Nazar Hussain Inspector is the Investiga­ting Officer of this case, whose evidence has already been discussed above. The learned S.P.P. produced reports of Chemical Examiner Ex. PL, Serologist Ex. PM and Elastic Expert Ex. PN and then closed the case for prosecution vide his statement dated 5.1.1991. 5. In his statement u/S. 342 Cr.P.C. the accused Khizar Hayat (since acquitted) denied the prosecution version and stated that he voluntarily appeared before the police, as soon as he came to know that a false case has been registered against him. He denied the recovery of pistol P 4 and live cartridge P 5. He asserted that the deceased was bad character, dangerous and desperate person who had enmity with so many persons; that deceased attacked him in February 1984 and was facing trial which was still pending at that time and he had no motive to commit his murder, that all the PWs are related inter se and Faiz Muhammad Khan PW is a pocket witness of the complainant. He further stated that he is innocent and was declared as such during the investigation. He stated that he would not record his statement u/S. 340(2) Cr.P.C., however he would produce evidence in his defence. In his statement u/S. 342 Cr.P.C. accused Saleem Khan also denied the prosecution version and corroborated the statement of his coaccused to the extent of registration of criminal case against the deceased for causing injury to his co accused Khizar Hayat. He further stated that he appeared before Police voluntarily on coming to know about the registration of this case. He denied the recovery being fake and planted one. He also corroborated the statement of his co accused Khizar Hayat regarding the character of deceased etc. He also stated that he will not record his statement u/S. 340(2) Cr.P.C. but would produce evidence in his defence. Accordingly he produced copies of reports Ex. DA to Ex. DJ and closed his defence evidence vide his statement dated 14.1.1991. The accused Khizar Hayat chose not to produce any evidence and closed the defence vide statement of even date. 6. After going through evidence brought on record, the learned trial court acquitted Khizar Hayat accused whereas convicted Saleem Khan accused vide judgment under appeal. A Criminal Revision No. 212/91 has also been field by Nazar Muhammad complainant challenging the acquittal of Khizar Hayat accused. As both the appeal and criminal revision arise out of same judgment, so these are being disposed of by this single judgment. 7. Arguments have been heard and record gone into with the assistance of learned counsel for the appellant as well as for the complainant assisted by the learned counsel for the State. 8. Learned counsel for the appellant has disbelieved the motive set up by the prosecution and same is case with regards to evidence of recovery of pistol at the hands of instant appellant. He argued that prosecution case, thus rests upon ocular account as well as medical evidence. While touching ocular account, he submitted that it consists of statement of PW 9 Nazir Muhammad complainant as well as PW 10 Faiz Muhammad who are related inter se, as PW 10 Faiz Muhammad admits that wife of Nazir Muhammad (PW 9) is his sister's daughter. Thus the statements of PW 9 and PW 10 cannot he made hase for passing an order of conviction without independent corroboration which is lacking in the instant case. His contention is that instant case is a case of hit and run and none had seen this incident and that both the complainant Nazir Muhammad (PW 9) being brother of deceased has been set up as complainant, whereas PW 10 Faiz Muhammad, being a relative of PW, has been set up an eye witness of the alleged occurrence. He argued that as per prosecution version, incident took place at 12.30 noon and that too at the hotel of Muhammad Ali, situated in a populated area, but no independent witness has either been cited or examined to support the prosecution version. This non examination of any independent and uninterested witness on the part of prosecution, makes the case doubtful. He argued that even the presence of PWs 9 & 10 is not free from doubt. The presence of these PWs alongwith that of deceased has been shown for the purpose of taking tea. He submitted that house of complainant being at a distance of 250 Karams, away from the said hotel, question of sitting there for having tea does not appeal to reason, as tea could be had even in the house. That if the stand of prosecution is accepted that incident took place at 12.30 noon, then why none from the adjoining shops came'forward to support the prosecution case, though shops are there as per site plans Ex. PB and PB/1 prepared by PW 4 Zahiruddin draftsman. He further argued that character of PWs 9 & 10 is nothing but that of chance witnesses, as they could take tea in their houses situated at a distance of 250 Karams from the said hotel. Again the admission of PW 9 that they did not raised any alarm on seeing the accused is also very unnatural and this fact further shows that they were not present on the spot, otherwise they must have raised an alarm on seeing the accused standing near them duly armed with pistols. Again the stand of PW 9 that none except him and PW 10 was attracted on hearing the fire shot, does not seem plausible, as had the incident taken as alleged by them, various other persons must have been attracted on the spot. So far as PW 10 Faiz Muhammad is concerned, he submitted that his evidence is that of an interested witness as he had been appearing as witness on behalf of deceased Mushtaq Khan filed against other. He submitted that deceased was a man of questionable character and was of desperate criminal as various FIR's had been registered against him and some of which are Exs. DA to DJ. That deceased was done to death by one of his enemies and accused/ appellant has been involved in this case falsely. 9. Learned counsel for the appellant also assailed the impugned judgment on the principle of indivisibility of credulity of prosecution witnesses. His contention is that as the trial Court has not believed the statements of F Ws regarding motive aspect as well as involvement of Khizar Hayat, hence their statements can be relied upon to the extent of appellant Saleem Khan. That as the place of occurrence is at the hotel of Muhammad Ali, where other customers were present and they have not been examined, so the presumption shall be drawn against the prosecution. 10. Regarding medical evidence, he submitted that it does not corroborate the prosecution version to the extent of identity of accused. Hence it can't be inferred from the medical evidence that accused/appellant has caused injuries on the person of deceased. That had some crime empty been recovered from the place of occurrence and had the same been matched with the pistol P4 recovered from the appellant it could be of some help to the prosecution. However, this is not the case of prosecution. Hence the evidence of recovery of pistol at the hands of appellant does not strengthen the prosecution case. He thus submits that prosecution has failed to prove the case against the accused/appellant beyond reasonable doubt, as such appeal may be accepted and appellant may be acquitted. 11. On the other hand, learned counsel for complainant submits that incident took place at 12.30 noon on 13.12.1988, whereas report was lodged at 12.45 noon, on the same day, when the distance between the place f occurrence and Police Station is 500 yards, so this promptness in lodging FIR rules out any possibility off false implication as well as of substitution. He argued that this promptness on the part of complainant, also proves his presence on the spot as well as that of PW 10 Faiz Muhammad. Had they (PWs 9 £ 10) not been present on the spot, how they could remove the deadbody within 15 minutes of incident to the police station and get the case registered against them. That it has come on record that house of complainant was 250 Karams from the place of occurrence, so if he had been present in his house at that time, he could not reach within 15 minutes at the police station and that too with the deadbody of the deceased. That again the incident having taken place at broad day light, the question of false implication of accused does not arise. Even the pan assigned to the accused clearly speaks about there involvement and the presence of PWs. He submits that presence of complainant and PWs has been accepted in similar circumstances and relied upon Muhammad Yar vs. The State (1997 SCMR 401). That oral account furnished by the complainant is a natural and presence of eye itnesses could be doubted one and relied upon Riaz Muhammad & another vs. The State (1997 P Cr L J 368 Lahore). He submitted that learned counsel for the appellant has challenged the evidence of PW 10 on the ground that he being a witness in another case lodged at the instance of deceased. He argued that mere fact that a witness has been appearing as witness in other criminal cases does not effect his credibility and relied upon Nazir Ahmad and another vs. Muhammad Siddique and another (1995 SCMR 1740) and Iftikhar Hussaiu and another vs. The State (PLD 1983 Peshawar 37). He further submitted that it has been argued that as other witnesses of the vicinity have not been examined, so this fact also tells upon the bona fide of prosecution and makes the prosecution case doubtful. He submitted this non examination does not make the case doubtful and relied upon Muhammad Ahmad and another vs. The State (1997 SCMR 89). Regarding hit and run theory propounded by the learned counsel for the appellant, he submits, both the accused are residents of the ame village and they are known to each other and incident having taken place at broad day light and that too in a veiy busy place, the question of hit and run away of the assailants does not ring true. He further submitted that appellant was armed with pistol and fired from a close range and this aspect of prosecution version stands corroborated from medical evidence of Dr. Sher Ali Khan (PW-6). That it has been admitted by PW 6 that injuries had been caused from a distance of 15 to 20 feet and this admission further corroborates the prosecution case. 12. Regarding principle of indivisibility of credibility of a witness, he submitted that in the instant case, statements of PWs 9 and 10 have not been believed to the extent of Khizar Hayat (since acquitted) and this does not mean that their statements can't be believed to the extent of Saleem Khan appellant. That there is no doxibt that under such circumstances, corroboration is necessary if the statements of such witnesses are to be relied upon. That the said corroboration has come on record in the form of medical evidence, as referred above. That as such, there is no force in this appeal and the same be dismissed. 13. While arguing Criminal Revision No. 212/91 he submitted that trial Court has acquitted Khizar Hayat on the ground that he has been found innocent and was not assigned any active role in this case. His contention is that opinion of police officer is not binding on the Court, and as none of said witnesses who appeared before I.O. during investigation appeared before the Court, so the trial Court, was not justified in acquitting him. Regarding the quantum of sentence awarded to Saleem Khan, he submitted that the deceased was done to death in a very callous manner and there was no extenuating circumstances, so the normal penalty of death should have been awarded to the appellant. He thus submitted that, criminal revision may be accepted. 14. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant as well as for the complainant assisted by the learned counsel for the State. I find that contentions raised and submissions made on the part of learned counsel for the appellant are neither fortified nor plausible and thereby do not make the prosecution case doubtful. First contention of the learned counsel for the appellant is that as prosecution as failed to prove motive set up in the FIR. So it makes the entire case doubtful. There is no force in this submission and same is brushed aside. There is no doubt that if a specific motive is set up, hen the onus is on prosecution to prove, but it, does not mean that if it fails to discharge the said onus, case is bound to fail. A fate of case never hinges on the proof or otherwise of a motive alleged in the case, but, it depends upon ocular account of facts coupled with all attending circumstances including evidence of recovery and medical evidence. 15. In the instant case, prosecution case depends upon the statements of PW 9 Nazir Muhammad complainant as well as PW 10 Fiaz Muhammad, who is an eye witness of this incident. According to prosecution version appearing in FIR Ex. PF, the a complainant alongwith deceased Mushtaq Khan beside Rafiullah Khan and Faiz Muhammad (PW 10) were present at the hotel of Muhammad ALi at about 12.30 nqon and were taking tea whllt, Bitting at a cot, when the appellant alongwith acquitted accused came there duly armed with 12 bore pistols and appellant fireu with his pistol hitting the deceased Mushtaq Khan on the back of his shoulder. Much stress has beets laid down on the proposition as to why only Nazir Muhammad PW 9, Faiz Muhammad (PW 10) and Rafiullah PW (given up) were attracted on the spot and why no independent witness came forward to lodge the report. As per prosecution version, the complainant alongwith Faiz Muhammad and Rafiullah were there and the presence of PW 9 Nazir Muhammad stands proved from the very fact that he lodged the FIR Ex. PF within 15 minutes of incident. This prompt FIR containing full particulars of the incident, number of injuries, weapon used and the part played by the appellant and Khizar Hayat (since acquitted), clearly proves that PW 9 and PW 10 were present on the spot. The stand of defence counsel that PW 9 resided about 250 Kararns from the said hotel, so there was no justification of his presence at the hotel for tea, is devoid of any force, as people do sit at hotels for taking tea. Thus this contention stands rebutted. 16. The next point urged is that prosecution evidence consists upon evidence of PW 9 and PW 10 who are related to each other and to the deceased as well. There is no doubt that both PWs 9 and 10 are related to the deceased, but testimony of a witness related to the deceased is not to be discarded merely on account of his relationship with the deceased, because he would not normally allow the real culprit to escape by impleading an innocent person, as held in Wahid Bukhsh and others vs. The State (1977 SCMR 1424). Again in the instant case both the eye witnesses are related to the deceased, but record does not show hat they are inimically disposed tov.ifd the accused or had any reason for their false implication, as such th;-,'ir evidence does not require any independent corroboration. Reliance is placed on Wahid Bakhsh and others vs. The State (1997 SCMR 1424) referred above. In the instant case complaint has been lodged within 15 minutes of the occurrence by the complainant who has also named other eye witnesses which reflects that both of them were present at the time of occurrence and ha-J witnessed the same. Eye witnesses have unanimously impleaded the appellant for causing fatal shot on the eceased. The complainant and I : W 10 Faiz Muhammad are residents of places 250 Kararns away form the pace of incident, as such their presence on the spot stands proved under the circumstances. Reliance is placed on Muhammad Yar vs. The State (I99" 1 ?,JMR 401) in which case presence of witnesses residents of village situated at a distance of 3 miles has been adjudged natural. 17. Learned defence counsel has also laid great stress on the point that as per site plans Ex. PB and Ex. PB/1, other shops have heen shown around the place of occurrence and even the presence of other witnesses seems plausible, hut their non examination casts douht on the bonafide of prosecution stoiy. Admittedly incident took place at a hotel and presence of other witnesses cannot be rule doubt. However failure of prosecution to cite or examine any witness from the vicinity of the place of occurrence does not have any adverse effect, as it is a matter of common knowledge that the people from the locality generally hesitate to come forward as witnesses in such cases for fear of reprisals form the accused party. Reliance is placed on Muhammad Ahmed and another vs. The. State (1997 SCMR 89). 18. It is also asserted by the learned defence counsel that since the statements of PWs 9 and 10 have not been accepted by the trial Court in respect of accused Khizar Hayat (acquitted accused) so relying upon the maxim "Falsus in uno falsus in omnibus" their statement be discarded in respect of appellant. This maxim has no universal application as often grain has to be sifted from the chaff. So there is no force in this contention and reliance is placed on 1997 SCMR 89 ibid. 19. Regarding Criminal Revision No. 212/91, it is submitted by the learned counsel, that he has heen acquitted as he was found innocent by police. His contention is that opinion of police is not binding on the Courts, that Khizar Hayat respondent/acquitted accused stood named in the FIR, and shared common intention with the appellant, so the trial Court was not justified in passing order of acquittal. There is no doubt that opinion of Investigating Officer is not binding on the courts, yet. the respondent/ acquitted accused has not been acquitted simply on that score. A perusal of evidence brought on record clearly shows that no over act is attributed to him, he has simply been shown to be present with the appellant at the time of occurrence. The trial Court has passed order of his acquittal after recording entire evidence. The order to that extent is well reasoned and does not call for any interference. There is no force in this criminal revision and the same is dismissed. 20. The up shot, of above discussion is that lower Court has passed order of conviction against the appellant in accordance with law, as prosecution succeeded in bringing home guilt, to the accused/appellant. There is no force in this appeal and the same is dismissed. (T.A.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 932 Present: mansoor ALAMGIR QAZI, J. SAIFULLAH etc.-Appellant STATE—Respondent Crl. Appeal No. 103 of 1995 accepted on 8.10.1997. Pakistan Penal Code, 1860 (V of I860)- —-S. 302(b)/34-Murder--Offence of--Conviction for--Appeal against- Appreciation of evidence-Wo/ Takkar and Extra Judicial confession-All PWs are closely related to deceased as well as inter sr-Whereas appellants are first cousins inter sc. and prosecution has not been able to establish any motive or reason for them to murder deceased—Recovery witnesses were not in a position to prove ownership of recovered articles connecting them with accused-Similarly statements of Waj Takkar witnesses are not confidence inspiring and their evidence is at variance-­ Evidence of extra-judicial confession also lacks confidence and cannot be relied upon-According to PW-7, accused were arrested on 28.12.1993 while police record indicates that accused were arrested on 5.1.1994-If statement of PW-7 is believed then entire prosecution evidence regarding extra-judicial confession and recoveries at the instance of accused become highly doubtful-On the other hand complainant was involved in a murder case which is indicative of the fact that there may be other people also who could have a reason to commit this murder-Prosecution failed to prove its case beyond reasonable doubt against appellants-Appeal accepted. [Pp. 935, 936 & 937] A to F Ch. Arshad Mchmood, Advocate for Appellants. Mr. AH. Masood, Advocate for State. Date of hearing: 8.10.1997. judgment Saif Ullah and Tariq Mehmood appellants were challaned in the titled case and sent up for trial before Mr. Muhammad Aslam Khan, Additional Sessions Judge, Sheikhupura. Through judgment dated 10.1.1995 botli the appellants were convicted under Sections 302(b)/34 PPG and each of them was sentenced to imprisonment for life and ordered to pay Rs. 25.000/- earh as compensation to the legal heirs of the deceased, in default of payment of the said compensation to further undergo six months imprisonment They were also extended the benefit of Section 382-B Cr.P.C. 2. Feeling aggrieved by their conviction and sentence they have challenged ' -c same through this appeal. 3. The murder of Muhammad Safdar aged 16/17 years took place on the night between 27/28 December 1993 in the area of Chak Laddhaywala Virkan at a distance of eight miles from Police Station Sadar Muridke. The ccurrence was reported by Muhammad Sadiq complainant (PW-1) father of the deceased at Adda Khori before Muhammad Iqbal S.I. (PW-15) through statement Ex. PA at 8.15 A.M. on 28.12.93. It was sent to the police station where formal FIR Ex. PA/1 was recorded on the basis of statement Ex. PA at 8.30 A.M. 4. Briefly the prosecution case as stated by Muhammad Sadiq (PW- 1) is that he has cattle shed and Dera at a distance of 6/7 Killas from his house and his son Muhammad Safdar slept on the night between 27/28.12.93 at the said Dera to guard the cattle. The complainant went to his Dera at 6.00 A.M. and found that the dead body of his son Muhammad Safdar was lying in a Khal near Kikar tree and he found that the throat of the deceased had been cut with Chhuri and the dead body was lying faced downward in the Khal. Leaving the dead body in the custody of his sons Arshad Ali and Muhammad Ashfaq he left to report the occurrence where on his way he met the Investigating Officer and got recorded his statement Ex.PA. 5. On arrival at the spot, inquest report Ex. PL and injury statement Ex. PM with regard to the dead body of Muhammad Safdar was prepared and the same was sent for post mortem examination. In course of spot inspection the police took in possession blood-stained earth. It was made into a sealed parcel and taken into possession vide, memo Ex. PD. The police also took into possession one wrist watch Ex. P 3, one wrist watch Ex. P 4, a pair of Softi Chappal Ex. P 5/1-2, Parna blood-stained Ex. P 6, Sweater blood-stained of the deceased Ex. P 7 and a shirt blood-stained of the deceased Ex P 8 vide Memo Ex. PE from the Dera of the complainant. The above said recoveries were attested by Muhammad Ashfaq (PW-7), Muhammad Iqbal (PW-15) and Muhammad Afzal given up PW. On 5.1.94 both the accused were arrested by the police and on 12.1.94 while in police custody Saif Ullah accused led to the recovery of blood-stained Chhuri Ex. P 1 from his Dera which was made into a sealed parcel and taken into possession vide, memo Ex. PB. Tariq Mehmood accused also in police custody _on the same day led to the recovery and got recovered blood-stained Chhuri Ex. P2 from the said Dera. It was made into a sealed parcel and taken into possession vide memo Ex. PC. The above said recoveries were attested by Ghulam Qadir (PW-6), Muhammad Iqbal, S.I. (PW-15) and Arshad Ali (not produced). Saif Ullah accused was found to have injuries on his person at the time of his arrest. Injury statement Ex. PW was prepared and he was sent for medical examination. Dr. Muhammad Shahbaz (PW-16) examined him. The medical report is Ex. PO. He found the following injuries on his person:- (1) A healed scratch on the medial border of right clavicle. (2) A healed incised wound 4 cm x 0.1 cm x skin deep on the left palm of left hand on the lower part. 6. Dr. Abdul Majeed Mirza (PW-10) conducted the autopsy on the dead body and found the following injuries on the person of Muhammad Safdar deceased:- (1) A cut, throat 24 cm x 4 on into cutting skin muscles, blood vessels, larynx, trachea oesophagus, nerves, with cuts on first, second, and third cervical vertebrae. (2) Multiple linear superficial cuts in an area 8x5 cm on front on right shoulder. (3) Linear deep abrasion 9 cm long in front of chest upper most part. (4) Multiple abrasions in area 30 x 8 cm back of chest upper part. Injury No. 1 was declared to be fatal and grievous and sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and that between post-mortem and death was 24 to 26 hours. 7. After completion of the investigation both the accused were challaned and sent up for trial in the court. 8. To prove the charge prosecution produced as many as 16 PWs. After close of the prosecution evidence the accused were examined under Section 342 Cr.P.C. and the prosecution case was piit to them to which they denied. However, Saif Ullah accused in answer to question No. 8 regarding his injuries on his person has given the following explanation:- "I sustained injury No. 2 during sharping the blade of my Toka Machine two clays prior to the occurrence, whereas I sustained injury No. 1 as a result of police torture." and in answer to question No. 9 as to why he has been falsely implicated he has given this explanation:- "I have been falsely implicated in this case at the instance of Atta Ullah ASI. Muhammad Sadiq complainant was implicated for having killed Fateh Muhammad, a close relative of Atta Ullah ASI. The said Atta Ullah ASI misled the complainant party and the Investigating Officer by changing the direction of the investigation towards us. The recoveries of the watch and that of the Chhuri were falsely planted upon me. I did not make any confession before Muhammad Shafi and Muhammad Azam PWs. Likewise Muhammad Malik and Nazar Muhammad PWs did not meet us near the place of occurrence as stated by them. The story of the prosecution has been concocted due to suspicion caused by said Atta Ullah ASI. Otherwise I have no enmity to the complainant or I had no grudge against the deceased." Tariq Mehmood accused in answer to question No. 7 has stated as under:- "I am first cousin of Saif Ullah co-accused. I have been falsely implicated in this case just because of my relationship with him. One Atta Ullah ASI misled the complainant, party and the Investigating Officer by changing the direction of investigation towards us due to suspicion against Saifullah. I have no enmity with the complainant, and I had no grudge against the deceased." Both the accused did not produce any defence evidence nor did they appear in the witness box as required under Section 340(2) Cr.P.C. 9. With the assistance of the learned counsel for the appellants I have gone through the entire evidence and penised the record and heard him at length. The learned counsel for the State, on the other hand, has supported the judgment and prays that the conviction and sentence be maintained. 10. The prosecution evidence against the appellants consists of Wqj Takkar evidence and extra-judicial confession which is corroborated by the evidence of recovery and medical evidence. No doubt that all the prosecution witnesses are closely related to the deceased as well as inter sc and they have no previous enmity or reason to falsely implicate the appellants. On the other hand the appellants are first cousins intc.r se and the prosecution has not been able to establish any motive or reason for them to murder the deceased so in this background the entire prosecution evidence and the •statements of the accused would be assessed to see as to in what manner and which evidence appears to be believable. It would be pertinent to record here that Saif Ullah appellant is the resident of addhaywala Virkan while Tariq Mehmood appellant is not the resident of this village bvit resides at Kali Sooba in Gujranwala District. The articles which were taken from the Dcra of the complainant include a pair of Softi Chappal Ex. P5/1-2 and a blood­ stained Parna Ex. P6 belonging to Tariq Mehmood appellant while wrist watch Ex. P4 is stated to be that of Saif Ullah accused and the witnesses PW- 7 and PW-15 have not been positively in a position to prove the ownership of these articles connecting them with the accused. Similarly the witnesses Muhammad Malik and Nazar Muhammad appeared as PW-2 and PW-3 and their statements of having met the accused in the manner stated is not very confidence inspiring for the reason that Muhammad Malik says that at 9.00 and 10.00 P.M. they met the accused and Saifullah also on his query said that it, was he and his cousin Tariq Mehmood while Nazar Muhammad PW- 3 states that at 10.00 and 10.30 P.M. he met the accused and both of them replied on the queiy. Thus, their evidence is at variance and being night time t is only an identification by voice of only Saif Ullah which is in itself not sufficient proof of identity of a person. Hence this evidence cannot be considered as a very strong incriminating one against the appellants and cannot he said to be intrinsically true to form a basis for conviction. 11. The evidence of extra-judicial confession is being established through Muhammad Shafi PW-4 and Muhammad Azam PW-5 and the manner in which this confessional statement is recorded cannot be relied tipon. Further more Muhammad Shafi PW-4 was an employee of the police and he was posted in police line Qila Gujar Singh. Lahore and he veiy boldly admits that he did not enter his departure in the diary of the police line nor did he seek any permission to leave the police line is indicative of the fact that how much respect he has for law and how much he is bound and care for the discipline. He is closely related with the complainant, party and the accused were also aware of his relation with the complainant party and thus there was no occasion for them to have made any such statement while coining across each other at a railway crossing just by chance. Thus, this evidence also lacks confidence and cannot be relied upon. 12. It, is the fundamental principle of criminal law that the prosecution has to stand on its own legs and prove the case against the accused beyond reasonable doubt but, in the present case I find that the evidence adduced by the prosecution in form of Waj-Takkar and extrajudicial confession lacks confidence, veracity is doubtful and thus cannot be relied upon. The other evidence of recovery of blood-stained Chhun from the appellants is also not believable for the reason that no accused would keep the weapon as a souvenir foi the police to recover it and implicate himself. Rather it would be the wish of every accused to get rid of all or any incriminating evidence so that nothing could be connected to him. The explanation of the injuries on the person of Saif Ullah accused given by him in his statement under Section 342 Cr.P.C. is corroborated to the extent of injury No. 2 by the doctor who appeared as PW-16 while the accused regarding injury No. 1 says that it was due to police torture but the doctor does not agree with him. However, it is in the evidence of Muhammad Ashfaq PW-7 that the accused were arrested on the day when the matter was reported while the police record indicates that the accused were arrested on 5.1.94. If the statement of Muhammad Ashfaq is believed to this extent that the accused were taken into custody on 28.12.93 then the entire prosecution evidence regarding extra-judicial confession and recoveries at he instance of the accvised become highly doubtful and possibility that, the accused may have been subjected to some sort of torture or harassment cannot be ruled out. Furthermore in an absence of any cogent reason why the accused should commit the murder of the deceased has not been established by the prosecution the accused cannot be saddled with this occurrence. On the other hanu, it is admitted by the complainant that he was involved in the murder of one Fateh and that his wheat crop was also burnt is indicative of the fact that there were other people also who could have a reason to commit this murder. 13. The net result that flows from the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt against the appellants and thus their appeal is accepted and the conviction and sentence awarded to them is set aside. They are alrtr. ly on bail. Their bail bonds and sureties stand discharged. (MYFK> Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 937 Present: mansooralamcirqazi, J. ZAHOOR ELAHI alias JHOORA-Appellant versus STATE-Respondent Crl. Appeal No. 69 of 1995, accepted on 2.10.1997. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 315-Qatal Shibi Amc/--Offence of-Couviction tor-Accused does not know names of his nephews and is creating blunder and confusion in names and alias— This confusion is neither healthy nor to his advantage-Complainant was fully aware that Inayat had no son by name of Zahoor alias Jhoora (appellant)-PWs N and A never accompanied deceased to hospital-They were not present at the time of occurrence-Natural and independent witness M.S. Shopkeeper was not produced—All persons named in FIR have been declared innocent and person (appellant) who was not seen at spot nor named in FIR has been saddled with murder by police-Held : Defence/version appears to be nearer truth-Benefit of doubt extended to appellant-Conviction set aside-Appeal accepted. [Pp. 940 & 941] A to F Mr. Sajjad Hussain, Advocate for Appellant. Mr. Faiz Muhammad Bhatti, Advocate for State. Mr. M.A. Malik, Advocate for Complainant. Date of hearing: 2.10.1997. judgment Zahoor Elahi alias Jhoora appellant aged 28 years was tried in the court of learned Additional Sessions Jxulge, Gujrat alonwith Inayat, Talib and Khundi co-accused. Through judgment dated 29.1.1995 the learned trial court acquitted Inayat, Talib and Khundi while the appellant was convicted under Section 315 PPC and sentenced to 14 years' R.I. as Tazir and also directed to pay Rs. 2,00,000/- as Diyat to the legal heirs of the deceased. 2. Feeling aggrieved the appellant has challenged his conviction and sentence through the present appeal while the complainant has challenged the acquittal of the three co-accused and also prayed that the sentence awarded to the appellant be enhanced through the connected Revision Petition No. 183/95. Both the appeal and the revision petition have been heard together and are disposed of by this single judgment. 3. The occurrence took place on 14.1,93 at 4.00 P.M. at the shop of Muhammad Siddique situated in Sabzi Mandi, Gujrat within the area of Police Station Civil Lines being at a distance of three miles from the said place of occurrence. 4. Nawab Khan (PW-f>) father of the deceased Abdul Ghafoor got recorded his statement Ex. PD before Muhammad Azam A.S.I./PW-9 at Chowk Ramtali, Gujrat on 15.1.93 at 6.00 P.M The said statement, was sent to the Police Station where on its basis lunkhtar Ahmed Moharrar (PW-7) recorded formal FIR Ex. PD/i. 5. Briefly the tacts as stated by Nawab Khan complainant are that on 14.1.98 at 4,00 P.M. l>.e alongwith his three sons, namely Abdul Ghafoor (since deceased), Mukhtar Ahmed and Anwar had brought scrap for sale to the shop of Muhammad Sicklique situated in fruit, market, Gujrat and they found present, over there all the above given four accused, who also run the same business. Abdul Ghafoor asked Manzoor alias Jhoora accused for repayment, of loan of Rs. 2.000/- to him which be availed 15/20 days prior thereto upon which Manzoor alias Jhoora started grappling with Abdul Ghafoor, Talib and Inayat accused raised lalkara that get hold of Abdul Ghafoor and teach him a lesson for making demand for return of the loan upon which Manzoor alias .Jhoora accused gave an iron bar blow on the head of Abdul Ghafoor, who as a result fell down whereafter Khundi accused who was armed with carbine gave Butt, blow with it, on the left eye of Abdul Ghafoor whereafter he became unconscious and then all the four accused started dancing and jumping over Abdul Ghafoor who was lying on the ground. The complainant and his two other sons who were witnessing the occurrence made entreaties to the accused, who ran away towards Shadiwal road while abusing. The injured Abdul Ghafoor thereafter was taken to the local hospital, wherefrom he was referred to Lahore for treatment where he died during the night of 15/16 January 1993. 6. The accused and the appellant were arrested in the above said case on 18.1.193, Inayat, Khundi and Talib co-accused were found innocent and only the appellant was challaned and sent up for trial. On 18.1.93 Zahoor Elahi also got, recovered Sarya Ex. P4 which was taken into possession vide memo Ex. PB in the presence of Umar Hayat PW-2, Muhammad Azam PW-9 and Muhammad Khalid (not produced). 7. The learned trial court summoned Khundi, Talib and Inayat coaccused to face trial and the prosecution produced as many as nine witnesses to prove the charge against all the accused hefore the court. After the close of evidence the accused were examined under Section 342 Cr.P.C. and in answer to question No. 6 Khundi accused made the following statement: - "On the day of occurrence while I was at the shop of Siddique where deceased sell down on the scrap while riding the bicycle. Siddique Shopkeeper told the deceased that his scrap was muddy and it should be made clean on which 1 supported the shopkeeper, the deceased grappled with me and during that, scuffle fell down on the scrap and he became \mconscious. He was removed to the hospital who later on died. As I was not at fault, I was declared innocent. But f.he complainant party with the connivance of police got me and my brother Ghafoor involved in the case by giving him fictitious name of Zahoor Elahi o//os Zahoora." Talib and Inayat accused denied the prosecution case while Zahoor Elahi in answer to question No, 7 has stated as under:- "I am innocent and have been involved falsely. In fact the deceased while on cycle grappled with Manzoor accused and fell down on the scrap in the shop of Siddique who later on died due to the fall. Nobody gave him an injury. The police declared Manzoor innocent but later on with the connivance of the complainant party got me involved being brother of Manzoor giving me the name as Zahoor Elahi alias Zahoora although my name is Abdul Ghafoor. This has been manoeuvred by the complainant." He has also submitted two documents Ex. DB and Ex. DC in his defence. 8. The deceased was medically examined on 14,1.93 at 5.30 P.M. by Dr. Tahir Khalil Uppal PW-8 and Dr. Tahir Rashid (PW-3) performed the autopsy on the body of Abdul Ghafoor on 16.1.93 at 4.10 P.M. and found the following injuries on the person of the deceased: (li An abrasion measuring 5 cm x 3 cm on right lateral aspect of right shoulder. (2) An abrasion 1 cm x 1 cm on right middle of scapular region. There was scab formation on both the abrasions. (3) Swelling measuring 4 cm x 3 cm on right temporal region. (4) Blackening present around left eye. Injury No. 3 on the right temporal region of the deceased was opined to be fatal and sufficient to cause death in the ordinary course of nature. 9. With the assistance of the learned counsel for the appellant I have gone through the entire record of the case and perused the evidence adduced at the time of rrial. The learned counsel for the complainant while controverting the arguments of the defence has prayed that not only the conviction and sentence of the appellant be maintained but the same be enhanced. He has very candidly stated that, lie is not. pressing the revision petition on far as the acquittal of the three accused Inayat, Talib and Khundi are concerned. Hence to this extent the revision petition stand disposed of as not pressed. The learned counsel for the State has also argued his case and he also supports the judgment and prays that the conviction and sentence be niainrained. 10. The record perused and arguments heard. 11. The main thrust of the defence for the acquittal of the appellant is firstly that. Nawab Khan and Anwar PWs were not present at the time of occurrence and secondly that the appellant has been substituted, he was not mentioned in the FIR and is thus innocent "t'r> substantiate this point the learned counsel has referred to the contents of statement Ex. PD wherein it is mentioned that Manzoor alias Jhoora son of Inayat, Khundi son of Inayat, Talib son of Inayat and Inayat son of Muhammad Bakhsli were the persons present at the time of occurrence. In his statement record at trial the complainant has admitted that Inayat accused is his real brother and that Khundi, Talib, Ghafoor, Liaquat, Muhammad Saleem and Ashiq are the six sons of his brother. It. is also stated in this statement that Khundi is also known as Manzoor alias Jhoora. Inayat accused has no son by the name of Zahoor alias Zahoora. Abdul Ghafoor was never mentioned as an accused in FIR by his real name but has now been challaned under this alias ofZahoor alias Zahoora. In fact, this alias was admittedly affixed with the name of Manzoor alias Jhoora alias Khundi. It is not understandable why the omplainant who is the uncle of the accused does not know the names of his nephews and is creating blunder and confusion in names and a//as. Firstly he very clearly says that Manzoor alias Jhoora and Khundi are sons of Inayat are two different persons but later on he says that Manzoor alias Jhoora is actually Khundi. Then he changes his stance to say that his ( nephew Abdul Ghafoor is Zalioor Elahi alias Zahoora the appellant who was never mentioned in FIR by name or alias. This confusion created by the complainant is neither healthy nor in any manner to his advantage. The police found that all accused mentioned in FIR were innocent and placed them in column No. 2. Abdul Ghafoor was challaned under alias as Zahoor alias Zahoora though it was never mentioned as an accused in the FIR which was recorded after a considerable delay on 15.1.93 almost after 26 hours of occurrence. The complainant was fully aware of the fact that Inayat had no son by name of Zahoor alias Zahoora and that Abdul Ghafoor whose marriage he had attended in 1988 was never called by this alias and yet he kept quiet and deliberately gets the appellant to be prosecuted on a very serious charge. This fact coupled with the fact that Nawab and Anwar PWs never accompanied the deceased to the hospital rather the name of Mukhtar is mentioned in the MLR. It can be presumed that both these PWs were not present at, the time of occurrence. Mukhtar who could be placed at. the spot was never produced as a witness. The most natural and independent witness was Muhammad Siddique the shopkeeper where the occurrence took place who has not been produced. The only assumption which can be drawn is that he was not supporting the prosecution case and for that reason his evidence has been suppressed. 12. The defence version put forward by Khundi co-accused cannot be ignored. The appellant while supporting this version has explained that he is actually Abdul Ghafoor and he is innocent and has been falsely challaned under this alias. Keeping both the versions in juxta position one fact that emerges clearly is that the complainant and his son Anwar who are eye witnesses PWs in this case are not sure who out of the sons of Inayat is responsible for the death of the deceased or the manner in which the occurrence initiated and culminated. All the persons named by them in FIR j have been declared innocent, and the person who was nor seen at the spot by them nor named in FIR has been saddled with this murder by the police. It is also very stranger attitude of an uncle that knowingly Abdul Gafoor is not called by this alias he allows prosecution of an innocent person under a false name and alias. How can this Court believe the statement of such a person. Thus the defence version appears to be nearer the truth and I have n.o hesitation to accept the same. Hence the natural result which follows is that the benefit of doubt is extended and given to the appellant, and his appeal is accepted. The conviction and sentence awarded to him is set aside. He shall be released in any other case. The revision petition is devoid of force and is accordingly for reasons stated above dismissed. (MYFK3 Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 941 Present: mansoor alamgir qazi. J. SAFDAR SHAH and another-Appellant versus STATE-Respondent Grl. Appeal No. 26 of 1995, accepted on 19.1.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302 & 324-Murder-Offence of--Conviction for--Appeal against-All PWs are closely related to deceased and none of from locality or any independent onga driver has substantiated the case that deceased actually left with accused on date of occ»rrence-To strengthen last seen evidence one independent PW was produced-His statement was recorded belatedly by police which is yet incomplete, insufficient and not worth of reliance-Extra-judicial confession which is a joint confession hence, is nullity in law and cannot be considered as legally admissible evidence-­ Prosecution has not charged accused under section 377 PPC and thus nal swabs taken by doctor and found stained with semens by report Ex. PD-1 brings no guilt, towards accused-Recovery of horse and tonga appear to have been planted to strengthen prosecution case—Question arises why accused should keep horse and tonga in their houses-They could have easily left tonga and horse in some uninhabitated area and not kept it as souvenir for police to recover the same from them and to implicate them for an offence which was not witnessed by any body-­ Held : Prosecution miserably failed to bring home the guilt of accused- Appeals accepted and appellants acquitted. [Pp. 944 & 945] A to F Muhammad Siddique. Chughtai. Advocate for Appellant. Mr. Husnain Aziz Bhalti, AAG with Pirzada Mamoon-ur-Rashid, Advocate for State. Date of hearing: 19.1.1996. judgment Sufdar Shah aged 27 years and Muhammad Ashraf aged 26 years were tried under Sections 302/34 PPC in case FIR No. 59/93 registered at Police Station Baseerpur for having committed the murder of Riaz Ahmad son of Muhammad Ashiq PW-1 in the court of Mr. Faiz Rabbani Khan Sial, Additional Sessions Judge. Okara Camp at, Depalpur. The learned trial court found both the accxised guilty under Section 302-B PPC and both of them were sentenced to life imprisonment each vide judgment dated 14.12.1994. Both the accused were extended the benefit of Section 382-B Cr.P.C. 2. Feeling aggrieved by the conviction and sentence Safdar Shah has preferred Crl. Appeal No. 26/95 while Muhammad Ashraf has challenged his conviction through Crl. Appeal No. 21-J/95. Both these appeals are being heard together and shall be disposed of by this judgment. 3. The unfortunate occurrence took place on 16.2.1993 at 2.00 P.M. at Chorasta Mian Khan situated within the territorial jurisdiction of Mauza Arrora Mian Khan at a distance of K.M. from the police station. 4. On 21.2.93 at 5.30 P.M. Muhammad Ashiq PW-1 father of the deceased lodged report. Ex. PA at the said police station which was recorded by Abdul Karim Inspector/SHO (PW-9). 5. Briefly the facts of the case are that Muhammad Ashiq who is a Tonga driver while his brother Niaz Ahmed (given up PW) and Murntaz Ahmed PW-2 also own tongas and earn their livelihood by plying the same. On 16.2.93 as he was not feeling well and he took his son Riaz Ahmed deceased aged 13/14 years to drive the tonga and earn the daily bread. At 2.00 P.M. Muhammad Ashraf and Safdar Shah appellants came to the tonga stand and requested that they be taken to Mauza Kandowal and for this it was decided that they pay fare of Rs. 60/-. The deceased left, with the accxised in presence of Niaz Ahmed (given up PW). Mnmtaz Ahmed PW-2 and Muhammad Ashiq PW-1 towards Kandowal. On that night he did not return home and the complainant started searching for him and Muhammad Ramzan PW-3 met them and told them that he had seen the deceased taking his tonga in which Muhammad Ashral' and Safdar .Shall were passengers towards Mauza Mandowal. The complainant showed his suspicion that his son Riaz Ahmed had been abducted with the intention to murder or he had been murdered, whereupon the case was registered under Section 364 PPC. On 22.2.93 the Investigating Officer prepared injury statement Ex. PG and inquest report Ex. PH in respect of the dead body of Riaz Ahmed deceased which was lying in the courtyard of Civil Hospital, Hujra Shah Muqeem where it was brought by the complainant who had found the same lying in a bag in a wheat field of one Mansab Aii situated in Killa No. 24 square No. 1 near Mustafa Abaci minor. 6. The autopsy on the dead body was conducted by Dr. Sagheer Ahmed, M.O. who appeared as F'W-11 and he found the following injuries on the person of the deceased:- (1) A ligature mark 30 cm x 2 cm extending from posterior side of neck just below nuchal line to right side of neck passing infront of neck just above the thyroid cartilage and joined the ligature mark on posterior side of neck. (2) Multiple abrasion in area of 8 cm x 4 cm on front of neck. (3) Multiple contusion marks 10 cm x 8 cm all around lower part, of right forearm, with wrist, joint. (4) Multiple contusion marks in an area of 8 cm x 8 cm all around the lower part of right forearm and wrist joint. (5.) Multiple abrasions in an area of 7 cm x 4 cm on the posterior side of light elbow joint. (6) An abrasion 1.5 cm x 1 cm on lateral and upper part of right thigh. (71 Multiple abrasions in an area of 4 cm x 1.5 cm on medil and upper part of right thigh. (8) Multiple abrasion in an area of 4 cm x 1 cm on medical and upper par of the left thigh. Death in his opinion was caused by asphyxia due to suffocation. All the injuries were ante-mortem caused by blunt weapon. Time between death and injuries was immediate while between the death and post-mortem was 5/6 days. He obtained three anal swabs and sent the same to the chemical examiner which were found stained with semens vide, report, Ex. PM. 7. The accused were arrested oh .'5.3.93 by Abdul Karini. Inspector/SHO (PW-9). Safdar Shah accused while in police custody led the police party and got recovered horse Pi from his house which was taken into possession by the police vide memo Ex. PB. Similarly on the same day Muhammad Ashraf accrised while in police custody led the police and got recovered Tonga Ex. P2 from his residential house which was taken into possession vide memo Ex. PC. Both the recoveries and inemos were attested by Mumtaz Ahmed PW-2. Niaz Ahmed (given up PW) and Abdul Karim PW-9. After completion of the investigation the accused were challaned and sent up for trial. 8. To prove the charge, prosecution produced 11 witnesses while Muhammad Ashraf and Safdar Shah accused were examined under Section 342 Or.P.O. and they denied the prosecution case and stated that they had been falsely implicated in this case. They did not appear as their own wit nesses as required under Section 340(2) Cr.P.C. nor did they produce any defence evidence. 9. With the assistance of the learned counsel for the appellants the record of the case has been perused and 1 have been taken through evidence recorded by the learned trial court. The learned counsel for the appellants have been heard at length and the learned counsel for the State has also been heard. 10. The prosecution to prove the fact that the deceased had left in company of the accused relied on the evidence of Muhammad Ashiq PW-1. Murntaz Ahmed PW-2 while Niaz Ahmed was not produced. All these three persons are very closely related to the deceased. Muhammad Ashiq PW-1 being his father while Mumtaz Ahmed PW 7 -2 and Niaz Ahmed (given up PW) being the brothers of Muhammad Ashiq. The deceased left the tonga stand with the accused at 2.00 P.M. but none from the locality or any independent tonga driver has substantiated the case that the deceased actually left with the accused on that date. Furthermore, it is also not understandable that if the father was not fit to ply the tonga then why did he allow his young minor son to accompany the accused when he could have asked one of his brother to take his touga and drop the accused at their destination which inevitably forces me to draw this inference that none of these PWs were present there at the relevant time and it is yet to be proved whether the deceased was plying tonga or not. To strengthen the last seen evidence Muhammad Ramzan has appeared as PW-3 who states that he had seen the deceased in company with the accused on that day. No doubt that Muhammad Ramzan PW-3 has no relation either with the complainant, the deceased nor he has any enmity with the accused but the question is that how lie happened to know the accused by name and how he happened to recognise the deceased when there is no evidence of knowing them personally and thus, it was just by chance that he was there at that specific time on that day. Thus, his evidence cannot be accepted. Furthermore he appeared before the police on 21.2.1993; his statement was recorded belatedly by the police which too inspite of that, delay is incomplete. insufficient and not worthy reliance. 11. Muhammad Islam appeared as PW-4 and he stated that on that fateful night he was watering his field and he saw a tonga standing on the road and two persons going across the Rajbah and throwing a bag into wheat field which own his query he was told that it was waste grass in the bag and it was from that very place that the dead body of the deceased was recovered hy the complainant. Though the witness states it to be a moonlit night yet he had seen the tonga from a distance of 4 kanals from where under this light the identification of a person cannot be made easily and relied upon. Thus. the evidence of this PW is also full of infirmities and not worth reliance. 12. Shah Bahram PW-10 states that both the accused made an extra-judicial confession before him while he was getting his car filled with petrol at the trol Station. The confession is a joint confession which is nullity in the eye of law and cannot he considered as legally adnji.-.v.Me ' C evidence. Hence this evidence is ruled out of consideration on the legal pi^u-1 as well as factual one as the accused have stated in their statomen's thai they were not having very cordial relations with this witness prim !-i ; !r,s occurrence. 13. Further the prosecution has not charged the accused under! Section 377 PPC and thus the anal swabs taken by the diii-tur and f^m;! 11) stained with semens by report Ex. PD, bring:- no guilt, towards the ace: 1

14. The last incriminating evidence against, the appellants horse Ex. PI was recovered at the instance of Safdar Shah accusetonga Ex. P2 was recovered at the instance of Muhammad Ashraf sake of arguments even if it is believed that horse and the to-ga recovered and that the recovery stands proved beyond doubt, it ma, however, strong yet it. cannot, be alone made basis for conviction that this recovery appears to have been planted to s-< enr'non prosecution case. The evidence collected to prove case against "he accuse that they were found getting rid of the dead body of the disposing it of in a sweat field at night time them the question is why they keep the horse and the tonga of the deceased in their house. They have easily left the tonga and the horse in some uninhabited area to V s fo: n later on and not kept it as souvenir for police to recover the same iYr/m and to implicate them for an offence which was not witnessed by anybody. 15. Thus from the above discussion it precipitates that the' prosecution has miserably faiie; tu bring home the guilt of the accused ant; ; ,. therefore, the appeals of the up lellaius are accepted and they are acquitted ' of the charge. They shall be reieast'd f .iil;'.v;;b if not required in any ofi-f case. (AAJS) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 946 (DB) Present: muhammad naseem chaudhri and sh. abdul razzaq, JJ. RASHEED AHMED-Appellant versus STATE-Respondent Cii. A, No. 648/96, dismissed on 16.12.1997. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 324/337-F (iv)/337-F (v)/337-F (vi)--Hurt--Offence of-Conviction for-- Appeal against--Evidence--Appreciation of-It is clear from evidence given by eye witnesses that occurrence had taken place in the manner as given in FIR-Defence version brought on record through statement of accused/appellant recorded under S. 342 Cr.P.C. does not appeal to reason-Stand of appellant that as his maternal sister was abducted by injured person, so lie in order to save his own life as well as of abductee fired upon them as a result of which (PW-2) received injuries-There is no force in this contention as admittedly no report regarding said incident wqs ever lodged either by appellant or by father of alleged abductee-Thus it is clear that defence plea is an after thought and repelled-Appeal dismissed. [P. 949] A Malik Nazar Farid Khokhar, Advocate for Appellant. Mian Muhammad Bashir, Advocate for State. Date of hearing: 16.12.1997. Announced on: 16.12.97. judgment Sh. Abdur Razzaq, J.--This appeal is directed against the judgment dated 11.7.1996 passed by Mian Muhammad Sikandar Hayat, Judge, Special Court No. Ill, Suppression of Terrorist Activities, Lahore Division, Lahore, whereby he convicted Rashid Ahmad appellant under Section 324 PPC and sentenced him to undergo 7 years' R.I. and to pay fine of Rs. 10,000/- or in default thereof to further undergo R.I. for one year. He further convicted the appellant under Section 337-F(V) and 337-F(VI) PPC and sentenced him to undergo R.I. for 4 years on each count and also to pay a sum of Rs. 10.000/- as Dam»n on each count. All sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended to the appellant. 2. The occurrence took place on 3.2.1996 at 12.15 Noon whereas FIR no. 60/96 has been lodged on 3.2.1996 at 11.30 p.m. on the statement of Muhammad "i ousaf complainant. 3. Briefly stated the facts are that Muhammad Yousaf complainant and his dw' av Rizwan Khan cultivated land jointly. On 3.2.1996 at 12.15 Noon, both of them alongwith Shadi son of Jamal-ud-Din and Shaukat All son of Muhammad Siddique proceeded to their land where they found that their servant Rehman was not present. They all proceeded to village Chiraghpura in search of Rehman. While they were proceeding to Chiraghpura, Rizwan Khan was going 6/7 Karam ahead of them. When they reached on the turn of street Rasheed Ahmad (a Sheedoo armed with 222 rifle emerged and raised Lalkara that Rizwan would not be allowed to go alive. He fired with his 222 rifle hitting Rizwan Khan on the upper part of his left arm and left thigh, as a result of which who fell down. 4. The motive behind this occurrence is that sister of Rasheed (« Sheedoo had eloped with some unknown person about a month ago and he suspected that Rizwan Khan was responsible for her abduction/elopement and as such committed murderous attack to take revenge of that. Besides the complainant, Shadi and Shaukat Ali also witnessed the incident. The complainant removed the injured to Civil Hospital Dipalpur where he was admitted and medically examined. The complainant obtained his MLR and proceeded to P.S. where FIR Ex. P-A was recorded by Muhammad Tufail S.I. on his statement at 11.30 P.M., when started investigation on 4.2.1996. He moved application Ex. P-C before the Medical Office]' to enquire if the injured Rizwan Khan was fit to make statement, who opined in negative as per report Ex. P-C/1. He then visited the place of occurrence and prepared rough site plan Ex. P-D. On 7.2.1996 Rizwan Khan injured was shifted to Mayo Hospital, Lahore. On 11.2.1996 he moved another application Ex. P-E before the Medical Officer to enquire if the injured was fit to make statement or not, who gave his opinion in affirmative vide Ex. P-E/1 and as such he recorded his statement. On 12.2.1996 he arrested accused Rasheed Ah mud ("' Sheedoo and secured 222 rifle Ex. P-l and two live bullets Ex. P-2/I-2 vide memo Ex. P-B. As the accused could not prodtice a valid licence so he lodged complaint against him under Section 13 Arms Ordinance XX of 1965. He handed over the parcel of 222 rifle and bullets to Khadim Hussain H.C. for keeping in safe custody and after completing investigation got the accused challaned. 5. A charge under Section 324 PPG, 337-F(V) and 337-F(VI) PPC was framed against the accused to which he pleaded not guilty and claimed to be tried. 6. To prove its case prosecution examined complainant Muhammad Yousaf Khan (PW-1) who corroborated his version appearing in FIR Ex. P-A. PW-2 Rizwan Khan, the injured eye witness, r>lso corroborated prosecution version. PW-3 Khadim Hussain H.C. deposed that on 12.2.1996 he was given a sealed parcel containing 222 rifle by the Investigating Officer which he delivered to Khadim Hussain Constable on 26.2.1996 for onward transmission to the Forensic Science Laboratory Lahore. PW-4 Khadim Hussain Constable corroborated the version of Khadim Hussain H.C. (PW- 3). PW-5 Muhammad Saleem deposed about recovery of 222 rifle Ex. P-l and two live bullets Ex. P-2/1-2 from the accused/appellant, which were secured vide memo Ex. P-B. PW-6 Muhammad Tufail S.I. is the Investigating Officer whose evidence has already been discussed above. PW-7 Dr. Muhammad Sharif deposed that on 3.2.1996 he examined injured Rizwan Khan vide MLR Ex. P-C and found four injuries on his person which had bt -n caused by fire arm. PW-8 Dr. Rana Muhammad Rafique deposed that he haa issued X-ray report Ex. P-H on the basis of X-ray ftlms Ex. P- H/l 3. PW-9 Dr. Munir Ahmad deposed that on 4.2.1996 application Ex. P-C was moved by Investigating Officer to enquire if the injured was fit to make statement or not upon which he gave his report Ex. P-C/1 in negative. Lastly the learned District Attorney produced Fire Arms Experts report Ex. P-I and closed the case for prosecution. 7. When examined under Section 342 Cr.P.C. accused denied the prosecution version and stated that he had been involved in this case falsely. He stated that about 20/25 days prior to this occurrence his maternal sister Mst. Fauzia Bibi was abducted by one Pummay Khan alongwith Rizwan Khan PW who was informed about this abduction by his maternal uncle. He further stated that on the day of occurrence Rizwan Khan PW alongwith two hired had characters tress passed into the house of his maternal uncle and forcibly dragged Mst. Fauzia Bibi on whose alarm he was attracted to the spot and challenged Pummay Khan and his friends. To save his own life and the life of his maternal sister .ViV. FaV"9 he fired at them which hit Rizwan Khan PW \vho was removed to Hospital by his companions. He stated that he would produce evidence in his defence and consequently examined Mst. tvshadBibiasDW-1. 8. After going through the evidence produced by the parties, the trial Court convicted the appellant vide judgment under appeal. 9. We have heard the learned counsel for the appellant as well as learned counsel for the State and have gone through the record before us. 10 The contention of the learned counsel for the appellant is the pmsen?tkni story is highly improbable and unbelievable, that no is-'iepei'd s t v/ ; ; ..->.>• has bnen examined and the alleged witnesses are inter­ related and connected, thar medical evidence does not corroborate the prosecution version and (hat. evidence of recovery is of no legal consequence a^ the same has been effectt-d in viobtion of provisions of Section 103 Cr.P.C. He thus argued that prosecution has failed to bring home guilt to the accused/appellant. On the other haiul these contentions have been cent:Averted by the learm-u counsel foi the Stale. His contention is that prosecution version to the fxv.ent. or m:>.e. place and causing injuries on the person oi Rizwan Khan PW stands admitted by the accused/appellant vide his .statement recorded under Section 342 Cr.P.C., though in a different manner, that prosecution version farther stands corroborated by evidence of recovery as we 11 as medical evidence. He thus submitted that trial Court lias passed the impugned judgment in accordance with law and appeal merits dismissal. 11. According to the prosecution version the appellant committed murderous assault on the person of Rizwan Khan (PW-2) and caused him as many as four injuries with his 222 rifle. This contention to the extent of time and place of occurrence stands admitted by the accused/appellant as is evident from his statement recorded under Section 342 Cr.P.C. There is no doubt that he has given his own reasonings for causing assault upon Rizwan Khan (PW-2), biit the fact remains that ccurrence tands admitted. Admittedly occurrence took place at 12.15 Noon, so the question of substitution does not arise. There is no doubt that 222 rifle Ex. P-l was recovered alongwith two live bullets Ex. P-2/1-2 and were secured vide memo Ex. P-B which has been attested by Muhammad Saleem (PW-5), yet, this recovery is of no legal conseq-u-:u:-:/ as no empties were recovered from the place of occurrence to connect the said rifle Ex. P-l with the commission of this offence. This does nor i..jlui that ocular evidence which has come on record through the statements of Muhammad Yousaf Khan complainant (PW-1) and Rizwan Khan injured eye witness (PW-2) should be thrown away or ruled out of consideration. It, is clear from the evidence given by eye witnesses that occurrence had taken place in the manner as given in FIR Ex. P-A lodged at the instance " Muhammad Yousaf Khan complainant (PW-1). The defence version brought on record through the statement of accused/appellant recorded under Section 342 Cr.P.C. does not appeal to reason. The stand of the appellant is that as his maternal sister Mst. Fauzia was abducted by Pummay Khan, Rizwan Khan (PW-2) and two bad characters, so he in order to save his own life as well as of Mst. Fauzia fired upon them as a result of which Rizwan Khan (PW-2) received injuries. There is no force in this contention as admittedly no report regarding he said incident was ever lodged either by the appellant or by the father of Mst. Fauzia, the alleged abductee. Thus it is clear that defence plea is an after thought and is hereby repelled. 12. Since the occurrence stands admitted by the accused/appe'bnt as referred above and Rizwan Khan (PW-2) received injuries w;th fire arm a; the hands of accused/appellant, so prosecution has succeeded in bringing home guilt to accused. He has rightly been com~;c'.K : l and sen'-en^ed :.vc?> judgment under appeal. We do not find any force in the subinis.- learned counsel fo>' r.he appellant and dismiss the appeal. (K.A.B.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) Present: KHALIL UR REHMAN RAMDAY, J. Mst. SADIQA SHAFI-Petitioner versus Sqr. Ldr. (Retd.) NAVEED ANJUM and 2 others-Respondents Crl. Misc. No. 176/M of 1996, accepted on 26.3.1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —.s. 476, 476-A and 195-Prosecution for false evidence-Rational behind statutory provisions-Object of creating bar on courts of law in matter of taking cognizance of cases mentioned in various clauses of sub-section (1) of section 195 of Cr.P.C. is not to screen offenders or to save them from punishment prescribed by law for offence, if any, committed by them- Offences mentioned in said provision is essentially offence to concerned court of law or concerned public servant-Law has left it to discretion of such public servant or such court of law to decide whether alleged offender should or should not be prosecuted and consequently punished for alleged offence committed by any such person-Held: This discretion has to be exercised judicially and not arbitrarily. [P. 953] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 476 & 561-A-Pakistan Penal Code (XLV of 1860), S. 195-Petition for taking cognizance of offence u/S. 195 P.P.C. dismissed by trial Court- Petition u/S. 435 read with section 439-A was, however, admitted for regular hearing by A.D.J/A.S.J. but was ultimately dismissed on doubt that respondents purged themselves-Quashment of orders-Prayer for- Learned civil judge had held that statements of all three witnesses were incorrect and bundle of lies-Having thus reached firm and final conclusion that all three witnesses had falsely deposed, strong reasons were required to refuse to punish or to prosecute said witnesses-Learned A.S.J was of view that these witnesses might have committed purger— Making false statements before courts of law is rather serious matter which very strongly interferes with and obstructs with administration of justice—This menace is attaining alarming dimension and unless this trend and practice was discouraged and dealt with iron hand, exercise of administration of justice was liable to be reduced to mere farce- Provisions of section 476 and 476-A of Cr.P.C. or other similar and relevant provisions have been put in statute books not merely for decorative purpose, but with definite object to ensure that stream of justice does not become pregnant with impurities-Held: It should only be rather strong and compelling reasons which could persuade learned courts of law not to proceed against witnesses and persons who purge themselves before courts of law-Petition allowed and trial judge directed to proceed with matter in terms of section 476 or section 476 A or Section 195 of Cr.P.C. [Pp. 953 & 954] B, C, D, E & F Lt. Col. Inayat Ullah (Retd.J, Advocate for Petitioner. Ch. Muhammad Aslam Butter, Advocate for Respondent. Mr. S.D. Qureshi, Advocate for State. Date of hearing: 26.3.1997. judgment This is a petition under Section 561-A of the Cr.P.C. against an order dated 20.12.1995 passed by a learned A.S.J. at Lahore and an order dated 21.5.1995 passed by a learned Civil Judge 1st Class at Lahore. The facts and the back-ground leading to the present petition are that Mst. Sadiqa Shafi petitioner herein owned a piece of land bearing Plot No. 25-Q in Phase-II of L.C.C.H.S. (Defence Society) Lahore while Naveed Anjum respondent is a contractor engaged in the business of constructing house for the owners. Mst. Sadiqa Shafi petitioner claims to have hired the services of Naveed Anjum respondent for construction of house on the above-said plot and when the house in question was nearing completion, Naveed Anjum respondent raised a dispute regarding an amount of Rs. 97,000/- which according to him the petitioner herein, was liable to pay to him. The petitioner appears to have denied this claim as a result of which Naveed Anjum respondent on 1.4J 992, filed a suit in the Civil Court at Lahore seek a permanent injunction against the present petitioner. This suit was accompanied by an application under Order XXXIX of the C.P.C. praying that till the disposal of the said suit, the petitioner herein should be restrained from taking forcible possession of the said house. An interim relief in the said terms was allowed and Mst. Sadiqa Shafi petitioner was restrained from taking possession of the house in question except in accordance with the agreement between the said parties. This civil suit carried No. 108 of 1992 and was filed on 1.4.1992. On 9.6.1992 Mr. M. Bilal Khan, Advocate, representing Naveed Anjum respondent appeared before the learned Civil Judge where this suit was pending; made a statement that Mst. Sadiqa Shafi had taken possession of the house in question on 8.6.1992 and in the circumstances, prayed for permission to withdraw the said suit with further permission to bring a fresh suit in the matter. Through an order passed on the said date i.e. 9.6.1992, the learned Civil Judge permitted Naveed Anjum respondent to withdraw the said suit with permission to bring a fresh suit. 2. It appears that while this Suit No. 108 of 1992 was still pending trial, Naveed Anjum respondent had filed another suit on 20.4.1992 bearing No. 84 of 1992 against the present petitioner in the Court of another learned Civil Judge at Lahore for rendition of accounts and on an application submitted by him in the said suit the said respondent had got another interim relief dated 21.4.1992 to the effect that Mst. Sadiqa Shafi shall not take possession of the disputed premises illegally, unlawfully and without rendering the accounts. 3. While this interim relief was still in force Naveed Anjum respondent filed an application under Order XXXIX, rules 2 and 3, read with Section 151 of the C.P.C., read further with Section 6 of the Contempt of Courts Act of 1976 on 14.7.1992 complaining therein that in utter violation of the above-mentioned interim relief allowed to him, Mst. Sadiqa Shafi had, with the help of some other persons, taken over forcible possession of the house in question on 13.7.1992. 4. Notice was issued in this petition. Statements of various witnesses from both the sides were recorded and the learned Civil Judge thereafter dismissed this application through an order dated 4.5.1995 holding in para 11 of the said order that:- Therefore the statements of all the three witnesses were incorrect and a bundle of lies. No such occurrence, as alleged by the petitioner, took place nor the respondents took possession of the disputed house n 13.7.1992." 5. It does not appear from the record available before me that this order dated 4.5.1995 passed by a learned Civil Judge at Lahore was ever challenged before any higher forum or Court. 6. On 21.5.1995 Mst. Sadiqa Shafi petitioner herein submitted an application before the same learned Civil Judge praying therein that a complaint be made to the learned Ilaqa Magistrate/concerned Police Station in terms of Sections 195 and 476-A of the Cr.P.C. against the respondents mentioned in the said application for having made false statements on Oath and having made false averments. The said learned trial Judge dismissed this application in lunine, on 21.5.1995 and the operative part of the order is as under:- "I have already given my detailed judgment dated 4.5.1995 and do not want to make any complaint against the respondents. This petition is, thus, dismissed." 7. Aggrieved by this order of the learned Civil Judge, Mst. Sadiqa Shafi petitioner, on 25.6.1995, approached the learned A.D.J./A.S.J. with a petition U/S. 435, read with Section 439-A of the Cr.P.C. This petition was admitted to reaiilar bearing on 26,5 1995 and notice was issued to the respondents to ih.-inselv.cs against the same. However, through a detailed judgment tLk-u 'X VD95. a learned A.S.J. at Lahore dismissed the said petition. The op rifr.be said judgment is as under:- MiHiH.cij the evidence and came to the Li.;vr.u-,' i.icular circumstances of the case it cannot U i;oiti ; o; <ih<: reasonable doubt that the respondents pm^l themselves; however there is some doubt that they migin iu/e committed purgery but a doubt however grave it might be, cannot form basis of criminal proceedings." 8. Hence this petition. 9. The object of creating a bar on the Courts of law in the matter of taking cognizance of cases mentioned in various clauses of sub-section (1) of Section 195 of the Cr.P.C. is not to screen the offenders or to save them from the punishment prescribed by law for the offence, if any, committed by them. The offences mentioned in the said provision is essentially an offence to the concerned Court of law or the concerned public servant. Therefore, the law has left it to the discretion of such a public servant or such a Court of law to decide whether the alleged offender should or should not be prosecuted and consequently punished for the alleged offence committed by any such person. Needless to add that this discretion has to be exercised judiciously and not arbitrarily. In the present case through his order dated 4.5.1995 above-mentioned, the learned Civil Judge had held that the statements of all the three witnesses were incorrect and a bundle of lies. He had further held that no occurrence as alleged by the present respondents had ever taken place nor had the respondents taken possession of the disputed house on the day and in the manner alleged by the said respondents. Having thus reached a firm and final conclusion that all the three witnesses had falsely deposed that the present petitioner had taken forcible possession of the house in question on 13.7.1991, rather strong reasons were required to refuse to punish or to prosecute the said witnesses. Surprisingly the said learned Civil Judge dismissed the present petitioner's application praying for initiation of action and prosecution against the said witnesses by merely saying 'that he did not want to make any complaint against the said witnesses'. This was obviously a discretion exercised himsically and arbitrarily by the said learned trial Judge as having held that the three witnesses had made false statements on Oath, he did not offer any reason not to punish them or to seek punishment for them. 10. The learned A.S.J. who had passed the judgment dated 20.12.1995 was, however, of the view that in the peculiar circumstances of the case in question, it could not be held beyond reasonable doubt that the witnesses in question had purgered themselves although he was of the view that there was some doubt that these witnesses might have committed purgery. How this doubt had crept into the mind of the learned A.S.J. is not clear either from his judgment or from the record. It may be mentioned here that neither Naveed Anjum respondent nor any-one-else had challenged the said order dated 4.5.1995 which had consequently attained finality. Tb" reasons which had weighed with the learned trial Judge in dismissing •: said order dated 4.5.1995 which had consequently attained finality Tue reasons which had weighed with the learned trial Judge in dismissing tinsaid contempt application were not open to any exception. 11. Making of false statements before the Courts of law is a rather serious matter which veiy strongly interferes with and obstructs with the administration of justice. This menace is attaining alarming dimension and unless this trend and practice was discouraged and dealt with an iron hand, the exercise of administration of justice was liable to be reduced to a mere farce. The provisions of Sections 476 and 476-A of the Cr.P.C. or other similar and relevant provisions have been put in Statute books not merely for decorative purpose but with a definite object to ensxire that the stream of justice does not become preganant with impurities. It should only be rather strong and compelling reasons which could persuade the learned Courts of law not to proceed against witnesses and persons who urge themselves before Courts of law. 12. Reverting to the facts of the presc;' 1 ; case, as has been noticed above, three respondents herein were found to have made statements on Oath before a Court of lav.' which had been found to be false and incorrect. No reason thus existed and none has been shown to exist even before me which could be considered sufficient to spare them of their liability to be prosecuted for having conducted themselves in the above-noticed manner. 13. Consequently, this petition is allowed. The impugned judgments orders dated 20.12.1995 passed by a learned Additional Sessions Judge at Lahore and dated 21.5.1995 passed by a learned Civil Judge 1st Class at Lahore are set-aside and the learned trial Judge is directed to proceed with the matter in terms of Section 476 or Section 476-A or Section 195 of the Code of Criminal Procedure. (B.T.) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 954 Present: ghulam mehmood qureshi, J. GHULAM RASOOL and 2 others-Petitioners versus STATE-Respondent Crl. Misc. No. 1344/B of 1997, dismissed on 17.10.1997. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Bail-Grant of prayer for-Offence U/S. 302, 324, 337-A(ii), 337-A (iv), 337-F(i)/III, 148 & 149 PPC-Petitioners have been named in F.I.R. which was promptly lodged and they alongwith co-accused form unlawful assembly and which sharing their common intention committed murder 'M' and also injured PWs on vital part of body-Complainant having been declared aggressors, but still petitioners have not been declared innocent by police-They have participated after making full preparation and their presence has also not been denied at the time of occurrence—It is considered view that opinion recorded by police is not binding upon court, but same has got only persuasive value-Petition dismissed. [P. 956] A, B, C & D Mian Bashir Ahmad Bhatti, Advocate for Petitioners. Nana Muhammad Arif, Addl. A.G. with Mr. Qamar-ul-Hassan Theem, Advocate for State. Date of hearing: 17.10.1997. order F.I.R. No. 91/96 dated 7.6.1996 was got registered by one Ghulam Farid son of Shah Muhammad against the accused person named in the F.I.R. including the petitioners u/Ss. 302/324/337-A(ii)/337-A(iv) 337-F(i)/III/148, 149 PPC at Police Station Malkahans, Pakpattan Sharif. The allegation against the petitioners is that the petitioners alongwith co-accused while forming unlawful assembly and in furtherance of their common object made murderous assault on the complainant party and causing murder of one Muhammad Sharif by the fire arm of Muhammad Ali co-accused and the present petitioners caused number of injuries to Manzoor. Shahadat, ZaHoor and Ameer respectively. 3. Learned counsel for the petitioner contends that the petitioners were falsely involved in this case. Qasim and Ghulam Farid received injuries on vital part of the body specially the injuries received by Ghulam Farid petitioner were on the head and were declared grievous and dangerous to life. It is further contended that Qasim Ali also received two injuries on his head in all the eleven injuries were sustained by the accused parties while complainant party suffered 10 injuries; fire arm injuries sustained by Muhammad Sharif is attributed to Muhammad Ali while second fire attributed to Shah Behram. It is further contended that in successive investigation carried out by different police officers the complainant party have been declared aggressors. Learned counsel contends that in the above circumstances the case of the petitioners is of further inquiry and the petitioners are entitled to the bail. In the light of the investigations conducted by different police agencies wherein the complainant party had been declared aggressors the petitioners are entitled to this benefit at the bail stage. Learned counsel further submits that the injuries attributed to the petitioners do not fall within the prohibitory clause and all simple in nature. The learned Additional Advocate General assisted by the learned counsel for the State has opposed this petition and submits that the occurrence took place on 7.6.96 at 8.30 a.m. while the FIR was promptly lodged on the same day at 10.40 a.m. and all the petitioners having been namer! in the FIR. Their presence at the spot has also not been denied. The learned Addl. Advocate General further submits that FIR also shows that the petitioner/accused party participated in the occurrence after making full preparation and every accused has been attributed with a specific role. Finally the Additional Advocate General submits that the trial has already been commenced and the charge has been framed. At this stage the petitioners are not entitled to the concession of bail. I have heard the arguments advanced by the learned counsel for the petitioner as well as on behalf of the State and have also perused the record of the case. The petitioners have been named in the FIR which was promptly lodged and they alongwith co-accused framed an unlawful assembly and while sharing their common object committed the murder of Muhammad Sharif and also injured PWs Manzoor, Shahadat, Zahoor and Amir and that too on the vital part of the body. The injuries sustained by the petitioners stands explained in the FIR. It is also to be noted, as contended by the learned counsel for the petitioner, in different investigation conducted by the police, the complainant having been dec^^'d aggressors but still the petitioners have not been declared innocent by the police. They have participated after making full preparation and their presence has also not B been denied at the time of the occurrence. The authorities relied upon by the learned counsel for the petitioners are distinguishable in as much as the dictum laid down in the above said rulings, is to the effect that accused were declared innocent by the police and were placed in column No. 3. It is the considered view that the opinion recorded by the police is not binding upon the Court but the same has got only persuasive value. In the light of the above discussion this petition has got no merit and the same is dismissed. However as submitted by the learned Additional Advocate General the trial has already been commenced and the charged has been framed. The trial court; is directed to complete the trial expeditiously preferably within three months. (KKF) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 956 Present: raja muhammad khurshid, J. MUNTAZIR-Petitioner versus STATE-Respondeat Criminal Misc. No. 722-B/1997 & Crl. Misc. No 791-CB/97, accepted on 14.1.1998 and Crl. Misc. No. 7C1-CB/D7, dismissed Criminal Procedure Code, 1898 (V of 1898) - —-S. 497--Bail--Grant of-Prayer for-offence u/S. 302/34 PPO U is clear that petitioner is attributed simple injuries to PW on non vital parts of his body-Likewise his co-accused had wielded lathi to cause two simple injuries to another PW on non vital parts of his body-It is also clear that none of two has been attributed any overt act towards deceased-Iii such situation, vicarious liability remains open for determination during trial- There is also cross version for which complaint has been lodged and complainant side has been summoned therein-In such situation and particularly because of role attributed to petitioner and co-accused, they had identical case to each other which of course needed further inquiry- Held : Impugned order granting bail to co-accused by lower Court, does not appear to be perverse or suffer from any legal or factual infirmity of any fundamental nature, so as to warrant interference by this Court- Held further : Case of petitioner is riot distinguishable from his coaccused-Bail petition allowed in circumstances. [Pp. 958 & 959] A & B Malik M. Nawaz Khan, Advocate tor Petition in Crl. Misc. No. 722- B/97. Kh. Muhammad Fawaz Ahmad. Advocate for Complainant and for Petitioner in Cn. Misc. No. 791-CB/97. Mr. Ami ad Raima Ghori. Advocate for State. Mr. Ayub Kiani. Advocate for State in Crl. Misc. No. 791-CB/97. Date of hearing; 14.1.1998. order This order will dispose of both the matters cited in the title as they arise out of the same FIR. 2. A case under Section 302/34 PPC was registered against Wahid Zar, Ghulah Zur •aid Muntazar for an occurrence, which took place on 23.5.1997 in which Wahid Khan had lost his life and Arif Khan and Tahir Shah PWs had sustained injuries. According to the FIR No. 165 dated 23.5.1997 registered at. Police Station, Pir Widhai, Rawalpindi Wahid Zar while armed with a pistol had fired at the deceased, which proved fatal. The petitioner Muntazar while armed with a churn caused simple injuries with his weapon of offence to Arif Khan on his right thumb and left palm of his hand. One of his co-accused Gulab Zar while armed with a lathi i-.ad c;.;.;:-;ed a simple injury each to Tahir Shah PW on his nose and thumb. Crl. Misc. No. 7±i-IV97 :'o : ; M r distinguishable innn ins co-uci. ii.-v.-- 3, The aforesaid Gulab Zar was admitted to post: arrest bail by Mr. Muhammad Mujahfd Kussain, learned Additional Sessions Judge vide, his order dated 25.6.1997 Thar order is assailed in the petition for cancellation moved by Khan Waiz complainant. vide Crl. Misc. No. 791-CB/97 with the prayer that the bail granted to Gulab Zar be cancelled, as he was vicariously liable with the principal accused namely Wahid Zar. Likewise Muntazar applied for bail to the aforesaid court which was dismissed by the same learned Additional Sessions Judge vide order dated 25.7.1997. He has filed n the ground thai his case was not. aiiab Zar who lias nueu udmm/ju to bail by the learned Additional Sessions Judge and as such on the principle of consistency he was entitled to bail; that the injuries attributed to him have allegedly been caused to one of the PWs on non vital parts of his body; that there is cross version for which a complaint has already been instituted in which complainant side has been summoned. As such it is prayed that the petitioner is entitled to bail in view of the principle laid down in Samual Masih us. The State reported as 1989 P.Cr.L.J. 693 ( Lahore ) and Sajwara and another vs. The State reported as 1989 PCr.LJ 2387 Lahore . Likewise it is contended that bail granted to Gulab Zar is not liable to be cancelled because he has also been attributed simple injury to a PW without being attributed any overt act towards the deceased; that the case having two versions require further inquiiy; that Gulab Zar after earning bail has not misused the same. Reliance was placed on Muhammad Sharif vs. The State reported as PLJ 1980 Cr.C. (Lahore) 172 and Muhammad Hussain vs. The State reported as 1992 PCr.LJ 2139 (Lahore). 4. The learned counsel for the complainant (Kh. Muhammad Fayyaz Ahmad, Advocate) has contended that the petitioner as well as his co-accused Gulab Zar are vicariously liable with the principal accused Wahid Zar as all of them had a common motive and had come to the spot duly armed. In such a situation, they had allegedly no case for bail. The mere fact that they had caused simple injuries to PWs would be irrelevant at this stage. Reliance was placed on Muhammad Ismail vs. Patten Malak and others reported as 1979 SCMR 91 and Ghularn Nabi vs. The State reported as 1996 SCMR 1023. 5. I have taken into consideration the arguments addressed at the Bar and the case-law relied upon by the learned counsel for the parties. It is clear that petitioner Muntazar is attributed simple injuries to a PW on the non vital parts of his body. Likewise his co-accused Gulab Zar had wielded a lathi to cause two simple injuries to another PW namely Tahir Shah on the non vital parts of his body. It is also clear that none of the two has been attributed any overt act towards the deceased. In such a situation, their vicarious liability remains open for determination during the trial. There is also a cross version for which a complaint has een lodged and the omplainant side has been summoned therein. In such a situation and particularly because of the role attributed to Muntazar and Gulab ar, they had an identical case to each other which of course needed further inquiiy. The impugned order granting bail to Gulab Zar by the learned lower court does not appear to be perverse or suffer from any legal or factual infirmity of any fundamental nature, so as to warrant interference by this court. Like­ wise the case of Muntazar petitioner is not distinguishable from his coaccused. 6. In view of what has been stated above, the petition for cancellation of bail (Crl. Misc. No. 791-CB/97) is dismissed. 7. The bail petition (Crl. Misc. No. 722-B/97) is allowed and the petitioner Muntazar is admitted to bail in the sum of Rs. 50,000/- with one surety- in the like amount to the satisfaction of the learned trial court. (T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 959 Present: DR. MuNIR AHMAD MUGHAL, J. ASAD ALI-Petitiouer versus STATE-Respondent Criminal Misc. No. 2062/B-97, accepted on 14.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Offence u/S. 12 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with S. 377 P.P.C.- Sodomy-Held: Tentative assessment of material available on record is that coming of report of Chemical Examiner of a victim examined after 10 days having semen makes case of further inquiry-Petitioner granted bail. [P. 960] A Syed Murtaza Ali Zaidi, Advocate for Petitioner. Mr. Ibrahim Farooq, Advocate for State. Date of hearing: 14.1.1998. order The petitioner is involved in a case under section 12 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with section 377 PPC registered vide FIR No. 167 of 1997 dated 31.8.1997 with Police Station Shahkot, Tehsil Chichawatni District Sahiwal. 2. According to FIR, on 21.8.1997 at about 3 PM while Yasir Zeb, the son of the complainant, was going back to his home Asad Ali, the petitioner, invited him into his Behtak, bolted the door and thereafter committed sodomy with Yasir Zeb and on hue and cry, the PWs Tariq Raza and Muhammad Shafique were attracted but the accused ran away. The matter was reported to the police after 10 days and that the victim was also medically examined after 10 days. 3. Bail is pressed on the grounds that the petitioner has been falsely involved in the case due to previous enmity and even earlier a false case vide FIR No. 26 of 1992 dated 25.2.1992 under sections 337/A, 337/B, 337/F and 34 PC was registered on the statement of Muhammad Shafi who is also a witness in the present FIR and that another FIR No. 196 of 1997 dated 5.9.1997 under sections 382 and 337/H-III PPC has been registered against Asad AM and his brother which was found false and that the delay of 10 days in lodging the FIR and medical examination of the victim has not been explained. In the alternative, it has also been argued that there is no allegation of abduction and the voluntarily accompanying of the victim with the accused brings the case under section 377 PPC which offence is not covered by the prohibitory clause of section 497 Cr.P.C. It is also submitted that the petitioner is behind the bar since 15.10.1997, the investigation is complete and the object is merely to harass, humiliate and disrepute the petitioner and his family. 4. The petition is opposed on the grounds that the petitioner is named in the FIR with specific role and that the medico legal report is positive , 5. I have heard the arguments of learned counsel on both the sides and have gone through the police file. The tentative assessment of the material available on the record is that coming of the report of the Chemical Examiner of a victim examined after 10 days having the semen makes the case that, of a further inquny. In this circumstance, the petitioner is granted bail subject to his furnishing bail bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial Court. (T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 960 Present: FALAK SHER, J. MUHAMMAD HUSSAIN alias KALI-Petitioner versus STATE-Respondent Crl . Misc. No. 754/B/1998, allowed on 3.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail in Murder case-Further enquiry-No overt act except ineffective rifle firing was ascribed to petitioner whereas no recovery of any crime empty of a rifle from place of occurrence-Co-accused with identical role having been opined to be innocent during investigation lias been placed in column No. 2 which renders prosecution case doubtful-- Petitioner in judicial lock up for 1% years-Sufficient grounds for further enquiry-Bail granted. [P- 961j A & C Mr. M. Yaseen Farrukh Kamboh , Advocate for Petitioner. Ch. Muhammad Ilyas Jhammat , Advocate for State. Date of hearing: 3.3.1998. order Petitioner having been arrested in the case registered vide PlR No. 472 of 8.8.1996 under sections 302/148/149 PPC at police station Phool Nagar District Kasur alleging storming of the within mentioned automobile around 7.00 A.M. while discharging the passengers at bus across Elahi Textile Mills by the petitioner equipped with rifle eonjiindi - ; v with his accomplices Karamat (rifle), Muhammad Ashraf fguui , (rifle), Manzoor Ahmed (gun) and Ghulam Hussain alias Ghani «:;}> bisK -K the petitioner playing the pioneering role alongwith Karamat resonari r.o ariel firing whose remaining accomplices caused injuries wi?b J :hv;r respective weapons on the complainant's brother Salabat alias r ; ;r :,,-:s various parts of the anatomy to which he succumbed on the spot pursuani ifavenging multitudenal litigation they were entangled in and were enr <TU'. the Court concerning the same, has sought bail. 2. Contending that no overt act save for the alleged ineffecriv firing has been ascribed to the petitioner; factum whereof stands the admitted non-recovery of any crime empty of a rifle; co-accused with the identical role having been opined to be innocent, u investigation has been placed in column No. 2 of the cliallai \ vh : e prosecution case doubtful against the petitioner as well on \ vai - he has already suffered 1% years' internment trial whereof till commenced. 3. Which has been opposed by the learned counsel appear ehalf of the State without dislodging the contentions urged on in imparted by the police official in atrendaiice with the record, pnr constituting sufficient grounriH for Suit her enquiring into Mul-a^I Hussain alias Kali petitioner's hiv^i^,'mc'if in the offence chaigi allowed bail upon furnishing bone; :•• u-.r

u:u of Rs . 50.000 - sureties each in the like amount to the- satisfaction of the trial Court. (MYFK) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 962 [ Rawalpindi Bench] Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD BANARAS etc.-Petitioners versus STATE-Respondent Crl. Misc. No. 742/B/1997, accepted on 11.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail after arrest-Offence U/S 11 and 16, Offence of Zina (Enforcement of Hudood) Ordinance 1979 read with S. 364 PPC-Bail u/S. 11 and 16 of Ord. 1979-Adding of S. 364 PPC-Re-arrest-Second Bail granted-Cancellation there after on application of complainant-- Another bail application on statutorygrounds-Police functionaries have tailed to submit complete challan and also miserably failed to effect ecovery of abductee since 25.8.1992-It is not even nown whether she is alive or dead—Petitioners who are in jail since 19.6.1995, should not suffer for this lethargy of police functionaries-Law provides that if trial is not concluded within stipulated period of one year in such like offences, offender should be released on bail, if delay is not attributed to him- Delay is purely on prosecuting agency-Bail allowed. [P. 964] A Mr. Muhammad Ayub Chaudhry, Advocate for Petitioners. Syed Zahoor Ahmed, Advocate for Complainant. Syed Nayyar Hussain, Advocate for State. Date of hearing: 11.2.1998. order A case under Sections 11 and 16, offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 364 PPC was registered vide IR No. 124/92 at Police Station, City Chakwal for an occurrence, which took place at about 12.00 Noon in the day on 30.7.1992 in which Mst. Tashfeen Iqbal aged about 15% years was abducted by the present petitioners and their mother Mst. Kurshaid Begum (Khurshid Begum) and one Maqbool Hussain, who has since died. It was alleged in the report that the petitioners were interested in getting the hand of Mst. Tashfeen and on he refusal of her parents, they found an opportunity to abduct her while she was alone in the house on the aforesaid date. 2. The petitioners were arrested in this case on 28/8/1992 but were admitted 1 j bail in the offence under Section 10/11/16 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by the learned Additional Sessions Judge, Chakwal. Since offence under Section 364 PPC was also a-dded, t.b -efore, out of them Banaras was re-arrested on 8.1.1995 whereas Taj Manammad was re-arrested on 12.1.1995 under the aforesaid offence. . They moved for bail again before the learned Sessions Judge, Chakwal and were admitted to bail on 24.1.1995. Feeling aggrieved the complainant side moved a petition for cancellation of post arrest bail of the petitioners in this court. Their bails were cancelled by this court vide order dated 19.6.1995. In pursuance of this order, the petitioners were again arrested and committed to judicial lock up. Since then, they are in jail but the trial has not concluded as yet. 3. The learned counsel for the petitioners has submitted that despite many inquiries conducted at the level of high police officials, the abductee has not yet been recovered. The incomplete challan alongwith report under Section 173 Cr.P.C. was sent to the court for trial, but due to the non recovery of the abductee complete report could not be placed before the court. The matter once again came up before this court in Crl. Misc. No. 389- B/96 in which my learned brother Muhammad Aqil Mirza, J. (as he then was) made an order in the following terms: on 20.8.1996:- "Today the learned counsel for the petitioner, the complainant and the learned Assistant Advocate General jointly request that after the submission of the complete challan, the trial may be allowed to proceed with a further direction to expeditiously conclude the trial. This request is allowed and it is directed that the D.S.P., shall conclude the investigation within the next 15 days and forward the complete challan within the next three weeks. The learned trial court shall conclude the trial within three months of the submission of the challan before him, even if day-to-day proceedings have to be held." The aforesaid bail petition was not pressed in the light of the above quoted order and the same was dismissed as withdrawn. 4. Since the abductee has not been recovered till today, and the trial has also not been concluded, therefore, the present petition was instituted with the prayer for bail on the ground that the petitioners were languishing in jail since 19.6.1995 and as such they are entitled to bail on statutory ground apart from the merits of the case. 5. In the light of the contentions raised in this petition, a report was called from the learned trial court vide order dated 17.9.1997 as the trial had not concluded within three months in accordance with order passed by this court on 20.8.1996. The learned trial Judge has submitted a detailed report dated 24.9.1997 in which he has submitted that trial was to start after the submission of complete challan within 15 days, but since the challan was not submitted by the police, therefore, the trial could not commence. The learned Judge also narrated a tell tale story of the facts in paragraph No. 3 of the report whereby he had made atleast three references seeking guidance from this court whether the trial should proceed in the absence of submission of complete challan by the police for which the concerned authorities were also repeatedly asked to complete the challan, but they failed to do. However, the references made hy the learned trial Judge to this court through the Additional Registrar(J) as mentioned in paragraph No. 3 of his retiort were perhaps never brought to the notice of the court. It will be worth whiit o get a report, from the Additional Registrar'J) as to how these references sent by the learned trial Judge were dealt with by the police. That report be placed on record by 7.2.1998. 8. The position is still the same as the police has failed to submit the complete challan before the learned trial court and the trial has not yet commenced on that account. However, a supplementary challan was submitted to the court on 8.9.1997 on the basis of same facts and the evidence, which were mentioned in the incomplete report submitted earlier under Section 173 Cr.P.C. That supplementary challan was also submitted without the recovery of the abductee whose where-abouts are not still known. 7. In the light of the above facts, the learned trial court is directed to now proceed with the trial on the basis of supplementary challan submitted before it by the police on 8.9,1997, and conclude the same in accordance with law. However, that would not debar the petitioners to seek their remedy which the law has provided them if they remain in continuous detention for over two years, without any fault on their end. In this case it is the police functionaries, \vho have failed to submit the complete challan and also miserably failed to effect recovery of the abductee since after registration of the case on 25.8.1992. It is now almost 5% years, hut no concrete or effective steps have been taken to find out the where-abouts of the abductee nor it is known whether she is alive or dead. For this lethargy of the police functionaries, the petitioners should not suffer particularly when the law a provides that if the trial is not concluded within the stipulated period of one year in such like offences, the offender should he released on bail if the delay is not attributed to him. In the instant case, the delay is purely on the prosecuting agency for which the petitioners should not be denied bail. '\ceorcli :\giy 1 allow this petition and admit the petitioners to bail in the sum of Rd. uO,000/- each with two sureties each in the like amount to the satisfaction of the learned trial court. Before I part with the order, it will be fair to examine the conduct. of the police in this case. A detailed order was made by this court on 9 10 1997 with the following direction.- "The Investigation Officer and DSP, f'hakwai ti> appear alongwith the entire police record to show as So why the abductee has not so far been recovered and what efforts have been made since after 20.8.1996. when an order to that, effect was made by this couit in Cri. Misc. No. 389-B/96 that, the complete challan he submitted to the court so that its trial he completed within three months of the submission of the challan," Today the S.I. present in court has informed that investigation in this case was even conducted by the DSP, CIA and DSP, Range Crime, Rawalpindi (Muhammad Younas). However, none of them has appeared so far in this court in compliance of order referred to above i.e. order dated 9.10.1997. 9. While taking into account the foregoing facts, I have gained an impression that the police has prima feme not been able to perform its functions in accordance with law to deal with this case at the stage of investigation. The life of a citizen is involved who being a young girl of 15% years having been abducted allegedly on 30.7.1992 has not been recovered, nor her whereabout are known as to whether she is alive or dead. In such a situation, I would like to direct that the DIG, Rawalpindi Range shall summon the police record relating to this case and shall also obtain briefing from all the Investigating Officers, who have been dealing with this case and after getting himself prepared fully with the facts of the case and the efforts made during investigation to r-x:o,\;r the abductee, will prepare a report and produce the same in this court v-'hiie appearing in person on 25.2.1998. (MYFK) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 965 [ Multan Bench] mansoor alamgir qazi, J. ASHRAF and another—Petitioners versus STATE-Respondent Crl. Misc. No. 213-B/1998, dismissed on 19,2.1998 Criminal Procedure Code, 1898 (V of 1898)-- —-S. 498-Bail pre-arrest-Offence u/S. 337-A(ii)/34 PPC- Conduct ;jf petitioners by absenting themselves on date nf final hearing of their prearrest bail petition before lower Court, is highly disrespectful-By playing hide and seek with court of law, they have deliberately committed mockery of law and Court—This conduct cannot be encouraged—Even on merits of case, injuries are specifically attributed to petitioners and they have yet to join investigation-There are no reasonable grounds to confirm pre-arrest bail-Petition dismissed [P. ?6'5j A Mr. Muhammad Tariq Nasecin, Advocate for Petitioner.-.. Ch. Muhammad Arshad, Advocate for Complainant. Mr. A, v m>f, i r,'>/ Hue;, Advocate for State. Da re. iH^r:;:.::. '••'.2 1998. order Ashraf and Naseem alias Waseem petitioners have moved this petition in FIR No. 291 dated 17.11.97 registered under Sections 337- A(ii)/34 at police station Dunyapur District Lodhran seeking pre-arrest interim bail. They were allowed pre-arrest interim bail by this Court vide order dated 28.1.1998 and it has come up for final hearing today before this Court. 2. Briefly the facts narrated by Kaleem complainant are that on 16.11.97 at 5.00 P.M. he was returning to his house when he reached near Lucky Furniture House, Naseem alias Waseem petitioner, Pervaiz accused and Ashraf petitioner way laid him and on Lalkara raised by Naseem alias Waseem petitioner, Ashraf petitioner gave a hatchet blow on the middle of the head of the complainant. Ayub brother of the complainant who was employed at Lucky Furniture House came out and Naseem alias Waseem petitioner caught him in Japha while Pervaiz accused gave a hatchet blow on the head of Ayub. Naseem alias Waseem also gave him fist blows. On alarm raised by the complainant and Ayub PW Muhammad Saleem brother of the complainant and Dr. Saeed came to the spot and rescued the injured persons. 3. The occurrence was reported on 17.11.97 at 1.40 P.M. after obtaining medico-legal certificates No. 275 of 1997 and No. 276 of 1997 of Kaleem and Ayub respectively, wherein it is stated that Kaleem had four injuries on his person. While four injuries were on the person of Ayub. 4. On perusal of the order passed by the learned Sessions Judge, Lodhran dated 24.1.1998 it transpires that the petitioners applied for prearrest bail but they failed to appear in court which was dismissed for nonprosecution and that again on 28.1.98 when bail petition was fixed for final hearing the petitioners deliberately absented and refrained from appearing in court although they remained outside the court and were seen by the complainant. The conduct and the attitude of the petitioners is highly disrespectful. The petitioners by playing hide and seek with the court and law have deliberately committed mockery of law and the court. They have by such conduct deliberately misused the concession of bail granted to them. This conduct cannot be encouraged. Such undesirable behaviour has to be curbed and dealt with iron hand to uphold the dignity of the court and to prevent the abuse of the process of law. Coming to the merits of the case the injuries are specifically attributed to Ashraf petitioner while Naseem alias Waseem petitioner is attributed Japha and fist blows they have yet to join the investigation of this case and prima facie, there are no reasonable grounds at this stage to confirm the pre-arrest bail granted to the petitioners. The order dated 28.1.1998 is withdrawn. The sureties stand discharged. This pre-arrest bail petition of the petitioners is dismissed. (AAJS) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 967 Present: iftikhar hussain ch. J. HAQ NAWAZ etc.-Petitioners versus STATE-Respondent Crl . Misc. No. 4192-B/1996, allowed on 31.10.96. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 337 PPC and S. 12 of Zina (Enforcement of Hadood ) • Ordinance, 1979-Bail-Grant of--Prayer for--Minority--Ground of-- According to record accused N is less than 16 years of age and accused A is slightly over 16% years at age-Keeping in view the minority of petitioners, they are allowed bail. [P. 967] A Arshad Mehmood , Advocate for Petitioner. Shahzad Nasir , Advocate for Respondent. Amir Hussain , Advocate for State. Date of hearing: 31.10.1996. order Petitioners seek bail in case FIR No. 88/96 dated 10.4.1996 under section 377 P.P.C. read with Section 12 of the Offence of Zina (Enforcement of Hudood ) Ordinance, 1979, P S. Sadar Kamalia , District Toba Tek Singh. 2. According to the FIR, the petitioners alongwith two others namely Abid Hussain and Haqnawaz took away Rabnawaz , nephew of the complainant to a Dhari and subjected him to criminal assault. 3. The petitioners have applied for grant of bail to them. 4. Learned counsel for the petitioners submitted that according to the school leaving certificate date of birth of Haqnawaz was 3.1.1984 and that of Ahmad Yar was 15.6.1982 and Haqnawaz was still a student and case against them was false and they were declared innocent by the Investigating Agency as well. It was further submitted that the Chemical Examiner's Report did not advance the case of the prosecution and in this view of the matter, the case of the petitioners was that of further enquiry. Learned counsel for the State assisted by the learned counsel for the complainant opposed grant of bail to the petitioners on the ground that the age of Haqnawaz was 1554 years and that of Ahmad Yar 16% years at the time of occurrence, and they were sufficiently grown up and the material on record sufficiently connects them with the commission of offence. It was further submitted that the petitioners were declared innocent on the sale ground that the offence was committed with consent of the victim whereas the consent was immaterial in the case under section 377 P.P.C. 5. According to record, Haqnawaz is less than 16 years of age and Ahmad Yar is slightly over 16% years of age. Keeping in view the minority of the petitioners, they are allowed bail in the sum of Rs . 50,000/- (Fifty thousand) with one surety each in the like amount to the satisfaction of trial Court. (K.A.B.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 971 [ Multan Bench] Present: ahmad nawaz malik, J. MUHAMMAD SALEEM-Petitioner Versus STATE-Respondent Crl. Misc. No. 1592-B-1997, accepted on 21.10.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 302/34 PPC--Bail--Grant of-Prayer for-Three versions put forth by prosecution about same case-Further inquiry-Case of-Complainant had also lodged a private complaint under section 302 PPC against petitioner and three others alleging that deceased was seen to have been murdered by accused mentioned therein-In view of these circumstances there are three versions put forth by prosecution with respect to its case, and thus it is a case of further enquiry, as to what extent petitioner is responsible for murder of deceased-Bail granted. [P. 972]A Ch. Muhammad Siddique Safdar, Advocate for Petitioner. Abdul Qayyum Bhatti, Advocate for State. Date of hearing: 21.10.97. order Muhammad Saleem petitioner has moved this application for bail after arrest in case FIR No. 88/96 registered on 14.3.1996 under section 302/34 PPC at Police Station Arifwala District Pakpattan. 2. The prosecution case is that on 14.2.1996 in the night at about 3.15 a.m. made statement to the effect that at about 8.00 p.m. on 13.2.1996 Muhammad Saleem petitioner called out Yaqoob from his house in Chak No. 155/E.B. where both reside at the same dcra, telling him that they were to go to Chak No. 143-E.B. for some job. He was also accompanied by three unknown persons. His brother (Yaqoob deceased) told him that he was not feeling well and could not accompany him. Insisted upon by Muhammad Saleem petitioner, the deceased accompanied him towards Chak No. 143/E.B. Subsequently, Rana Falak Sher son of Botay Khan came to him at 2.00 a.m. and intimated that the brother had been fired at and his deadbody had been taken to Arifwala. He intimated his brother Nosher, Shaukat Ali and his nephew Liaqat Ali. All of them accompanied him there. After registration of the cases during the investigation it was revealed through extra judicial confession that Muhammad Saleem had murdered Yaqoob deceased as the latter had abused him at :,orne occasion. The extra judicial confession by the petitioner had been made before Falak Sher and Rana Tasawar and Ali and Jilal Din. Falak Sher was also subsequently made an accused. During the investigation the deadbody of the deceased was recovered from the canal. 3. I have heard the learned counsel for the parties and perused the record. 4. Dissatisfied with the result of the investigation, the complainant has also lodged a private complaint under section 302 PPC against Muhammad Saleem and three others alleging that the deceased was seen to have been murdered by the accused mentioned therein. In view of the above circumstances, there are three versions put forth by the prosecution with respect to its case, and thus it is a case of further enquiiy as to what extent the petitioner is responsible for murder of Yaqoob deceased. In this behalf reliance is placed on Muhammad Ashraf vs. The State (1981 Law Notes Lahore 792). Further, the evidence collected by the prosecution is that of extra judicial confession and the last seen evidence, both of which are weak ones. The culprits against whom proseciitioii could procure the evidence of the nature as mentioned above, were held entitled to the grant of bail in view of Mst. Naziran vs. The State (1990 P.Cr.L.J. 1630). The accused was arrested soon after the registration of the case and since then he is in judicial lock up. For the reasons the petitioner is held entitled to bail. 5. Resultantly, the bail application is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. the 'ike amount, to satisfaction of 1,00.000/- with one surety in A.C./Duty Magistrate, Arifwala. (K.A.B.) Bail granted-

PLJ 1998 Cr PLJ 1998 Cr.C . ( Peshawar ) 973 Present: MALIK HAMID SAEED, J. MUHAMMAD AFZAL-Petitioner versus STATE-Respondent Cr. Misc. No. 1082 of 1997, accepted on 26.12.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence u/S. 3/4 Prohibition (Enforcement of Hadd ) Order, 1979 read with S. 9 of Control of Narcotics Substance Ordinance, 1997- Charas -Recovery of~Bail~Grant of--Prayer for~No public witness was associated-Effect of--Admittedly recovery of charas was effected from inside flying coach which was carrying other passengers beside driver and conductor of vehicle b\it even then non amongst passengers or driver, conductor have been made a witness to recovery—No doubt a police official is as good a witness as any one from public but when accused is charged with an offence which involves capital punishment, it is incumbent upon police to associate public witnesses during investigation of a criminal case-Despite availability of public witnesses on spot, they were ignored and not made witnesses to recovery so effected—Bail granted. [P. 974] A Munsif Khan, Advocate for Petitioner. Fazal-ur-Rehnmn Khan, A.A.G. and Munecr Khan (Special Prosecutor) for State. Date of hearing: 26.12.97. judgment Petitioner was arrested under sections 3/4, Prohibition (Enforcement of Hadd ) Order, 1979 read with section 9 of Control of Narcotics Substance Ordinance, 1997 in a case registered vide F.I.R. No. 398 dated 18.8.1997 at Police Station City Kohat , 2. Brief facts of the case are tiiat Muhammad Ayub Khan SHO, Police Station City Kohat alongwith Police Party was busy in checking of the vehicles ar , Shah Pur checkpost when a flying coach arrived from Peshawar side whicli was stopped and during checking the present, accused-petitioner was apprehended having a plastic bag in his possession. On search of the bag, charaa weighing 1750 grams was recovered, out of which. 4 grams was separated to get the Expert's opinion and rest of the charas and sample taken were sealed into parcels on the spot. Recovery memo was also prepared at the spot which was signed by Habibullah 793 LHC and Naseenuldin 254 Police Constable. The present accused-petitioner was arrested and the above said cose was registered against him. 3. Lejirne ;' cor use] for th ° petitior"v vehemently argued that the plastic bag containing charas wr no taken into possession from the possession of the petitioner, as it is stateu in the F.I.R. which is as under: - and contended that word " Cx v." ^ oes not mean personal possession rather it denotes "by side". He further contended that recovery of the charas was effected from inside the flying coach but no one amongst the passengers of the vehicle was made a witness to the recovery. The learned counsel further contended that provisions of Narcotics Control Substance Ordinance, 1997 have been wrongly levelled in the case as the said Ordinance can't substitute the Prohibition (Enforcement of Hadd

Order, 1979 which is yet a valid law and is applicable in its full force throughout the countiy . 4. The learned Special Prosecatoi and Additional Advocate General appearing on behalf of the State refuted the arguments of the learned counsel for the petitioner and submitted that petitioner is not entitled to the concession of bail as sufficient quantity of charas has been recovered from his possession and the sentence provided for the offence falls under the prohibitory clause of section 497(2), Cr.P.C . 5. I have heard the learned counsel for the parties at length and have also perused the record with their nble assistance. 6. Admittedly the recovery of charas was effected from inside the flying coaJi which was carrying ^ e other passengers beside the driver and conductor of the vehicle but even then none amongst the passengers or driver, conductor have been made a witness to the recovery. No doubt a police official is as good a witness as any one from public but when an accused is charged with an offence which involves the capital punishment, it is incumbent upon the police to associate public witnesses during the investigation of a criminal case. In the present case despite the availability of the public witnesses on the spot, they wero ignored and not made witnesses to the recovery so effected. 7. The petitioner i :; charged under the Prohibition Order and also under the Control of Narcotics Substance Ordinance, 1997. The two statutes lmost deal with the same subject and are enacted for the same puipose and object. The Prohibition (Enforcement of Hadd ) Order, 1979 is veiy much in field with all its force and has not been repealed. Similarly the Control of Narcotics Substance Ordinance, 1997 is also available in the field as a valid law. Both the said statutes are running parallel to each other and one can't ubstitute the other. The quantum cf prescribed punishments in both the statutes under section 3/4 of Prohibition (Enforcement of Hadd ) Order and Control of Narcotics Substance Ci'dir.ance , 1997 are different and thus it is to be seen that which one of the two will prevail, as in the present case, the accused is charged under two different statutes, having different punishments. Therefore the well established general rule would apply that the statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail ., 8. For all the said reasons, this application is accepted. The petitioner shall be released as per short order on bail, on furnishing bail bond in the sum of Rs . 50,000/- (Rupees Fifty Thousand) with two sureties each in the like amount to the satisfaction of the trial court. The trial court shall see to it that sureties are local and men of means. (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 975 Present: muhammad nawaz abbasi, J. SHAFAQAT ALI--Petitioner versus STATE-Respondent Criminal Misc. No. 830-B-1997, accepted on 8.9.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Bail--Grant of--Prayer for—Bail during trial-Sought on ground of expiiy of statutory period-Petitioner is behind bars continuously for last 2 years and 10 months and trial is still at stage of evidence and there being no expectation of early conclusion of trial, petitioner is entitled to be extended benefit of statutory right of grant of bail-Held: There was unjustified delay in conclusion of trial without any contribution of petitioner and bail on statutory ground cannot be refused-Bail allowed. [P. 976] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Nemo for State. Date of hearing: 8.9.1997. order The petitioner is facing trial for the murder charge before the learned Sessions Judge, Sahiwal, in a case under section 302/34 PPG registered against him through FIR No. 277/94 dated 10.7.1994 at P.S. Saddar Sahiwal for the allegation of committing the murder of one Muhammad Akram. The charge having framed about 10 months earlier the prosecution evidence has not yet been recorded in toto and case is now fixed for 29.9.1997 for the remaining evidence. 2. The petitioner has been refused statutory benefit for the grant of bail on the ground that he was involved in three other criminal cases relating to FIR No. 247/94, 220/94 and 223/94 under sections 324/34 and 337 PPC respectively. 3. Learned counsel for the petitioner contended that one case was compromised and in remaining two cases, the petitioner has been acquitted under ection 249-A, Cr.P.C. and that presently except the present case no other case is pending either in the investigation or before any court against the petitioner. He placing on record a copy of the order sheet of the trial | court contended that only on two occasions the defence counsel sought adjournments whereas on the remaining 16 dates the case could not proceed either because of non-availability of the witnesses or the presiding officer and, therefore, the delay is not attributable to the petitioner. He with reference to Zahid Hussain v. State (P.L.D. 1995 Supreme Court 49) contended that the statutory right of the petitioner for the grant of bail under clause (b) of third proviso of sub-section (1) of section 497 Cr.P.C. cannot be withheld in ordinary circumstances. 4. No one appeared on behalf of the State to oppose this petition. 5. Having considered the unjustified delay in the conclusion of the trial without any contribution of the petitioner and the reasons on the basis of which he has been refused the statutory right of grant of bail by the learned Sessions Judge, the contention of the learned counsel that the grant of bail on statutory ground cannot be refused is not refutable. The petitioner is behind the bars continuously for the last 2 years and 10 months and the trial is still at the stage of evidence and there being no expectation of early conclusion of the trial, the petitioner is entitled to be extended the benefit of the statutory right of grant of bail. The petitioner is allowed bail subject to his furnishing bail bond in the sum of Rs. One Lac with two sureties in the like amount each to the satisfaction of the trial Court. (T.A.F.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 976 Present: MUHAMMAD ASIF JAN, J. LIAQAT ALI-Petitioner versus STATE -Respondent Cr. Misc. No. 4931-B/1996, accepted on 20.1.97. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 302/34 PPC-Bail-Grant of-Prayer for- From . material collected by prosecution against petitioner reasonable grounds to believe that petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not seem to exist within aning of S, 497H I Cr P.C.-However, there may be grounds for further inquiry within meaning of 3. 497(2 ) Cr.P.C . which entitles etitioner to grant of bail-Bail granted. [P. 978j A Ch. Arshad Mehmnod, Advocate for Petitioner. BadarMunir, Advocate for State. Date of hearing: 20.1.97. order Liaqat Ali alias Pappu petitioner, aged about 21 years was arrested on the 4th of April 1996, in pursuance of a case registered vide FIR No, 56/96, dated the 18th of March 1996, under Sections 302/34 PPC at Police Station Raja Jang of District Kasur, regarding an occurrence which allegedly took place much earlier on the night between the 25th and 26th of January 1996 in the house of Mst. Ramzan Bibi deceased in the area of village Raja Jang, which is about 3 furlongs from Police Station, Raja Jang of istrict Kasur, where, the FIR was lodged on the 18th of March 1996 by Mst. Mukhtar Akhar, daughter of Mst. Ramzan Bibi. deceased . 2. According to the complainant, she found her mother dead on the night between the 25th and 26 of January 1996 with marks of iolence around her neck. Co-accused Shaheen Kausar, a sister in law of the complainant disclosed after considerable time that actually Liaqat Ali petitioner had an illicit liaison with her and had to meet her on the night of the 25th of January 1996 when he was seen by Mst. Ramzan Bibi deceased and is order to hush up the affair, Liaqat Ali petitioner caused the death of Mst. Ramzan Bibi by strangulating her. 3. There seems to be no direct evidence available regarding the death of Mst. Ramzan Bibi deceased. The only evidence available against Liaqat Ali petitioner is an extra judicial confession, the evidentiary value of which will be determined by the trial Court, 4. The Bacteriologist of the Government of the Punjab was unable to express any definite opinion regarding the cause of death. The doctor, who performed the postmortem examination on the dead body of Mst. 'Ramzan Bibi on exhummation was also not in a position to give any definite opinion and concluded by observing that most probably he death may have occurred on account of 'Asphyxia'. 5. Be that as it may, from the material collected by the prosecution against the petitioner reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not. seem to exist within the meaning of Sub of Section 497 Cr T>.C. However, tJu>iv may he jrrosimls fur further inquiry within the meaning of Sub-Section (2) of Section 497 Cr.P.C. which entitles the petitioner to the grant of bail. Resultantly, Liaqat Ali petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 50.000/- with two sureties each in the like amount to the satisfaction of the trial Court. (K.A.B.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 978 Present: raja muhammad khurshid. J. MUHAMMAD MANSOOR-Petitioner versus STATE-Respondent Criminal Misc. No. 623/B-1997 in Crl. Appeal No. 81 of 1997, dismissed on 11.2.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 426-Pakistan Penal Code (XLV of 1860), S. 337-F(iv)-Suspension of sentence-Section 426(1-A) (b) Cr.P.C. provides that if person is convicted to imprisonment for period extending three years, but not exceeding seven years and whose appeal has not been decided within period of one year of his conviction, he shall be entitled to bail-Aforesaid period has not yet passed-Deeper appreciation of merits of appeal cannot be undertaken at this stage-Held : Case for suspension of sentence or bail is not made out-Petition dismissed [P. 979] A Malik Rab Nawaz Noor, Advocate for Petitioner. Qazi Ahmad Naeem Qureshi, Advocate for State Assisted by Mr. Z. Muhammad Bahar Awan, Advocate for Complainant. Date of hearing: 11.12.1997. order The petitioner/appellant namely Muhammad Mansoor has moved this petition under Section 426 Cr.P.C. for the suspension of sentence and grant of bail to him while challenging his conviction under Section 337- F( iv) PPC for causing fire arm injury to one Saib Khan PW in this case. Upon conviction, he was sentenced to five years R.I with the benefit of Section 382- B, Cr.P.C. and he was further sentenced to pay Rs. 5,000/- as Daman or in default to undergo six months S.I. vide judgment dated 14.5.97, passed by the learned Addl. Sessions Judge, Chakwal. 2. It is contended that one of the appellants namely Nosherwan Khan with almost similar role was admitted to bail after his sentence was suspended vide order dated 24.6.97 passed by his Lordship Munir A. Sheikh (since elevated to Supreme Court of Pakistan); that the case of the petitioner- is not distinguishable from his co-accused Nosherwan Khan and as such, he was also entitled to bail; that infact the complainant side was aggressor as two persons from the appellant side namely Nosherwan Khan and Mst. Naveed Begum had also suffered injuries, The former had fire arm injuries, whereas, the injuries on the person of Use latter were with sharp edged weapon. As such, it was alleged to be a d«ar cut case of self defence; that it would also stem out from the judgment of the learned lower Court while reading it as a whole that by convicting the appellant/applicant, the learned trial Judge not only allegedly took erroneous view but also adopted contradictory stand in the impugned finding qua aggressor and the aggressed party. As such, it was prayed that the petitioner/appellant was entitled to bail after the suspension of sentence under Section 426 Cr.P.C. which was N. not controlled by the provisions contained in Sections 496/497 Cr.P.C. although the principle laid down therein may be borne in mind in granting or refusing the bail. Reliance was placed on 1969 SCMR 153 State vs. Shah Sawar. 3. Learned counsel for the state, assisted by learned counsel for the omplainant opposed the petition on the ground that the petitioner is not entitled to bail as a specific role was attributed to him in the FIR and the same was proved at the trial for which, he was convicted as aforesaid. Reliance was placed on 1997 SCMR 1521 (Supreme Court of Pakistan ) Muhammad Nawaz vs. Muhammad Nawaz alias Naji and 4 others. 4. I have considered the foregoing submissions and find that the principle laid down in 1997 SCMR 1521 is not applicable to the case in hand because in the repoited case, the appellants/petitioners were convicted under Sections 802/148/149 PPC and sentenced to imprisonment for life by the trial Court. However, in the instance case, the petitioner was convicted under Section 337 F( iv) PPC and sentenced to five years R.I. Hence the present case is to be decided on its own merits. 5. It Is clear from the judgment that the petitioner was convicted as he had caused injury to Saib Khan compJairiarit/PW with the fire arm at his leg. The provisions contained in Section 426 (l-A)(b) Cr.P.C. provides that if a person is convicted to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction, he shall be entitled to bail. In this case, the aforesaid statutory period has not yet passed as the conviction of the appellant/applicant was made on 14.5.97. The deeper appreciation of the merits of the appeal cannot be undertaken at this stage. It is enough to say that the case for the suspension of sentence or bail is not made out at present. The petition is dismissed. Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 980 [DB] Present: KHAN RlAZ-UD-DlN AHMAD AND ghulam sarwar sheikh, JJ. MUHAMMAD ALI-Petitioner versus STATE-Respondent Crl. Appeal No. 26 of 1994 and M.R. 19 of 1994, heard on 26.11.1997. Pakistan Penal Code, 1860 (XLV of I860)— —-S. 302--Murder--Offence of-Conviction for--Challenge to-No bad blood existed between complainant party and convict-It was broad day light occurrence-Hence, detection of real culprit at spot was not difficult and no haze or mist emerges to impede this exercise-Even PWs do look obliged and indebted to 'B' to the extent of letting him free and plant another person instead-Mere misdiscreption, about design, its prospective range or using formula other than prevalent do not make occurrence doubtful-Recovery is corroborative piece of evidence, never considered as mainstay of prosecution case and even in its absence • conviction can be made provi-ded ocular account leaves no room for doubt about involvement of culprit in commission of offence—Medicla evidence supports prosecution version in its entirety, same cannot be taken as two versions case and prosecution has led overwhelming evidence, not, shattered in any manner to prove its case-Held: Case stands proved to hilt not only by unimpeachable ocular account, but also factum of apprehension of appellant/accused alongwith weapon of offence at scene of occurrence and by other overwhelming evidence in respect of other factors as well-Appeal dismissed and Murder Reference confirmed. [Pp. 982 & 983] A to E Sycd Maqbool Ahmad Shah, Advocate for Appellant, Mr. Sajjad Hussain Sindhe.r, Advocate for A.G.G. on behalf of State. Date of hearing: 2G.11.1997. judgment Ghulam Sarwar Sheikh, J.-Upon commencement of trial of case vide F.I.R. No. 302/92 dated 30.10.1992 registered at Police Station Yazman District Bahawalpur, appellant, was charged for causing intentional murder (Qatl-e-Amd) of Urjana son of Malhoo by firing a shot with pistol. Ultimately, he was found guilty, convicted and sentenced under Section 302(b) PPC to death, to be hanged by neck till he is dead. He was also held liable to pay a sum of Rs. 15,000/- as compensation to legal heirs of Urjana deceased as envisaged by section 544-A Cr.P.C, or in default to undergo R.I. for a term of six months. 2. Criminal Appeal No. 26 of 1994 challenging and assailing conviction and sentence of appellant and Murder Reference No. 19 of 1994 under section 374 Cr.P.C. for confirmation of Death Sentence are being disposed of by this judgment. 3. Brief facts, as unfolded, embodied in and reflected by FIR Ex. PA lodged by Heera PW, are that on eventful and fateful day, he alongwith his brother Urjana (deceased), Samia, Roopa and his niece Mst. Laloo, PWs, was thrashing rice crop of Bashir Ahmad Butt in his lands, situated in Chak No. 52/DB. On previous evening to the occurrence, appellant Muhammad AH son of Umar Ali Caste Jat Dhilloon resident of Chak No. 52/DB, a tractor driver of Bashir Ahmad Butt, cut filthy jokes with his niece Mst. Laloo aged 12/13 years, upon which, his brother Urjama (deceased) abused him and said Muhammad Ali threatened to teach a lesson for the said insult; on 30.10.1992 in the morning, when he (complainant), his brother Urjama deceased alongwith Samia (PW. 4) Roopa (PW. 2) and Mst. Laloo (PW. 3) were thrashing rice crop at about 7.15 a.m., said Muhammad Ali appellant, who was watering in the nearby fields, came near them and fired a shot at Urjana (deceased), which, hit him on the back of his chest and he fell there and then. Muhammad Ali appellant alongwith pistol tried to run away, but, was apprehended by P.Ws alongwith pistol and, thereafter, the complainant checked his brother Urjana deceased, who,'had succumbed to the injuries at the spot. Leaving Semia and Roopa, PWs, with the dead body and the accused/appellant, the complainant reached the police station alongwith Rahman, Councillor of the village, and reported the matter to police. Motive for the occurrence was stated to be incident of cutting filthy jokes with Mst. Laloo, niece of the complainant as indicated above. 4. Investigation was carried out by Muhammad Ramzan Bhatti, Inspector/SHO, who, as PW-9, narrated various steps with regard thereto. Autopsy on dead body of Urjana deceased was conducted by Dr. Habibur- Rahman, whose reported Ex, PJ and Ex.PJ/1, were proved by PW. 10 Faiz Ahmad Fiaz, Dispenser. Details of medical evidence need to be re-capitulated as fact of murder of Urjana has riot been disputed by the accused. His defence rather is that same was committed by Bashir Ahmad Butt, for whom he had been substituted. Besides them eight witnesses were produced by the prosecution. Ocular account was furnished by Heera complainant PW. 1, Roopa PW. 2, Mst. Laloo PW. 3, and Samia PW. 4, who, even, testified the incident of cutting jokes and threats hurled by the accused to provide motive for the incident. 5. When examined under section 342 Cr.P.C. appellant denied all the incriminating circumstances figuring against him in the prosecution evidence and took the plea that Bashir Ahmad Butt was the real culprit and he was substituted He described PWs to be under his influence and to have deposed against him falsely, at his instance. He did not opt to appear as witness to disprove the allegations against him, as envisaged by section 340(2) Cr.P.C. and led no evidence in his defence. 6. Upon appraisal and appreciation of evidence, adduced on record, taking into consideration entire date and material and placing divergent claims in juxta-position, learned Additional Sessions Judge, seized of the matter, came to the conclusion that the prosecution had succeeded in proving its case/version beyond any shadow of doubt. As a sequence thereto appellant was convicted and sentenced as indicated above. 7. Plea of substitution does not inspire confidence from any angle. It was neither taken up at the inception nor pleaded by convict that he was ing made scape-goat. Seemingly, it is an after-thought affair and figment of Ms imaginations. Moreover, no bad blood existed between complainant party and convict. It was abroad day-light, occurrence. Hence, detection of real culprit at the spot was not difficult and no haze or mist emerged to impede this exercise. Even PWs do not look obliged and indebted to bashir Ahmad Butt to the extent, of letting him free and plant another person instead. 8. Learned counsc-1 for the appellant has endeavoured to dispute about weapon of offence, i.e. pistol in the light of report of Forensic Science aboratory. According to him, weapon was not be same, which, was allegedly used at the time of incident. But. mere rrdsdescription, about design, its p, prospective range or using formuia other than the prevalent do not make the occurrence doubtful. Needless to say that recovery is a corroborative piece of evidence, never considered as mainstay of prosecution case and even in its absence conviction can be made., provided ocular account leaves no room for doubt about the involvement of the culprit in the commission of offence. Similarly, minor discrepancies is testimony of various PWs do emerge with the passage of time. Human memory does fade thereby. If an account is free from discrepancies, it rather looks tailored, tutored and unnatural. Learned counsel for the appellant has further canvassed that demeanour of P.Ws at the time of occurrence and soon after the incident, was not natural. They preferred dogging the appellant to attending their dear one, who, required immediate treatment. Fallacy of the argument is too apparent to dilate PWs well knew the damage done and to avert another damage of letting the appellant to escape or slink from the scene, PWs rightly chased the appellant and succeeded in apprehending him. 9, Pursuit of watering the fields for a tractor driver has been described to be against prevalent custom. But this argument too looks outcome of lack of appreciation of prevalent practice in its true perspective. While watering the fields, one has to keep in view smooth soil free from lumps of clay for even flow of water. If ground level is uneven, only a driver can set it right by applying mechanism attached with the tractor and there is no need to employ a second person as a helper. In wake thereof, presence and pursuit of appellant as ascribed to him is quite justified. 10. We also fail to find any divergence and conflict in the evidence adduced by the prosecution, which, leaves no room of suspicions about callous act of the appellant, who undoubtedly was apprehended at the spot. There is no ambiguity about his identity, medical evidence also fully supports the prosecution version and lacuna attributed therein is negligible. In these circumstances, guilt of appellant stands established to the hilt excluding an ieia 6F«Bspieion as to how and in what manner the incident took place as Wfiswfatei toy learned counsel for the appellant, 11. Reliance has been placed upon Munawar Ali alias Munawar Hussain vs. The State (PLD 1993 S.C. 251), Talib Hussain and another vs. The State (PLD 1994 Lah. 43) Abdul Hague vs. The State and another (PLD 1-996 S.C. 1) and Ghulam Hussain alias Hussain Bakhsh and 4 others vs. The State and another (PLD 1994 S.C. 31), to contend that medical evidence simply establishes infliction of injuries upon the person of the deceased and gives out number of the assailants, prosecution is to stand on its own legs and cannot take benefit of weakness of defence plea; burden of proof never shifts and in case of two probable versions, one favourable to accused is to be preferred. But in the instant case medical evidence supports the prosecution version in its entirety, same cannot be taken as two versions case and prosecution has led overwhelming evidence, not shattered in any manner, to prove its case. As such the principles of law enunciated in authorities referred to above and called in aid of the appellant are neither applicable to the facts of the instant case nor can be stretched to it by any imagination or under any canon of law. 12. Suffice it, to say that the present case stands proved to the hilt not only by unimpeachable ocular account, but also of factum of apprehension of appellant/accused alongwith weapon of offence at the scene of occurrence and by other overwhelming evidence in respect of other factors as well. 13. Resultantly, appeal fails and is hereby dismissed, conviction and sentence awarded to appellant on 27.2.1994 by learned Additional Sessions Judge is up-held. Death sentence is hereby CONFIRMED and Reference is answered accordingly. (B.T.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 983 Present: raja qureshi, J. ALLAH DAD-Petitioner versus STATE-Respondent Criminal Misc. No. 304 of 1997, accepted on 30.10.1997. Criminal Procedure Code, 1898 (V of 1898)— - : --S. 56.1-Smdh Crime Control Act (1975), S. 14-Petitioner hauled up being criminal, running narcotic den, conviction in case and stated to be dangerous to general public-Proceeding against petitioner-Quashment of-Prayer for-Provisions of Sindh Crime Control being preventive in nature and not punitive have been wrongly applied-Provisions of section 14 are aimed to secure good behaviour and not to provide advanced punishment to applicant-More so report of S.H.O. do not, state that acts for which applicant was charged, nor any detail of time and place of such acts, as well as general repute of applicant, which are mandatory requirements of section 6 of Act-Furthermore, no independent witnesses have been cited, and, therefore, no order can be safely passed on account of lack of evidence in present matter-Proceedings against applicant quashed and bail bond discharged. [Pp. 984 & 985] A, B, C & D Mr. Muhammad Adam Qureshi, Advocate for Petitioner. Mr. M. Ismail Memon, Advocate for State. Date of hearing: 30.10.1997. judgment Through this Crl. Miscellaneous, proceedings in respect of Case No. 154 of 1997, State vs. Allah Dad pending before the learned S.D.M./Tribunal (Eidgah) Karachi-South under section 14 of the Sindh Crime Control Act 1975 are sought to be quashed. On 10.6.1997 S.H.O. Nappier Police Station, Karachi , had filed a report before learned A.C. & S.D.M. Eidgah, Karachi (South) under section 14 of the Sindh Crime Control Act, against the applicant. It was stated in the said report that the applicant is residing at Bara Imam Compound Karachi, within the jurisdiction of Nappier Police Station, Karachi , he is a criminal of the area, in addition to that he runs a narcotic den also. The applicant was further stated to have been arrested in two cases of Nappier Police Station out of which he is stated to have been convicted in one case from the court of competent, jurisdiction, whereas one other case is pending trial. Such cases have been reflected in the said report. He was further stated to be dangerous and hazardous to the general public and community and therefore, he was taken into custody. His application for bail was dismissed by the learned A.C. & S.D.M. Eidgah, and thereafter he filed the present application. Upon perusal of the report as well as the statement and the order passed by the learned A.C. & S.D.M. Eidgah refusing bail, I am of the considered opinion that the proceedings do not, in any manner reflect any witnesses against the applicant, and the provisions of the Sindh Crime Control being preventive in nature and not punitive have been wrongly applied. The conviction reflected in the report is only in terms of a fine of Rs. 200/- for possession of 'Bhang'. The applicant, is 75 years of age. Provisions i of section 14 of the Sindh Crime Control Act are aimed to secure good behaviour and not, provide advanced punishment to the applicant, More so the report of the S.H.O. Nappier Police Station do not state that the- acts for which the applicant was charged, nor any details of time and place of such acts, as well as the general repute of the applicant, which are mandatory requirements of section 6 of the Act. Such report of the S.H.O. upon my consideration i ,s found to be against, the spirit, of section 14 of the Sindh Clime Control Act which requires frequent repetition of offences, whereas the present applicant as per the report of the S.H.O. is shown to have been involved only in one case resulting into conviction in terms of fine of Rs. 200/- on the chargeof pessession of 'Bhag'. Furthermore no independent witnesses have been cited, and therefore, no order can be safely passed on account of lack of evidence in the present matter. I would therefore , quash the present proceedings against the applicant and discharge his bail bond. Crl. Misc. No. 304/97 is allowed. (AAJS) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 985 [ Multan Bench Present: mansoor alamgir qazi, J. ALI SHER alias SHER-Petitioner versus STATE-Respondent Crl. Misc. No. 1302-B/97 accepted on 19.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Bail-Grant of-Prayer tor-Further inquiry-Case of-offence u/S. 320/34 PPC-There is no motive for petitioner except that he is brother of accused S, who, wanted hand ofMst. S (murdered)-Challan is pending in court since 28.7.1996-Complaint and challan case are both pending adjudication before learned trial court, and for the time being there exist reasonable grounds for further inquiry-Bail allowed. [P. 986] A Sardar Muhammad LatifKhan Khosa, Advocate for Petitioner. Mr. Ibrahim Farooq, Advocate for State. Date of hearing: 19.3.1998. order Ali Sher alias Sher petitioner alongwith Sharaf were involved in case FIR No. 123/96 registered at Police Station Harappa on 26.3.96 under Sections 302/34 PPC for an occurrence which took place on the night between 25/26-3-96 at 1.00/2.00 A.M. wherein Mst Shahnaz daughter of the complainant was done to death. The occurrence was reported by Shameer complainant. 2. Ali Sher petitioner was arrested in the said case on 14.7.97 and a rifle was recovered from him in course of investigation. Sharaf was found nnocent and was discharged on 29.9.96. Shameer complainant has filed a private complaint and has nominated both the accused in that private complaint as well which is also pending adjudication. 3. Briefly the facts of the case arc that the complainant has built his residence in Killa No. 19 Square No. 39. Naseer PW also lived alongwith the complainant while Kabeer PW was present in the house of the complainant and after taking meal all of them went to bed. Mst. Shahnaz was also present in the house on that night. Lantern was lit. At 1.00/2.00 A.M. the complainant woke up on hearing the barking of dogs and on movement of foot steps and he was in the light of the lantern All Sher petitioner and Sharaf co-accused were armed with rifles. Ali Sher raised Lalkara whereafter Sharaf co-accused fired with his rifle which hit Mst. Shahnaz deceased and she died at the spot and the accused decamped from the place of occurrence alongwith their weapons. The motive as stated in the FIR is that Mst. Shahnaz had been given in nikah to Nawaz nephew of the accused but the Rukhsati had not been performed. Ali Sher and Sharaf accused got Mst. Shahnaz divorced from Nawaz and Sharaf accused wanted the hand of Mst. Shahnaz for himself. The complainant in Watta demanded the hand of a girl for his son Ghulam Abbas who was deaf and dumb but the accused refused to give him their girl and as such they bore a grudge as he refused to many Mst. Shahnaz to the accused. 4. Learned counsel for the petitioner has argued that the petitioner is only attributed Lalkara and the fatal shot has been attributed to a person who has been found innocent and discharged and now he has been summoned in the private complaint filed by the complainant. There is no motive for the present petitioner except that he is brother of Sharaf who wanted the hand of Mst , Shahnaz. The challari is pending in court since 28.7.96. The complaint and the challan case are both pending adjudication before the learned trial court. For the time being there exist reasonable grounds for further inquiry in the case against the petitioner. The petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs. l.OO.OOO/- (Rupees one lac only) with two sureties in the like amount to the satisfaction of the learned trial court. Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 986 [DB] Present: iftikhar muhammad choudhary and raja fayyaz ahmed, JJ. ZULFIQAR ALI-Appellant versus STATE-Respondent Crl. Appeal No. 370/1997, partially accepted on 27.3.1998. (i) Criminal Procedure Code, 1898 (V of 1898 )•• —-164--It is cardinal principle of criminal administration of justice that if prosecution has no other evidence to support accusation except accused's, confessional statement u/S. 164 Cr.P.C. and it is to be believed in toto and believing it true court would examine that what offence has been made out against accused. [P. 991] A 1995 SCMR 351 and 1992 SCMR 2047. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 303 (a)--Murder--Offence of-Conviction for-Challenge to-Statement made by appellant u/S. 164 Cr.P.C. reveals that on night of incident he was sleeping in room alongwith deceased, when later expressed desire to satisfy his unnatural lust, but appellant resisted-ultiamtely deceased took out dagger from Almirah and attacked upon appellant, which hit his head-Both grappled, dagger had fallen in hand of appellant, with which, he repeatedly gave blows on person of deceased and injured him-This statement of appellant, if believed in toto, no other conclusion can be drawn, except that to save himself from sodomy, which deceased intended to commit, with him, he had attacked upon deceased with dagger, which was owned by latter~If confessional statement, as well as statement of accused given by him while answering charge and his statement u/S. 342 Cr.P.C. are considered, it can safely be concluded that appellant has committed offence which falls u/S. 303 PPC-Held: Evidence is not sufficient to bring home guilt against appellant under section 302 P.P.C.--Appeal partially allowed-conviction/sentence u/S. 302 PPC converted u/S. 303(a) P.P.C. [P. 992] B, C, D & E Mr. Salee.rn Ansari, Advocate for Appellant. Malik Sikandar Khan, A.G. for Respondent. Date of hearing: 26.3.1998. judgment Iftikhar Muhammad Chaudhry, J.--We have partially allowed this Appeal, vide order dated 26th March, 1998, for the reasons to be recorded lateron and herein-below are the reasons. Prosecution case as gleaned from .Fard-e-biyan (Ex. P/l) got recorded by PW-1 Amir Muhammad, is that on fateful night of 5th February, 1995, at 2.30 a.m. v/hen he came to his Daily for milking the Cows, he found opened the door of room and saw that dead body of his nephew Abdullah is lying in the pool of blood, whereas appellant Zulfiqar who also used to work in the same Daily was dis-appearing and the main gate of Daily was also opened. He also alleged that; his nephew Abdullah has been murdered without any reasons by appellant Zulfiqar and thereafter he ran away from the place of incident. The dead body was shifted to hospital where it was examined by PW-Dr. Manzoor Baloch and noticed multiple injuries on it. In the Medical Certificate (Ex. P/2) probably cause of death was disclosed by Doctor, as injury to head (Multiple incised wound on skull, Face and Left hand) excessive bleeding shock and death. During investigation, appellant was arrested and he was produced before PW- Muhammad Saeed, Assistant Commissioner/M.F.C. on 8th February, 1995, who recorded his confessional statement. On completion of other formalities of investigation, appellant was sent-up to face trial before the Sessions Judge, Quetta, from where the case came-up for disposal, on the file of Sessions Judge (Ad hoc), Quetta. On 8th May, 1996, learned trial court readover the charge to appellant, which he answered in following words:- Prosecution in support of its case examined: PWiOfirJiluhammad. He affirmed the contents of Fard-ebiyan and produced it as Ex. P/l. PW-2 Dr. _jiIaji2oor_Baloch. He produced the Medical Certificate. PW-3_Inayatullah. He deposed that on the night of incident, his son Hafizullah knocked at his door and told him that police has come to his Dairy and is enquiring about Zulfiqar Ali. He asked to his son; whether Zulfiqar had came there, on which he stated that he had no knowledge about it. His son further explained to him that according to version of police Zulfiqar came on a cycle which has been found lying outside in the street. On this he accompanied his son to diaiy and found that police is present there. He explained that there are two room in the garden of his Dairy which have no doors and when they reached near those rooms, they saw that clothes of Zulfiqar are lying in the Garden who had thrown them after changing it. Police took into possession the clothes. Zulfiqar was hiding himself in the rooms, as such, he was caught hold and handed over to police. He stated that Zulfiqar had worked with him for about six months and when Zulfiqar was being handed over to police, he stated that he should not be given in the custody of police. On enquiry of witness, Zulfiqar told him that he had fought with Diarywalas, and they are after him, but he told him that Diarywalas are not there, but it is the police, who is alleging that Zulfiqar had come there after committing the murder. In cross examination he deposed that he got recorded his statement with the police after 15 days of incident. During cross, it has also came on record that he has not stated in his previous statement that Zulfiqar came to his daily after fighting with Diarywalas, etc. PW-4 Hafizullah. According to him, appellant Zulfiqar was hiding himself in one of those rooms situated in the Garden and when he was being handed over to police he requested that his custody should not be given to them, because they will beat him and he also stated that he had a fight etc. PW-5 Waliullah. In his presence, police took into possession the incriminating articles, including dagger and blood stained matress, from place of incident. PW-6 Ali Ahmad. In his presence, Zulfiqar was arrested from the Diaiy of PW-2. PW-7 Muhammad Ayub. He shifted deceased Abdullah to hospital in his vehicle. PW-8 Ghulam Mohiuddin. He stood witness to the recovery of incriminating articles vide Inventory Meos Ex. P/8-A ("recovery of dagger) Ex. P/8-JR (sketch of dagger) Ex. P/8-C (recovery of piece of blood stained Matress) and Ex. P/8-D (recovery of blood stained clothes of deceased, handed over by Doctor to police). PW-9 Fareed Ahmad, S.I. He initially conducted the investigation of the case and produced incomplete challan as Ex. P/9-A. PW-10 Muhammad Saeed. .C./M.F.C. He recorded confessional statement of accused under section 164 Cr.P.C. (Ex. P/10-B) and produced Certificate as Ex. P/10-C, appended therewith. It may be noted that in confessional statement the accused has given almostly the same statement, which he deposed before the Court, while answering the charge, contents whereof, have already been reproduced hereinabove. PW-11 Nazar Jan. He produced the challan as Ex. P/ll-A. PW-12 Muhammad Saleem. I.O. He completed the remaining investigation of case. He also produced site plan as Ex. P/12-A and Inspection note of place of incident as Ex. P/12-B. PW-13 Syed Abdullah. Chemical Analyser. He produced his report as Ex. P/13-A, confirming that the suspected blood stains available on articles sent to him for examination, were of human blood, but were not found to be fit for grouping. Appellant in his statement under section 342 Cr.P.C. denied the prosecution case. However, he stated that he has not killed Abdullah, but he died with his own knife. The confessional statement was also retracted by him. It is to be noted that on 5th February, 1995, he admitted that he was working in the Diary and was sleeping on that night, in a room, with deceased Abdullah. It is important to note that while answering to Question No. 14, he gave following reply :- Learned trial court, mainly relied on the confessional statement of appellant as well as his statements, given by him while answering the charge and ultimately convicted him under section 302 PPC to suffer imprisonment for life with benefit of section 382-B Cr.P.C. vide Judgment dated 7 th October, 1997. We have heard Mr, Saleem Ansari, learned Counsel for Appellant and Malik Sikandar Khan, learned Advocate General and with their assistance have also gone through the evidence on record. Learned counsel for appellant stated that prosecution case mainly hinges upon the confessional statement of appellant, which has been believed to be true and voluntary. If the confession is kept in juxta position with the statement of appellant, which he got recorded in Court, while answering the charge and replying Question No. 14 of his statement under section 342 Cr.P.C., the offence will be covered by section 303 PPC instead of 302 PPC. We enquired from him, as to whether appellant even now stricts to his stand taken before the trial court and the confessional statement got recorded by him. He answered that there is no option for the appellant, because his statement before the court was recorded, while he answered the charge and the confessional statement, otherwise is a piece of evidence, which has been used by prosecution against him, considering it to be valid for all intent and purposes, therefore, according to him, appellant deserve sentence under section 303 PPC, instead of section 302 PPC. Malik Sikandar Khan, learned Advocate General conceded to above legal position and stated that appellant has been wrongly sentenced under section 302 PPC. It would be appropriate to reproduce hereinbelow the definition of "Ikrah-e-tam" and section 303 PPC:- "Ikrah-e-tam:- means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or Zina-bil-Jabr, 303. Qatl committed under 'ikrah-i-tam or ikrah-i-naqis'.-- Whosoever commits qatl:- (a) under ikrah-i-tam shall be punished with imprisonment for a term which may extend to twenty five years but shall not be less than ten years and the person causing ikrah-i-tam shall be punished for the kind of qatl committed as a consequence of his krah-i- tam; or (b) under 'ikrah-i-naqis' shall be punished for the kind of qatl committed by him and the person causing 'ikrahi-naqis' shall be punished with imprisonment for a term which may extend to tea years." It is a cordinal principle of criminal administration of justice that if [prosecution has no other evidence, to support accusation, except accused' confessional statement u/S. 164 Cr.P.C. and it is to be relied in toto and believing it true the court would examine that what offence has been made out against the accused. In this behalf if any authority is required, reliance can be placed on 1995 SCMR 351 and 1992 SCMR 2047. A careful perusal of the statement made by appellant under section 164 Cr.P.C. reveals that on the night of incident he was sleeping in a room alongwith deceased Abdullah when latter expressed desire to satisfy his unnatural lust but appellant resisted. Ultimately deceased took out a dagger from an Almirah and attacked upon appellant, which hit his hand. Thereafter they both grappled with each other. In the meanwhile the dagger had fallen in the hand of appellant, with which, he repeatedly gave blows on the person of deceased and injured him. Thereafter on a bicycle he left the Dairy and went towards Kechi Beg, where he went to nayatullah who was known to him, earlier to this incident, because he use to work as labourer in his Dairy. On reaching there, he scaled over the wall and went inside his house and then opened the doOr and took his cycle in the house. There he changed his blood stained clothes and wore the clothes, which heat ready brought with him and then lie concealed himself in the kitchen of house. After half an hour police came there and he was arrested. This statement of the appellant, if is believed in toto, no other conclusion can be drawn, except that to save himself from sodomy, which deceased intended to commit with him. he had attacked upon the deceased with the dagger, which was owned by the latter. Almostly same version, he disclosed before the Court in his statement, which he got recorded while answering the charge. Likewise in his 342 Cr.P.C. statement, somewhat identical explanation was offered by him, while answering Question No. 14. Therefore, leaving all other evidence brought on record by prosecution if the.confessional statement, as well as the statement of accused given by him, while answering the charge and Question No. 14 of his 342 Cr.P.C. statement, are considered, it can safely be concluded that appellant as committed the offence, which falls under section 303 PPC, as he was apprehending that deceased would commit sodomy with him and rosecution evidence is not sufficient to bring home the guilt against appellant xmder section 302 PPC. Thus for the foregoing reasons, appeal is partially allowed, conviction/sentence of appellant under section 302 PPC to suffer imprisonment for life is conversed under section 303(a) PPC. Appellant Zulfiqar Ali son of Jan Muhammad, caste Chandio is sentenced to undergo ten years R.I. he shall also be entitled for the benefit of the period during a] which he remained as under-trial prisoner, as provided under section 382-B ai Cr.P.C. (B.T.) Appeal partially accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 993 [Branch Registiy, D.I. Khan] PrCKCn t: SHAH JEHAN KHAN Y( )USAFZAI, J. MUHAMMAD FAROOQ-Petitioner versus MAHMOOD SULTAN & THE STATE-Respondents Cr. Appeal No. 35 of 1994, decided on 27.2.1998. (i) Dying Declaration- -—Contention, that 'Mumsila' could not be treated as a dying declaration as it was not recorded in accordance with provision of Rules 25/21 of Police Rules, 1934-Rule 25/21 indicates that preferably dying declaration shall be recorded in presence of a Magistrate, but even in absence of a Magistrate a dying declaration can be recorded if person making statement/declaration is examined by a medical officer ascertaining that he is capable of giving statement-Under para 3 of said rule it is laid down that in a case where dying declaration is recorded in absence of a Magistrate, gazetted police officers shall be witnessed by two reliable witnesses and dying declaration shall be signed/thumb impressed by person making it-Deceased was seriously injured as per medical report- Investigating officer realising condition of injured person recorded statement in absence of a Magistrate which was also signed/thumb impressed by two marginal witnesses—P.W. 9 was subjected to lengthy cross-examination at trial, but nothing favourable to accused was brought on record-Injured/complainant was brought in his full senses to hospital and a certificate to this effect was also obtained from doctor, who had certified that injured/complainant was in senses and capable of giving statement-Medical officer while appearing as PW-10 had also proved in court said certificate and his testimony was not shattered through cross-examination by defence-Contention is without any substance. [Pp. 998 & 999] A, B & C (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Murder-Offence of-Conviction to-Ocular testimony of PW. 9 as also dying declaration were disbelieved in earlier trial against acquitted accused and same cannot be made basis for conviction of appellant-­Contention of-Maxim "falses in uno falscs in omnibus" (false in one false in all) cannot be applied for administration of criminal justice as in present days society it has been noticed in most of cases that witnesses of complainant party always throw net veiy wide to implicate a large number of actual culprits' family and due to this phenomenon, burden of court in administering criminal justice has arisen and courts have to sift chuff from .ii uu'u laedicuiegul report and recoveries of two empties of 8mm rifle iron] spd, a point d;>sei to place allocated to appellant--PW. 9 has categorically charged appellant for effective firing at deceased and convict/appellant absconded immediately after occurrence and remained fugitive from law for more than si.v years-All these facts are sufficient to establish that deceased was done to death by appellant-Dying declaration was not disbelieved in lota but. was disbelieved against acquitted co- accused on ground that, they were traditionally implicated with actual culprit to disable them from pursuing case against absconder— Prosecution has successfully brought home guilt of appellant-Appeal dismissed and revision is partly allowed to extent that appellant shall also pay compensation to legal heirs of deceased in addition u/S. 544-A Cr.P.C. [Pp. 999. 1000 & 1002] D, E, F & G Mr. Dost Muhammad Khan, Advocate for Petitioners in Cr. Revision. Mr. S. Zafar Abbas Zaidi. Advocate for Appellant. Mr. Muhammad Khan, Advocate for State. Dates of hearing : 2.12.1997, 3.12.1997 and 4.12.1997. judgment This Criminal Appeal No, 35/94 is directed against the judgment of Additional Sessions Judge Bannu dated 16.10.1994 in Sessions Case No. 2 of 1993 whereby the appellant Mahruood Sultan aged about 25/26 years was convicted under section 302 PPC and sentenced to life imprisonment alongwith a fine of Rs. nO.OOO/ fRupees fifty thousands) payable to the legal heirs of deceased in default. to undergo two y ears S.I. The appellant was allowed the benefit under section 3S2-B of the Cr.P.C. Muhammad Farooq. the brother of deceased and an eye witness of the occurrence has also filed Criminal Revision No 10/94 for enhancement of sentence of imprisonment for life to that of death and also for an adequate compensation to the legal heirs of deceased as defined under .section 544-A of the Cr.P.C'. Since both the afotesaid Criminal Appeal and Criminal Revision arise out of a common order, these are 'herefvie disno.-f:! off i-v this single jurlgmei't 2. In brief, the pn.^eciUir.n cus-j is -June, 1989 at about 19.45 hours Muhammad Aiif Khau ulricai-ed; uk-ugwith his brother Muhammad Farooq w-wv K^u-Ji-iin!>,drj ihtn bc.u^t situated in Mohallah National Bank, Bniiiiy C]t\ h, 'i,e .n-.e.-uiwlriU- Mahinood Sultan, appellant armed with a five sliuV iis-. i-o-hfc^s^d Khan Sfudar (father) and Utnar Sardai ifirnTi); nni.ier tl,..: s.oniiiian-'i of Khan Sai'dar, the apiH'llasit, uciv'. shols at 'he .'h^eased effectively. On receiving in.itHii>h. Muhii.i.n^i A.ri' Khan fall on tne ground and subsequeiitlv 'aken the Distni- H'-aiii^'i-'tej Hospital, Bannu by Muhammad Farooq and others, where lie lodged the report in emergency ward to Haji Muhammad Khan, the then S.H.O., Police Station City, Bannu which was recorded in the shape of 'Murasila' (Ex. PA). The motive behind the occurrence reported to be an altercation between Mehmood Sultan and Muhammad Arif (deceased) a day prior to the occurrence. The injured complainant succumbed to the injuries the same night at about 01.00 A.M 0113061989, 3. The prosecution has produced 10 witnesses to bring home guilt of the appellant. PW 1, Nazif Shah, has submitted supplementary challan against the appellant on 31.7.1992. PW-2, Faizullah Khan, S.I is the marginal witness of recovery memo Ex. PR and PR. 7/1 vide which he had taken into possession the crime empties (P-l), blood from the spot (P-2), blood stained garments of deceased !'P-3), and phial containing bullet (P-4) respectively. PW 3, Bakhr Jama! Khan, H.C is a search witness. PW-4, Muhammad Younas Javaid has arrested the appellant in a raid. PW-5, Azmar Ali Khan S ! has proved the inquest report of deceased Muhammad Arif (Ex PW 5/1 > PW 6. Rukh Niaz, L.H.C., has escorted the dead body of the deceased to be mortuary. PW-7. Muhammad Aslam Khan, H.C. is also a marginal witness of recovery memo. Ex. PR. 7/1. PW-8, Haji Muhammad Khan, S.I has proved the dying declaration (Ex. PQ), the recoveries from the spot, preparation of site plan (Ex PB) and conducting investigation in the case T'W-9. Muhammad Farooq, has given ocular account of occurrence and has signed the dying declaration as marginal witness. PW-10, Doctor Asmatullah Khan. Medical Officer, District Headquarter Hospital has proved Medicolegal report (Ex. PC). Post Mortem report (Ex. PM), pictorial (Ex. PM/1), the inquest report (Ex. PW. 5/1). injury sheet (Ex. PW. 8/1) and certificate (Ex. PW. 10/1). 4. The dying declaration of the injured-complainant after reducing the same into writing and after being read over the same no him was duly thumb impressed by the deceased and also signed and thumb impressed by Muhammad Farooq and Shafiullah respectively as its marginal witnesses. The S.H.O Muhammad Khan >PW. 8), prepared the injury sheet of Muhammad Arif as Ex. PW. 8/1 He proceeded to the spot, searched for the accused in their house but found missing. On the pointation of Muhammad Farooq Khan (PW. 9.) he prepared the site plan with all its foot notes. During spot inspection, two empties of 8 .MM giving a smell of fresh discharge (Ex. P-li were leeovt'tecl and sealed into a parcel. He also took into possession blood from the place of deceased (hen injured and also sealed the same into panel Memo E PW 8 1 \ \<- ptepdiel in lespect ol the said recoveries. he clothes of di-uu e oiuone Shalwai (P 3) and one phial i 'i)iM T nit bnlki in weit dls" tdktn into possession by 'fining the trial. The foil uurveied from the spot nu'iisic Laboratory <Hued dining spot inspection were sent to laboratory for safe custody. As all the accused were absconding, therefore, proceedings under sections 87/88 of the Cr.P.C. were initiated against them. A warrant under section 204 Cr.P.C. was also obtained against all the accused. The I.O vide his application Ex.. PW. 8/4 applied for a certificate to the effect that Muhammad Arif Khan than injured was in senses capable of giving statement. The Doctor issued the said certificate which is exhibited as PW. 8/5. The I.O. submitted challan on 12.7.1986 under section 512 Cr.P.C. against all the accused. 5. The co-accused Khan Sardar and Umar Sardar were arrested on 11.10.1986 by Nawab Ali, Additional S.H.O. and a supplementary challan was submitted to Court against them on 12.10.1986. Both of them were tried by Additional Sessions Judge, Bannu as Sessions Case No. 24 of 1987 and vide judgment dated 24.9.1989 granted acquittal to Umar Sardar and convicted Khan Sardar for life imprisonment. Criminal Appeal No. 24/89 and Criminal Revision No. 16/89 were preferred to this Court there against which were heard by a Division Bench and vide, its judgment dated 5.9.199 while accepting the appeal of Khan Sardar appellant therein set aside his conviction but the Criminal Revision of the complainant party was dismissed. Therefore, the complainant party filed two separate petitions before the Supreme Court of Pakistan (C.P.L. Petitions No. 64-P and 65-P of 1990) but were dismissed vide judgment dated 9.5.1991. 6. The injured complainant was examined by Doctor Asmatullah (PW. 10 at 8.15 hours 29.6.1986 and found the following injuries on his person:- 1. Fire arm entrance wound in the right hypochondrium 3" from the midline measuring 1/2" x 1/2". 2. Fire arm entrance wound in the right lumbor area, 1/4" x 1/4". 3. Fire are exit wound in the hypogastrium above symphysis public measuring 1/2" x 1/2". 4. Fire arm entrance wound on the anterior and upper l/3 rd and lower 2/3rd junction of the left thigh. 5. Three fire arm exit wounds on the anterior part of lower l/3rd of left thigh 3" x 2". 1/2" x 1/2" and 1/4" x 1/4". 6. Fire arm exit wound on the enterior part of left thigh just above knee joint 1/2" x 1/2". Since the injured complain succumbed to the injuries the same night at 01.00 AM on 30.6.1986, therefore, his post mortem examination was conducted by the same Doctor (PW. 10) at 05.15 AM. From the internal examination it was found as follows:- "Walls, peritoneum, stomach, pancreas, small and large intestine and liver were found injured. Stomach was empty. Inferior vane cave were found injured. 1st and 2nd lumber vertebrae found fractured. Spinal cord and membrain were found injured." The Doctor has stated in his remarks that deceased has died due to the injuries to bones, big vessels, inferior vanue cavao blooding and shock. The left fenmer was also found fractured. A bullet was recovered during autopsy. The post-mortem report is Ex. PM. The time between injuries and death was given 5.15 to 5.45 hours, while that between death and post-mortem was given 4 hours and 15 minutes to 4 hours. The inquest report was exhibited as PW. 5/1 and the injury sheet was exhibited as PW. 8/1 in the earlier trial. The Doctor also admitted the issuance of certificates Ex. PW. 10/1 to the effect that complainant was in senses and capable of giving statement while examined for the first time in injured condition. 7. On 27.7.1992 the appellant Mehmood Sultan was arrested in a raid and supplementary challan was put in court against him on 31.7.1992 and is competed and sentenced as stated earlier. The proseciition case rests upon the dying declaration in shape of 'Murasila' Ex. PA, ocular testimony of Muhammad Farooq, the medical report, recoveries of two empties from the spot, the blood-stained garments having corresponding cut marks of the deceased, the blood recovered from the spot, a phial containing bullet recovered during the autopsy of the deceased by the doctor, motive of altercation between appellant and deceased a day prior to occurrence and long abscondence of the accused-appellant. 8. The learned counsel for the appellant contended that the Murasila' Ex. PA would not be treated as a dying declaration as it was not recorded in accordance with the provisions of Rules 25/21 of the Police Rules. 1934 and placed reliance on Banaras Khan vs. State. (PLD 1995 Peshawar 144) and Mst. Ghularn Zohra and another vs. Malik Muhammad Sadiq and another (1997 SCMR 449). 9. It would be advantageous to reproduced the above relied rules, which read as follows:- "25. 21. (1) A dying declaration shall, shenever possible, be recorded by a magistrate. (2) The person making the declaration shall, if possible, be examined by a medical officer with a view to ascertaining that he is sufficient in possession of his reason to make a statement. (3) It no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case (4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers. (5) A dying declaration made to a police officer should under section 162 Code of Criminal Procedure, be signed by the person making it. 10. A bare reading of the aforesaid rule indicates that preferably dying declaration shall be recorded in the presence of Magistrate, but even in the absence of the Magistrate a dying declaration can be recorded if the person making the statement/decreation is examined by a medical officer ascertaining that he is capable of giving statement. Under para 3 of the said rule it is laid down that in a case where dying declaration is recorded in the absence of a Magistrate, the gazetted police officers shall be witnessed by two reliable witnesses and the dying declaration shall be signed/thumb impressed by the person making it. 11. In the present case. Muhammad Arif Khan was seriously injured as appears from the medical report. The Investigating Officer realizing the condition of the injured person recorded his statement in the absence of a Magistrate which was also signed/thumb impressed by two marginal witnesses. Muhammad Farooq (PW. 9) was subjected to lengthy cross-examination at. the trial, but nothing favourable to accused was brought on the record. In these circumstances the objection of the learned counsel for appellant viz-a-viz dying declaration is without any substance. 12. The cited judgment in Banaras Khan 's case is distinguishable on the ground that in the facts and circumstances of the cited judgment the dying declaration was lacking material details of occurrence in-as-much as the injuries on the person of deceased were not explained. The dying declaration was contradicted by prosecution witnesses and was not otherwise proved or corroborated by other prosecution evidence. Conversely, in the instant case, all the material facts were disclosed in dying declaration and it was duly corroborated by medicolegal report, recoveries of crime empties on the spot and ocular testimony of uhammad Farooq (PW. 9), The judgment delivered by august. Supreme Court of Pakistan in the case of Mst. Ghulam Zohra referred above is mainly based on the fact that the injured complainant was brought unconscious to the hospital, 75% of his body was burnt, and neither any certificate from the doctor was obtained to verify that she was capable of giving a statement, nor any reasonable explanation for such omission was tendered by the Investigating Officer. But. in the instant case, the injured/complainant was brought in his full senses to the hospital and a certificate to this effect was also obtained from the Doctor, who had certified that the inured/complainant was in senses and capable of giving statement. The Medical Officer while appearing as PW-10 had also proved in court the said certificate and his testimony was not shattered through crossexamination by the learned defence counsel. 13. The learned counsel for the appellant next contended that the ocular testimony of PW 9 as also the dying declaration were disbelieved in the earlier trial against the acquitted accused and the same cannot be made basis for conviction of the appellant. 14. As regards dying declaration in Taicnib Khan and another vs. The State <PLD 1970 30 13), their Lordships of the Mnpreme Court have observed as follows:- "The dying deebrauou of the deceased hove a degree of sanctity under the Saw, being the statements of a dying man, on the belief that he being placed in a situation of immediate apprehension of .severance of his ties with the mundance affairs, he would not tali a he and implicate innocent persons on false charges. But in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence., whether it is the statement of" a witness or the statement of a person who is dead, is essentially ar< exercise of human judgment to so as to fin:.! out what is true and In this effort the case has to be Us physical ?nv:>t'oaments and on;, ii'iw •',.;! Hie evidence or its 'i which, ihf circumstances and possibilities that can be safely deduced, in the case. In this country, thn habit, unfortunately, is quite common, now judicially recognized that people do add innocent persons alongwith the guilty to salisty ihtxr sense of revenge and to put the other side to fhe nrmr.sT. i'v-tft. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting iiis death, would suddenly be gifted as if by a magic transformation, with a clean conscience and a parity of mind to shod all the age-old habits and deep-rooted rancours and enmities Even, assuming that the pangs of conscience are there at the lime of prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be surrounding him at the time and incite him to support the pattern of the charge which they have chosen to make agains! the accused persons, whether innocent or guilty? It is for this reason that a ck>-e scrutiny of the dying declarations like the statements of interested witnesses, becomes absolutely necessary. 15. The maxim "falses in uno falscs in omnibus" (false in one false in all) cannot be applied for administration of criminal justice as in the present day society it has been noticed in most of the cases that the witnesses of complainant party always throw the net veiy wide to implicate a large number of actual culprit's family and due to this phenomenon, the burden of court in administering criminal justice has arisen and the courts have to shift the chuff from grain. In the facts and circumstances of the present case, Mehmood Sultan appellant was attributed the motive of altercation a day before the occurrence and he was solely charged for three consecutive effective firing at the deceased. The version of complainant has got due corroboration the medicolegal report and recoveries of two empties of 8MM rifle from the spot, a point closer to the place allocated to Mehmood Sultan appellant. Muhammad Farooq (PW. 9) has categorically charged the appellant for effective firing at the deceased and the convict/appellant absconded immediately after the occurrence and remained fugitive from law for more than six years till 27.7.1992. All these facts are sufficient to establish that deceased was done to death by the appellant, under the role of command attributed to the acquitted co-accused Khan Sardar and the mere presence of Umar Sardar on the spot was in fact an exaggeration made by complainant as well as Muhammad Farooq (PW. 9). In the earlier proceedings against the acquitted co-accused a Division Bench of this Court has observed as follows:- "In view of what has been discussed above, it is clear to us that in view of facts and circumstances of the case in hand, the dying declaration, Ex. PA, recorded by Muhammad Khan, Sub-Inspector, (PW. 9) cannot be accepted in toto. The appellant, it appears to us, has been implicated in the instant case due to his close relationship with the absconder in order perhaps to disable him from pursuing the case of the absconder or else following the tradition of the country to implicate as many persons of his family as possible." 16. A bare reading of the aforesaid paragraph reveals that the dying declaration (Ex. PA) was not disbelieved in toto but was disbelieved against the acquitted co-accused on the ground that they (acquitted co-accused) were traditionally implicated with the actual culprit to disable them from pursuing the case against the absconder. 17. The learned counsel further contended that the medical report and the pactorial indicates injuries on the front as well as on the back of the deceased but Muhammad Farooq (PW. 9), an alleged eye witness of the occurrence, had not explained as to how the deceased received the injuries on the front as also on the back. Injuries No. 5 and 6 have been shown as exit wound of injury No. 4 which is impossible because the inlet injury No. 4 and the outlet injuries No. 5 and 6 are on the front part of the thigh. The contention of the learned counsel cannot be accepted for the simple reason that bullet after entering the body my slept into places after striking bone in the body and travelled in opposite direction. The Doctor was subjected to lengthy cross-examination, but he has fully supported his medicolegal report, autopsy and the certificate (Ex. PW. 10/1). There are no reason to disbelieve the contents of Ex. PA, statement of Muhammad Farooq, an eye­ witness of the occurrence and Doctor Asmatullah Khan (PW. 10) viz-a-viz Mehmood Sultan, appellant. 18. The learned counsel for the appellant also submitted that abscondance by itself does not bring home guilt of appellant Mehmood Sultan. It is a fact that mere absconsion is not sufficient to bring home guilt of the accused but absconsion without any reasonable explanation coupled with other circumstances of the case may form a strong evidence for holding the accused guilty of the commission of offence. Mehmood Sultan when examined under section 342 C.P.C. in the trial Court explained his abscondance in the following words:- Q. 12. It is in evidence that you absconded just after the occurrence and remained as such till your arrest on 27/7/1992. How do you explain this? Ans : To give an honest account after coming to know about the false charge against myself, my father and brother, all of us thried out level best and approached the complainant with the request to withdraw the false charge. It was further requested that all of us were ready to satisfy the complainant party about our innocence according to the Rawaj and tradition of the area. All other brothers of deceased were agreed and were not going to charge us but Muhammad Farooq for certain personal reasons remained stuck to that false charge which are to some extent brought on record during the trial. We were only 3 made members. I, my father Khan Sardar and my brother Umer Sardar having 3 major sisters and an old mother. There was none also except us to take care of the women folk all of us could not afford appearance to the police, therefore, I could not appear. beside this, I was a young boy at the time of occurrence and I was afraid of police torture which was sure to be given to me. It is also pertinent that due to criminal charge we were afraid that our women folk may be attacked by the other side, so in order to save their lives and honoui I had to take then away from the village. 19. In the said reply Mehmood Sultan has admitted Ins deliberate absconsion and the reason for his said absconsion is not, convincing. His father being elder of the family should have absconded for looking after the lives and honour of the women folk members of his family and not. The appellant being the youngest male member of the family. If the explanation tendered by the appellant is accepted for the sake of arguments, then there was no reason for him to remain absconder after 24 9.1989 when his brother Umar Sardar was granted acquittal by the trial court or atleast after the acquittal of his father Khan Sardar by this Court on 5.9.1990. Leave to appeal was also refused by the Supreme Court of Pakistan vide judgment dated 9.5.1991 and even thereafter the appellant ratuained absconder till his arrest in a raid on 27.7.1992. 20. From the aforesaid discussion, it is. abundantly clear that the prosecution has successfully brought home guilt of the appellant. 21. As regards Criminal Revision No. 10/94 for enhancement of sentence to death and adequate compensation to the legal heirs of the deceased under section 544 A of the Cr.P.C., suffice it to say that keeping in view the age of the Mehmood Sultan and the fact that the motive behind the occurrence was found shrouded is mystery coupled with the facts that complainant party has thrown a not wide not. to involve ianncent person, the accused Mehmood Sultan has rightly been not awarded death penalty, and transportation for life with a fine of Rs. 50.000/ (Rupees fifty thousands!, is sufficient to meet the ends of justice. So far as the compensation to the legal heirs of deceased under section 544-A of the Cr.P.Cis I'oiu-erned, the trial court has given no reasons for not awarding compensation although the court after holding the accused guilty of offence must direct payment of compensation to the legal heirs of deceased provided leasons are recorded. The law as envisaged in sub-section (3) of section 544-A of the Cr.P.C. provide that the compensation shall be in addition to any sentence which may be imposed for the offence. Being a legal requirement, the trial court should have awarded compensation under section 544-A of the Cr.P.C. Resultantly the Criminal Revision is partly accepted to the extent tha Mehmood Sultan, convict-appellant shall also pay an amount of Rs. 50.000/- (Rupees fifty thousands) as compensation to the legal heirs of deceased in addition to the fine imposed on him by the trial court failing which he shall suffer a further imprisonment for six months S.I Consequently, the appeal filed by Mehmood Sultan, appellant is dismissed being without substance and Criminal Revision No. 10/94 is partly allowed in the abov6 terms. (AS) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1003 [ Multan Bench] Present: mansoor alamgir qazi, J. NAZAR HUSSAIN-Appellant versus STATE-Respondent Crl. Appeal No. 107 of 1994, dismissed on 26.3.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302—Murder case—Conviction—Challenge to—Evidence—Appreciation of--Accused committed murder in a cold blooded pre-determined manner and he fired while chasing deceased all around house and even fired shots at closed door where she was taking refuge to save her life-This conduct and behaviour is a circumstance which cannot be lightly ignored-Though deceased was hit by one bullet which proved fatal but fact remains that. seven fires were made through this weapon, out of which two fires were made by accused on his own person to create a defence-Injuries of accused are explained by witnesses in F.I.R.—There is no previous enmity between accused and complainant party-Illicit liaison was continuing since 3/4 years, complainant party, husband of deceased had learnt to live with this shame facedly-Have they ever felt aggrieved over this liaison they would have taken some steps to curb and stop it some time that far back but facts indicate that this liaison was accepted is normal routine and thus nobody was bother-Accused cannot claim any benefit by saying that he has been falsely implicated as complainant party wanted to eliminate deceased-Accused in fact committed murder of deceased in presence of witnesses-Since motive or immediate cause is shrouded in mystery, therefore, accused can reap benefit to this extent—However, there is no force in all contentions raised for acquittal-Therefore, conviction and sentence of appellant is maintained on both counts- Appeal dismissed. [Pp. 1008, 1009 & 1010] A & B Ch. Pewaiz Aftab and Ch. Mehboob Ahmad, Advocates for Appellant. Sahibzada Farooq Ali, Advocate for Complainant. Date of hearing: 26.3.1998. judgment Nazar Hussain aged 32 years and Zafar Hussain aged 28 years two real brothers were challenged in the said case by Police Station Makhdoom Rashid and sent up for trial before the Additional sessions Judge, Multan . Nazar Hussain accused was convicted vide judgment dated 23.4.1994 under Section 302 PPC and sentenced to life imprisonment. He was also directed to pay Rs. 20,000/- as compensation under Section 544-A Cr.P.C. or in default of payment to further undergo R 1. for six months. Under Section 449 PPC also Nazar Hussain was convicted and sentenced to five years R.I. and directed to pay Rs. 5,000/- as compensation, in default of payment to further undergo R.I. for six months. The benefit of Section 382-B Cr.P.C. was also extended to Nazar Hussain accused/appellant while Zafar Hussain through the same judgment was acquitted of all the charges. 2. Feeling aggrieved by the conviction and sentence Nazar Hussain appellant has preferred Crl. Appeal No. 107/94 while the complainant has preferred Crl. Revision No. 69/94 praying for the enhancement of sentence awarded to Nazar Hussain convict and through Crl. Revision No. 120/94 the complainant has challenged the acquittal of Zafar Hussain accused. It is proposed to dispose of all these matters through this single judgment. 3. Ihe occurrence took place on 22.8.93 at 4.30 P.M. in the house of Mst. Allah Budhaee deceased in the area of village Bahani which is situated at a distance of 12 miles from Police Station Makhdoom Rashid. 4. FIR Ex. PG was recorded by Muhammad Rashid Inspector/SHO (PW-12) on the statement of Allah Ditta PW-9 at the said Police Station on 22.8.93 at 7.00 P.M. 5. Briefly the facts as narrated by Allah Ditta complainant (PW-9) are that his niece Mst. Allah Budhaee was married to Mukhtar Hussain in her young age. She owned 9^ bighas of land in village Behani and out of that she transferred two acres land in the name of her husband Mukhtar Hussain about one month ago. 3/4 years earlier she developed illicit relations with Nazar Hussain son of Allah Diwaya who used to compel her that she should alienate rest of land in his name but she refused to agree. On that day he alongwith Muhammad Aslam PW 10, Qadir Bux not produced) had gone to the house of Ghulam Sarwar, father-in-law of Mst. Allah Budhaee to enquire about his health. Mst. Manzooran Mai (not produced) mother of Mst. Allah Budhaee was also there and at about 4.30 P.M. Nazar Hussain armed with pistol .30 bore and his brother Zafar Hussain empty handed came there. Nazar Hussain started straight firing at Mst. Allah Budhaee, who ran and entered a room and while she was trying to close the door, Nazar Hussain ired shot on door and plank thereafter Mst. Allah Budhaee running came into the courtyard. Nazar Hussain fired a shot which hit the back of her chest. Receiving the injury she fell down and then and there, Nazar Hussain fired two shots with the pistol at his left hand injured the same. In the meanwhile, Zafar Hussain took away forcibly the licensed rifle of Mukhtar Hussain (PW-11) from the house. As the accused were armed with firearms therefore, they did not interfere. The accused also threatened them with dire consequence if they intervened. After injuring Mst. Allah Budhaee and picking the rifle both the accused went away. He and Mst. Manzooran Mai proceeded towards Nishtar Hospital, Multan taking away Mst. Allah A firearm wound 1 cm x 1 cm going deep just near the left mid palm. (2) A firearm wound 1.5 x 1.5 cm on the left back of the hand. This was the outleft of injury No. 1. (3) Firearm wound 1.5 x 1.2 cm on the base of the left index finger. This was exit wound of injury No. 2. All the injuries were found to be caused with firearm and within the duration of 24 to 26 hours. 9. The sealed parcels were sent to the office of the Forensic Science Laboratory and to the chemical examiner. The report of chemical examiner is Ex. PO while that of the serologist is Ex. PQ, stating that the blood-stained earth was found to be stained with human blood. All the seven crime empties taken from the spot are reported to be wedded with the crime weapon recovered from the accused vide report Ex. PR. After completion of the investigation the accused were sent up for trial where formal charge against them was framed and 14 PWs were produced to prove the prosecution case. The break up of prosecution evidence is as such Allah Ditta PW-9 and Muhammad Aslam PW 10 are the eye witnesses, Mukhtar Ahmed PW-11 identified rifle PI recovered from Zafar Hussain accused to be his licensed rifle. PW-6 and PW-14 are doctors who have narrated about the injuries on the deceased and the accused. PW-3, PW-4 and PW-9 are the witnesses who have attested the memos exhibited on file while PW-1, PW-2 and PW-7 relate about the sealed parcels pertaining to this case sent to various offices. PW-5 is the draftsman, PW 8, PW-12 are the Investigating Officers. 10. The accused were examined under Section 342 Cr.P.C. at the close of the prosecution. Zafar Hussain has denied the prosecution llegations against him and has stated that he has been falsely involved being the brother of Nazar Hussain accused while Nazar Hussain has affirmed question Nos. 2, 3 and 4. In answer to question No. 13 he has claimed pistol Ex. P3 to be his property and to be a licensed one. While explaining his injuries, in answer to question No. 14, he has stated that Mukhtar Ahmed had fired at him in his house and lastly in answer to question No. 17 he has made the following statement:- "On account of my relations with the deceased she wanted to alienate her land in my favour and she wanted to many me and on account of illicit relations and her desire to marry me and to transfer her land in my favour the entire family of Mukhtar Hussain and Mukhtar Hussain himself were annoyed with me and they being in league with the police involved in this case because the family of the deceased wanted to eliminate the deceased." None of the accused opted to appear as his own witness as required under section 340(2) Cr.P.C. None of them opted to produce any defence evidence. 11. With the assistance of the learned counsel for the appellant, the evidence and the documents appended therewith on the record have been perused and scrutinised in detail. Learned counsel for the complainant has at the very outset conceded that he is instructed not to press the revision petition against acquittal as far as Zafai Hussain accused is concerned. Hence the same is dismissed as not pressed. So far as the revision petition for enhancement of sentence of Nazar Hussain accused is concerned, learned counsel has argued that the evidence of motive in this case is very strong and the accused too has in answer to question No. 17 also fortified the same and that the occurrence was activated only when six months earlier the deceased had refused to continue her relations with the accused and had transferred two acres of land in the name of her hushand Mukhtar Hussain about a month piior to this occurrence. Thus, the petition he accepted and the sentence be enhanced to capital sentence. It is an admitted fact and open secret that the deceased was having illicit relations with Nazar Hussain convict since the last 3/4 years and if she had any inclination as narrated by the accused she could have opted to act in that manner but her conduct till her death indicates that she had no inclination and desire as stated by the accused in answer to question No 17. The statement of the accused cannot he joined with to corroborate the prosecution evidence. It can either be accepted as a whole or rejected in toto. This statement of the accused is an attempt in frustration just to event out his venom against the complainant party and to further dishonour, humiliate and shred their family honour and dignity. It is ruled out of consideration. It was the bounden duty of the prosecution to prove the motive beyond reasonable doubt yet in-the present case the motive appears to be shrouded in a .'mystery. Though Mukhtar Hussain PW-11 who is the husband of the deceased was produced to establish the ownership of rifle PI which was recovered from Zafar Hussain accused. But in his cross-examination, he states about his knowledge of the illicit relations of the deceased and the appellant. Further states that he had strained relations with Msf. Allah Budhaee deceased but since the last six months he was leading normal life and having cordial relations as his wife had severed relation with appellant There is something else which acted as fuel to accelerate the occurrence but the same has been suppressed hy both sides and it is not inferable from the present evidence on record. Thus, it can only be safe!} held that the motive in the present case is not established beyond reasonable doubt to warrant a capital sentence. Hence, the revision petition for enhancement of sentence filed by the complainant being devoid of force is dismissed. 12. Learned counsel for the appellant while arguing the case of the appellant for acquittal has urged that, the eye witnesses who have been produced in court are no natural residents of the locality while that who was a natural witness has not been produced i.e. Mst. Manzooran the sister of the complainant and mother of the deceased. That the crime empties taken from the spot were not mentioned in column No. 23 of the inquest report nor the weapon has been described in column No. 12 of the inquest report. Lastly it was argued that Mukhtar Hussain husband of the deceased actually murdered her and caused injuries to the accused/appellant. 13. Allah Ditta PW-9 is the maternal uncle of the deceased and is residing at a distance of 10/12 K.M. in Basti Sahoo while Muhammad Aslam PW-10 nephew of the complainant and Qadir Bakhsh (not produced cousin of Muhammad Aslam PW-10 reside in Chak No. 11-MR which is at a distance of 14/15 K.M. from the place of occurrence. Mst. Manzooran another eye witness was not produced. She is sister of the complainant and mother of the deceased. It is also on record that Ghulam Sarwar father of Mukhtar Hussain PW-11 was hospitalised 10/12 days earlier as he was a heart patient and the relatives had been inquiring about his welfare there and that, because of his condition he was brought, back to his house a day prior to the occurrence where PW-9, PW-10, Qadir Bakhsh, Mst. Manzooran alongwith Mukhtar Hussain PW-11 and the deceased were present. It is also in evidence that Ghulam Sarwar after some days expired and thus, the presence of these PWs on the day of occurrence for the said reasons is appealing and acceptable. Mst. Manzooran is the mother of the deceased and it has been argued that she would not have sxipported the prosecution version if produced in court. The prosecutor incharge of the case is the best person to decide and choose from a given set of evidence as to which he will produce in court to prove the charge framed against the accused. It is the duty of the prosecutor to produce as many witnesses he thinks fit, proper and sufficient to prove the charge. It would not enhance the case of prosecution if the record be burdened with the evidence of a number of witnesses on one point. Two eye witnesses in present case had already supported the prosecution case. It would have been a futile exercise to produce the other two witnesses unless there was something extraordinary to be proved through their evidence. Nor were they injured witnesses whose non-production would have hit the prosecution case. It is beyond comprehension that the mother if produced in court would have gone against her own daughter's case and supported the case of the person who had murdered her daughter especially under the circumstances when there is no blood relation with the accused and it was openly known that he was having illicit relations with the deceased. The conduct and the manner in which the occurrence took place, is supported by the evidence of PW-9 and PW-10 it indicates that the accused committed this murder in a cold blooded pre-determined manner and he fired while chasing the deceased all around the house and even fired shots at, the closed door where she was taking refuge to save her life. This conduct and behaviour is a circumstance which cannot be lightly ignored. Though the deceased was hit by one bullet which proved fatal but the fact remains that seven fires were made through this weapon, out of which two fires were made by the accused on his own person to create a defence. The injuries of the acctised are explained by the witnesses in the FIR. There is no previous enmity between the accused and the complainant party. The illicit liaison was continuing since 3/4 years, the complainant party, the husband of the deceased had learnt to live with this shamefacedly. Had they ever felt aggrieved over this liaison they would have taken some steps to curb and stop it some time that far back but the facts indicate that this liaison was accepted in normal routine and thus nobody was bothered. Hence, the accused cannot claim any benefit from this by saying that he has been falsely implicated as the complainant party wanted to eliminate the deceased. 14. The crime empties have been found wedded with the weapon which is admittedly licensed property of the accused. In column No. 12 of the inquest report it is only necessary to state as to how apparently the injuries appear to be caused i.e. firearm, weapon or torture and the detail of weapon is not required. However, non-mention of empties in column No. 23 may be a callous inadvertent slip which could lead to an adverse inference had the same contradicted with the inspection note prepared soon after the inquest report which indicates and states about the presence of seven crime empties at the spot. This form of inquest report is prepared by the 1.0. who was in no way in the control of the complainant party hence the case of the prosecution so far as evidence of complainant party is concerned cannot be thrown out of discarded on this account when it is strong enough to prove the charge of murder against the appellant. Recovery of pistol P 3 is not supported by Malik Muhammad Shafi PW-4 but it is supported by Allah Ditta PW-9 and the I.O. who are equally good witnesses. It is the licensed weapon of the accused. If the prosecution had any intentions to falsely plant any evidence then very easily everything could be manoeuvered but the same has not been done. The appellant has very little space to wriggle out as the ballastic expert wedded his weapon with crime empties recovered from the spot. 15. No doubt that PW-10 has stated that all of them were aggrieved over the illicit liaison of the accused with the deceased and that Mukhtar Hussain husband of the deceased was also aggrieved and that she had refused to alienate the remaining land in the name of Mukhtar Hussain. Mukhtar Hussain has rebutted this and stated that though he had strained relations with the deceased but six months prior to the occurrence when she severed her illicit liaison with the accused and their relations became cordial and that two acres of land was alienated by Mst. Allah Budhaee in his name a month prior to this occurrence. If the complainant party or the husband had the intention or courage to do away with Mst. Allah Budhaee for the reason narrated by the accused then there was nothing to stop them from doing so and this being known to every body that the deceased was carrying illicit relations with the accused it would have vindicated their long lost honour. Secondly the deceased being owner of 95^ bighas of land out of which she transferred of her own free will two acres in the name of her husband nd thus, under these circumstances there was no reason for the husband or the complainant party to kill Mst. Allah Budhaee when there is no evidence that she had refused to transfer the remaining land in the name of her husband. The complainant party by killing Mst. Allah Budhaee would not have gam 3d anything. And lastly how could complaiannt party get hold of the licensed pistol of the accused to cause injuries prepare, crime empties and plant them on the accused as evidence while occurrence took place on 22.8.93, the accused being arrested in the evening on 23.8.93 and recovery of pistol being effected on 27.8.1993. Thus, it is a case in which substitution or fabrication is not possible. The accused in fact committed the murder of the deceased in presence of the witnesses. Since the motive or the immediate cause is shrouded in mysteiy, therefore, accused can reap the benefit to this extent. However, there is no force in all the contentions raised for acquittal. Therefore, the conviction and the sentence of the appellant is maintained on both counts. The appeal is dismissed. (K.A.B.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1010 Present: MUHAMMAD NAWAZ ABBASI, J. ABDUL HAMEED-Petitioner versus STATE-Respondents Crl. Misc. No. 1767/B of 1997, accepted on 22.1.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Offence u/Ss. 302, 324, 452, 148 & 149 PPC-Attribution of Lalkara to petitioner and plea of vicarious liability-Grant of bail-Prayer for—Occurrence was result of sudden quarrel without involving any element of premeditation-Petitioner being empty handed is assigned role of raising lalkara, which may express different impression in different cases and sometime is entirely purposeless, therefore, alleged lalkara may or may not represent intention-Thus vicarious liability of petitioner in given circumstances being yet ascertainable and case against him being distinguishable to that of his co-accused-Held: Petitioner is entitled to concession of bail-Petition accepted. [P. 1011] A Mr. Tariq Muhammad Iqbal Chaudhry, Advocate for Petitioner. Mr. Kamran Bin Latif, Advocate for State. Date of hearing: 22.1.1998. order Abdul Hamid petitioner being under arrest in a case under Sections 302/324/452/148/149 PPC registered against him through FIR No. 170 dated 2.7.1997 at Police Station Ghallah Mandi, Sahiwal seeks post arrest bail. The complainant had exchanged hot words with Abdul Hamid over the return of Rs. 10,000/- three days ago and on the day of occurrence at about 8.00 PM suddenly a quarrel took place between the parties and as a consequence thereof the petitioner allegedly raising lalkara instigated his sons namely Nadeem, Aleem and Azeem alongwith Saleem and Waseem armed with lethal weapons for teaching lesson to the complainant, whereupon they attacking on Bashir Zahid caused him injuries, who later died in hospital. The petitioner was refused bail with the observation that he was not only attributed simple lalkara but on his instigation, the remaining accused named therein playing an active role participated in the occurrence and thereby sharing common intention committed the crime. 2. Learned counsel for the petitioner with reference to the contents of the FIR contended that undoubtedly except the demand of return of money, there was no dispute between the parties and is not known that how the quarrel started and what was the actual reason of the clash of fateful incident on that day. He contended that occurrence having taken place suddenly was not premeditated and the alleged lalkara being without the intention of causing damage to any person, was not enough to make it a case of vicarious liability. 3. Learned counsel appearing on behalf of the State has opposed the grant of bail on the ground that the petitioner having played the pivotal role of instigation was responsible for calling the trouble and therefore is not entitled to the concession of bail. 4. I have heard the learned counsel for the parties and also perused the record. As per prosecution story narrated in the FIR, the occurrence was a result of sudden quarrel without involving any element, of premeditation. The petitioner being empty handed is assigned the role of raising lalkara, which may express different impression in different cases and some time is entirely purposeless, therefore, the alleged lalkara may or may not represent intention. Thus the vicarious liability of the petitioner in the given circumstances being yet ascertainable and the case against him being distinguishable to that of his co-accused on facts, he is entitled to the concession of bail. The petitioner is, therefore, allowed bail, subject to his tendering bail bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the trial Court. (K.K.F.) . Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1012 Present: HAMID All MlRZA, J. Mst. LACHMEE alias ADHI--Petitioner versus STATE-Respondent Crl. Misc. A. No. 415 of 1995, dismissed on 12.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A--Prohibition (Enforcement of Hadd) Order (1979), Arts. 3 & 4~ Reeovery of wine from possession of Hindu lady-Quashment of Proceedings-Prayer for-There is no material on record that applicant was in possession of wine for consumption as part of religious ceremony and that wine so secured was from house premises of applicant and not from street requiring warrant of search as provided under Article 22 of said Order-Let some evidence to come on record and then applicant/ accused if she so desires may make application under section 249-A of Cr.P.C. to show that no offence could be said to have been made out under law or that charge framed was groundless or that there was no probability of her conviction or she may make application under Section 561-A Cr.P.C. if so advised in accordance with law-Held: No quashment could be ordered under Section 561-A Cr.P.C. in stated circumstances- Application without merit is accordingly dismissed. [Pp. 1014, 1015 & 1016] A, B & C PLD 1997 SC 275, 1994 SCMR 798, PLD 1967 SC 354, 1968 SCMR 380, 1996 SCMR 839 and 1967 SC 317. Mr. M. AshrafKazi, Advocate for Petitioner. Mr. Agha ZafarAli, Advocate for State. Date of hearing: 12.01.1998. judgment This is a criminal miscellaneous application under Section 561-A Cr.P.C. for quashment of proceedings in respect of the case initiated on the basis of FIR No. 32/95 P.S. Risala registered under Articles 3/4 of Prohibition (Enforcement of Hadd) Order 1979 pending in the Court of learned ACM-XII, Karachi-South. The facts of the case in brief are that on 27.2.1995 at about 1730 hours ASI Asif Munawar alongwith other staff was busy in patrolling on police mobile when he received spy-information that in 'Sitta Matta' Compound near Risala Police Chocki one woman was selling 'Sharab', on receiving the said information he alongwith his staff reached at 'Sitta Matta' Compound where he found an old lady aged about 50/55 years in compound's street was selling 'Sharab' contained in blue colour cooler consequently th e said cooler was seized/recovered in presence of witnesses P.O. Muhammad Shafqat No. 2257 and P.C. Abdul Majid No 654 when the said cooler was checked it contained two point London Dry Gin 1, one point Wat 1, twenty pawa Wat 1 and one pawa London new Blend Gin, the said lady disclosed her name as Adhi wife of Daya Ram consequently an offence under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 was made out and the said lady was arrested. The contention of learned counsel for the applicant is that the applicant is a Hindu by religion and she possessed a valid permit for purchase of wine therefore in view of Article 5 of Prohibition of Hadd Order no offence could be said to have been committed by the applicant/accused and continuance of proceedings would amount of abuse of process of law hence liable to quashment. He further contends that recovery of alleged wine is affected from the house of the applicant where she has been residing in absence of warrants as required under Article 22 of Enforcement of Hadd Order hence said recovery and continuance of the proceedings would be illegal. Learned counsel for the applicant in support of his contentions has placed reliance (i) State through Advocate General, Sindh vs. Bashir and others (PLD 1997 SC 408) on the point that recovery witnessed by police personnel in the circumstances of the cited case could not be believed, (ii) Mushtaq Ahmc"i vs. The State (PLD 1996 SC 584) on the point that the mashirs of recovery of the weapon be made from the locality and (iii) Ashiq Hussain vs. The State (1995 MLD 932) wherein the learned Judge in Chambers observed that since the Investigating Officer had committed an illegality in the procedr~~ in violation of the provisions of Article 22 of the Prohibition Order and Section 103, Cr.P.C. the whole exercise of recovery of any narcotic from the premises of the appellant had become nullity in the eyes of law hence the appeal was accepted. I have gone through all the cited cases and would appear that all cited cases were decided after appraisal of evidence in appeals and not under inherent powers under Section 561-A Cr.P.C. Article 5(2) of Prohibition (Enforcement of Hadd) Order, 1979 reads as under:- "Nothing contained in Article 3 of Article 4 shall apply to any act done under, and in accordance with the provisions of this Order, or the terms of any rule, notification, order or licence issued thereunder. The provisions of Articles 3 and 4 shall not apply in following cases:- (1) ........................................................................................................... (2) The consumption by non-Muslim citizen of Pakistan as part of a religious ceremony." Article 22 of Prohibition (Enforcement of Hadd) Order, 1979 reads:- "22. Issue of Search Warrants.-(l) If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material still, utensil, implement or apparatus in respect of which the alleged offence has been committed. (2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provision of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to beligj&e such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11." In the instant case charge has not been framed as stated by the counsel for the applicant. There is no material on the record that the applicant was in possession of the said wine for consumption as a part of religious ceremony. The prosecution material state that the applicant was selling wine lying in the blue cooler in the street of compound. There is nothing on the record to show that wine was secured from the house premises of the applicant/accused. There is to be at least suggestion or denial to show that the wine so secured from the applicant was for consumption of the applicant as part of religious ceremony and that wine so secured was from the house premises of the applicant and not from the street requiring warrant of search as provided under Article 22 of said Order hence the contentions raised cannot be appreciated under Section 561-A Cr.P.C. Reference may be made to (i) Muhammad Khalid Mukhtar vs. The State (PLD 1997 SC 275) wherein their Lordships have observed at page 279:- "As observed in the case of Asif Ali Zardari (1994 SCMR 798) the powers under section 561-A Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised in mechanically or in eveiy case where there is allegation of false implication or the evidence being false. Exercise of such powers cannot farther the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354, it was held that quashment of proceedings at any early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court." (ii) Sheikh Mahmood Saeed and others vs. Amir Nawaz Khan and another (1996 SCMR 839):- "We have decided to refrain from making any observations on the alleged compromise lest it should adversely affect the respective claims of the parties. Suffice it to say at this juncture that the ground urged before us hardly furnishes a valid ground for the quashment of the proceedings under section 145 Cr.P.C. Even otherwise, normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A Cr.P.C. should not be lightly made, as this would tend to circumvent the due process of law. This was the principle laid down by this Court in Ghularn L. \ammad v. Muhammad Khan (PLD 1967 SC 317). Nonetheless, we may express a word of caution that each case must be judged on its own special facts and circumstances. We are of the considered view that power vests in the High Court to quash criminal proceedings, if it is satisfied that a false complaint had been brought and the process of Court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessaiy harassment. We are convicted that the present case is not of that nature and, consequently, the order passed by the learned Single Judge calls for no interference by this Court." It could not be said in the circumstances that there is abuse of process of law or that quashment would be to secure the ends of justice. Let some evidence to come on record and then the applicant/accused if she so desires she may make application under Section 249-A of Cr.P.C. to show that no offence could be said to have been made out under law or that the charge framed was groundless or that there was no probability of her conviction or she may make application under Section 561-A Cr.P.C. if so advised in accordance with law. However, in the stated circumstances no quashment could be ordered under Section 561-A Cr.P.C. in the instant case, consequently this criminal miscellaneous application has no merit hence is dismissed. The case is an old one therefore the learned Magistrate is directed to dispose of the case within four months. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1016 Present: mansoor alamgir qazi, J. ILYAS-Petitioner versus STATE-Respondent Criminal Misc. No. 1985-B/97, accepted on 18.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Art. 10-Discharge of two co-accused--Case fixed for formal charge and evidence--Bail--Grant of--Prayer for--Mst. "A" was medically examined and according to medical certificate there were no marks of violence on her body-Held: There exist reasonable grounds to believe that there exists case of further inquiry against petitioner-Petition accepted and petitioner allowed bail. [P. 1017] A & B Mr. Tahir Mehmood, Advocate for Petitioner. Mr. Tahir Haider Wasti, Asstt. A.G. and Mr. Jamil Ahmed Chohan, Advocate for State. Date of hearing: 18.3.1998. order Inspector Legal from the D.I.G. office, Multan is present in court and states that case FIR No. 169/97 is still under investigation and the investigation of this case was now transferred to the Range Crime. Further states that inadvertently the investigation of case FIR No. 88/97 had also been entrusted to Range Crime although the record which has now been perused indicates that the investigation in case FIR No. 88/97 stood finalised. The challan had been submitted in this case in which the competent court of law has now taken cognizance. The Inspector Legal has assured this Court that he would get the orders of investigation issued in case FIR No. 88/97 rescinded within the shortest possible time. Learned counsel for the petitioner wants now to argue the bail petition on merits in case FIR No. 88/97. 2. lyas petitioner is seeking post arrest bail in case FIR No. 88/97 under Article 10 of the Offence ofZina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Thinigi District Vehari on the statement of one Allah Ditta brother ofMst. Aasia the victim. 3. Briefly the facts of the case are that on 17.5.97 at 3.00 A.M. Ilyas petitioner alongwith Tahir Mehmood and Amin forcibly took Mst. Aasia to nearby cattle shed where all of them alongwith one unknown person committed sexual intercourse against her will with her. 4. Ilyas petitioner was arrested on 25.5.97 while Tahir Mehmood and Amin co -accused were found innocent by the police in course of investigation and discharged on 28.6.97 by the order of the Magistrate 1 st lass, Vehari. The unknown person is yet to be traced. Mst. Aasia was medically examined on 18.5.97 and according to the medical certificate there were no marks of violence on her body. 5. Learned counsel for the petitioner submits that with the discharge of two co-accused prosecution case has been found false and there are no special circumstances or evidence to distinguish the case of the petitioner from that of the two co-accused who have been discharged. The challan of the case is pending before the learned trial court and according to the report submitted by the learned trial court the case is fixed for formal charge and evidence. It is yet to be proved beyond reasonable doubt as to whether the petitioner alone could have committed this offence or not. Be that as it may, there exist reasonable grounds to believe that there exists a case of further inquiry against the petitioner. He is allowed bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- with one surety in the like mount to the satisfaction of the learned trial court. (T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1019 [DB] Present: nazim hussain siddiqui & ikram ahmad ansari, JJ. M.B. ABBASI-Applicant versus STATE-Respondent Criminal Misc. No. 419 of 1997, dismissed on 9.01.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 154 and 179-Petitioner was President of National Bank of Pakistan-­ Registration of FIR u/S. 109, 409 &, 34 PPG read with section 5(2) Act II 1947 at Karachi for acquiring building for setting up Branch of Bank at Islamabad and advancing Rs. 5.00 million to owner of building without sanction of State Bank of Pakistan-Whether action against petitioner could be taken at Karachi when alleged offences were committed at Islamabad-Question of-As per Section 179 Cr.P.C. when act is done or where its consequences ensues such offence can be enquired into or tried by court within local limits of whose jurisdiction any such thing has been done or any such consequences has ensued-Learned D.A.G. has submitted photo copy of office Note of Corporate Affairs Division Customer Services Wing, National Bank Head Office Karachi, which shows that proposal for establishing branch was approved by applicant at Karachi-Act was done at Karachi and its consequences ensued at Islamabad-Held : Offence could be tried at both. [P. 1021] A & B (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Offence u/S. 109, 409 & 34 read with Section 5(2) Act II, 1947- Final charge sheet not submitted-Various adjournments by Court- Insufficient evidence-Quashment of proceedings-Prayer for-Question of-in-sufficiency of evidence or its non credibility cannot be ground for quashment of proceedings, nor allied question concerning appreciation of evidence can be dilated upon, while exercising jurisdiction under section 561-A Cr.P.C.-Basically, it is function of trial Court and this would not short circuit normal procedure of trial, as provided by Law-Held: Trial Court granted adjournments mostly on ground that matter was still under investigation and final charge sheet was not submitted-Petition dismissed in limine. [P. 1023] E, F & G (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —- S. 109, 409, 34 read with Section 5(2) Act II 1947-Final charge sheet not submitted despite lapse of considerable period by special court-Whether delay is abuse of process of court-Question of-Great emphasis is laid on point that criminal case must be disposed of as early as possible, but at same time, the view that time is of essence in criminal prosecution has not been recognised as of universal application-When national finances are plundered by public functionary in capacity as holder of public office such person would not be entitled to acquittal simply on ground of delay- In case of M.S. Khawqja vs. State (PLD 1965 SC 287) it was held that Limitation does not apply to criminal prosecutions and it is also inappropriate to examine questions of delay through actions of Government, or prosecution authorities as if they give rise to equities, on same footing as in Civil matter inter partes. [Pp. 1022 & 1023] C & D PLD 1992 SC 353. Mr. Azizullah K. Sheikh, Advocate for Applicant. Mr. Mubarak Hussain Siddiqui, Dy. Attorney General for Respondents. Date of hearing: 18.12.1997. judgment Nizam Hussain Siddiqui, J.-Applicant M.B. Abbasi, who was the President of National Bank of Pakistan, has filed this application, under Section 561-A Cr.P.C., for quashment of proceedings arising from FIR No. 4/97 registered on 21.1.1997 at Police Station FIA/CBC Karachi, under Sections 109/409/34 PPC read with Section 5(2) Act, II1947, pending before the Special Court (Offences in Banks) Sindh at Karachi. The facts relevant for disposal of this application are as follows: The prosecution case, in brief, is that the applicant, during a visit to Islamabad , had decided to acquire a portion (7000 Sq. Ft) of a building, which was under construction in Commercial Area Markaz, G-9 Islamabad, for opening therein a new branch of the Bank. It is alleged that, on his instructions the Regional Authority of the Bank at Islamabad, forwarded a proposal in July, 1995 for acquiring said premises on rental basis, recommending advance payment for three years amounting to Rs. 500 Million at the rate of Rs. 20.00 per Sq. Ft. and for entering into a lease agreement for five years. It is also alleged that the applicant had approved said proposal without having obtained necessary sanction from the State Bank of Pakistan . The branch was formally open on 30th September, 1996. Further it is alleged that, in fact, the transaction was done to show favour to the owner of said properly, who is a relative of Mr. Asif Ali Zardari, this spouse of the former Prime Minister of Pakistan. Also, it is submitted that for said purpose the 'Bank' Mark-Up free fund' of Rs. 5.04 Million was utilised for construction of said premises. On completion of investigation, the interim charge sheet was submitted before the trial Court. In the month of July, 1997 the applicant had filed, an Application under Section 249-A Cr.P.C. before said Special Court and the same was dismissed vide Order dated 30th October, 1997. The applicant, now, has filed this application for quashment of the proceedings. Mr. Azizullah K. Sheikh, learned counsel for the applicant contends that the applicant has been involved falsely in 6 criminal cases, including the present one. He argued that so far even final charge sheet has not been submitted in this case. He also argued that the idea of opening the branch was not initiated by the applicant, but, in fact, it was processed in routine by the Regional Office of the bank at Islamabad and to examine its feasibility a survey was conducted and thereafter the Zonal Head, the general Manager, and the Senior Vice President Corporate Affairs Division, had strongly recommended for establishing said branch. Learned counsel submitted that it was not known to the applicant that said building belonged to a relative of Mr. Asif Ali Zardari and that to his (applicant) knowledge it was owned by "Alamdar Tahwal and Nasira (Pvt) Ltd". Learned counsel also contended that no loss was caused to the Bank and that the advance paid to the owner of said building is being recovered in installments and said branch is functioning satisfactorily and is earning profits. Although, learned counsel for the applicant has raised above contentions, but he laid emphasis mainly on two grounds. Firstly, he argued that said building is at Islamabad , Lease Agreement was executed there, and the payment was made there, as such, the Special Court at Karachi has no jurisdiction to entertain this matter. Secondly, he contended that about a year has passed but the FIA Authorities have not, yet, submitted final charge sheet and it is, besides, abuse of the process of court, an act of injustice towards the applicant. As regards, the point of jurisdiction, it is noted that, as per Section 179 Cr.P.C. where an act is done or where its consequence ensues such offence can be enquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensued. Mr. Mubbarrak Hussain Siddiqui, learned DAG has submitted a photocopy of Office Note dated 15.8.1995 of Corporate Affairs Divisions Customer Services Wing, National Bank Head Office Karachi, which shows that the proposal for establishing said branch was approved by the applicant on 17.8.1995 at Karachi. In this case, the act was done at Karachi and its consequences ensured at Islamabad. Therefore, the offence could be tried at both the above mentioned places. So far the second contention is concerned, learned counsel for the applicant argued that since it is a case of abuse of process of the Court, this Court, while exercising jurisdiction under Section 561-A Cr.P.C., can quash the proceedings. He submitted that no offence was made out and for that reason the final charge sheet was not submitted and the Special Court, as a matter of routine, extended the time whenever such prayed was made. In the case of Ghulam Nabi and another vs. The State, 1996 P.Cr.L.J. 1335 a D.B. of this Court comprising the then Acting Chief Justice and myself on the scope of Section 561-A Cr.P.C. had observed as follows:- "The law on the point of inherent power of the High Court in relation to section 561-A, Cr.P.C. is now well-settled. High Court possess power to remove injustice and statutory recognition has been accorded of this power of High Court by virtue of said section. The examples of inherent powers possessed by High Court under this section are, to make such orders as may be necessaiy to give effect of its decisions or to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. It is an established principle of law that all courts whether Civil or Criminal, must possess inherent powers, which are necessaiy to their existence and their proper functioning. This is based on the principle embodied in the maxim quando lex aliquid alicui concedit, concedere vide tur id sine quo res impas esse nonpotest, which means that when the law gives a person anything it gives him that without which, it cannot exist. The consensus of the Superior Court is that inherent power cannot be invoked in respect of the matters, which area covered by specific provisions of Cr.P.C. nor this section can be applied for overriding an express provision of law, which restricts or limits the power of the Court. Power under this section is to be sparingly exercised and this Court would not hold an enquiiy as to whether the evidence in question is reliable or to, as basically it is the function of the trial court not it can be urged before this Court that on the basis of proper appreciation of evidence the charge could not be sustained against the accused." It is true that a great emphasis is laid on the point that a criminal case must be disposed of as early as possible but at the same time, the view that time is of the essence in criminal prosecution has not been recognised as of universal application. When national finances are plundered by a public functionaiy in his capacity as holder of a public offioe such person would not be entitled to acquittal simply on the ground of delay. In the case of M. S. Khawaja vs. The State PLD 1965 S.C. 287 while dealing with Section 561-A Cr.P.C; it was held:- "Limitation does not apply to criminal prosecutions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities as if they gave rise to equities, on the same footing as in a civil matter inter parties. Eveiy prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power 'to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law." A Full Bench of the Supreme Court in the case of A Habib Ahmed vs. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 held that, ifprirna facie, the offence had been committed ordinary course of trial was not to be deflected through an approach to inherent jurisdiction of High Court under Section 561-A Cr.P.C. as said section could not be utilised as to interrupt or divert the ordinaiy course of criminal procedure as laid down in the Procedural Statute. Coming back to the facts of the instant case, it is noted that the question of in-sufficiency of evidence or its non-credibility cannot be a ground for quashment of the proceedings, nor the allied question concerning the appreciation of evidence can be dilated upon, while exercising jurisdiction under Section 561-A Cr.P.C. Basically, it is the function of trial Court and this Court would not short circuit the normal procedure of trial, as provided by law. It appears that the trial Cqurt granted adjournments mostly on the ground that the matter was still under investigation and final charge sheet was not submitted. We are of the view that so many adjournments should not have been granted on above ground and in view of proviso of Sub-section (1) of Section 173 Cr.P.C. the trial shall have been commenced on the basis of the interim charge sheet. Accordingly, we direct that trial shall be started without any further delay. With above observations, this criminal Application is dismissed in lirnine alongwith the listed application. (AAJS) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. (Karachi) 1024 Present: ABDUL HAMEED dogar, J. ABDUL RAZZAK BILLOO & another-Applicants versus -Respondent Criminal Bail Application No. 2005/97, accepted on 1.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 497 & 498 offence under Section 5(2) of Prevention of Anti-Corruption Act, 1947 read with Section 109/275/274/468 471 PPC and Section 27(2) of Drugs Act, 1976--Bail--Grant of--Prayer for-F.I.R. not signed by complainant as such it cannot take place of F.I.R.-Amendment made by concerned Ministry in Section 6 of F.I.A. Authority has been excluded from enquiry into offence under Section 468 and 471 P.P.C.-Section 274 and 275 Cr. P.C,. are not included in schedule, as such they are also excluded from purview of investigation by F.I.A. Authorities-So far as Drag Act, is concerned, sub-section (2) of Section 30 of Act seemingly stipulates that offence punishable under sub-section (2) of Section 27 shall be non-cognizable and it further says that no court other than Drug Court shall try such offence—According to this provision of law complaint as defines under Section 4(b) Cr.P.C. is to be filed before court having jurisdiction and F.I.R. is not its substitute-In such situation procedure laid down in Section 155 Cr. P.C is to be followed-Alleged offence being at most punishable with 7 years will fall out of prohibitory clause of section 497 Cr. P.C. hence grant of bail is rule whereas refusal is exception—Held : Allegations against applicants require further enquiry and there are no reasonable grounds to believe that they are guilty of alleged offence-Petition accepted. [Pp. 1026 & 1027] A, B & C 1994 P. Cr. LJ 1065 & 1995 SC 34. M/s. Ilyas Khan and Nooruddin Sarki, Advocates for Applicants. Mr. MushirAlam, Standing Counsel for Respondent. Date of hearing: 1.1.1998. order Applicants seek bail in Crime No. 5/97 registered at Sub-Circle Criminal Circle-II, FLA at police station FLA/Crime Circle-II, Karachi under section 5(2) of Provincial Anti Corruption Act, 1947 read with section 109/275/274/468/471 PPC and section 27 (2) of Drugs Act, 1976. The facts in brief of the prosecution case are that this case was lodged on 13-12-1997 by Altaf Hussain, Assistant Director FLA on the complaint of Ali Akbar Sial, Federal Inspector Drugs. Consequent upon the complaint a raid was conducted on 11.12.1997 by the complainant with the assistance of FIA team headed by Altaf Hussain on M/s. United Agencies owned by applicant Abdul Razzak Billoo and found expired, out dated medicines/drugs alongwith the stickers showing names of medicines and their expiry date. The medicines and stocks were seized under seizure memo in presence of the applicants and other witnesses. It is further mentioned that the raiding party searched another store of M/s. R.K. Chemicals Company owned by the applicant Abdul Ghaffar Billo and recovered huge quantity of expired out-dated medicines which were also seized in his presence as well as that of witnesses, under seizure memo. The prosecution case further is that on further enquiry it was found that expired medicines specially injunctions sodium Biorbonate 7.5% were sold to different Federal and Provincial Government Hospitals either by changing their outer labels or by putting rubber stamps showing valid dates of expiry. It is further alleged that on the day of lodging of case, the applicants were called in the office and were interrogated who could not give satisfactory explanation with regards to the above stocks and rubber stamps and printed out labels. It is also said that applicant Billoo confirmed that he had sold the said expired medicines to various Government hospitals. The applicants were arrested and interim challan has been produced. Bail application was filed in the lower Court in which interim bail was granted on 16-12-1997 which was later on not: confirmed and was rejected. Hence this bail application. It is contended by Mr. M. Ilyas Khan for the applicants that it is only applicants who have been shown in custody in the interim challan whereas none from staff of any of the hospital have been shown either accused or arrested in the case though sufficient time has lapsed after registration of the case and the same has been thoroughly investigated by the Investigating Officer Ch. Sardar Khan of FIA Branch Crime Circle-II. In view of this learned counsel states that applicants cannot be booked under section 5(2) of Provincial Anti-Corruption act. 1947. He next contended that in view of Notification issued by Ministry of Interior & Narcotics Control vide SHO No. 826(l)/97 dated 20th September, 1997 sections 468 & 471 PPC have been taken out from the schedule and FIA has been excluded to investigate into the matters. So far as section 274 and 275 are concerned these sections were never included in the schedule as such the same are also out, of the purview of the F.I.A. to investigate. With regard to section 27(2) of the Drugs Act it is contended that sub-section (2) of section 30 of the said Act makes this offence a non-cognizable one and also that no Court other than Drug Court shall try an offence punishable under the said offence. Here an FIR has been lodged by F.I.A. showing Akbar Sial Inspector Drugs as complainant which according to the learned counsel is not the requirement of law and complaint in view of section 4(h) Cr.P.C. is to be lodged before the Court having jurisdiction. This violation vitiates the entire proceedings. He lastly contended that veiy F.I.R. on the basis of which the proceedings have been initiated is not in accordance with law and is without lawful authority as the same has not been signed by the complainant. In support he placed reliance on the cases reported as 1994 P, Cr. L.J. 1065 & PLD 1995 S.C. 34. Mr. Musheer Alam, learned Standing Counsel frankly concedes that in the present case the allegations against the applicants require further probe and he has no objection to the grant of bail. Learned counsel for the applicant frankly accepted that the applicants being whole-sale dealers used to keep the expired medicines and file such claims with the original Companies. Copy of such claim has been placed on record. From the FIR it transpires that the same is not signed by complainant Ali Akbar Sial as such it cannot takes place of that of FIR. The provisions laid down in section 154 Cr. P.C. stipulates the provisions with regard to lodging of an FIR. It shows as to how an information about the cognizable offence is to be recorded at police station. For proper appraisal section 154 Cr. P.C. reads as under :- "154, Information in cognizable cases : Every Information relating to the commission of a cognizable offence if given orally to an officer-in-chief of a police station, shall be reduced to writing by him or under his direction be read over to the information; and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf." From the above provision of law it is mandatory that the information with regard to commission of cognizable offence given orally or in writing shall be reduced to writing by police officer incharge of police station and shall be read over to the information and be got signed by him and shall be entered in a book to be kept by such police officer of such police station. The amendment made by the concerned Ministry in section 6 of FIA the authority has been excluded from enquiring into the offence under section 468 and 471 PPC. With regard to section 274 and 275 Cr. P.C. these even otherwise are not included in the schedule, as such they are also excluded from the purview of investigation by the F.I.A. Authorities. So far as Drugs Act is concerned, sub-section (2) of section 30 of the Act seemingly stipulates that an offence punishable under sub-section (2) of section 27 shall be non cognizable and it further says that no Court other than Drug Court shall try with offence. According to this provision of law a complaint as defines under section 4(h) Cr.P.C., is to be filed before the Court having jurisdiction and FIR is not its substitute. In such situation a procedure laid down in section 155 Cr. P.C. is to be followed which admittedly has not been followed in this case. The case of Shujauddin vs. The State, reported in 1994 P.Cr. L.J. 1065 referred by applicants' counsel is fully applicable to the facts of the present case and in the referred case FIR has been quashed being without lawful authority. The alleged offence being at the most punishable with 7 years would fall out of prohibitory clause of section 497 Cr. P.C., hence grant of bail is rule whereas refusal is an exception. This principles has been laid down by Hon'ble Supreme Court in the case of Tariq Bashir & 5 others vs. The State, PLD 1995 S.C. 34. Looking to the above discussion on factual as well as legal aspect of the case and no objection raised by learned Standing Counsel, I am of the considered opinion that the allegations against the applicants require further enquiry and there are no reasonable grounds to believe that they are guilty of the alleged offence. Accordingly they are granted bail and shall be released on their furnishing surety in the sum of Rs. 100,000/- (Rupees One Lakhs) each with PR bond each in the like amount to the satisfaction of the trial Court. (K.K.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 1027 [Bench D.I. Khan] Present: sardar jawaid nawaz khan gandapur, J. Haji UMAR KHAN--Appellant versus THE STATE-Respondent Cr. Appeal No. 20 of 1997, dismissed on 11.2.1998. Pakistan Penal Code, 1860 (Act XLV of 1860)-- -S. 193-Perjury-Charge of-Conviction to-F.I.R. registered U/Ss. 302/ 324/148/149 PPC was lodged by appellant-After registration of case, usual police investigation was carried out and later on, complete challan was submitted in trial Court-When appellant was examined on Oath he stated that he had not lodged any report, he resiled from his earlier statement--A person who deliberately tells a lie during solemn proceedings of a Court of law knowing fully well that he is thereby likely to rain life/reputation of an innocent citizen or jeopardise his liberty by falsely involving him in a criminal case, does not deserve any leniency and ought never be left off lightly-Appellant has admittedly perjured him self and deserves no leniency whatsoever-Appellant was rightly convicted/sentenced by trial Court-Appeal dismissed. [Pp. 1030 & 1031] A, B & C Mr. Gohar Zaman Khan Kundi, Advocate for Appellant. Dost Muhammad Khan, Advocate for Complainant. Muhammad Khan Khakwani, Ad%'oeate for State. Date of hearing: 11.2.1998. judgment Appellant Haji Umar Khan S/0 Sahar Jan R/0 Inayat Mithakhel. id District Baanu, was convicted by the Sessions Judge, Bannu (Mr. Sattar Khan) U/'S. 193 P.P.C. and sentenced to 3 years rigorous t lent. Additionally he was sentenced to pay a fine of Rs. 10,000/- Vpisand) or id default thereof to undergo further S.I. for a period of 2. Aggrieved, the appellant has challenged the legality/validity of the said judgment and has filed this appeal U/S. 410 R/W 476(4) (b) Cr. P.C. 3. On the other hand, Akbar Zaman, the brother of the deceased has filed a revision petition (No. 8/97) against the said judgment for the enhancement of the sentence awarded to appellant Haji Umar Khan and has prayed that the sentence so awarded be enhanced to seven years rigorous imprisonment. 4. Since the appeal and the revision petition are the out-come of the same judgment, therefore, I propose to dispose of both the matters by this judgment. 5. Briefly stated the Prosecution case is that one Falak Naz Khan (the brother of Akbar Zaman, petitioner in revision petition) was killed by Gul Manzoor Shah etc. with Kalashinkovs. Accordingly a report was lodged against, all of them by appellant Haji Umar Khan at Police Station, Mandan , Tehsil and District Bannu. On the basis of the said report F.l.R. No. 50 was registered on 3.2.1995 U/Ss. 302/324/148/149 P.P.C. The case was investi­ gated into by the local Police and after the completion of the usual investiga­ tion complete chalian was submitted against them in the Sessions Court. 6. The Sessions Judge commenced the trial, framed the charge and examined some of the prosecution witnesses. When appellant (Haji Umar Khan) was examined on Oath as PW-6 by the trial Court on 2.10.1996. he stated on Oath that he had not lodged the F.l.R. (Ex. P. A/1) on his own. For the sake of convenience the relevant portion of his statement is reproduced below :- I have not seen the occurrence nor the accused making firing as I was confined inside my house Self added that the accused are completely innocent and they have been falsely charged and I am being compelled to give false evidence against them I have seen the report Ex. P.A/1 in the shape of Murasila which correctly bears my signature. It is correct to suggest that I have made this report to the I.O. in the village/not seen any one and I was told by the Police to give such like statement as mentioned in the report Ex. P.A/1 which ....................................................... It is incorrect to suggest that I am again giving a false statement in this regard 1 have heard the contents of the report today in the Court which I dis-own because I have not given such a statement to the I.O. Self added that in fact this story was given by Akbar Zaman etc, but I was asked to sign the same. I did accordingly. The_statement_jn the report E_x. P.A/1 was .narrated in my presence to the LO. try; AkbarZaman and I was asked to_sign the same which I did accordingly. Even ! had not made any complaint against the I.O. for obtaining my signature on the report in the manner so,stated above. It is incorrect to suggest that I have been paid Rs. 2,5Q,000/- by the accused for resiling from my statement/FIR and it is further incorrect that before starting the dealt with the accused they have also threatened to kill rny major son if I do not resile from my statement. It is also incorrect to suggest that I have perjured myself while giving false statement on Oath..., The report was not read over to me by the I.O. while obtaining my signature on it," (The underlining is mine) 7. The Sessions Judge, after the perusal of the record was however of the view that net only that Haji Umar Khan had lodged the F.I.R. as a complainant but that he had also signed the same in token of its correctness. The Sessions Judge, therefore, charged the appellant U/S. 193 P.P.C. The charge was duly read over and explained to him. The appellant, pleaded not. guilty and claimed trial. 8. Mir Payo Khan, Reader of the Sessions Judge Bannu, was. 3Xaffiiaed as P.W-1 ob: Oath. He produced the certified copies of F.I.R. No. 50 registered on 3.2.1995 (Ex. PA/1) and the statement of Hqji Umar Khan. PW-1 was not cross-examined by the appellant. The Sessions Judge then examined the appellant and recorded his statement U/S. 342 Cr. P.C. He professed innocence and stated that he had given the true account of the occurrence in his statement recorded during the trial because he was bound to do so morally. He, however, refused to produce any evidence in his defence or appear as his own witness and record his statement U/S. 340(2) Cr. P.C. in disproof of the charges levelled against him. 9. After taking into consideration the prosecution evidence and hearing the arguments of the learned counsel for the parties, the trial Court convicted the appellant and sentenced him as stated above. Hence this appeal. 10. Mr. Gauhar Zaman Khan Kundi, Advocate learned counsel for the appellant, Mr. Muhammad Khan Khakwani, Advocate, learned counsel for the State and Mr. Dost Muhammad Khan, Advocate, learned counsel for Akbar Zaman brother of deceased present and heard at length. I have also perused the record of the case carefully. 11. A perusal of the statement of P.W.-l as well as the impugned judgment would show that the trial Court has discussed the facts of the case in detail and has given valid reasons for its conclusion. The judgment of the Sessions Judge is neither arbitrary nor perverse and, therefore, cannot, be interfered with by his Court. I do not agree with the contention of the learned counsel for the appellant that the Sessions Judge has not applied his mind while deciding this case. It is evident from the record of the case that the First Information Report (Copy Ex. P.A/1) registered U/Ss. 302/324/ 148/149 P.P.C. was in fact lodged by the appellant. It is also apparent from the record that after the registration of the case, usual police investigation was carried out and later, complete challan was submitted in the trial Court against Niaz All Shah and others. When the appellant was examined on Oath he stated that he had not lodged any report. In other words he resiled from his earlier statement. I am, herefore, of the considered view that the appellant was rightly convicted/sentenced by the trial Court. No exception can be taken to the impugned judgment. A person who deliberately tells a lie during the solemn proceedings of a Court of law, knowing fully well that he is thereby likely to ruin the life/reputation of an innocent citizen or jeopardise his liberty by falsely involving him in a criminal case, does not deserve any leniency and ought never be left off lightly. It was held by an Honourable Bench of the Supreme Court of Pakistan in case titled Mst. Karim Khatoon vs. The State., reported as P.L.D. 1984 Supreme Court 44, comprising of His Lordship Mr. Justice Aslam Riaz Hussain and Mr. Justice Nasim Hassan Shah, as under :- "Perjury is one of the most heinous social and moral offences. It is not only an offence punishable under the law but is also against the injunction of the Holy Quran. It is an evil which tends to disrupt the very basis of the social order and make a mockery of the judicial system, be it Islamic or otherwise. Any person who deliberately tells a lie during the solemn proceedings of a Court of law, knowing fully well that he is thereby likely to ruin the life or reputation of an innocent person or put into jeopardy his liberty by falsely involving him in a criminal case or cause damage to his property, does not deserve any leniency and ought never be let off lightly. The tendency on the part of the Courts to take a light view of such cases has, over the decades, tended to encourage perjury in our Courts, with the result that it has now become so common that witnesses do not feel any qualms of conscience. While making a false statement in a Court of law and have ceased to consider it as an "act involving any moral turpitude. The Courts must arrest this tendency with a firm hand and so everything in their power to eradicate this evil from its roots. Awarding stiffer sentences would be a positive step in this direction". 12. In the instant case the appellant has admittedly perjured himself and deserves no leniency whatsoever. In fact he has been dealt with leniently „ by the trial Court which had awarded him lesser punishment. This appeal has no substance and is accordingly dismissed. Since the appellant is a sick person being a heart patient, therefore, I would not like to enhance the punishment already awarded to him. The criminal revision petition is also dismissed. (A.S.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 1031 [ Hyderabad Circuit] Present: IKRAM AHMAD ANSARI, J. Ms(. MOOMAL-Applicant Versus JUMMO SALARO MIR KHAN and another-Respondents Cr. Misc. Appeal No. 04 of 1998, accepted on 18.2.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 491-Restoration of custody-Two minor daughters of applicant (mother) and respondent (father)-Hlegally confined and kept in wrongful custody of father against their wishes-U/S. 491 Cr. P.C. in exceptional cases High Court can interfere to order restoration of custody which has been disturbed ^legally or improperly-A nraslim girl has to live with her mother, who has right of Hizanat, till such tim that she is married and/or attains age of 16/18 years, unless through cogent evidence other is declared to be disentitled to have custody of her daughter or daughters-­ Manner in which respondent father has been treating his two minor daughters, even if he is not detaining them illegally, but surely he is keeping them in his house improperly and restraint on two minors is patently unjust, cruel and obviously not in the best interest of two minors and thereby welfare and proper up-bringing of two minors will be adversely affected—Application allowed and applicant is permitted to take two minors with her. [Pp. 1033 & 1034] A, B & C Mr. Khursheed Alam Khan, Advocate for Petitioner. Mr. Abdul LatifAnsari, Advocate for Respondent No. 1. Mr, All Azhar Tunio, Asstt. A.G. for Respondent No. 2. Date of hearing : 18.2.1998. judgment I have heard the learned Advocates for the parties as well as the learned Assistant A.G. This application has been filed under Section 491, Criminal Procedure Code, stating that wo minor children, namely, Miss. Fozia and Miss. Salma daughters of the applicant, and respondent No. 1 are illegally confined and kept in wrongful custody of respondent No. 1 against, the wishes of the minors and the applicant. Vide order dated 19.1.1998 notice of the Cr. Mis. Application No. 4 of 1998 was ordered to be issued to the Respondent No. 1 and in pursuance thereof he appeared before this Court on 2.2.1998 with the request that he may be supplied copies of the applicant's application so that he may submit his reply thereto. On the said date the Respondent No. 1 was directed to produce the minors, namely, Miss. Fouzia and Miss Salma in Court on 16.2.1998 but on the said date the Respondent No. 1 produced in Court only Miss. Fouzia and failed to produce Miss. Salma on the ground that she is taking her examination, therefore, she could not be produced. The said statement of Respondent No. 1 was rebutted and denied by his minor daughter, Miss. Fouzia, aged about thirteen years and she stated that Miss. Salma neither has gone to school nor she is taking any examination and the Respondent No. 1 has deliberately avoided to produce her in Court. However, at the request of the parties, the case was adjourned to 18.2.1998 with a clear direction to Respondent No. 1 to produce the minor, Salma aged about ten years, in Court on 18,2.1998 at 1.00 P.M. At the time of passing of such order the Respondent No. 1 undertook not to harrass or pressurise his said minor daughters for making any false statement in Court or to over awe or threaten them in any manner, In compliance with Court order dated 16.2.1998 the Respondent, No. 1 has today produced the two minors, namely Miss. Fouzia and Miss. Salina, in Court and in the presence of the parties, their Advocates and the learned Assistant Advocate General, I enquired from the two minors, whose ages as admitted by their parents are 13 and 10 years respectively, the manner in which they are being kept by their lather in his house. Both the girls stated that earlier they were living with their mother but for some time their father is keeping them in his house against their wishes and inspite of their requests he is not allowing them to go to their mother the applicant. They also stated that the respondent has been expending threats to them and on number of occasions have pointed towards them gun and hatchet saying that if they ever go to their mother he will kill them. Miss. Fouzia, in the presence of the Respondent No. 1 and in open Court made a very vocal statement that when on 16.2.1998 she left the Court and went to the house of Respondent No. 1 he again threatened her not to make any complaint to the Court about his unbecoming behaviours. Even the other minor, Miss. Salma, has made the grievance that the Respondent No. 1 has all along been threatening her and her sister Fouzia that if they attempt to go to their mother he will kill them. Such statement made in open Court has not been denied by the Respondent No. 1. The two minors stated that they wish to live with their mother and not, with their father. After hearing the two minors, as aforesaid, the learned Advocate for the applicant in support of his submissions placed reliance on the case of Mst. Shabana Niazi vs. Muhammad Khalilur Rahman reported as 1994 Pak. Cr. Law Journal 715, wherein it has been held that in a case under Section | . 491 Cr. P.C. in exceptional cases High Court, can interfere to order j restoration of custody which has been disturbed illegally or improperly. Learned Advocate for the Respondent No. 1 submitted that as to the expressions/statement of the two minors, referred to above he has no answer but he still submitted that the two minors are in lawful custody of their father and as such the applicant cannot be granted any relief under the provisions of Section 491 Cr. P.C. and in order to claim the custody of the two minors she should approach the Guardian Court in accordance with law. In support of his submissions the learned Advocate for the Respondent No. 1 cited the case of Shri Mali Pan Bai vs. Itnrat Lai reported as P.L.J. 1996 Criminal Cases (Karachi) 1493 wherein it has been held that since the five minors have been residing with their father who does not wish to hand over their custody to their mother on account of the welfare of the minors, therefore, the petitioner may approach Guardian Court for interim custody of the minors and also for their Una] custody. I have carefully read the cited judgment and find that its facts and the facts of the present, case are totally different, therefore, with respect I would refrain from placing reliance on the judgement cited by the learned Advocate for the Respondent No. 1. I am fortified in my view, as is also submitted by the learned « Assistant Advocate General, that a Muslim Girl has to live with her mother, I who has the right of Hizanat, till such time that she is married and/or attains the age of 16/18 years, unless through cogent evidence mother is declared to be isentitled to have the custody of her daughter or daughters. After hearing the two minors about the manner in which the Respondent No. 1 has been treating them I have come to the conclusion that even if he is not detaining them illegally, but surely he is keeping them in his house improperly and the restraint on the two minors is patently unjust, cruel and obviously not in the best interest of the two minors and thereby the welfare and proper up-brining of the two minors will be adversely affected. For the foregoing I hereby allow this application and permit the applicant to take the two minor daughters with her, however, in order to ensure the welfare of the minors I direct the applicant to submit a monthly report to the Additional Registrar of this Court to the affect that the welfare of the minors is being taken care of and while submitting such statement the two minors should also be produced before the Additional Registrar so that he may enquire and ascertain from them about their well being. I further direct that this order in no way will affect the right of Respondent No. 1, either to meet the children by making a proper application to the Additional Registrar in which even the applicant on receiving intimation/notice of such application should produce the minors in the office of the Additional Registrar on the appointed date and time enabling the Respondent No. 1 to meet his children or to approach the competent Guardian Court to ckim the custody of his minor daughters in accordance with law. The applicant has expressed her apprehension that as and when she will leave the Court with her minor daughters the Respondent No.l and his relatives, who are also present in Court premises, may harm them. In view of such situation the learned Assistant Advocate General undertakes to provide Police escort to the applicant, and the two minors so that they may reach the home of applicant. Any further assistance, if sought, my be made available by the Additional Registrar of this Court. This Cr. Misc. Application is thus allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 1035 (DB) [Branch Registry, D.I. Khan] Present : MALIK HAMID SAEED AND SHAH JEHAN KHAN YOUSAFZAI, JJ. STATE-Appellant versus SALIM KHAN-Respondent Cr. Appeal No. 16 of 1998, dismissed on 5.3.1998. Witness-Related- —Related witnesses-Testimony pf-Complainant is father of deceased while PW. 4 and PW. 5 are first cousin of deceased-No doubt testimony of related witnesses can be accepted who are natural witnesses of an occurrence provided it is proved that they have seen occurrence and their testimony would not be doubted only because they happen to be related to deceased person-Occurrence took place in a bazar in a broad day light and, therefore, it is not at all possible to imagine that culprits were not seen by other persons present in bazar at time of incident-Non from bazar or adjacent shopkeepers were cited or produced at trial in support of prosecution case-So much so shopkeeper in whose shop occurrence has taken place was not produced as witness to depose about presence of deceased and three eye-witnesses in his shop—In such circumstances presence of witnesses on spot in absence of any independent evidence casts doubt when shop of complainant is also ituated in same bazar-It was imperative duty of investigating officer to have procured some independent evidence about presence of witnesses at spot-Case of coaccused which resulted in acquittal by High Court was at par with accused—Rule of consistency demands equal treatment with accused- Appeal of State dismissed. [P. 1039] A, B & C Mr. Muhammad Khan Khakwani, Advocate for State. Mr. Dost Muhammad Khan, Advocate for Complainant. Khawaja Nawaz Khan, Advocate for Respondent. Date of hearing: 4.3.1998. judgment Malik Hamid Saeed, J.-Accused-respondent Salim Khan son of Dr. Amir Dad was tried by Mr. Attaullah Khan, Sessions Judge, Bannu for the murder of Musharraf Khan by firing at him. The learned Sessions Judge on completion the trial arrived at the conclusion that prosecution failed to ji, ove its case against the accused-respondent beyond any reasonable doubt 'slid, therefore, acquitted him from the charge of murder. The State has challenged the order of acquittal recorded on 20-4-1993 through this appeal. 2. The case of the prosecution as per FIR briefly runs as under :- On the fateful day i.e. 25-10-1977 complainant Payo Din alongwith his two nephews namely Shah Muhammad and Ghulam Nawaz went to Bazar for making purchases. They found Musharraf Khan (deceased) son of complainant sitting in the shop of one Sher Ali Baz in Tanchi Bazar and they also sat with him. Acquitted co-accused Hamidullah alias Titto and Salirn Khan the present accused-respondent emerged on the scene armed with 12 bore D.B. shot guns and fired two shots each on the deceased Musharraf Khan who was hit and died on the spot. Motive for the offence stated in evidence as father of the accused-respondent was murdered for which the deceased was charged. 8. At the trial prosecution has examined PW. 1 Doctor Mumtaz Khan who had conducted the Post-mortem examination on the dead body of Musharraf Khan deceased at 4.30 PM on 25-10-1977 arid found the following:- External injuries :- 1. 3 firearm inlet wound 1/4" x 1/4" in size on ventral aspect of left forearm 4" above the wrist joint. 2. 3 firearm outlet wound 1/3" x 1/3" in size on posterior aspect oi Isft forearm'. The muscles are wounded and bones fractured, !• corresponds to wound No. 1. 3. A group of 32 firearm inlet wounds 1/4" x 1/4" each in size on the iron: <A left side of chest 3" below the left nipple in an area about 4" in circumference. They were about half to 1" apart from one another, 4. 3 ftream inlet wounds 1/4" x 1/4" each in size on the front of chest half inch to the right, of mid-sternal line and half inch below the sternal clavicular joint, 5. 2 firearm inlet wounds 1/4" x 1/4" each in size 1/2" apart and 1/2" below wound No, 4. 6. 2 firearm inlet wounds 1/4" x 1/4" each in size, 1" apart from one another in the second arid third interspace 4" to • the right of mid-sternal line. 7. 3 firearm inlet wounds 1/4" X 1/4" each in size on the left side of face one below the orbital cavity one just below it. and one throne'.! it 8. 2 firearm inlet wounds 1/4" x 1/4" each in size one on the left side and one on the bridge of the noze. 9. A firearm inlet wound 1/4" x 1/4" in size on the back of left side of scalp 1" to the left of occiput. It corresponds to wounds No. 7 & 8. 10. A fire arm outlet wound 1/3 x 1/3" insize on the back of left side nf hand 2" below and to left of occiput, its corresponds to wounds No. 7 and 8. 11. A Graze wound 1 /4 x 1/2" in size on the right side of upper lip. 12. 3 fire arm outlet; wounds 1/3 x 1/3" each insize 2" a part on the right scapula, they corresponds to wounds No. 4,5 and 6, pellets palpable under the skin. 13. 3 fire arm outlet wounds 1/3 x 1/3" insize on the back of left side of chest apart, in the 8th and 9th interspaces, 4" .to the left of mid-spinal line. Pellets palpable under the skin. The corresponds to wound No. 3. 14. A fire arm outlet wound 1/3" x 1/3" in size on the back of left side of chest in the 7th interspace and 3" to the left of mid spinal line. It corresponds to wounds No. 4, 5 and 6. 15. 3 grazed wounds 1/4 x 1/2" insize one inch apart and one inch to the left of wound No. 3. On internal examination the doctor found that nazal bone wounded, frontal left perietal and occipital bones fractured, manages wounded, brain matter, vessels of brain all wounded badly. Left maxillary bone was also fractured. Chest walls at the site of impact, 8th and 9th ribs fractured on the left, side, both the lungs, heart, pericardium and blood vessels were wounded. Abdominal walls wounded, peritonhim wounded, disphgram wounded, stomach perforated and also intestines at various places liver and spleen wounded, kidney was healthy and intact, bladder contained two ounces urine. In the opinion of the doctor death was due to shock, hameorrhage and injuries to the vital organs and probable time between injuries and death could be instantaneous, and between death and post mortem examination 1 to 2 hours. 4. PW. 2 ShahabxKJdin who as, A.S.J., Police Station, Baunu City has registered rhe case on the report of complainant Payo Din. He lias also prepared the injury sheet and inquest report Ex. PC and PD of the deceased and then sent the dead body for post mortem examination. PW. 3 Ali Baz Khan had identified the dead body of the deceased. Payo Din, complainant was stated to be confined to bed and is not in a position to appear before the court as per statement of Doctor Umar Nawaz who was examined as C.W. Therefore statement of the complainant recorded in the trial of the acquitted-accused recorded on 17.12.1978 was transferred to this case under the provisions of Article 47 of Qanun-e-Shahadat Act. PW. 4 Shah Mahmood being an eye witness gave the ocular account of the occurrence. He is a marginal witness to recovery memo: Ex. PF about the recovery of blood from the spot and witness to recovery of 4 mooras through Ex: PD. He is also a witness to recovery memos: Ex: PJ, Ex: PL. PW. 5 Ghulam Nawaz is also any eye witness to the occurrence who corroborated the statement of PW. 4 Shah Mahmood. PW. 6 Muhammad Ayub Khan was entrusted with the warrants of arrest under section 204 Cr.P.C. against the accused. He searched for him but was reported to have gone into bidding to the triable territory. Proclamation notices in accordance with the law were issued against the accused-respondent. He also accompanied the dead body from Police Station to mortuary and have brought the post mortem papers and sealed bottle containing 9 pellets and delivered the same to the I.O. P.W. 7 Muhammad Khan, S.H.O. conducted the investigation of the case. 5. In his statement recorded under section 342 Cr.P.C. accusedrespondent denied the charges. 6. We have heard Mr. Muhammad Khan Khakwani, Advocate learned counsel for the State, Mr. Dost Muhammad Khan, Advocate for complainant and Khawaja Nawaz Khan, Advocate for the accusedrespondent. 7. Learned counsel for the State and complainant contended that occurrence was of a day light and report of the occurrence was promptly lodged wherein both the acquitted co-accused and present accusedrespondent are directly charged for the commission of the offence. The further contended that respondent remained in abscondence for a sufficient long time and his explanation to this fact is not plausible. Learned counsel for the complainant further submitted that the appeal against the acquittal of co-accused Hamidullah alias Titu was still pending before the Supreme Court of Pakistan when he died and, therefore, the appeal against him was abated and as such the acquittal order of the co-accused of this Court could not be termed to have attained finality and in the circumstances reliance on the said judgment by the trial Judge was not correct and the order of acquittal passed in this case by the learned Session Judge, Bannu who was influenced by the said judgment was against the law and facts. The learned counsel for the accused-respondent refuted the arguments of the State counsel and of complainant and submitted that occurrence was taken place in a thickly populated bazar but not a single independent witness was produced by the prosecution and so for PWs No. 3, 4 and 5 are concerned they are highly interested witnesses being closely related to the deceased. 8. We have considered the arguments advanced at the bar from both the sides. Admittedly all the three eye-witnesses are related to deceased. Complainant Payo Din is the father of the deceased while PW. 4 Shah Mahmood and P.W. 5 Ghulam Nawaz are first cousins of the deceased. No doubt the testimony of related witnesses can be accepted who are natural witnesses of an occurrence provided it is proved that they have seen the occurrence ad their testimony should not be doubted only because they happen to be related to deceased person. The occurrence of this case took place in Tanchi Bazar of Bannu in a broad day light and, therefore, it is not at all possible to imagine that the culprits were not seen by other persons present in the bazar at the time of incident. Non from the bazar or adjacent shopkeepers were cited or produced at the trial in support of the prosecution case. So much so one Sher Ali Baz Khan in whose shop the occurrence has taken place was not produced as witness to depose about the presence of the deceased and three eye witnesses in his shop. No doubt it is stated in the evidence of PWs No. 3, 4 and 5 that the said Ali Sher Baz has gone to fetch tea for them and has to seen the occurrence but atleast he could state about the presence of the deceased and witnesses in the shop. In such circumstances the presence of the witnesses on the spot in absence of any independent evidence casts doubt when the shop of the complainant is also situated in the same Bazar. Further there is an FIR Ex. PD available on the record bearing FIR No. 53 dated 28.8,1975 under sections 307/34 PPG of Police Station Bannu lodged by the present accused-respondent against the acquitted co-accused Hamidullah alias Titu in the shape of dying declaration for effectively firing at him. From the contents of FIR it reveals that present accused-respondent was no enimical terms with the acquitted co-accused and there is no evidence on the record that whether any compromise between the said two has been taken place. This very fact further casts serious doubt about the participation of the accused-respondent in commission of the present occurrence in the company of the acquitted coaccused. It was the imperative duty of the investigating officer to have procured some independent evidence about the presence of the witnesses at the spot. The case of co-accused Hamidullah alias Titu which resulted in acquittal by this Court was at par with the present accusedrespondent and his acquittal order remained intact and could not be disturbed by the Supreme Court due to his death but as a matter of fact, rule of consistency demands equal treatment with the present accusedrespondent. For these reasons we hold that the accused-respondent was rightly acquitted by the learned Sessions Judge, Bannu and there are no reasons warranting interference with the acquittal order. The appeal is, therefore, dismissed. (A.S.) Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1040 [Bench D.I. Khan] Present: sardar jawaid nawaz khan gandapur, J. Mst. BADARI JAMALA-Petitioner versus KHUSHDIL and 2 others-Respondents Cr. Misc. Bail Application No. 316 of 1997, decided on 3.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5} Cr.P.C.-Offence u/S. 302/34 PPC-Bail-Cancellation of-Prayer for--Occurrence took place in middle of night, at complaint's house, wherein her husband was killed-Accordingly it was not at all possible for her to leave house at that odd hour and rush to police station for lodging report-Similarly son of complainant, alleged eye witness being a boy of tender age and two minor girls allegedly present in house could not be expected to lodge report-Delay in lodging report has been plausibly/ properly explained and could not be made ground for releasing accused/ respondents on bail-Additionally, it was not at all necessary/advisable for court which grated bail to have gone through case diaries (zimnies) as trend of going through case diaries and forming opinions regarding guilt of accused, is extremely dangerous and it must be depricated-If such a trend is allowed to continue then police would be at liberty to incorporate facts extraneous to case which may be favourable/unfavourable to accused, just to influence mind of court-Court granted bail was expected to assess evidence collected by I.O. tentatively and to form an independent opinion as to whether or not reasonable grounds were there to believe that accused/respondents had committed offence but court has failed to give any findings regarding this fact-Respondent No. 1 has been assigned specific sole of firing at and killing deceased, is definitely connected with commission of offence, specially when ocular version is fully supported by medical evidence, therefore, respondent No. 1 was not entitled to be extended concession of bail-Respondent No. 2 was entitled to be released on bail as he had not participated in firing although he was duly armed with a pistol—Concession of bail granted to accused/respondent No. 1 is recalled-Petition partly accepted. [Pp. 1042 & 1043] A, B, C & D Mr. Muhammad Karim Anjurn, Advocate for Petitioner. Mr. Muhammad Khan Khakwani, Advocate for State. Mr. Gohar Zaman Kundi, Advocate for Respondents. Date of hearing: 13.2.199S. judgment The occurrence in this case, registered vide F.I.R. No. 218, took place on 31.8.1997 at 1.00 A.M. The report was lodged on the same day at 10.00 A.M. by Mst. Badri Jamala complainant, wife of deceased Akhtiar Muhammad. The place where the occurrence took place i.e., Village Khairoo Khel, is situated at, a distance of about 28/29 K.Ms. from Police Station, Tajori, Tehsil and District Bannu. 2. Stated briefly the facts of the case are that complainant Mst. Badri Jamala, widow of the deceased, was asleep in the house alongwith her family members including the deceased, her husband, on 31,8.1997 at about 1.00 A.M. when the woke up to drink water. She noticed that accused Khushdil Khan (accused/respondent No. 1) and Hayatullah (accused/ respondent No. 2), brothers inter se, sons of Rohan Shah, residents of Kot Kashmir, duly armed with pistols, were standing by the side of her husband who was sleeping on the cot. Within her sight and in the presence of his coaccused (respondent No. 2) accused/respondent No. 1, Khushdil Khan fired at her husband with a pistol. Hayatullah accused/respondent No. 2 kept standing there and did not. fire at the eceased. With the report of the fire shot the son of the complainant and the deceased namely, Ghaniur Rehman, a boy of tender age, also got up. The complainant shouted at the ccused/ respondents as to why they had fired at her husband. In reply thereof they said that they had to kill him. After having killed the deceased both the accused/respondents decamped from the scene of occurrence. The omplainant, rushed towards her husband who was breathing his last. The occurrence is stated to have been witnessed by Ghaniur Rehman the deceased's minor son in addition to the complainant. 3. The matter was reported to Lat.ifullah Khan A.S.I., Police Post, Gambila when he visited the house of the complainant i.e., the place of occurrence. The said A.S.I, reduced the report into writing in the form of a urasila which was then sent, to the Police Station where, on its basis, F.I.R. No. 218 was registered U/Ss .302/34 P.P.O. against both the accused/ respondents. 4. It will not be out of place to mention here that both the petitioners were granted pre-arrest interim bail, probably, on 27.9.1997. However, the same was dismissed as withdrawn by the Additional Sessions Judge (Mr. Shahid Naseem Khan) by his order dated 30.10.1997. Strangely, within a period of less than seven days i.e.. on 7.11.1997 the said Additional Sessions Judge, when approached by the accused/respondents, released them on bail by his order recorded on 7.11.1997. 5. Aggrieved by the said order, Mst. Badri Jamala, the widow of the deceased has filed this bail cancellation petition wherein she has stated that the Additional Sessions Judge has not applied his mind while granting bail to the accused because one of the accused/respondent No. 1, namely, Khushdil Khan, has been charged for having effectively fired at Akhtar Muhammad and killed him on the spot. She has accordingly prayed that the hail granted to the accused/respondents be recalled in the circumstances to meet the ends of justice. 6. Mr. Muhammad Karim Anjam Qasooria. Advocate, learned counsel for the petitioner. Mr. Gauhar Zainan Ktmdi, Advocate, learned counsel for the accused/respondents and Mr. Muhammad Khan Khakwani, Advocate, learned counsel for the State, present, and heard at length. I have had the advantage of going through the record with some degree of care with the able assistance of the learned counsel for the parties. 7. It may be stated at tin- very outset, that the Additional Sessions Judge (Mr. Shahid Naseem Khan) was influenced by the fact that the F.I.R. was not lodged promptly. Secondly, he as influenced by the case diaries" recorded by the 1.0. during the course of investigation. In other words and to put. it differently he was swayed by the opinion of the Investigating Officer who was of the opinion that the accused were innocent and falsely charged by the complainant who, according to the rumours in the village, was a woman of bad character. The Additional Sessions Judge appears to have been influenced by the by the case diaries so much that the same is reflected from his bail order where he clearly mentioned as under:- "The case diaries reflect other stories. In view of the record of the case of the present petitioner there seems sufficient ground for further enquiry into their guilt." 8. According the Additional Sessions Judge released both the accused/respondents on bail. 9. The Additional Sessions Judge, as is clear from the record, lias failed to apply his mind, purposely or otherwise, to the facts of the case in hand. 10. The delay in lodging the F.I.R. has been properly/plausibly explained. The occurrence took place in the middle of the night, at the complainant's house, wherein her husband was killed. Accordingly it was ot at all possible for her to leave the house at that odd hour and rush to the Police Station for lodging the report. Similarly the son of the complainant namely, (ihani ur Rehman, the alleged eye witness, being a boy of tender age was also not expected to go to the Police Station all by himself. The other two persons who were allegedly present in the house were minor girls. They could not be expected to lodge the report. In the circumstances, without j dilating upon merits of the case, I am of the view that the delay in lodging [the report has been plausibly explained and could not be made the ground for releasing the accused/respondents on bail. 11. Additionally, the Additional Sessions Judge (Mr. Shahid Xaseem Khan) seems to have been very much impressed/influenced by the case diaries (Zimnies) recorded by the I.O. which reflected other stories, mostly based on rumours. 12. Since the Additional Sessions Judge has made the diaries as the basis of releasing the accused/respondents on bail, therefore, it had become essential/necessary to go through the said diaries. It may be remarked here that the trend of going through the case diaries and forming opinions regarding the guilt of the accused, is extremely dangerous and it. must be deprecated. If such a trend is allowed to continue then in that case the Police would be at liberty to incorporate facts extraneous to the case which may be favourable/unfavourable to the accused, just to influence the mind of the Court. I am, therefore, of the view that it was not at all necessary/advisable for the Additional Sessions Judge to have gone through the case diaries. He was expected to assess the evidence collected by the I.O. tentatively and to form an independent opinion as to whether or not reasonable grounds were there to believe that the accused/respondents had committed the offence. He lias failed to give any findings regarding this fact. Merely writing that the case of the petitioners is that of further enquiry would not be enough. He ourt which grants bail has to from an opinion, in the first instance, that reasonable grounds do not exist for believing that the accused has committed the offence charged with and therefore, it has come to the conclusion that, the case of the accused was that of further enquiry. 13. On a tentative assessment of the material placed on file, I am of the considered view that the accused/respondent No. 1, Khushdil Khan, who has been assigned specific role of tiring at and killing the deceased, is definitely connected with the commission of offence, specially when the ocular version is fully supported by the medical evidence, he was, therefore, not entitled to be extended the concession of bail. 14. However, as far as the case of the other accused/respondent No. 2, namely. Hayatullah is concerned. I am of the view that he was entitled to be released on bail as he had not participated in the tiring all.hough he was duly armed with a pistol. 15. In the circumstances, mentioned above, this hail cancellation application is partly accepted. The concession of bail granted to the accused/respondent No. 1. Khushdil Khan, is recalled. He is present in ourt and shall be taken into custody and sent to jail forthwith. The petitioner's prayer for the cancellation of bail with regard to accused/respondent No. 2 (Hayatullah) is. however, rejected. i A.S.I ()rders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1044 Present: DR. GHOUS MUHAMMAD, J. ABDUL JABBAR-Appellant versus STATE-Respondent Cr. Bail Application No. 1.337 of 1996. accepted on 16.2.1998. Ciiminal Procedure Code, 1898 (V of 1898 )• • —-S. 498--Offence u/S. 20 of Offences Against Property (Enforcement, of Hudood) Ordinance, 1979-Bail granted-Surety amount-Reduction of~ Prayer for-Applicant is not in a position to furnish surety as ordered by court and this is reason that inspite of grant of bail he is in judicial custody—Once an accused is granted bail and inspite of all possible efforts he is unable to furnish surety in required amount then keeping in view facts and circumstances of case a reasonable reduction in surety amount, may be made so that applicant/accused may not suffer unnecessarily for reasons beyond his control-Just as bail is not to be withheld as punishment like wise after bail is granted liberty of accused is involved therefore if reasonable grounds are disclosed then surety amount may be reduced having due regard to facts of case so that very object of granting bail will not be defeated-Application accepted. [P.1045]A Miss Akhtar Rrhana, Advocate for Surety Habib ur Rashccd, Advocate for State. Date of hearing: 9.2.98. order This order will dispose of applications under section 498 Cr.P.C. submitted by the learned counsel for the applicant/accused praying for reduction of surety amount. In the supporting affidavit filed by the father of the accused it. is stated that, he is an old man aged about 70 years and has no source of income. He has also no means to arrange the surety documents for the amount fixed by the Court which according to him is heavy. Notice of this application was given to the learned State Counsel. I have heard both the learned counsel and perused the record. The accused who is involved in Crime Nos. 10/95, 23/95 and 28/95 (P.S. Darakhshan). 34/95 (P.S. Civil Lines. 35/95 (F.S. Darakhshan). 52/95 (P.S. Clifton I. 52/95 (P.S. Darakhshan i and 57/95 (P.S. Clifton) for the offences under section 20 of Offences Against Property (Enforcement of Hudood) Ordinance 1979 was granted bail by this Court on 12.12.1996 and was directed to be released on furnishing one surety eacli in the sum of Rs. 5,00,00()/- with P.R. bonds in the like amount. Since he could not, arrange the required surety therefore application for reduction of surety amount was moved. That was allowed and the amount was reduced to 2.00.000/- on 26.5.1997. Yet another application for reduction of surety amount with supporting affidavit was submitted and that was allowed on 26.9.1997, and the surety amount was further reduced from Rs. 2 ,00,000 /- to "" Rs. l.OO.OOO/-. Now this is the third application praying for further reduction of the surety amount. After having gone through the record I am of the view that the applicant is not in a position to furnish surety as ordered by this Court and rhis is the reason that inspite of grant of hail on 12.12.1996 he is in judicial custody. In my humble view once an accused is granted bail and inspite of all possible efforts he is unable to furnish surety in the required amount then keeping in view the facts and circumstances of the case a reasonable reduction in the surety amount may be made so that, the applicant/ accused may not suffer unnecessarily for reasons beyound his control. Just as bail is not to be withheld as punishment likewise after the bail is granted since the liberty of the accvised is involved therefore if reasonable grounds are disclosed then the surety amount may be reduced having due regard to the tacts of the case so that, the very object of granting bail is not defeated. It was pointed out by the learned counsel for the applicant that in other cases the learned trial court has granted him bail on his furnishing of surety in the sum of Rs. 50.000/- and he is involved in 15 cases. Accordingly in the interest of justice, the surety amount is reduced from Rs. l ,00,00l )/- to Rs. 35,000 (Rs. Thirty five thousand) each and P.R. bonds in the like amount _ to the satisfaction of the learned trial coxut. Misc. Applications No. 41/98, 42/98, 43/98, 44/98. 45/98. 46/98, 47/98 and 48/98 stand disposed off. K.A.B Application accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1045 [ Multan Bench Present: mansoor alamoir qazi. J. ALI SHER-Petitioner versus STATE-Respondent Crl. Misc. No. 496-B/98. accepted on 31.3.98. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497—Murder case--Bail-Grant of-Prayer t'or-Cross-version—Fiuther inquiry-Case of-Both versions being cross-versions, it is yet to be determined who initiated attack and which party is aggressor and same can only be done through assessment of evidence by trial court-- Petitioner is in judicial lock up for 9 months-There exist reasonable grounds for further enquiry in cases against petitioners-Bail allowed. [P.1046]A Tahir Rashe.ed Ch. , Advocate for Petitioner. S.M. Rasliid, Advocate for State. Date of hearing: 31.3.98. order Ali Sher petitioner is seeking post arrest bail in case FIR No. 290/97 registered at Police Station Noor Shah on ll.fi.97 at 8.20 A.M. for an occurrence which took place on the same day at 6.30 A.M. . The complainant Ahmed lodged the FIR and in this Yaseen nephew of the complainant. Hameed Asghai son of the complainant, Shahadat brother-in-law of the complainant lost their lives while Jannat Bibi his sister and Sharaf nephew were injured in course of occurrence. On the other hand,-Ali Sher petitioner received five injuries with blunt and sharp-edged weapon on his person while Muhammad Ali and Nawaz died at the spot. Yousaf accused was challaned alongwith the petitioner and he has been allowed bail since 4.10.1997. 3. On the other hand, Zakir petitioner has approached this Coiirt through Crl. Misc. No. 371-B/98, praying for post arrest bail in case FIR No. 291/97 registered on 11.6.97 at 11.30 A.M. for an occurrence which took place on the same day at 6.30 A.M. and the FIR was recorded on the statement of Muhammad Yousaf stating therein as to how death of Muhammad Ali and Muhammad Nawaz occurred and regarding injuries to Ali Sher. Total nine accused were named in this FIR out of which Mazhar and Basbir have been allowed bail vide order dared 12.8.97. Shamoon has been allowed bail vide order dated 4.10.97. Yaseen. Shahadat and Hameed Asghar were murdered at the spot, while Suleman has been discharged by the police, only Zakir petitioner and Sharaf accused are behind the bars in the present case. 4. The occurrence, the pla e of occurrence, the Time of occurrence is not disputed by the parties FIR No. 290/97 and FIR No. 291/97 have been investigated together and both versions stand challaned and have been sent up for trial before the learned trial court. Both the versions being crossversions, it is yet to be determined who initiated the attack and which paity is the aggressor and the same can only be done through assessment of evidence by the trial court. Ali Sher petitioner is in judicial lock up since 28.6.97 while Zakir petitioner is also arrested and is behind the bars. 5. Be that as it may. there exist reasonable grounds for further enquiry in the cases against both the petitioners i.e. Ali Sher petitioner in FIR No. 290/97 and Zakir petitioner in FIR No. 291/97. Ali Sher and Zakir petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac only) each with two sureties each in the like amount to the satisfaction of the learned trial Court. (K.A.B.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1047 [ Multan Bench] Present: mansoor ALAMdlR QAZI, J. MUHAMMAD HUSSAIN-Petitioner versus STATE--Respomlem Crl. Misc. No. 338-B/98. accepted on 2:14.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 302/201 PPC-Murder case-Bail-Grant of-Prayer for—Further inquiry—Case of-There is no evidence to connect petitioner with fact that he had administered insecticide to deceased-Injury attributed to petitioner is simple and has not been declared as cause of death prirna facie, exist reasonable grounds for further inquiry in case against petitioner-Bail allowed. [P. 1048] A Cli. Ghulam Mceran, Advocate for Petitioner. Mr. Sana ul Haq. Advocate for Complainant. Mr. Zafar Mahmood Anjum, Advocate for State. Date of hearing: 23.4.98. order Muhammad Hussain petitioner has through this petition sought the indulgence of this Court for considering his case for the grant of bail in case FIR No. 65/97 dated 20.4.1997 under Sections 302/201 PPC registered at Police Station Gaileywal District Lodhran on the statement of Mst. Salma Bibi widow of Murad Ali deceased. 2. Briefly the facts of the case are that Noor Samad father-in-law of Mst. Salma Bibi complainant, owned land measuring 12% acres, out of which he had given 10 acres of land on lease to Allah Bux. M.s7. Chanan Bibi mother-in-law of the complainant intended to get the land of her husband transferred in her name on account of old age of her husband or to get it transferred in the name of her son Muhammad Hussain On. 19.4.97 at about 7.00 P.M. the complainant alongwith her husband Murad Ali were sitting in the house of Jaffar Hussain where Muhammad Hussuin brother of her husband also came there. The husband of the complainant asked Muhammad Hussain petitioner as to why he was getting the whole land transferred in his name. They had some altercation and whereafter Muhammad Hussain picked up a Sota and inflicted a blow on the head of Murad Ali husband of the complainant took her husband to her home, but on the following day he became serious and ultimately died. 3. Asghar ALi and Muhammad Din real brothers of the petitioner were also involved in the above case and they have been allowed bail by the learned Sessions Judge, Lodhran vide order dated 10.fi.97. The post-mortem of the deceased was conducted on 21.4.97 and the viscera was sent to the office of the chemical examiner for analysis. The report of the chemical examiner dated 1.10.97 indicates that the contents contained insecticide and that, the injury on the head is simple and has not been declared fatal. The investigation was conducted by DSP who has recorded his findings in case diary dated 12.4.98, whereby he has recommended discharge of all the three accused. 4. Learned counsel for the complainant and the State have argued the case and have prayed that the petitioner should not be released on bail as there is ample evidence tending to connect him witJi the offence, which is punishable with capital sentence. 5. On the other hand, learned counsel for the petitioner has urged that, besides the findings given by the last Investigating Officer vide, case diary dated 12.4.98, the eye witness of this case Af.it. Manzoor Bibi who is sister of the deceased and wife of Jaffar Hussain another eye witness of this ase in whose house the alleged occurrence is stated to have taken place have filed affidavit, dated 17.3.98 to the effect that no occurrence ever took place in their view and in their house. There is no evidence to connect, the petitioner with the fact that he had administered the insecticide to the deceased. The injury attributed to the petitioner is simple and has not been declared as the cause of death. Under these circumstances, prinia facie, there exist reasonable grounds for further enquiry in the case against the petitioner. He is allowed bail subject, to his furnishing bail bonds in the sum of Rs. l.OO.OOO/- (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial couit. (K.A.B.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 1049 [ Multan Bench Present: MANSOORALAMWRQAZI, J. MUHAMMAD SHARIF-Petitioner versus STATE etc.-- Responrlents Crl . Misc. No. 63/Q of 1997, accepted on 26.3.1998. Ipse Dixit of Police- —Investigating Officer's opinion-Weight and relevance-FIR lodged by petitioner u/S. 380 PPC--Case investigated and reported that same is false and recommended for cancellation—Magistrate purportedly agreed with report of police and approved cancellation of case—Challenge to-­ Trial Court has not exercised its discretion in a proper and legal manner- These are not matter which can be summarily disposed of-Court while passing any such order has to look into depth of case and must satisfy itself before agreeing with police report-Apparently impugned order is not tenable as it does not disclose any logical or judicial reason for learned magistrate to agree with opinion of police-Held: Impugned order is. therefore , set aside and case is remanded for decision afresh by learned trial court, after applying its mind in a legal manner-Petition accepted. [P. 1050 ]A Malik Muhammad All, Advocate for Petitioner. Mr. Tahir Haider Wasti , A.A.G. for State. Date of hearing: 26.3.1998. judgment The grievance of the petitioner is that he got lodged FIR No. 298 on 29.10.1996 under Section 380 PPC at PS Saddar Vehari for an occurrence which took place on the night between 9th and 10t.li of September, 1996. The case was investigated and was reported that the same is false and recommended for cancellation, vide report dated 10.12.1996. The said cancellation report was placed before the learned Magistrate for approval who on 15.8.1997 issued a notice to the complainant for appearance on 29.9.1997 on which date again the complainant was absent and thereafter on the said day the learned Magistrate purportedly agreed with the report of the police and approved the cancellation of the case. To substantiate his grievance the petitioner states that, the order passed by the learned Magistrate is not a speaking order and the learned court has not exercised its discretion in a legal manner. The order has been passed in a manner which indicates non-application of mind nor any cogent reasons have been recorded while agreeing with report of the Investigating Officer. Learned counsel has placed reliance on Hussain Ahmad vs. Mst . Irshad Bibi and others (1997 SCMR 1503). The learned law officer present in court, after going through the three line order of the learned Magistrate has an expression on his face which is complete answer to the question and is absolutely in such an uncomfortable situation where he has no reasonable stance to substantiate this order. 2. Learned trial court has not exercised its discretion in a proper and legal manner. These are not matter which can be summarily disposed of. The court while passing any such order has to look into depth of the case and must satisfy itself before agreeing with the police report, Apparently the impugned order is not tenable as it does not. disclose any logical or judicial reason for the learned Magistrate to agree with the opinion of the police. The impugned order dated 29.9.1997 is, therefore, set aside and the case is remanded for decision afresh by the learned trial court after applying its mind in a legal manner. (K.A.B. > Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1050 [DB] Present: RAJA MUHAMMAD KHURSHID & MUMTAZ ALI MIRZA, JJ. GHULAM MU.JTABA-Appellant versus STATE-Respondent C.M. No. 1231-B97/ in Ol. Appeal No. 201 of 1997. accepted on 9.2.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 426-Suspension of sentence-Prayer tor-Offence under Sections 302, 324 & 34 P.P.C. and conviction under Section 337-A (it P.P.C.-Appeal or revision against acquittal has not. yet. been preferred by complainant and as such, that cannot be considered as ground for withholding bail or suspension of sentence particularly when same is two years R.I. out. Of which two months have already passed and prior to that, petitioner remained in detention for about four months after his arrest in case, whereafter, he was released on bail-He has also been given benefit of Section 382, Cr.P.C. and hence remaining sentence would be short enough to entitle him to bail particularly when hi.s appeal is not, likely to be heard in very near future on account of heavy work load in High Court Sentence suspended-Petition allowed. [P. 1051] A Malik Muhammad Nawaz Khan. Advocate for Petitioner. Qazi Ahmad Naccm Qiireshi, Advocate for State. Sardar Asmat Ullali Khan, Advocate for Complainant, Date of hearing: 9.2.1998. order Raja Muhammad Khurshid, J.--The petitioner alongwith Ghulam Murtaza was tried under Sections 302/324/34 PPC for the murder of one Muhammad Manzoor and causing injuries to Paris Bihi and Mehallan Bibi for an occurrence which took place on 27.10.94. He was convicted under Section 337-A(i) PPC' and sentenced to two years R.I. and Rs. 5,000/- as Daman for causing injuries to Mst. Mehallan Bibi during the aforesaid occurrence. He was. however, acquitted of the charge under Sections 302/324/34 PPC. The principal accused Ghulam Murtaza was, however, convicted and sentenced to death under Section 302 PPC (b) PPC for committing Qatl-i-amd of Manzoor deceased and was directed to pay Rs. 20,0007- as compensation to the heirs of the deceased. He was also convicted under Section 324 PPC for committing murderous assault upon Paris Bihi and sentenced to 10 years R.I. and a fine of Rs. 5,000/- alongwith compensation of Rs. 5.000/- to be paid to the aforesaid injured PW. 2. It is contended on behalf of the petitioner that since he had been acquitted on the charge under Sections 302/324/34 PPC and was convicted under Section 337-A(i) PPC and sentenced to two years R.I and to pay Rs. 5.000/-, therefore, he is entitled to bail particularly when he had been given benefit under Section 382-B, Cr.P.C. while he had already undergone four months detention after his arrest in his case and has also undergone about two months R.I after his conviction in this case. The appeal is also not likely to be heard in near future which would call for the consideration of the suspension of sentence passed upon the appellant. 3. Learned counsel for the complainant, have, however, opposed the application on the ground that the order of acquittal relating to the petitioner of the charge under Sections 302/324/34 PPC is not sustaina le in he eyes of law and that the complainant is challenging that acquittal in revision or appeal and as such, the petitioner is not entitled to the suspension of sentence. Secondly, it is contended that, his vicarious liability alongwith the main accused was not distinguishable and as such, his acquittal aforesaid was not maintainable in the eyes of law. 4. Learned State counsel, however, contended that the sentence is short and the appeal is not likely to be heard in the very near future, therefore, any appropriate order be passed. 5. We have considered the foregoing facts. The appeal or revision against the acquittal has not yet been preferred by the complainant and as such, that cannot be considered as a ground for with-holding the bail or suspension of sentence particularly when the same is two years R.I out of A which two months have already passed and prior to that, the petitioner remained in detention for about, four months after his arrest in this case, whereafter, he was released on bail. He has also been given the benefit of Section 832-P. Cr.P.C. and hence the remaining sentence would be short, enough to entitle him to bail particularly when his appeal is not likely to be heard in the very near future on account of heavy work load in this Court. The petition is accordingly allowed. The sentence of the petitioner is suspended and he is admitted to bail in the sum of Rs. 25,000/- with a surety in the like amount to the satisfaction of the Deputy Registrar (Judlt of this Court. He shall be released on bail provided he deposits Rs. 5,000/- i.e.; the amount of Daman in this Court which shall be payable only in accordance with the final decision given in this appeal. 6. With the above observations, the petition is allowed. <B.T.) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1052 [ Multan Bench] Present: MANSOORALAMUIRQAZl, J. MUNEER AHMAD-Petitioner versus STATE-Respondent Crl. Misc. 383/B/1998, dismissed on 1.4.199X. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 proviso 3rd-Offence u/S. 302/452/34 PPC-Petition for bail after arrest-Statutory period-Ground of-Occurrence took place on 22.9.1995--It is perhaps one case of its kind where prosecution was veiy vigilantly, diligently and religiously produced its witnesses on each and eveiy date of hearing-It was either that learned Presiding Officer was not available or learned defence counsel was absent or being a public holiday and for that reason trial has prolonged and thus to delay occasioned cannot be in any way attributed to prosecution or complaint-Held: Delay has been occasioned by conduct, of accused themselves, knowingly and deliberately-Hence this petition is devoid of force and same is dismissed. [P. 1054] A Mr. Jawiiid Nasir Butt and Sheliaryar Shcikli. Advocate for Petitioner. Mr. Attaullali Khan, Advocate for State. Date of hearing: 1.4.98. order Muneer Ahmad petitioner through this petition is seeking postarrest bail in case FIR No. 314 dated 22.09.1995 under sections 302/452/34 PPC registered at Police Station Dera Raheem, District Sahiwal on the statement of one Abdul Haq against the petitioner and his co-accused. 2. Briefly facts of the case are that the petitioner and his co-accused trespassed into the house of complainant and tired at one Muhammad Akram which hit him on his left flank and he succumbed to the injuries while the accused fled away from the place of occurrence. Motive as alleged in the FIR is that there is a dispute regarding land between the parties and ivil litigation is pending in the court of learned Senior Civil Judge, Sahiwal. 3. The petitioner was arrested in this case on 13.12.1995 and after completion of the investigation the challan had been submitted in court where the prosecution evidence is being recorded. 4. Main ground on which the petitioner seeks bail is that his case falls within the amhit of proviso 3 of Section 497 Cr.P.C. as the trial has not been concluded within the stipulated period and for this purpose learned counsel for the petitioner lias annexed photo copies of the interim orders recorded in the present case. The break up of proceedings conducted in the present case on each date of hearing is as follows:- "On 1.8.1996, the challan was submitted and registered in court. Munir accused in police custody and Rafiq accused on bail were present. On 13.8.1996 none of the PWs was present. On 12.9.1996, 28.9.1996, 6.10.1996 and 26.10.1996 the Presiding Officer was either on leave or transferred. On 2.11.1996. the case was withdrawn from that court and entrusted to another court. On 13.11.1996 and 23.11.1996, the court had erroneously ordered for distribution of copies to the accused. On 10.12.1996, seven prosecution witnesses were present but learned counsel for Muhammad Rafiq accused was absent and thus in his absence prosecution witnesses could not be examined. On 6.1.1998 ten prosecution witnesses were present but the court happened to be on leave. On 27.1.1997 ten witnesses were present but counsel for Muneer accused was not present. On 20.2.1997 again three witnesses were present but the lawyers were on general strike. On 10.3.1997, no proceedings took place as on 9.3.1997 it was a public holiday and the file was placed before the court on 10.3.1997. On 31.3.1997 three prosecution witnesses were examined and learned defence counsel also applied to the court for supplying certain other copies. On 12.4.1997 the court time was over and the case could not be reached. On 21.4.1997 the Presiding Officer was on leave. On 2.5.1997, the learned defence counsel had been operated upon and was thus unable to conduct the case. On 23.5.1997 the application moved by the learned defence counsel under section 265-C Cr.P.C. was heard and decided. On 14.6.1997 again learned counsel for Muneer accused was busy at Okara and did not. conduct the case. On 9.7.1997, learned defence counsel were not present. On 26.8.1997 examination-in-chief of one of the witnesses was recorded and the learned defence counsel was not willing to cross-examine this witness on that day. On 27.8.1997 statement of PW 4 was completed. On 17.9.1997 the witnesses were present but were not examined. On 6.10.1997 and 17.10.1997 learned counsel for the accused were not present and thus on both these dates three and two witnesses were present, respectively who could not be examined. On 5.11.1997 the learned Presiding Officer was on leave and on 28.11.1997 it was a public holiday. On 29.11.1997 the Presiding Officer was on leave. On 18.12.1997 the D.P.A. gave up one witness while the remaining were summoned. On 13.1.1998 again the learned defence counsel for Muhammad Rafiq accused was absent. 5. The occurrence in the present case took place on 22.9.1995. It is perhaps one case of its kind where the prosecution has very vigilantly, diligently and religiously produced its witnesses on each and every date of hearing. It was either that the learned Presiding Officer was not available or the learned defence counsel was absent or being a public holiday and for that reason the trial has prolonged and thus the delay occasioned cannot be in any way attributed to the prosecution or the complainant. Learned counsel for the petitioner has argued that for any act or omission on the part of a coaccused the petitioner cannot suffer. The learned State counsel has rebutted and stated that if there are more than one accused facing trial they are expected to act and strive in unison to achieve a common objective and also to reap all benefits which become due to them by passage of time and for the same they have to show that by their own conduct they have not done any act or omission which debars them from that, benefit. Learned counsel was asked as to whether he could justify by any provision of law where the prosecution evidence could be recorded in absence of one of learned counsel for the defence or in absence of the accused himself, to which he has said that according to the book evidence could only be recorded in presence of the accused and their learned counsel and thus if one of the counsel for the accused is not. present the prosecution evidence could not be recorded on that date and a special procedure had to be completed for recording evidence in absence of the accused which takes quite a while to be completed. The learned State counsel further adds that it is tipto the accused to decide whether they want the prosecution evidence to be recorded and if so, then they and their counsel should be present. In case they desire to prolong the case then they can put up these tactics to delay and defeat the recording of prosecution witnesses which was naturally happened in this case and is evident glaringly from the order sheet. If such a conduct is deliberate and planned then the accused cannot reap any benefit thereof. Therefore, it is held that the delay has been occasioned by he conduct of the accused themselves, knowingly and deliberately. Hence this petition is devoid of force and the same is dismissed. The learned trial court is directed to conclude the evidence within the shortest possible time keeping this case on its priority disposal list. i K.A.B.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1055 Present: qazi muhammad farooij, J. PASHAM KHAN-Petitioners versus STATE etc.--Respondents Cr. M. No. 1240 of 1994, allowed on 8.3.1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 307/34 PPC-Bail-Grant of~Prayer tor-Case registered u/s 307/34 instead of common Islamic law relating to Jurh (hurt)--Challenge to-Having been declared repugnant to Injunctions of Islam by Shariat Appellate Bench of Supreme Court of Pakistan S. 307 PPC had become non-existent, therefore notwithstanding non-extension of Qisas and Diyat Ordinance to Malakanad Division case sought to have been registered under Islamic injunctions pertaining to Iiurt--Cont.ent.ion of--Q/«j and Diyat Ordinance was duly promulgated whereby S. 307 PC' was substituted by S. 324 PPC-However, as it has not been extended to Malakand Division so for vacuum caused by deletion of S. 307 PPC shall be filled by common Islamic law-Case giving rise to this petition shall, therefore, be deemed to have been registered under common Islamic law relating to hurt-Occurrence took place at the spur of moment-Complaint did not sustain hurt on any vital part of his body and the kind of hurt, suffered by him being 'Ghayr-Jaifah' namely 'Badiah' and 'mnciqila prosecution case taken to its extreme is not likely to email such punishment of imprisonment which would attract prohibitory clause of S. 497 Cr.P.C.--Resultantly this application is accepted. [Pp. lllfu & 1058] A & B M. Waris Khan, Advocate for Petitioner. Rritili.tr Ahmed Malik, Advocate for State. Date of hearing: 8.3.95. judgment This application for bail by one Pasham Khan is an off-shoot of a case tinder Section 307/34 P.P.O. which was registered against, him and his en-accused Muhammad Kafir) and Bashir Ahmad at the behest of Faqir Ahmad at Police Station Madyan (Swat) vide F.l.R. No. 193 dated 18.9.94. 2. The F.I.R. discloses that, on the eventful clay at about 11.45 A.M. while a dispute between the complainant and the accused o er certain property was being resolved by a Jirga the parties lost Temper and during the ensuring altercation the accused opened fire fmm pistols at the complainant who sustained injuries on his hip and right hand as a result of tiring made by the petitioner. 3. At the outset the learned counsel for the petitioner severely criticised the police for registering the case under Section 307/34 PPC instead of the common Islamic Law relating to Jiirh (hurt). His contention was that having been declared repugnant to the Injunctions of Islam by the Shahat Appellate Bench of the Supreme Court of Pakistan Section 307 PPC had become non-existent, therefore, notwithstanding the non-existension of Qisas and Diyat Ordinance to the Malakand Division the case ought to have been registered under the Islamic Injunctions pertaining to hurt, in view of the guidelines given in another judgment of the Shariat Appellate Bench of the Supreme Court, reported as Federation of Pakistan and another versus N.W.F.P. Government and others (PLD 1990 Supreme Court, 1172), wherein it was held that in a state of vacuum the common Islamic Law shall be deemed to be the law on the subject. It was next, contended that, the offence allegedly committed by the petitioner was not hit by the prohibitory limb of Section 497 Cr.P.C. as the complainant had not sustained hurt on any vita! part of his body. 4. On the other hand, the learned counsel appearing for. The State vehemently resisted the application on the grounds that, Qisas and Diyat Ordinance had not so for been extended to the Malakand Division and the intention of the petitioner to launch murderous assault on the complainant was obvious from the kind of weapon used by him for the purpose, therefore, the offence committed by him squarely fell within the ambit of Section 307 PPC which already stood extended to the Malakand Division. 5. The contentions raised by the learned counsel for the petitioner have substance. The Pakistan Penal Code was extended to Dir vide West Pakistan Regulation II of 1961 Dir (Extension of Laws) Regulation, 1961 and to Chitral and Swat vide Regulation I of 1971 Tribal Areas (Application of Laws Regulation, 1970 which have not been repealed so for. It is a matter of common knowledge that the Shariat Appellate Bench of the Supreme Court in Federation of Pakistan versus Gul Hassan Khan (PLD 1989 SC 6331 had declared the offences against human body incorporated in Sections 299 to 338 of the Pakistan Penal Code as repugnant to Injunctions of Islam and the decision was to take effect on 23rd March, 1990. However, when the requisite law was not framed and enforced a review petition was filed and the Shariat Appellate Bench of the Supreme Court of Pakistan in its judgment reported as Federation of Pakistan and another versus N.W.F.P. Government and others (PLD 1990 SC 1172) not only observed that the said decision of the Supreme Court shall take effect on 12th day of "Rabi-ul- Awwal 1411 A.H.", but also held that even if the required law is not enacted or enforced by the target date the provisions of the Pakistan Penal Code declared as repugnant to the Injunctions of Islam shall cease to have effect and the vacuum shall be filled in the common Islamic Law. The Qisas and Diytit Ordinance was duly promulgated whereby Section 307 PPC was substituted by Section 324 PPC. However, as it has not been extended to the Malakand Division so for the vacuum caused by the deletion of Section 307 PPC shall be filled by the common Islamic Law. The case giving rise to this petition shall, therefore, be deemed to have been registered under the common Islamic Law relating to hurt. It will be pertinent to point out that before the promulgation of Qisos and Diyot Ordinance the common Islamic Law on the subject was not properly codified but now the problem has been -i-'ived and the Courts are in a position to administer Islamic Law with -.itrno«: facility. It appears that the problem still subsists in Malakand Division ans for this very reason perhaps the cases are being registered -Ui ier T hose Sections of the Pakistan Penal Code which stand deleted having betr. icci.ii eel repugnant, to the Injunctions of Islam by the Shariat Appellate Bench :r the Supreme Court of Pakistan. No words are strong enough to cie:. recu'e this illegal and unsavoury practice, lie that as it may, as long as the Q:.5.T? a:. :i Diyat Ordinance is not. extended to the Malakand Division the police aiid the Courts functioning under the Provincial!}' Administered Tuba] Area; <Xifaz-e-Nizam-e-Shariah Regulation, 1994) should seek guidance from the Qisas and Diyat Ordinance enforced in rest of the country In this context the following excerpt from the last mentioned instructive judgment of the Shariat Appellate Bench of the Supreme Court of Pakistan may be reproduced advantageously:- In such state of vacuum, vis-a-vis, the statute law on the subject, the common Islamic law/the injunctions of Islam as contained in the Qur'an and Sunnah relating to the offence of Qafl and Jurh (hurt) shall be deemed to be the law on the subject. The Pakistan Penal Code and the Criminal Procedure ('ode shall then be applied mutatis mutandis, only as aforestated. The came will be the position if an Ordinance for the law of Qisas and Diyaf is enforced on or before 12th Rabi-til-Awwal and the same lapses or otherwise becomes unenforceable due to any reason, creating a similar vacuum in the statute law on the subject. In the aforevisualised situations, the Courts, while hearing and deciding the cases of Qatl and Jurh (hurt) in accordance with common Islamic law/injunctions of Islam as contained in Quran and Sunnah may also seek guidance from the provisions of the aforementioned Ordinance if it. in the meanwhile, having once been enforced, had lapsed or otherwise had become un-enforceable." 6. Coming to the plea of bail it will be enough to say that, a case for bail is made out inasmuch as the occurrence took place at the spur of moment, the complainant, did not sustain hurt on any vital part of his body and the kind of hurt suffered by him being 'Ghayr-Jaifali' name 'Badiah' and 'MtmaqiUi' the prosecution case taken to its extreme is not likely to 0 entail such punishment, of imprisonment which would attract the prohibitory clause of Section 497 Or.P.C. Resultantly, this application is - accepted and the petitioner is admitted to bail in the sum of Rs. 50,000/-with two sureties each in the like amount to the satisfaction of the Magistrate/IHaqa Qazi (Criminal). K.A.B. Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1058 [DB] Prrsrnt: QAZI MUHAMMAD FAROOQ AND \ASIR TIL MtTLK, JJ. SAMBALI KHAN-Appellant versus STATE-Respondent Or. A. No. 145 of 1995, partly accepted on 21.1(1.97. ({> Murder Case- —Murder case-Offence u/S. M02 Q and D Ordinance-Death sentence- Challenge to--Sentence of death as Qisas was illegal for want of Tazkiyahal-Shuhond-Contention of-It. is inconceivable that such a sentence can be awarded without, under taking exercise of Tazkiyah-al-Shuhnod— According to common Islamic law. under which criminal cases arising from offences affecting human body are being tried and decided by courts functioning in Malakand Division owing to non-extension of Qisas and Diyat Ordinances/Act II of 1997 to that area. Nisab-r-Shahadat for Qisas is the same as that of Hadd—This would mean that liability of Qisas is established by two competent < A'<///> witnesses and as such sentence of death as Qisas cannot, be imposed unless court, is satisfied having regard to requirements of Tazkiyali-al-Shuliood that charge of intentional murder is supported by credible testimony of two male adult iA'dil) muslin) witnesses who are not only truthful witnesses but also abstain from major sins and are not inclined to indxdge in minor sins-Probity of witnesses is indispensable-It is true that all muslims are/;r/mo fade just with respect to evidence excepting those who have been punished for Qtizf/\w\i\ry-- However if probity of a musliin witness is questioned it is incumbent upon court to initiate an inquiry into his character—As probity of all the eye witnesses was challenged and it is not established on record hv means Tazkiviili-ul-filmluiod that, thev are intact A'dil witnesses- Court is not inclined to confirm sentence of death as Qisas awarded to appellant, [Pp. 1061 & 1062] A it is a matter of tradition to avenge murder of father—In this back ground ends of justice will be adequately met if appellant, is sentenced to imprisonment for life ancl a fine of Rs. 30.000/- payable on recovery as compensation to legal hens or deceased within contemplation of S. 544-A Cr.P.C. or six months SI :i; default-Held: Criminal appeal is partly accepted, conviction of appellant for Qatl-c-Aind is maintained but sentence of death as Qisas is altered to imprisonment, for life, sentence of death as Qisas is not confirmed and murder Reference is answered in negative. [Pp. 1062 & 1063] B&C Zc.-'.rcr-nl-HcKj, Advocate for Appellant. /?-jr Ahmad Khan, A.A.G. for State. Q.M Anwar, Advocate for Complainant. Date of hearing: 21.10.97. judgment Qazi Muhammad Farooq, J.--The appellant Sambali Khan, aged about 25 yeans, was tried by the learned Sessions Judge/Zilla Qazi Swat for committing Qnt?-r-Atnd of one Abdul Rashid. At the conclusion of the trial he was found guilty of the offence charged with and vide judgment dated 24.4.1995 was convicted and sentenced to death as Qisas. He has questioned his conviction and sentence through the appeal in hand and the usual reference for cunfirination of the sentence ofdeath is also before us. We propose to dispose of both the matters by this common judgment. 2. The record discloses that on 12.1.1995 at about 11.15 A.M. the deceased was gunned down by the appellant on the roadside near Hayat Market, locatedat a distance of about 150 paces from Police Station Mat.ta, and while fleeing from the spot, he was apprehended alongwith a Klashinikov having filteen rounds in the chaiger and one in the chamber by Raza Khan PC No. 1420 who was posted on the main gate of Police Station Matta and had become vigilant on hearing the reports of a fire-arm. The F.I.R. was lodged at 11.20 A.M. at Police Station Matta by the said Raza Khan FC wherein it was alleged that he had not only apprehended the appellant. alongwith the crime weapon but had also seen Abdul Rashid. Ex-member Union Council resident of Sarbanda who was known to him, lying murdered on the roadside and that the occurrence was witnessed by Inayatullah FC No. 37 and Janat Gul FC No. 1086 who were patrolling the area at the crucial time. 3. On the veiy day of occurrence the appellant had confessed his guilt before Ilaqa Qazi/MIC Matta. The main thrust of his judicial confession was that he had avenged the murder of his father because about 12/13 years ago the deceased had murdered his father and was duly charged for the offence but was acquitted. 4. The dead body of the deceased was not subjected to autopsy. However, it was examined by Dr. Haq Nawaz <PW. 1) at 11.30 AM who found the following: - 1. Two fire-arm inlet wounds on the back of lumber region about 2" apart 4" lateral to the spinal column. Size of each about '/,;" in diameter. 2. One fire-arm inlet wound on the left side back lumber region 2" lateral to the spinal column. Size '/(;" i" diameter. 3. Two fire-arm inlet wounds on right buttock about 2" apart. Size of each about '/<;" in diameter. 4. Two fie-arm inlet wounds on the left buttock about 2" apart. Size of each about i / (i " in diameter. 5. One fire-arm outlet wound on the right side upper region of the chest near the clavicle size about 1" in diameter. 6. On fire-arm outlet wound on the right, side chest below the nipple. Size about 1" in diameter. 7. Two fire-arm outlet wounds on the right side abdomen below the costal margin about ]4" apart, size of each about 1" in diameter. 8. One fire-arm outlet wound in the epigastrium region abdomen. Size about 1" in diameter. 9. Two fire-arm outlet wounds on the left side about in the umbilical region 2" apart. Size of each above 1" in diameter. Intestines coming out from the wounds. In his opinion death and occurred as a result of severe internal haemorrhage entailed by fire-arm injuries to the liver and the lungs. Probable duration of the injuries was about. 10 minutes. 5. In order to prove its case the prosecution examined as many as twelve witnesses at the trial including Dr. Haq Nawaz iPW. 1), who had examined the dead body of the deceased, Raza Khan FC No. 1420 <PW. 2), who had apprehended the appellant and lodged the F.I.R., Adalat Khan Ilaqa Qazi/MIC Malta (PW. 11), who had recorded the judicial confession of the appellant and Khaista Rehman (PW. 12), who had investigated the case. The ocular evidence was furnished by Janat Gul PC No. 1086 (PW. 3), Iiiayatullah FC No. 37 (PW. 4) and Afzal Khan (PW. 15) and evidence of formal nature was given by the remaining witnesses. 6. When examined under Section 342 Cr.P.C. the appellant denied the accusation levelled against him and professed innocence. He admitted the motive to some extent, but denied his arrest by Raza Khan FC and also retracted his judicial confession. He also recorded bis statement, without taking oath, in disproof of the allegations made against him. 7. The learned trial Court convicted and sentenced the appellant by placing implicit reliance on the ocular evidence furnished by Janat Gul and Inayatullah. retracted judicial confession of the appellant and his arrest alongv.ith the weapon of crime by Raza Khan FO soon after the occurrence. S Quite obviously, the learned counsel for the appellant confined his arguments to the sentence awarded to the appellant and did not assail either his conviction or the ocular and the circumstantial evidence on which it was based. The prosecution case against the appellant not only stands proved beyond any reasonable doubt but is also too strong to be demolished. The ocular evidence has been furnished by two natural and independent, eye­ witnesses whose credentials are above-board. The retracted judicial confession of the appellant not only seems voluntary but, is also amply corroborated by the medical evidence and the arrest of the appellant alongvnth the weapon of crime from a point close to the scene of occurrence by an independent witness. The ocular evidence is also fully corroborated by the promptly lodged F.I.R. and the medical evidence. 9. Assailing the sentence the learned counsel for the appellant contended at the outset that the sentence of death as Qisus was illegal for want of Tazkiyah-Al-Shuhood. Reliance was placed on Secretary to Government ofX. W.F.P., Home and Tribal Affairs Department Peshawar vs. Muhammad Ayaz Khan, Additional Sessions Judge Swabi and 3 others (PLD 1996 Peshawar 76). It was further argued that, it was a fit case for taking a lenient view in the matter of sentence because the deceased had committed he murder of appellant's father in the year 1977 and was charged in the murder case registered at. Police Station Matta, vide F.I.R. No. 145 dated 3.11.1977. but was acquitted and the appellant being smarting under grievance had committed his murder to avenge murder of his father. Reliance was placed on Ajun Shah vs. The State (PLD 1967 SC 185), Zulfiqar and 5 others vs. The State (1974 PCr.LJ 100) and Yaqub and 2 others vs. The State (1980 PCr.LJ 556). 10. The contention with regard to the sentence of death as Qisa awarded to the appellant, has substance because it, is inconceivable that such sentence can be awarded without undertaking the exercise of Tazkiyah-Al- 11. Shuhood. According to the common Islamic law. under which the criminal cases arising from offences affecting the human body are being tried and decided by the Courts functioning in the Malakand Division owing to nonextension of the Q/.sas and Diyat Ordinances/Act 11 of 1997 to that area, Nisab-e-Shahadat for qj.scz.s is the same as that of Hadd. This would mean that the liability of Qisas is established by two competent (A'dil) witnesses and as such the sentence of death as Qisas cannot be imposed unless the Court is satisfied having regard to the requirements of Tazkiyah-Al-Shuhaod that the charge of intentional murder is supported by the credible testimony of two male adult (A'dil} Muslim witnesses who are not only truthful witnesses but, also abstain from major sins and are not inclined to indulge in minor sins. The probity of witnesses is indispensable. It is true that all Muslims are prima facie just with respect to evidence excepting those who have been punished for Qoz/'/perjury. However if the probity of a Mxislim witness is questioned it. is incumbent upon the court to initiate an enquiry into his character. In the present case the probity of all the eye-witnesses was challenged and it is not established on record by'means of Tazkiyah-al- Shuhood that, they are in fact AW/7 witnesses. It is also firmly settled that when the guilt of intentional murder is established but the evidence of the requisite standard for visiting the murderer with the sentence of death as Qisas is not available then the Court, has to award the sentence of death as Tazir which is an Islamic punishment and has been recognised by the Qisas and Diyat Ordinances/Act, 11 of 1997. No doubt the Qisas and Diyat Ordinances/Act, 11 of 1997 have not been extended to the Malakand Division but in view of the observations with regard to state of vacuum made in Federation of Pakistan and another vs. N.W.F.P. Government and others (PLD 1990 SC 1172) the Courts functioning in the Malakand Division must seek guidance from the Criminal Law (Amendment) Act, 1997 (Act, II of 1997) in force in rest of the Country. Much more can be said about, the fixed element of Qisas and the variable element, of Tazir but we do not, deem it necessary as we are not inclined to confirm the sentence of death as Qisas awarded to the appellant. 11. Coining to the second contention raised by the learned counsel for the appellant we find that, a case for taking a lenient view in the matter of sentence is indeed made out. Apart from the positive assertion made by the appellant, it is evident, from the testimony of Afzal Khan (PW. 5), nephew of the deceased, and copy of F.I.R. No. 145 dated :i 11.1977. Police Station Matta marked Ex. Dl that the appellant's father Muhammad Umar was murdered on 3.11.1977 and the deceased Abdul Rahsid was squarely charged for enacting the tragedy but was acquitted. During those days the appellant was about 7/8 years of age. In this part of the country it is a matter of tradition to averange the murder of the father and in tins context the following excerpt from the instructive authority of the Supreme Court of Pakistan reported as Ajun Shall vs. The State (PLI) 1964 SC 633) may he reproduced advantageously:- "At the time of the instant murder, i.e. in 1965, the appellant's age was 28 years. It is. therefore, clear that when his father and brother were murdered he was only 8 years old. He belongs to the Frontier Province where it is a matter of tradition and even family fluty to avenge the murder of a father. Such murders are committed in that area out. of a sense of honour and self-respect. Since he was a hoy his mind had become obsessed with one thought to do away with the alleged murderer of his father and brother. Such feeling was gaining intensity from day to day and when he saw the deceased in a tonga he lost his balance of mind. The time, place and nature of the attack appear to confirm this. A man is after all a creature of his environment. His action therefore must be judged in the background of the society to which he belongs. Though he may not be entitled to rely on the doctrine of provocation, still the above circumstances may be taken into account for not. imposing the extreme penalty. We would, however, like to make it clear that, we are not suggesting for a moment that private revenge can be regarded as a mitigating circumstance. What. we are really pointing out, is that the question of sentence in each case must depend on the facts of the case and that in this particular case the criminality is not of a kind which should be visited with extreme penalty." In this backdrop the ends of justice will be adequately met if the appellant is sentenced to imprisonment for life and a fine of Rs. 30.000/- payable or recovery as compensation to the legal heirs of the deceased within the contemplation of Section 544-A Cr.P.C. or six months SI in default. 12. For the reasons aforesaid, this criminal appeal is partly accepted, the conviction of the appellant Sambali Khan for Qatl-e-Amd of Abdur Rashid deceased is maintained but the sentence of death as Qisas awarded to him is altered to imprisonment for life, with benefit of Section 382-B O.P.C., and a fine of Rs. 30.000/- payable on recovery to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. or six months SI in default. The sentence of death as Qisas is not confirmed and the Murder Reference is answered in the negative. (K.A.B.) Death sentence not confirmed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1064 Present: HAMID ali MlRZA, J. Raja ABDUL MAJEED-Applicant versus STATE etc.-Respondents. Cr. Misc. No. 64/1996, dismissed on 18.3.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A--High court-Inherent powers of--Exerd.se of-Dispute about a vehicle between applicant and Insiirance company—Revision petition filed by applicant—Dismissed by Additional Sessions Judge—Challenge to— Nothing has been pointed out that there has been miscarriage of justice or abuse of process of law or that there has been any illegality with impugned order warranting exercise of inherent jurisdiction of High Court-Rights if any of applicant have been safeguarded in impugned order by directing that vehicle would not be disposed of and would be kept in good condition till applicant's rights in respect of said vehicle are settled/decided from civil court having jurisdiction in the matter- Application has no merit, consequently same is dismissed. [P. 1066] A Raja Sher Muhammad Khan, Advocate for Petitioner. Ziaul Haq Makhdonm, Advocate for Respondent No. 2. RiazAkhtar, A.A.G. for State. Date of hearing: 18.3.1997. judgment This is an application under section 561-A Cr.P.C. directed against the orders dated 16.7.1995 and 12.2.1996 passed by ACM-I, Karachi-East and Additional Sessions Judge, Karachi-East, respectively, in a case Raja Abdul Majeed v. The State and another whereby learned Additional Sessions Judge Karachi-East dismissed the revision application tiled by the applicant and maintained the order dated 16.7.1995 of ACM-I, Karachi-East. Brief facts of the case are that one Toyota Land Cruiser Jeep was stolen for which one Abdul Wahid of Dewan Sons lodged report No. 622/92 at P.S. Gulshan-e-Iqbal, Karachi . The above vehicle was insured with the respondent No. 2 Adamjee Insurance. The owner of the vehicle registration No. BC 2236 filed claim with the Insurance Company respondent No. 2 who paid for the same and obtained a letter of subrogation from the owner Deewan Sons. One vehicle Toyota Land Cruiser was secured by police over which the present applicant and the respondent No. 2 laid claim and such pplication was made by respondent No. 2 before ACM-I, Karachi East who passed the order dated 16.7.1995 which nms:- "The vehicle bearing registration No. BC 2236 may be returned to its real registered owner applicant, after due verification and identification on superdiginama to the extent value of the vehicle if it is not required for investigation in any crime subject to the conditions that he will produce the same before police or Court as and when required and he will not dispose off or transfer in any manner nor change its colour. Engine number or registration number without prior permission of this Court. The superdiginama and bond may be submitted to this Court for record.' The applicant filed revision against the said order which was disposed of by V Additional Sessions Judge Karachi-East maintaining the order of ACM-I East. The operative part of the order of V Additional Sessions Judge runs:- "It is admitted fact, that the vehicle is very valuable, the insurance cost of the vehicle was Rs. 12.00.000/- which was paid by the Insurance Company to the Insurer thus Insurance Company has stepped in the shoes of the owner on the basis of right of subrogation. The order of the ACM-I Karachi-East is very much clear and needs no reversion or set aside. I therefore maintain the order of the learned ACM. As the respondent is an invisible entity therefore they can get possession of the vehicle through their duly appointed person but they will not sell, transfer the vehicle but will maintain it as a pmdent man takes good care of his own vehicle till applicant succeeds in his civil litigation if he desires to file. However, the respondent has furnished a bond to the tune of the Insurance amount in this Court, therefore, Nazarat to act upon my advice given in the order." Contention of the learned counsel for applicant is that criminal numbers of the said vehicle have been tampered with consequently the said vehicle belonged to the applicant and not to the respondent No. 2 who has been invested with such right by way of letter of subrogation by the original owner of vehicle BC 2236. His submission is that the said vehicle which has been recovered bears engine No. 0006894, chassis No. HDJ-82-0002951, therefore, the same may be returned to him. Contention of learned counsel for respondent. No. 2 is that both Courts below have gone through the relevant documents and report of the forensic expert who in his report has stated that the vehicle so recovered bore registration No. BC 2236 and its original chassis No. HDJ-81-0003949 which vehicle in fact belonged to the respondent No. 2 as held by the two Courts below therefore the impugned orders passed are legal and call for no interference in this Misc. Criminal Application. He further contends that present, application under section 561-A Cr.P.C. is not maintainable and competent as the only one revision could be maintainable and the applicant could not, in the garb of inherent, jurisdiction of this Court seek remedy of second revision. In support, of his contentions, he has placed reliance upon Syed Munawar AH Zaidi v. Mst. Qaiscr Jalwn and another (PLD 1992 Karachi 104) wherein learned Judge in chambers has observed that High Court will not. substitute its own appraisement, of evidence for that of the lower Courts, so long as there is legal evidence to sustain such findings and further provisions of section 561-A Cr.P.C. cannot be exercised when the order by the Court of revision is based on proper appraisement of evidence and further that, such powers could be exercised for correcting injustice and not mere irregularity or illegality: (ii) The said decision was also maintained in a reported case PLD 1992 S.C. 406 wherein Supreme Court observed that High Court could only interfere when it. is satisfied that, in the appreciation of evidence by the lower Courts gross miscarriage of justice had taken place amounting to abuse of the process of the Court or interference was necessary to secure the ends of justice; and (iii) SarwarAli v. State ( 1983 P.Cr.L.J. 329) wherein learned Judge in chambers has observed that High Court, is not. competent to entertain any proceedings in revision with respect to order made by Sessions Judge under section 439-A entertaining such petition under section 561-A in the circumstances would amount to circumventing provisions of section 439 (4) Cr.P.C. In view of the facts and case law, nothing has been pointed out that there has been miscarriage of justice or abuse of process of law or further that, there has been any illegality with the impugned order warranting exercise of inherent, jurisdiction of this Court. Rights if any of the applicant have been safe-guarded in the impugned order of Additional Sessions Judge by directing that, the said vehicle would not be disposed of and would be kept, in good condition till the applicant's rights in respect, of said vehicle are settled/decided from the civil Court having jurisdiction in the matter. The application has no merit, consequently the same is dismissed with no order as to costs. (K.A.B.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1067 Present: SYED DEEDAR hussain SHAH, J. MULLAH QAID JOHAR-Petitioner versus STATE-Respondent Spp. Criminal Bail Application No. 2 of 1998. rejected on 16.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Customs Act (IV of 1969), S. 159-Recovery of gold slabs concealed in pair of shoes-Bail-Grant of--Prayer for—After finalisatkm of investigation, charge sheet has been submitted before trial Court- Punishment provided for offence is 14 years R.I and probability and possibility of tempering of prosecution evidence at hands of appellant/ accused cannot be ruled out, if he is released on bail-Held : Prirna fade., there are reasonable grounds to believe that applicant/accused is guilty of offence for which he has been charge sheeted-Petition rejected. [Pp. 1069 & 1073] A, B, C & D Ra»a M. Shamim, Advocate for Applicant. Mr. \lushccr A/am. Standing Counsel for State. Date of hearing: 11.2.1998. order The brief facts of the case are that on 10.1.1998 Muhammad Ashfaq Tahir, Preventive Officer, Customs, Karachi, lodged FIR which reads as under: - "On 10th January. 1998, while performing my Evening Shift duty at International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi. I was directed by the IPS DEC Mr. M. Salimullah to contact the ASF authorities who had reportedly recovered contraband gold from an out going passenger. Accordingly, I reported at the office of the ASF, 'C' company. JTC/QIAP, where I was given a covering letter by the Security Officer Mr. Muhammad Tariq, Company Cammander 'C' Company alongwith the custody of a Pakistani passenger namely Mullah Qaid Johar and assorted gold slabs weighing 100 totals & 20 grams. According to the contents of the covering letter, Sub Inspector Muhammad Ashiq (US-2562) had recovered the aforesaid gold slabs which were concealed in a pair of shoes worn by the passenger at the ASF's Security Search Counter at. International Departure Satellite during the course of body search of the passenger Mullah Qaid Johar, holding Passport No. A 660904, when he reported there at the time of boarding a PIA flight PIK 276 for Bombay . The contraband gold slabs (10 slabs of 10 tolas each and 01 slab of 20 grams all bearing foreign marks and nos), so recovered by the ASF, were accordingly taken into custody/possession alongwith containers and passenger's travelling documents in presence of two witnesses M/s. Muhammad Sarwar and Sardar Muhammad and were seized under the cover of a inashiniama. Accused passenger namely Mullah Qaid Johar was arrested and served with a notice under section 171 of the Customs Act, 1969. Seized gold slabs are being referred to the Gold & Gem Expert for test and vahiation. A report in this regard will be submitted before this Honourable Court in due course of time." After lodging of the FIR and fmalisation of the investigation charge-sheet against the accused/applicant was filed before the learned Special Judge (Customs & Taxation) Karachi. The bail application in Case No 10/98 (Mullah Qaid Johar v. The State was moved before the trial Court, same was rejected by the learned Special Judge (Customs & Taxation) Karachi, vide order dated 4.2.1998. Hence the applicant/accused approached this Court to be released on bail. I have heard Mr. Rana M. Shamim. learned counsel for the applicant/accused, who has contended that the personal search of the applicant was taken in violation of Section 159 of the Customs Act which makes obligatory upon the Officer of Customs to inform the person to be searched about, his right to be taken to Gazetted Officer of Customs or Magistrate before conducting the search. That the learned trial Court has not considered/appreciated the fact that soon after the personal search of applicant, when, where and at what time the first washirnama of recovery was made which requires further inquiry. That the ASF Officials have not been entrusted with the powers of the Customs Officer either under "The Airport Security Force Act 1975' or under "The Customs Act 1969". That there are no reasonable grounds to believe that the applicant has committed a non-bailable offence but there exist sufficient grounds for further inquiries into his guilt entitling him to be released on bail. Mr. Rana M. Shamim has referred the following case law:- 1. PLD 1972 SC 81: Manzoor and 4 others v. The State 2. 1987 P.Cr.L.J. 1140: Abdul Qudnos v. The State 3. 1989 P.Cr.L.J. 1357: Sycd Niaz Ahmad Naqvi v. The State 4. 1993 P.Cr.L.J. 500: Farid Khan v. The State 5. PLD 1995 SC 34: Turiq Basliir and 5 others v. The State 6. 1997 MLD 1478: Abdul Hameed alias Bagga and 2 others v. The State Mr. Musheer Alain. Standing Counsel, has contended that the Airport Security Force act is a Special Act creating a force to deal with the special problems arising at the airport. The powers conferred upon it. by the Act are not governed or overridden by the provisions of the Customs Act. That an Assistant Sub-Inspector is an officer of the Airport Security Force and under section 6(e> of the Airport Security Force Act, 1975 he is inter alia competent to take effective measures for prevention of smuggling. That recovery of 100 tolas & 20 grams is effected from the pair of shoes worn by the applicant/accused alongwith his Pakistani Passport, P1A Ticket, Indian Visa and the assessed value of the gold so secured is about. Rs. 5,20,260/-. | That after finalisation of the investigation, charge-sheet, has been submitted before the trial Court on 10.1.1998 and the case is very recent one. That the punishment provided for the offence is 14 years RI and probability and possibility of tempering of the prosecution evidence at the hands of the applicant/accused cannot be rulled out, if he is released on bail. Learned Standing Counsel has cited PTCL 1983 (CD 377. I would like to discuss the contention of the learned counsel for the parties and the case law cited by them : According to Section 6(1 He) of the Airport. Security Act 1975: "An officer or member shall:- (e) take effective measures for preventing hijacking, sabotage, placement of car bombs, letter bombs and dangerous articles, smuggling of precious metals, stones, arms, ammunition, narcotics and any other goods the bringing into or taking out of Pakistan of which is prohibited by or under any law for the time being in force: - The prosecution story as unfolded in the FIR, referred hereinabove, is that the Customs Officer received a covering letter of the Security Officer Mr. Muhammad Tariq, Company Commander 'C' Company alongwith the custody of the accxised/ applicant and gold slabs weighing 100 tolas & 20 grams, SI Muhammad Ashiq had recovered the gold slabs which were concealed in a pair of shoes worn by the applicant/accused at the ASF's Security Search Counter at International Departure Satellite during the course of body search of the accused/applicant. The gold slabs were bearing foreign marks and numbers and the applicant/accused alongwith the recovered slabs was handed over to the Customs Officer for proper action to be taken by them under the provisions of the Customs Act. 1. PLD 1972 SC 81: In this case their lordship of the Supreme Court were pleased to release the petitioner on the ground that, the police on investigation found the accused to be guilty whereas the complainant party consistently maintained that the police report was not correct and that the real culprits were placed in Column No. 2 of the challan by the police and the persons charged as accused were innocent. With due respect to the authority, I am of the firm opinion that this authority on the face of it. has no bearing to the case of the present applicant. 2. 1987 P.Cr.L.J. 1140: In this case Sajjad Ali Shah, J. (as his lordship then was) considered the inherent discrepancies occurring in prosecution case as to at what particular place samples were drawn, whether during search conducted by police official at time when accused and Heroin were produced before Customs Officer. In the present case the ASF Inspector Mohd. Ashiq recovered the gold slabs from the applicant/accused which were concealed by him in a pair of shoes worn by him at the ASF Search Counter at International Departure Satellite during the course of his body search. On the face of it, in my humble opinion, this authority is not relevant to the facts of the present case. 3. 1989 P.Cr.L.J. 1357: In this case the accused was apprehended at the International Departure Hall. Karachi Airport, while leaving for Bankok and from his possession currency of different countries valued at Rs. 49,600 was recovered. A case under clause (8.1 of section 156< 1> of the Customs Act 1969 was registered against and after usual investigation he was sent up for trial before Special Judge (Customs & Taxation), Karachi. 9.5.1981. The applications under sections 265-K and 435/439, Cr.P.C. seeking his acquittal on the ground of delay was filed and the points for consideration before late Qaiser Ahmed Hamidi, J. were that the delay of 8 years in the conclusion of trial tantamomits to denial of justice and thus an abuse of process of law. That there was no probability of the applicant being convicted of any offence, as the search of the applicant was conducted in violation of section 159 of the . Customs Act, 1969 and that the currency alleged to have been seized from the possession of applicant was not produced in Court, giving rise to an inference thai the same did not exist. I am afraid this authority on the face of it is quite different and distinguishable from the facts of the case in hand in as much as the FIR was lodged on 10.1.1998 and after completion of the investigation charge-sheet has been submitted before the trial Court on 22.1.1998 where the evidence is yet, to be adduced by the parties, in this case the alleged gold was secured by the ASF Officer while conducting the body search of the applicant/accused's shoes which he was wearing and according to section 6<li of the Airport Security Force Act, 1975 the officer concerned is competent, to take search and take necessary steps. Under the circumstances, with due respect to the authority in my tumible opinion the same is not applicable and favourable to the case of the applicant/accused. 4. 1993 P.Cr.L.J. 500: In this case the learned single Judge of this Court was pleased to allow the bail application with the following observation: "On further perusal of the mashirnama it, is completely silent regarding recovery of the travelling documents from the applicant. Passport, ticket, boarding pass etc. are not to have been secured in this Mashirnama. Only a general term has been used that the travelling documents were seized. Furthermore, I find that, all the FIRs are virtually carbon copies, excepting for the names of the accused, passport number and quantity of gold are different and the rest, of the material in the same context. I further find that four of the co-accused were let, off by the Seizing Officer and in this regard the learned counsel for the applicant, has asked if some of the accused persons are found innocent and let off by the Customs Authorities, then that by itself creates doubt about the co-accused and the benefit, of this should also be given to the co-accused. No doubt it is true and is also an admitted position that four of the accused persons have been let off by the Seizing Officer. Subsequently on 21.6.1992 FIRs have been registered against those four persons and, therefore, it cannot, be said that the four accused thus let. off are not accused." The above order of the learned Judge of this Court shows that the four persons were suspected by the Customs Officer and they were not, charge sheeted and travelling documents, Passport, Ticket etc were not, recovered, whereas in the present case the accused/applicant was apprehended by the ASF Officer and apart from gold a brown pair of shoes worn by the applicant/accused alongwith Pak Passport No. A660904. PIA Ticket, No. 214- 4405-024-599-3. Indian visa No. P7/S959/97, dated 21.11.97 in duplicate were secured and handed over to the Customs Officer alongwith the ASF covering letter dated 10.1.1998. No other person was apprehended by the ASF or Customs Officer except the applicant/accused who has been chargesheeted before the Court of law. In my humble opinion this authority under the circumstances is not applicable and helpful to the case of the applicant/accused. 5. 1997 MLD 1478: In this case Sh. Ijaz Nisar, J. (as his lordship then was) was pleased to grant the bail witli the following observation: "They are behind the bars since about eleven months without any progress in the trial. Accordingly, I grant the application and admit them to bail in the sum of Rs. 1.00.000 (one lac) each with two sureties each in the like amount to the satisfaction of the Trial Court/Sessions Judge. Lahore.' Whereas in this case the applicant was apprehended on 10.1.1998 and the charge-sheet against him was submitted before the trial Court on 22.1.1998, the case is recent one whereas the prosecution has yet to adduce the evidence. In any case the applicant is in custody since about last one month whereas in the case referred hereinabove the applicants were released on bail because they were in custody since about 11 months and there was no progress in the trial as such this authority in any case is not helpful and applicable to the present case. Learned Standing Counsel has referred PTCL 1983 377: Ahmad Kabir v. The State of Special Appellate Court < Customs) Lahore High Court Lahore. In this case ASI Saeed Iqbal of the Airport Security Force was at the relevant time deployed for duty at the personal search cabin at the airport. The appellant was wearing jeans and showing signs of nervousness. ASI Saeed Iqbal felt suspicious and searched the appellant. He recovered two plastic bags from under the jeans tied to the Testicles. These bags contained 345 grams of heroin worth Rs. 1,00,000 (about). The appellant, was arrested and a case under section 156(1)(8) of the Customs Act was registered against him. After completion of the investigation charge-sheet was submitted before the learned Special Judge, Lahore for offences under section 156(1)(8) of the Customs Act 1969. After conclusion of the trial, the appellant Kabir Ahmad was sentenced to suffer RI for a period of three years and to pay a fine of Rs. 5,000 in default of payment of the fine he was ordered to receive simple imprisonment for a further period of six months. Against this Judgment the appellant preferred the appeal which was considered by Saad Saood Jan, J. (as his lordship then was). The learned Judge considered the provisions of Airport Security Force Act 1975 specially section 6(e) referred hereinabove in the earlier part of this order and was leased to maintain the Judgment. I have gone through the material placed with the case. The applicant/accused was apprehended by the Inspector Muhammad Ashfaq of ASF at the ASF Security Counter, International Departure Satellite during the course of body search, his passport PIA Ticket alongwith visa were secured. Applicant/accused alongwith gold (10 slabs of 10 tolas each and 1 slab of 20 grams) all bearing foreign marks and numbers so recovered, were handedover to the Customs Officer alongwith forwarding letter and after finalisation of the investigation 22.1.1998 the charge-sheet was submitted before the trial Court where evidence is yet to be adduced by the parties. The case law relied upon by Mr. Rana M. Shamim. Advocate for the applicant/accused, in all fairness is not helpful and applicable to the present case of the applicant/accused, whereas the case law referred by Mr. Musheer Alam, learned Standing Counsel, is applicable to the present case, which I most respectfully follow. Menace of smuggling of precious metals, such as gold and silver is creating problems for the society and for the Country at large and the same has now-a-days taken very ugly shape of trade which is to be curbed with some strong measures. The present case is very recent one, apparently there appears no reason of false implication of the applicant/accused at the hands of ASF Officer/Customs Authorities. The contention of Mr. Musheer Alam that possibility of tempering of the prosecution evidence at the hands of the applicant/accused cannot be ruled out, if he is released on bail is not without force. It is clearly mentioned in the FIR that the gold slabs so secured bearing foreign marks and number alongwith travelling documents Passport, PIA Ticket and visa were handedover to the Customs Officer. Moreover the charge-sheet has also been submitted within time by the prosecution before the Special Judge (Customs & Taxation) Karachi. The upshot of the above discussion is that, primn facie, there are reasonable grounds to believe that the applicant/accused is guilty of the offence for which he has been charge-sheeted. Consequently the bail application is rejected. The applicant/accused may repeat the bail application before the trial Court after some material evidence is recorded. After hearing the parties on 11.2.1998 the bail application was rejected by short order. The above are the reasons for the same. (K.K.F.) Petition rejected.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1073 IDBJ Present: IFTIKHAR HUSSAIN CHAUDHARYAND GHULAM SARWAR SHEIKH, JJ. MUHAMMAD BAHADUR-Appellant versus STATE-Respondent. Criminal Appeal SC (T.i No. 21-97/BWP. dismissed on 15.1.1998. Pakistan Penal Code, I860 (XLV of 18HO)-- —-S. 302/B, 324, 353, & 186-Murder-Offence ot'-Conviction tor-Challenge to—Plea of accused is that both deceased A and S and "G" injured PW previously not known to him, surprised him, while, he was on his way back to home with Rs. 3,500/--"G" PW robbed him of cash and as two deceased were attracted by cash robbed; he ran for his life, but deceased A and S chased and caused injuries to him and he, but for, his life and property injured them in return with his pistol-Even an uninitiated and naive would not believe this tailored defence-As per defence version, two deceased and injured PW were unarmed and accused already having been robbed of without any resistance could not have apprehended any danger of receiving any hurt what to speak of "danger of life"-Production of extract from Roznamcha to prove presence of S.I at spot was not essential for prosecution; defence while cross examining this witness could have requested court for production of Roznamcha, but same was not done at any stage and thus no adverse presumption can be gathered and drawn against prosecution—Presence of Sub-Inspector at place of occurrence stands proved beyond any shadow of doubt—He has been fully corroborated by injured PW and PW8-He has no rancour against appellant or interest in two deceased or injured PW-Sub-Inspector was under no compulsion of department to purge himself under oath-Held: Defence plea is false, manufactured and figment of imagination of appellant and is liable to be discarded altogether-Appeal dismissed. [Pp. 1079] A, B, C & D Mr. A.R. Tayyib, Advocate for Appellant. Ch. Muhammad Bashir, AAG for State. Date of hearing: 15.1.1998. judgment Ghulam Sarwar Sheikh, J.--This judgment will dispose of Murder Reference and appeal under Section 25 of Anti-Terrorism Act, 1997, against judgment dated 15.11.1997 whereby the appellant stands convicted under section 302(B) PPG on two counts, for committing Qatl-i-Amd of Constables Muhammad Ashiq and Muhammad Athar Sididqui, and sentenced to death on each count, to be hanged by neck till he be dead, and under section 324 PPC for launching murderous assault upon Constable Ghulam Mustafa and sentenced to ten years' R.I. with fine of Rs. 10,000/-, in default whereof, to suffer rigorous imprisonment for an other term of four months. He has be directed to pay compensation to the tune of Rs. 20,000/- as compensation to legal heirs of each deceased under Section 544-A Cr.P.C. and suffer rigorous imprisonment for a period of six months on each count in default thereof. Under Sections 353 and 186 PPC, he lias been awarded sentence of imprisonment for a term of two years and three months. Benefit of provisions of Section 382-B Cr.P.C. has. however, been extended to him. 2. Facts of the case as revealed by Naveed Ikram Sub-Inspector, the complainant, in his statement Ex. PC upon which, formal FIR Ex. PC/1 was drawn, in brief, are, that on 22.11.1996 at 3.45 P.M., he, alongwith Muhammad Sadiq ASI, Ghxilam Sarwar. Muhammad Nawaz, Fayyaz Ahmad, Constables, and Abdul Majeed driver, was holding "NAKA" at University Chowk Bahawalpur, when, 100-CC Yamaha motor-cycle, of red colour, without bearing any registration number, carrying three persons, was stopped for checking. Two of the riders disclosed their identity as Muhammad Asif son of Nazir Ahmad Qureshi of Fauji Basti and Muhammad Qasim son of Ghulam Sarwar Channel- of Khanoo Win//, whereas, the third one was discovered as a renowned motor-cycle lifter Muhammad Bahadar son of Faiz Ahmad Tareen, who, all of a sudden, took to his heals towards National Bank Chowk. Complainant, alongwith Muhammad Nawaz and Abdul Majeed Constables chased his leaving Muhammad Sadiq ASI behind to search the person of Muhammad Asif and Muhammad Qasim. While running Bahadar whipped .30 bore pistol and fired at police party near xmder construction hospital of Dr. Ata Elahi. At this juncture, a police Van No. 2323/RNH, carrying Muhammad Ashiq, Muhammad Athar Siddiqui, Ghulam Mustafa Constables and Azhar Hussain driver also reached there. Sensing the situation, they also joined the chase and Muhammad Bahadur was encircled by southern wall of National Bank. Muhammad Athar Siddiqui, Muhammad Ashiq, Ghulam Mustafa and Azhar Hussain, Constable were to apprehend him, when, he fired six shots from his pistol, one after another, hitting Muhammad Athar Siddiqui and Muhammad Ashiq on their heads and chests and Ghulam Mustafa on his left arm and right leg. Other members of the police party, meanwhile, over­ powered him alongwith his pistol at the spot. During this scuffle, he, too received injuries. 3. Muhammad Ashiq succumbed to his injuries there, while Muhammad Athar Siddiqui became unconscious and Ghulam Mustafa was seriously injured. 4. Carrying dead body of Muhammad Ashiq and injured Muhammad Athar Siddiqui and Ghulam Mustafa alongwith Muhammad Bahadur appellant. SHO reached emergency Ward of B.V. Hospital, Bahawalpur, where Muhammad Athar Siddiqui also expired on same day. 5. He prepared complaint Ex. PC and sent the same to Police Station for registration of the case. Pistol Pi, a matched from appellant, was _made into a sealed parcel and taken into possession vide memo. Ex. PI. Injury and inquest reports Ex. PE and E. PG of Muhammad Ashiq and Muhammad Athar Siddiqui were prepared. Statements under section 161 Cr.P.C. of witnesses were taken down. Last worn clothes of deceased were taken into possession by means of memo. Ex. PK, blood stained earth was collected thnmgh memos. Ex. PL, Ex. PM and Ex. PN after the same was made into parcels. Six empties P6/1-6 ofpist.nl .30 bore were secured from place of occurrence, made into a sealed parcel and taken into possession by viitue of memo. Ex. PO. Rough Map Ex. PQ was prepared hy Investigating Officer while site plans of place of occurrence Ex. PH and Ex. PH/1 were got prepared from Ghulam Hussain Patwari PW-5. Motor-cycle P. 11 was taken into possession vide memo Ex. PR. 6. On search, a pistol from Muhammad Qasim and a Carbeen from Muhammad Asif, companions of appellant, were respectively recovered and two separate cases under Arms Ordinance were registered vide FIRs No. 399/96 and 400/96. 7. Upon completion of investigation, final report under Section 173 Cr.P.C.. was submitted in Court against Muhammad Bahadur appellant, who, pleaded not. guilty to the charge and at trial prosecution examined as many as 12 witnesses. Deputy District Attorney tendered report of Chemical Examiner Ex. PS, report of Serologist Ex. PT and icport of Forensic Science Laboratory as Ex. PU and closed prosecution case. 8. Wliile examined under section. 342 Cr.P.C. the appellant denied and disputed all incriminating circumstances figuring against him in prosecution evidence and took following plea while answering question No. 4:- 'I was returning to my house and while I was on the way, the two deceased and the injured PW Ghulam Mustafa chased me and Ghulam Mustafa rohhed a sum of Rs. 3,500/-from my chest pocket of my shirt. The other two deceased diverted their attention towards the cash. All the three were in plain clothes and were not known to me. I tried to slip away from them. but. Muhammad Ashiq and Athar deceased chased and attacked me. On receiving injuries on the head I felt serious danger to my life and keeping in view it.he offences committed by said three persons against me. I took out my weapon and in order to defend my life and property I tired at them as a result of which they were injured. There was no Noka and I was not accompanying any other person, but, was coming on foot towards my house near the place of occurrence. The story about Naku bandi and the pursuit by any police officer is false and has been concocted on the next day. Naved Ikram SI was not present at the spot. He did not. recover the blood stained earth or empties from the spot on the said, night nor did he write any .statement at. the piuce of occurrence promptly disclosing the manner in which the occurrence took place in fact. 1 protected my life and property and protected myself. 9. Appellant neither opted to make his statement on oath to disprove the allegation as envisaged by section 340(2) Cr.P.C,. nor led any \ videiice in his defence, either. 10. On culmination of trial, learned trial Court convicted and sentenced him, as indicated, supra. Hence this appeal. 11. Learned counsel for the appellant has contended that holding of Nakabandi and, for that matter, very presence of Complainant and his companions at the spot is doubtful as documentary evidence about holding Naka in daily dairy of police station has been withheld for which an adverse presumption under section 129(G) of Qannn-e-Shahadat Order. 1984 has to be taken; Naveed Ikrani SI. PW. 6 did not witness the occurrence, and admitted in his cross-examination that he had not recorded complaint Ex. PC at the spot; he even neither sciired blood stained earth from the spot nor crime empties on the night of occurrence; ocular account is unnatural, improbable and unbelievable inasmuch as none from the police party holding Naka sustained injuries, injuries on the person of appellant have been suppressed to distort the fact that the appellant acted in his self-defence when three police-men in plain clothes robbed him of Rs. 3.500/-; and investigation was conducted dishonestly to save false honour of police suppressing the robbery by three police-men in plain clothes. On these premises, judgment of the learned trial Court has been lambasted and acquittal has been claimed for the appellant. 12. Contentions have been controverted by learned A.A.G., who. Has defendad impugned judgment and acclaimed the same to be correct in all respects. 13. To appreciate the same, record has been scanned by able assistance of the learned counsel for the parties, 14. The prosecution has relied upon ocular account, medical evidence and recoveries to prove its case. Naveed Ikram, SI PW. 6, Muhammad Nawaz Constable and Ghulam Mustafa Constables, an injured PW, have furnished ocular account of the gory incident that claimed lives of Muhammad Ashiq and Muhammad Athar Siddiqui Constables and injuries to Ghulam Mustafa Constable. Naved Ikram SI testified as to how, he & police party was holding Naka at University Chowk. when, appellant Muhammad Bahadur and his two Compatriots happened to come there, riding a motor-cycle and were stopped for checking as the Motor-cycle was not bearing any registration number. He thus, provided convincing details of incident, reported in complaint Ex. PC., made by him in Emergency Ward of B.V. Hospital, Bahawalpur where he had gone immediately after the occurrence with dead body of Muhammad Ashiq Constable and alongwith Muhammad Athar Siddiqui Constable, since deceased, and Ghulam Mustafa Constable in injured condition. He elaborated that Muhammad Bahadur appellant also sustained injuries which were mentioned by him in complainant Ex. PC. He successfully withstood the test of cross-examination. 15. Ghulam Mustafa Constable PW. 7 a Gunman of DIG, Bahawalpur suffered injuries in the incident. He too, corroborated Naveed Ikram SI, PW. 6 on material particulars. He was in police Van, which, came at the spot, when Muhammad Bahadur appellant was being chased by police party led by Naveed Ikram SI PW. 6. Muhammad Athar Siddiqui and Muhammad Ashiq Constables, since deceased, were with him in the same Van, besides, Azhar Hussain Driver. Seeing the police party, in hot pursuit of appellant, they too, joined the chase displaying high sense of their duty. While over-powering appellant, witness sustained injuries. He could not be shatter ed by defence in cross-examination. He denied the suggestion that he and two deceased Constables robbed appellant of Rs. 3.500/- and chas him, while, he was on run even after being robbed of. It was suggested to this PW that, he and his two companions since deceased were injured by the appellant while running away and. in this way. presence of this PW at the time of occurrence, injuries on his person and death of his two companions at the hands of appellant has been admitted by the defence itself, however, with a plea, the truth or falsity whereof shall be sifted in this judgment at appropriate stage. Muhammad Nawaz PW. 8 also testified about the eye­ witness account; withstood gruelling cross-examination and fully corroborated PW6 and PW7 the other two eye-witnesses. 16. Medical account has been furnished by Dr. Aslam Baig PW. 2, who, had examined Ghulam Mustafa PW. 7 for his injuries on 22.11.1996 in B.V. Hospital immediately after the occurrence. He proved medico-legalreport Ex. PA in this regard, according to which, the injured sustained ;i fire­ arm wounds on his left upper forearm and thigh. Duration of the injuries was noted within two hours. 17. He also examined Muhammad Bahadur appellant, at the same time, when, police brought him in hospital. He had sustained two lacerated wounds mentioned as under:- 1. There was a lacerated wound measuring 2.05 cm on the frontier region. X-Ray was advised. 2. There was lacerated wound measuring, 1.5 x 5 cm in direction 9 cm from the right ear. X-Ray was advised. Duration of his injuries also within two hours like the injuries of Ghulam Mustafa injured PW. 7. 18. Dr. Muhammad Javed Akhtar PW. 4, conducted post mortem examination on the dead body of Muhammad Ashiq and 22.11.1996 vide, post mortem report Ex. PD. On 23.11.1996, he conducted similar examination on tf»e dead body of Muhammad Athar Siddiqui and his post mortem report is Ex. PF. Both the aforesaid deceased according to post-mortem reports died of firearm injuries. As the appellant has not challenged the infliction of these injuries from his pistol though with a plea, therefore, further dilation of these injuries on re-capitulation thereof is not necessary. Rest of prosecution evidence is of formal nature. 19. As a necessary corollary defence plea in juxtaposition with case set up by the prosecution is to be evaluated. Plea of the accused in nut-shell is that Muhammad Ashiq, Muhammad Athar Siddiqui, both deceased, and Ghulam Mustafa the injured PW previously not known to him, surprised him, while, he was on his way back to home with Rs. 3,500/-. Ghulam Mustafa PW robbed him of the cash and as the two deceased were attracted by the cash robbed; he ran for his life, but, Muhammad Ashiq and Muhammad Athar Siddiqui chased and caused injuries to him and he, but for, his life and property injuried then in return with his pistol. Even an uninitiated and naive would not believe this tailored defence. Two deceased and Ghulam Mustafa the injured PW were not known to the appellant; they could not have any animosity with him. If they had robbed him of Rs. 3,500/-, all property with him, why, did they chase him and what for when he was running away from them. If the intention was to arrest him and plant some fake case to show "Police-Carvie" they had already over-powered him without any resistance and one of them had robbed him of the cash. Why then the other two were attracted to cash. Even otherwise, they, as per defence version, were unarmed and accused already having been robbed of without any insistence could not have apprehended any danger of receiving any hurt what to speak of "danger of life". Thus the defence plea is false, manufactured and figment of imagination of the appellant and is liable to be discarded altogether. 20. Production of an extract from Rozenamcha to prove presence of Naveed Ikram SI at spot was not essential for the prosecution; the defence while cross examining this witness could have requested the Court for production of Rozanamcha, but, same was not done at any stage and thus no adverse presumption can be gathered and drawn against prosecution. Presence of Naveed Ikram SI PW 6 at the place of occurrence stands proved beyond any shadow of doubt. He has been fully corroborated by Ghulam Mustafa injured PW and Muhammad Nawaz PW8. He has no rancour against appellant or interest in two deceased or Ghulam Mustafa injured PW. They were foot Constables. Had they committed robbeiy, no one in police, had saved them at the costs of innocent victim. Naveed Ikram SI PW. 6 was under no compulsion of the department, to purge himself under oath. 21. We, therefore, see no force in this appeal, which, is hereby dismissed. As a sequel thereto, conviction and sentence of the appellant is maintained and Murder Reference is answered in the affirmative. (T.A.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1080 [DB] ' [Criminal Appellate Tribunal] Present: IFTIKHAR hussain chaudhary £ ghulam sarwar sheikh, JJ. LIAQAT ALI-Appellant vei'sus STATE-Respondent Crl. Appeal No. S.C. Tr. No. 12-97/BWP, partly accepted on 15.1.1998. <i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302, 364 and 201-Offence of Murder-Conviction for-Callenge to-No evidence, what to speak of "worth while": is available on record to connect appellant with commission of crime of murder or of causing disappearance of evidence thereof-Alleged recovery of skeleton or bones with no possibility of identification thereof, of specific person-Recovery of orn clothes and pair ofchappal alongwith bones is too fallacious to dilate or any way connect it with deceased or appellant-It is trite law and there can be no cavil with proposition that confessions are made before friends and not foes-Surrending and attending circumstances at the time of making confession are of vital importance-No sane person enshares himself by making abrupt and candour admission especially before man in authority, because he is never oblivious of consequences of such stupidity—He craves for back doors to escape and not abyss to fall into—It negates human psychology-Held : It. was case of no evidence-Held further: No conviction could be based upon such impaired, discrepant, incredible and seamy evidence-Petition partly accepted conviction u/S. 302 or 201 PPG is set aside. [Pp. 10S3 & 1084] A, B, C & D (ii) Pakistan Penal Code, 1860 (XLV of I860)- —-S. 364 and 302-Abduction and murder-Offence of-Oonviction for- Challenge to-Taking away "E" by appellant, with metis rea from his house stands sufficiently proved by testimony of Mst. "Z"-She. had innocently sent her son in company of appellant, who was well known to her—As to what happened afterwards stands shrouded with mystery-She was successfully withstood hard test of cross examination on this aspect and has proved beyond any shadow of doubt that "E" had been taken away by appellant in mysterious circumstances and thus commission of offence under section 364 PPC by appellant is fully established and his conviction there-wider is not open to exception-Conviction of appellant on this score is upheld and sentence awarded to him thereunder is maintained. [P. 1084]E Ch. Muhammad Amin Mayo and Ch. Muhammad Akhtar Mayo, Advocates for Appellant. Ch. Riaz Ahmad, dvocate for State. Malik Ghulam Farid, Advocate for Complainant. Date of hearing: 15.1.1998. judgment Ghulam Sarwar Sheikh, J.--E.jaz Ahmad son of Muhammad Nawaz, aged about 11/12 was not traceable since 13.9.1996. On 1.11.1996, first information report No. 117 originally under section 365 PPG was registered at Police Station Abbas Nagar District Bahawalpur at the instance of Muhammad Nawaz, father of missing child. As per contents thereof appellant. Liaqat Ali alias Nadir Khan and one Ali Muhammad developed visiting terms with complainant's father-in-law, namely, Allah Bachaya, who had monetary dealings with them, 2. On eventful and fateful day i.e. 13.9.1996, appellant Liaqat ALi alias Nadir Khan accompanied by Ali Muhammad went to the house of MuhammadNawaz, who, however, was not present there. On enquiry. Mst. Zahoor Mai wife of complainant told them, that Allah Bachaya. her father, had gone to Bilal Nagar. Appellant and Ali Muhammad took Ejaz Ahmad to Fetch Allah Bachaya. Unfortunate child was clad in Shalwar of white colour, shirt and wearing black Peshawari Chapal at the relevant time. In the evening. Mst. Zahoor Mai told her husband Muhammad Nawaz and his brother Zulfiqar Ali PW as to how Ejaz Ahmad was taken away by appellant and Ali Muhammad to bring his grand father, Allah Bachaya. from Bilal Nagar. On subsequent enquiiy, however, it transpired that appellant. Ali Muhammad and Ejaz Ahmad had never gone there. Search was launched for the missing child. But the same did not. fnictify and consequently matter as reported to police on 1.11.1996 as indicated above. 4. After recording FIR Ex. PJ. Muhammad Ghafoor, SI/SHO, proceeded to the place of occurrence, inspected the spot and recorded statements of witnesses and prepared site plan Ex. PL. 5. On 13.11.1996, appellant was arrested from Dera of Khuda Bakhsh in Chak No. 16/B.R.B. During investigation, he, is stated to have confessed his guilt about abduction and murder of Ejaz Ahmad. On 14.11.1996, appellant, in police custody, and in presence of Zulfiqar Ali, Arif, Khadim, Ramzan, Muhammad Nawaz, complainant and others, pointed out place, where, dead body, was buried after committing and causing his murder. Memo. Ex. PE of said venue was prepared and blood stained earth was collected there-from, and after making it into sealed parcel same was taken into possession by means of memo. Ex. PA. One empty round PI of .30 bore pistol was also secured, made into sealed parcel' and taken into possession through memo. Ex. PB. Last worn clothes i.e. shirt P2, Shalwar P3 and pair of Chapal P4/12 were also taken into possession vide memo. Ex. PD. Dead body in the shape of skeleton was got, recovered, after digging earth, and was taken into possession through memo. Ex. PC. All recovery memos were duly attested by PWs, Zulfiqar Ali, Arif. Khadim Hussain andMuhammad Ramzan. Site Plan of place of recovery of dead body and otherarticles, Ex. PM, was also prepared. After preparing inquest report Ex. PH, dead body i.e. skeleton was sent to morgue under the escort of Muhammad Iqbal PW. 6. 6. On 18.11.1996, appellant, in police custody led to the recovery of pistol .30 bore P5 alongwith two rounds, one live and the other missed P6 and P7 and National Identity Card, which, revealed his real name as "Liaqat Ali". Pistol P5 was made into a sealed parcel and taken into possession vide memo. Ex. PF. Bag containing hosiery articles, got recovered by digging earth, was also taken into possession by memo. Ex. PK. 7. Liaqat Ali, appellant, alone was found guilty during investigation and later report under section 173 Cr.P.C. was submitted in the Court of Sessions at Bahawalpur. Charge for offences under sections 364/302/201 PPC was framed against the appellant. Later the case was transferred to Special Court, constituted under Anti-Terrorism Act, 1997, where prosecution produced remaining evidence in a bid to prove its case.As many as 13 witnesses were examined by the prosecution at the trial, PW-1, Khadim Hussain and PW 2 Muhammad Ramzan are witnesses of recoveries; PW 3 Muhammad Akram and PW 4 Ghulam Muhammad claim to have lastly seen Ejaz Ahmad in the company of appellant; Medical Evidence was furnished by PW 5 Dr. Slier Muhammad, PW 6 to PW 5 are formal witnesses, PW. 10 Mst. Zahoor Mai, mother of deceased had sent her son Ejaz Ahmad alongwith appellant and Muhammad Ali. PW. 11 Muhammad Nawaz complainant re-iterated and re-affirmed story of woe embodied in FIR Ex. PLJ, his brother Zulfiqar PW. 12 corroborated his version and PW 13 uhammad Ghafoor enumerated various steps of investigation carried out by him. Reports of Chemical Examiner, of Serologist and that of Forensic Science Laboratory were tendered into evidence as Ex. PO, Ex. PQ, and Ex. PR, respectively. 8. When examined under section 342 Cr.P.C. appellant denied all the incriminating circumstances figuring against, him in prosecution evidence, professed innocence and alleged false implication with mala-fide intention and ulterior motives. He did not opt to appear as his own witness, to disprove the allegations as envisaged by section 340(2) Cr.P.C. No evidence was led in defence either. 10. On culmination of trial appellant was convicted and sentenced asunder:- (i) Under section 302 PPC. Death with a fine of Rs. 50,000/- or in defaiilt of payment of fine to undergo further three years' R.I. He was also directed to pay compensation to parents of the deceased Ejaz Ahmad under section 544-A Cr.P.C. amounting to Rs. 50,000/- and in default thereof he was to undergo further six months' R.I. Liaqat alias Nadir Khan accused to be hanged by the neck till he be dead. (ii) Under Section 364 PPC. He was sentenced to suffer ten years' R.I. and a fine of Rs. 10,000/- or in default thereof to undergo further six months R.I. fiii) Under Section 201 PPC, five years' R.I. However, it was directed that all the sentences shall run concurrently. 11. Hence this appeal and Murder Reference, which, are being disposed of together. 12. Ejaz Ahmad, a young hoy, aged about 11/12 years, left his house on 13.9.1996 and did not return home, where-after, matter was reported toPolice vide FIR Ex. PJ, lodged on 1.11.1996. It therefore, follows that for about two months, nothing happened, and later, in FIR suspicion was raised against appellant, who, was arrested and put to trial. Prosecution banked upon "last seen" evidence, recovery of skeleton, certain articles, belonging to deceased, weapon of offence, Medical Evidence and motive, for the crime. 13. As regards "last seen", suffice it to say that there is not an iota or scintilla of direct evidence on the point. As observed above, PW 3 Muhammad Akrm and PW4, Ghulam Muhammad have claimed to have seen appellant and Muhammad Ali at the door of house of complainant, on fate-ful day, but, not with Ejaz Ahmad and with, whom, they are stated to have seen them at "Dera Bakha" Stop where they are said to have gone to purchase "Fertilizer". But they are belied not only by each other but also by PW 10, Mst. Zahoor Mai, who, totally excludes the presence of said witnesses, when, Ejaz Ahmad accompanied the appellant and his companion Muhammad Ali, at her instance. Similarly Muhammad Nawaz complainant, Zulfiqar Ali PW 12 and Ghulam Muhammad PW4, have testified that they had gone to Chak No. 4, Mehtra, where, Shadu Misri had told them to have seen Ejaz Ahmad in the company of appellant, Muhammad Ali and having taken water-melon there on veiy next day of incident. Firstly, Sahdu Misri has not been produced and secondly matter was not reported to police despite vailability of such information and clue. As a necessary corollary testimony of concerned witnesses is rendered to be "hear-say"; thus inadmissible and super-structure, based upon such discrepant, sketchy and imaginary data has to be collapse and fall like house of Cards. 14. Like-wise, no evidence, what to speak of "worth-while", is available on record to connect the appellant with the commission of crime of . murder or of causing dis-appearance of evidence thereof. Alleged recovery of skeleton or bones with no possibility of identification thereof, of specific person, as candidly opined by PW. 5, Dr. Sher Muhammad, who, conducted autopsy, does not advance the prosecution case in any manner and rather it stands impaired beyond repair to the extent of charge of Qatl-c.~Amd and that under section 201 PPC. Recovery of term clothes and pair of Chappal alongwith bones is too fallacious to dilate or any-way connect it with deceased or appellant. It was rightly termed to be case of "no evidence' at all so for charge under section 302 PPC or section 201 PPC is concerned. No conviction could be based upon such impaired, discrepant, incredible and seamy evidence. 15. On the face of it, motive set up by the prosecution, is not only far-fetched and remote, but figment of imagination of complainant. Mere monetary dealings of appellant with Allah Bachaya grand-father, of unfortunate child, and that too, not substantiated by any way. could hardly afford any basis for such a callous act. 16. As expounded ii Maqbool Ahmad vk. The State (1992 S.C.M.R. 2279^ satisfactory motive always plays an important part in any case dependant entirely on circumstantial evidence. In wake thereof circumstantial evidence plays the role of narrow which strengthens and activates bones while "flesh" like motive gives visible shape to human body and when both are missing, only "skeleton" is left behind as in the present case. 17. It is trite law and there can be no cavil with the proposition that confessions are made before friends and not foes. Surrounding and ttendingcircumstances, at the time of making confession, are of vital importance. No sane person, ensnares himself by making abrupt and candour admission especially before man in authority, because he is never oblivious of consequences of such stupidity. He craves for back doors to escape and not abyss to fall into. It negates human psychology. Hence, no prosecution edifice could be erected thereupon as well. 18. Evidence collected during investigation and later produced at trial is deficient qualitatively as well as quantitatively to connect the appellant with the commission of offence under section 302 PPG or 201 PPG either. Hence his conviction to that, extent is unsustainable and is therefore, set aside. 19. However, there is ample evidence in so far as offence under section 364 P.P.C. is concerned. Taking away of Ejaz Ahmad by appellant with "metis raz"from his house stands sufficiently proved by the testimony of Mst. Zahoor Mai, PW. 10. Seemingly, she, had innocently sent her son in the company of appellant, who, was well known to her. As to what, happened, afterwards stands shrouded with mystery. Any way, she has successfully withstood hard test of cross-examination on this aspect and has proved beyond any shadow of doubt that Ejaz Ahmad had been taken away by appellant in mysterious circumstances and thus commission of offence under section 364 PPC by appellant is fully establish and his conviction there­under is not open to any exception. No stress has been laid on the point, perhaps in wake thereof. As a necessaiy corollary, conviction of appellant on this score is up-held and sentence awarded to him thereunder is maintained. 20. 20. Resultantiy, Death sentence is NOT confirmed and reference is answered accordingly. Appeal, except to the extent indicated above, is thus partly allowed and conviction and sentence to appellant under sections 302 and 201 PPC are hereby set. aside. (K.K.F.) Petition partly accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1085 [DB] Present: IFTIKHAR hussain chaudry & ghulam sarwar sheikh, JJ. MUHAMMAD ISHAQ-Appellant versus STATE-Respondent Cr. A. SC Tribunals No. 7-1997/BWP, dismissed on 13.1.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- -—S. 305-Triple murder-Offence of--Conviction for-Challenge to-Whether plea of sudden and grave provocation stands on any footing in presence of eye witnesses-Appraisal of evidence-Only plea of appellant is that on seeing R and H hugging and kissing his wife, he had lost self control and acted under impulse of sudden and grave provocation--But circumstances of case and over-whelming evidence on record expose frivolity of defence- It is fact proved that, these murdes were committed while cutting wheat crop by Mst. M her father and others-So Mst. M is proved to he working woman of peasantry—Even'uninitiated would not believe that woman of labour class in presence of her father while working in field would indulge in many making with her paramour-Complainant immediately reported incident to police in details and successfully with stood test of cross-examiuation-H is injured witness and there is nothing on record to disbelieve him about occurrence admitted by accused himself-Held: It, is proved beyond any shadow of doubt that it was appellant who committed triple murder and has been rightly convicted u/S. 302(b> PPC as Tazir— Appeal dismissed and death sentence confirmed. [Pp. 1089 & 1090] A & B M/a Abdus Sattar Zafar and A.R. Tayyib, Advocates for Appellant. Nasir-ud-Din Gliauri, Advocate for State. Date of hearing: 13.1.1998. judgment Ghulam Sarwar Sheikh, J.-This judgment will dispose of Murder Reference as well as appeal under Section 25 of Anti-Terrorism Act, 1997 against judgment dated 14.10.1997 passed by learned Special Judge, Special Court No. I, established for Bahawalpur Division under said Act, whereby, Muhammad Ishaque, appellant, has been convicted under Section 302 PPC on three counts of Qatl-e-Amd of his wife Maryam Bibi, his fatherin-law Noor Muhammad and one Muhammad Rafique and under Section 324 PPC, on two counts, for causing injuries to Muhammad Ashraf and Muhammad Haqaan PWs. He has been sentenced to death, to be hanged by his neck till he be dead, on each murder count and to ten years' R.I. on each count under Section 324 PPC. In addition, fine to the tune of Rs. 50,000/- has been imposed upon him and in default whereof he is to suffer two years' R.I. on each count. It has been further directed that fine, if realised, be paid in equal shares to all the legal heirs of three deceased and the injured P.Ws. 2. Stoiy of woe as reflected by FIR Ex. PG, which, of coiirse, set, the law into motion is to the effect that on 8.5.1995 at 2 P.M. Maryam Bibi. Her father oor Muhammad, her sister Fatima Bibi PW. 8. and one Ghulam Mustafa while harvesting wheat crop in Killa No. 5 Rectangle No. 56 in Chak No. 301/HR Fort Abbas took a short break and were Taking rest under trees on Hakra Bank Canal. Appellant armed with a .12 bore gun emerged there and challenged that they would be taught a lesson for filing and prosecuting a suit for "Dissolution of Marriage" against him by Maryam Bibi, his wife in a Family Court at, Bahawalpur. Unfortunate victims ran for their lives towards nearby under-construction water course where people were working. Haqaan PW 9 working there entreated for their lives with the convict, who in turn, shot and wounded him on his right flank and right hand. He also shot at Muhammad Ashraf PW which hit his right, shoulder and right knee and respectively shot dead Muhammad Rafique, Noor Muhammad and Maryam Bibi at the spot as they scummed to their injuries. Occurrence was witnessed by Sana Ullah and Muhammad Aslam as well. 3. Mst. Fatima alongwith one Muhammad Mansha brother of Haqaan PW proceeded to police station Maroot. leaving behind Mst. Sakina Bibi PW. 4, her mother with the dead bodies. 4. Muhammad Akram (PW. 11) Police Inspector/SHO recorded her statement Ex. PG proceeded to spot and inspected the place of occurrence. He examined Muhammad Ashraf and Miihammad Haqaan PWs, prepared their injury statements Ex. PD/1 and Ex. PE/1 respectively and sent them to hospital. Their Medico-legal-reports are Ex. PD and Ex. PE. Inquest eports as well as injury statements Ex. PA/3, Ex. PA/4, Ex. PB/3 Ex. PB/4 and Ex. PC/3 and Ex. PC/4 of deceased Muhammad Rafique, Noor Muhammad and Maryam Bibi respectively were prepared and dead bodies under the escort of Rah Nawaz PW. 3 a Constable were sent to morgue for autopsy. 5. Blood stained earth was secured aide memos. Ex. PI and Ex. PJ respectively from under the dead bodies of Noor Muhammad and Muhammad Rafique and also from under the dead body of Maryam Bibi by means of memo. Ex. PH. Five empty cartridges Ex. Pl/1-5 were collected from the place of occurrence, made into a sealed parcel and taken into possession through memo. Ex. PK. East worn clothes i.e. shin P-2, Shalwar P-3, Dopata P. 4 and bodies P-5 of Maryam Bibi alongwith a phial P-6, Qamiz P-7 and chaddar P-8 of Noor Muhammad alongwith phial P-9, Shirt P-10 and chaddar Pll of Muhammad Rafique were secured by virtue of memos. Ex. PL. Ex. PM and Ex. PN respectively. In short various other steps of investigation were also taken. 6. On 21.5.1995 appellant was arrested and at his pointation a .12 bore gun P-12, its licence P-13, a bandolier P-14 five cartridges P-15/1-5 were taken into possession from his house vide Memo. Ex. PO and site plan Ex. PO/1 of these recoveries was prepared. All the articles so recovered were deposited with Moharrir of the Police Station. Site plans of place of occurrence Ex. PF and Ex. PF/1 were got prepared from Muhammad Akhtar Shah Patwari PW. 2 and the accused was challaned upon completion of investigation. 7. He pleaded not guilty to the charge and prosecution examined as many as eleven witnesses. Learned Deputy District Attorney gave up Ghulam Mustafa, Sana Ullah, Muhammad Aslam, Ghulam Sarwar, Muhammad Ashraf and Falak Slier PWs and tendered into evidence reports of Chemical Examiner Ex. PQ and Ex. PR and reports of Serologist Ex. PS and Ex. PT and that of Forensic Science Laboratory as Ex. PU to close the case for prosecution. 8. Accused did not opt to appear as his own witness to disprove the allegation as envisaged by section 340(2) Cr.P.C., he challenged the truth of evidence led against him and took the following plea:- "I am innocent. The real facts are that on the day of occurrence I was coming back from Chak No. 301/HR. My licenced gun Ex. P. 12 was with me as I keep it always with me d\ie to enmity in the village. When I reached near the place of occurrence, I saw Maryam deceased my wife, Muhammad Rafique deceased and Muhammad Haqaan PW kissing her and were chatting with her. I, under the impxilse of grave and sudden provocation fired at. them. In the mean-while. Noor Muhammad deceased came there, who also received injuries. I appeared before the police at my own accord. Complainant and other witnesses were not present at the spot." 9. Prosecution evidence can be divided into following four broad categories:- (i) Eye-witness account; <ii) Medical Evidence; Uii) Recoveries; and (iv) Investigation. 10. Ocular account stands furnished by Fatima Bibi PW. 8 and Haqaan an injured PW. 9. Fatima Bibi testified that at the time of fateful incident she was present with her sister Maryam Bibi. her father Noor Muhammad and Ghulam Mustafa who were taking rest under trees on Bank of Hakra Canal where at 2 P.M. appellant armed with gun came, challenged the victims and shot them dead while they were on a run for their lives towards an under-construction nearby water course where Haqaan PW 9 implored for the lives of victims and sustained injuries alongwith Muhammad Ashraf given up PW as they both, according to appellant himself, were helping Maiyam Bibi in her suit for dissolution of marriage against him. She successfully withstood hard test of cross-examination. Similarly Haqaan PW deposed that at the time of occurrence he saw Maiyam Bibi, Ghulam Mustafa and Moor Muhammad ahead of appellant, who. was armed with a gun. he entreated for their lives but sustained injuries at his hands and also saw him gunning down Maiyam Bibi, Muhammad Rafique, Noor Muhammad and injuring Muhammad Ashraf PW. This PW also stuck to his stand when subjected to searching crossexamination. 11. Eye-witness account has duly been corroborated by Dr. Rao 1 Shahid Tasleem PW. 1, who, conducted post mortem examination about 24 1 hours after the death of Muhammad Rafique aged about 28/29, who, had ( sustained five gun injuries which collectively caused his death within two ' hours. PW. 1 proved his observations, in post mortem examination report ' Ex. PA, diagrams of injuries Ex. PA/1-2 and also stained inquest report Ex. 1 PA/3 and injury statement Ex. PA/4. He conducted autopsy on the dead body of Noor Muhammad and observed entry and exit, gun bounds on his chest, which, in his opinion, were sufficient to cause death in ordinary course I of nature within 10 minutes. Post mortem examination report in this regard E is PB and diagram of injuries Ex. PB/1 Ex. PB/2 whereas inquest report and injxuy statement respectively are Ex. PB/3 and Ex. PB/4. 12. Post mortem examination vide report Ex. PC was conducted by the same doctor on the same day and time on the (lead body of Maiyam Bibi and as many as three fire-arm wounds on her chest which killed her within half an hour were observed. Her post mortem examination report, is Ex. PC whereas diagrams are Ex. PC/1, Ex. PC/2 and inquest and injury statement respectively are Ex. PC/3 and Ex. PC/4. 13. Same doctor examined Muhammad Ashraf injured on same day 1 vide Medico-legal-report Ex. PD and injury statement Ex. PD/1 and found three fire arm injuries inflicted within 24 hours of examination and these injuries were on his right, shoulder and right thigh. He also examined Muhammad Haqaan PW. 9 and observed vide medico-legal-report, Ex. PE fire-arm injuries on his right plain and right loin region. Ex-Ray was advised and Ex-Ray films Ex. PE/2 and :i showed no bony lesion and injuries were declared Ghair Jaifah Mutalahimah. 14. Recoveries of last worn clothes of deceased were proved by PW 3 Rab Nawaz Constable whereas Fakhar-ud-Din PW. 10 proved the recovery of blood stained earth, and of empty cartridges from the place of occurrence. P" 1 He also proved. The recovery of .12 bore gun p-12. its licence P-13, Bandolier -14 and live cartridges from the convict. Muhammad Akram PW. 11 the Police Inspector gave the details of investigation carried out by him whereas Muhammad Akhtar Shah Patwari PW. 2, proved the site plan of place of occurrence. Niaz Ahmad Constable as a Court witness affirmed that the case property was kept intact at Police Station and PW 7 Muhammad Arshad Constable testified about carrying of blood stained earth and clothes and empty cartridges P-l/1-5 to concerned quarters. 15. Upon culmination of trial, appellant was convicted and sentenced as detailed and noted above. 16. Learned counsel for the appellant have canvassed that data and material on record has not been properly valued, on golden scales, learned trial Court remained oblivious of the fact that Fatima Bibi PW. 8 is real sister of Maryam Bibi deceased, who, being an estranged wife was inimical to appellant; Fatima Bibi PW. 8 has no injury on her person and he being a married woman would have been at the house of her husband and thus her presence at the scene of occurrence is nnatural; her testimony cannot be relied upon without independent corroboration not forth-coming in this case; that Muhammad Haqaan PW. 9 is also an inimical witness, and his presence supports the defence version that appellant saw him and Muhammad Rafique deceased with his wife Maryam Bibi indulging in obscene hugging and kissing and losing balance of his mind killed them and at, the worst could have been convicted under Section 302 (C) PPC and not under section 302 (b); and injuries on the person of Muhammad Haqaan PW 9 were on nonvital part of his body and just Ghair Jaifah Mutalahiwah, therefore, his conviction under section 324 PPC is illegal. 17. Conversely various factors have been reiterated and high-lighted to remark that the appellant being responsible for such gruesome, cold­ blooded and brutal murders and murderous assault upon PWs is liable to be awarded extreme penalty. 18. We have considered the arguments in the light of record perused with the assistance of learned Counsel for the parties. It is amply proved that Maryam Bibi, Muhammad Rafique and Noor muhamrnad were shot dead. Fatima Bibi PW. 8 and Muhammad Haqaan PW. 9 an injured witness have affirmed that the appellant, caused injuries to deceased. Convict, is well known to these witnesses and as such his identification in a broad day-lightoccurrence is totally free from doubt. So it is proved beyond any shadow of doubt that the appellant, committed Qatl-c-Amd of Maiyam Bibi,Muhammad Rafique and Noor Muhammad and caused injuries to Muhammad Haqaan PW. 9. He himself has not disputed this fact. Venue and time of incident have also not been disputed. His only plea is that on seeing Muhammad Rafique and Muhammad Haqaun PW 9 hugging and kissing his wife Maryam Bibi, he had lost self control and acted under the impulse of sudden and grave provocation. But the circumstances of the case and over-whelming evidence on record expose frivolity of his defence. It. is a fact prove that these murders were committed while cutting what crop by Maiyam Bibi, her father and others. So Maiyam Bibi is proved to be a working woman of peasantiy. Even the uninitiated would not believe that, a woman of a labour class in presence of her father while working in field would indulge in merry making with her paramours and that too with "two" at the same time. Presence of Fatima Bibi at the scene is quite natural. She immediately reported the incident to police in details and successfully withstood the test of cross examination. Muhammad Haqa'an PW. 9 is an injured witness and there is nothing on record to disbelieve him about an occurrence admitted by accused himself. So it is proved beyond any shadow of doubt that it was appellant, who, committed triple Qatl-e-Amd and has been rightly convicted under Section 302 (b) PPG as Tazir. 19. Though the injuries on the person of Muhammad Haqaan PW 9 are simple in nature, yet, the weapon of offence and circumstances under which they were caused speak volumes about the intention of appellant, who, has been rightly convicted and sentenced under Section 324 PPC, as well. 20. Resultantly, Death sentence on each count awarded to the appellant is Confirmed and Reference is answered accordingly. ppeal consequently fails and is hereby dismissed. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1090 (DB) Present: qazi muhammad farooq and khalid A. rachid, JJ. QAMAR ABBAS etc.-Petitioners versus STATE-Respondent Criminal Misc. No. 621 of 1997, decided on 4.2.1998. Criminal Procedure Code, 1898 (V of 1898)— —- S. 497--Pakistan Penal Code (XLV of 1860), Ss. 302, 324, 353 & 34-Bail- Grant of--Prayer for--Petitioners are not only squarely charged with specific role in promptly lodged F.I.R. for enacting tragedy but accusation is amply augmented by ocular and medical evidence incriminating recoveries and positive report of Fire-Arms Expert qua klashanikov recovered from petitioner—Besides, occurrence has not been denied—It is true that there is cross case and counter version of occurrence but it is by now firmly settled that in such eventuality each case is to be decided on the basis of material and evidence available on record—Accused is not entitled to bail as matter of right for reasons of counter version or counter case-Petitioners prima facie appear to be at fault in view of extent of damage in general and this assertion reflected in F.I.R. in particular that they had followed complainant and his companions while they were leaving polling station and their hostile posture had culminated in incident—It cannot be said that petitioners have not committed nonbailable offence which is condition precedent for grant of bail on ground of further enquiry-Release of accused in cross-case cannot be blown out of proportion as they were allowed bail on merits and not as matter of grace-Held : It is not fit case for bail-Petitions dismissed. [Pp. 1094] A, B, C, D, E & F 1992 SCMR 501 and 1980 P.Cr.L.J. 105. Qazi Muhammad Jamil, Mr. Mujtaba All Hamdani, Mr. Gohar Rehman and Mr. Muhammad Jamil, Advocates for Petitioners. Mr. Muhammad Azarn Khan, A.G. for State. M/s Zahoorul Haq. Qazi Muhammad Anwar and Assadullah Charnkani, Advocate for Complainant. Date of hearing: 4.2.1998. judgment Qazi Muhammad Farooq, J.--On 3.4.1997 as a gory incident of firing took place between two rival political factions at female Polling Station Government Girls Middle School Wazir Bagh which left behind three dead and three injured on one side and two injured on the other. When the dust settled down the dead and the injured were taken to the Lady Reading Hospital where two reports were made about the incident. The first report was made by one Sohail Siddique on behalf of the group whose two members had lost their lives as a result of which a case under Sections 302 324 353/34 P.P.C. read with Section 4 of the Suppression of Terrorist Activities Act. 1975 and Section 13 Arms Ordinance was registered at Police Station Yakka Toot, vide F.I.R. No. 278 dated 3.4.1997, against Qamar Abbas. Kama! Hussain. Noor Muhammad and Asad Ali. The second report was made by Qamar Abbas against Shabbir Ahmad Bilour and his 6/7 unnamed companions on the basis whereof a case under Sections 324 148, 149 P.P.C. was registered at Police Station Yakka Toot vide F.I.R. No. 279 dated 3.4.1997. Three out of four accused nominated in F.I.R. No. 27S. namely. Qamar Abbas. Kamal Hussain and Noor Muhammad having failed to secure bail at the lower forum had moved this Court for the purpose but without any success as their bail plea was turned down on 25.8.1997 by a learned Single Bench of this Court. However, their bail application, bearing Xu. 621 1997. was remanded by the august. Supreme Court on 9.12.1997 for election afresh by a Division Bench of this Court. We propose to dispose of !'V rhi> common order the said bail application as well as an identical bail application Xo. 39 of 1988 which was made subsequently by Kamal Hussain and Xooi Muhammad who had not filed a petition in the Supreme Court against the order dated 25.8.1997. 2. The F.I.R. discloses that on the eventful day at about 12.10 P.M. the complainant Sohail Siddique alongwith Said Rasool, Iftikhar Khan Matta MPA. Shabbir Ahmad Bilour and Muhammad Khan went to the female Polling Station Government Girls Middle School Wazir Bagh in a car and found Qamar Abbas. Asad, Kamal and Noor Muhammad standing there duly armed with automatic weapons. They came out of the Polling Station after advising Qamar Abbas etc. not to stand among the ladies. Qamar Abbas alongwith his companions followed them and after initiating an altercation opened fire at them as a result of which Shabbir Ahmad Bilour and Muhammad Khan lost their lives. Simultaneously, Asad, Kama! and Noor Muhammad made firing due to which Amanullah Khan SHO Police Station Yakka Toot was killed and two Constables Hashmat, Khan and Jehanzeb and one Nisar were injured. The complainant escaped unhurt with bullet marks on his waist coat and shirt. 3. The counter version of the occurrence, contained in F.I.R. No. 279, in brief is that the complainant. Qamar Abbas being a contesting candidate n the Bye-election for Constituency No. NA-1 went to the female Polling Station Government Girls Middle School Wazir Bagh alongwith Asad Ali in order to oversee the voting process. His party workers complained of bogus voting by means of fake National Identity Cards and the complaint was brought to the notice of the A.S.P. Suburb Circle and the Duty Magistrate Mastan Khan Wazir who had also arrived there. In the meantime Shabbir Ahmad Bilour accompanied by 6/7 persons came there and asked as to who was Qamar Abbas. He seized Qamar Abbas by the collar and started a scuffle. Thereafter, he and his companions opened fire as a result of which the complainant, his nephew Asad Ali, a few police officials and citizens sustained fire-arm injuries. 4. Qazi Muhammad Jamil, learned counsel for the petitioner Qamar Abbas, contended with vehemence that notwithstanding the number of casualties it was a case of further enquiry within the contemplation of ection 497(2) Cr.P.C. because it was a trigger-happy affair and a sudden fight and in the face of the cross case and counter version of the same incident it was yet to be determined as to which party was the aggressor and which the aggressed. It was further contended that neither any weapon was recovered from the petitioner Qamar Abbas nor any empty was recovered from the point indicating his presence on the spot at the crucial time. Another contention raised by the learned counsel was to the effect that the complainant had suppressed the injuries suffer by the petitioner Qamar Abbas and his nephew and except the interest, persons none else including independent injured persons and son of the deceased SHO had charged the petitioners. It was lastly contended that a case for bail on the principle of parity was also made out, as the ccused of the cross-case were on bail. Reliance was placed on Hakim Ali Zardari vs. The State and another (PLD 1998 SC 1), Shoaib Mehmood Butt vs. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845), Fazal Muhammad vs. Ali Ahmad and 3 others (1976 SCMR 391), Bahadur and 9 others vs. The State (1975 PCr.LJ 162) and Abdul Khaliq vs. Niaz Khan and 4 others (1996 PCr.LJ 1612). 5. Mr. Mujtaba Ali Hamdaui, learned counsel for the remaining petitioners, adopted the arguments advanced by the learned counsel for Qamar Abbas and added that the investigation was dishonest on account of political pressure and the report, of the Fire-arms Expert, vis-a-vis the weapon of crime allegedly recovered from the petitioner Noor Muhammad was not positive. 6. Barrister Zahoor-ul-Haq, learned counsel for the complainant, on the other hand submitted that the application may be dismissed straightaway as complete challan had already been put in Court and the trial was about to commence. Reliance was placed on Said Akbar and another vs. Gul Akbar and another (1996 SCMR 931). He next argued that the contention of further enquiry was not at all available to the petitioners because; firstly, specific role had been attributed to each of them, secondly, the assertions mad in the F.I.R. were fully supported by the ocular and medical evidence, incriminating recoveries and positive report of the Fire­ arms Expert and, thirdly, the petitioners and their co-accused were prima fade aggressors as they had launched the fatal attack on the complainant and his companions while they were going away from the Polling Station and apart from that it was evident from the statement of the petitioner Noor Muhammad recorded by the police that firing was started by Qamar Abbas etc. He also argued that the accused in the cross-case were granted bail on account of belated charge and the casualties suffered by the other side were suppressed in the F.I.R. made by the petitioner Qamar Abbas who and his nephew had not sustained any injury on a vital part of their bodies. Reference was made to Nasir Muhammad Wassan and another vs. The State (1992 SCMR 501), Iqbal Hussain vs. Abdul Sattar and another iPLD 1990 SC 758) and Allah Wasaya and 2 others vs. The State (1980 PCr.LJ 105). 7. The arguments put forward by the learned counsel for the omplainant were supported by Mr. Muhammad Azam Khan, learned Advocate General. 8. It may be mentioned at the outset that although a practice has emerged over the years that plea of grant of bail is not considered when the trial is about to commence yet in the absence of an inflexible rule and explicit embargo such a plea can be raised and considered if there exists an exceptional circumstance. The exceptional circumstance in the present case s that the bail application of the petitioners, which was decided on merits during the first round by a learned Single Bench, has been remanded by the august Supreme. Court for decision afresh by a Division Bench. We, therefore, propose to decide the bail application on merits. 9. After giving the arguments addressed at the Bar our anxious consideration we have come to the irresistible conclusion that it is not a fit case for bail. The petitioners are not only squarely charged with specific roles in the promptly lodged F.I.R. for enacting the tragedy but the accusation is amply augmented by the ocular and medical evidence, incriminating recoveries and positive report of the Fire-Arms Expert qua the Klashanikov recovered from the petitioner Kamal Hussain which is licensed in the name of the petitioner Qamar Abbas. Besides, the occurrence has not been denied. There thus exist reasonable grounds for believing that the petitioners have been guilty of offences covered by the prohibitory limb of Section 497 Cr.P.C. 10. It is true that there is a cross-case and a counter version of the occurrence but it is by now firmly settled that in such an eventuality each case is to be decided on the basis of the material and evidence available on the record of that case and as observed in Nasir Muhammad Wassan and another vs. The State (1992 SCMR 501) mere existence of cross FIRs or cross-cases against each other cannot be a ground for grant of bail or in Allah Wasaya and 2 others vs. The State (1980 P.Cr.L.J 105) that an accused is not entitled to bail as a matter of right for reasons of a counter version or a counter case. Having examined the material available on the record of the present case tentatively we find that the petitioners prima fade appear to be at fault in view of the extent of the damage in general and this assertion reflected in the F.I.R. in particular that they had followed the complainant and his companions while they were leaving the Polling Station and their hostile posture had culminated in the incident. Needless to mention that it is rather difficult to overlook or repel, the said assertion at this stage. The contention with regard to the aggression-related further enquiry is thus misconceived. Same is the case with the dimension of further enquiry based on sudden flare up because it is more relevant to the question of sentence than guilty. Last but not the least on facts and circumstances of the case it cannot be said that the petitioners have not committed a non-bailable offence which is a condition precedent for grant of bail on the ground of further enquiry. As regards the contention that the complainant had suppressed the p injuries sustained by the petitioner Qamar Abbas and his nephew it would suffice to say that the cross FIR is equally silent about the plight of Shabbir Ahmad Bilour etc. 11. The release of the accused in the cross-case cannot be blown out of proportion as they were allowed bail on merits and not as a matter of grace and it goes without saying that, the defence of the petitioners is being pursued vigorously at every stage. 12. For the foregoing reasons both the applications are dismissed. It may, however, be added that the observations made in this order are tentative in nature restricted to the disposal of the bail applications and shall not influence the mind of the trial Court in any manner. (AAJS) Applications dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1095 (DB) [Appellate Tribunal] Present: iFTiKHAR hussain CHAUDHRY & ghulam sarwar sheikh, JJ. ABDUL HAFEEZ-Appellant versus STATE-Respondent Criminal Appeal No. SC (T) 14-97/BWP and SC(T) 16-97/BWP, accepted on 13.1.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302--Murder--Offence of-Conviction for-Challenge to-Occurrence took place during earlier part of night, FIR thus was registered belatedly- It appears that beddings or any other articles lying in room where deceased slept caught fire due to coal heater or any other source while they were asleep and deceased inhaled noxious gasses and were unable to move ur to warn others-Extra judicial confession made by accused before persons who were not in position to have influenced course of prosecution does not affect case of appellant-No data and material or factor to connect appellants with commission of offence with which they were charged is borne or spelled out-Held : Conviction is unsustainable in law-Appeals accepted. [Pp. 1098 & 1099] A & B Mr. A.R. Tayyib. Advocate for Petitioners. Mr. Nasir-ud-Din Ghauri, Advocate for State. Mr. M.A. Rashid Chaudhry, Advocate for Complainant. Date of hearing; 13.1.1998. judgment Ghulam Sarwar Sheikh, J.--This judgment will dispose of instant appeal (Crl. A.A. Sc. (Tribunals) No. 14/97/BWP) and Criminal Appeal A.Sc. (Tribunals) No. 16/97/BWP, as both of it have arisen out of same F.I.R.'case. 2. These Criminal Appeals under Section 25 of Anti Terrorism Act f 1997 are directed against judgment dated 1.11.997 passed by learned Judge. Special Court constituted under the same Act, whereby the appellants were convicted under section 302/34 PPC on four chaunts for having committed Qatl-e-Arnd of four persons and sentenced Abdul Hafeez appellant (in Crl. A No. 14/97) to death on four counts, while Muhammad Ramzan appellant in (Crl. A. No. 16/97) was sentenced to lesser penalty of life imprisonment on each count, to run concurrently. 3. Stoiy of woe as reflected by FIR Ex. PM is to the effect that on 20.2.1996 at about 3/4 A.M. on awakening by alarm raised by his brothers Shaukat Ali and Liaqat Ali: complainant, namely, Akbar Ali saw smoke emitting from the Baithak of the house, where, Fateh Muhammad father, Mst. Suraya Bibi sister and his son Amanat. Ali were asleep. Liaqat Ali etc. told the complainant that Abdul Hafeez accused holding a jerrycan of petrol, was seen, in the street and on seeing them had made good his escape. Complainant himself had also seen both the appellants in the way. Meanwhile other witnesses of the locality gathered there. They tried to break the lock, out, could not succee- 1 and eventually, door was broken. They entered into the Baithak where all the four persons, mentioned above, were found to be dead. 4. Motive behind the occurrence is stated to be dispute over "Lambardari", which, was claimed by, Mushtaq Ahmad, father of Abdul Hafeez convict, being elder song of Fateh Muhammad deceased, who, had appointed the complainant as "Sarbrah Lurnbardar". 5. At the trial, eleven witnesses were produced by the prosecution. PW-6, Shaukat Ali, PW-7, Liaqat Ali and PW-8, Akbar Ali (complainant) furnished ocular account, while PW-1, Kareem Bakhsh, PW-2, Ghulam Hussain and PW-3 Asghar Ali are Wajtakar witnesses. PW-4, Mazhar Nadeem, PW-5, Tariq Mehmood are recovery witnesses, PW-9, Dr. Irshad Ahmad Pirzada conducted post mortem examination of dead bodies to provide Medical Evidence. PW-10, Azhar Hussain SI/SHO, Police Station Head Rajkan proved various documents and memoranda prepared by nis batch-mate late Sajjad Haider, Inspector, who, had carried out investigation of this case. PW. 11, Muhammad Bashir Head Constable is a formal witness. 6. When examined undtr section 342 Cr.P.C. appellants denied all the incriminating circumstances figuring against, them in the prosecution evidence, professed innocence and alleged false implication due to enmity and altercation with Sajjad Haider Inspector/Investigating Officer. None of these opted to appear as his own witness to disprove the allegations as envisaged by section 340(2) Cr.P.C. No evidence was led in defence either. 7. Learned trial Court believed the prosecution evidence, adjudged both the appellants as guilty and proceeded to convict, and sentence them as indicated and noted above. 8. Learned counsel representing the appellants have lambasted the verdict by pointing out that same is rife and replete with legal and technical snags and infirmities, which, unfortunately escaped notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. Their main attack, intcr-alia, is regarding failure of the prosecution to adduce any evidence, as to having seen Abdul Rafeez, convict, setting fire or lacking the door by him. It has, therefore, been termed to be a case of "no evidence" «t all. 9. Learned counsel for the complainant and learned counsel representing the State have highlighted various factors to remark that, the appellants being responsible for such gruesome cold-blooded and brutal murders are liable to be awarded extreme penalty. 10. Abdul Hafeez appellant is sought to be connected with the commission of offence on the basis of motive, the evidence of "last seen" and recovery of jerry-can Ex. P23 and keys of the locks allegedly having been put on the doors of the room in which the deceased lost their lives. The motive for the incident was stated to be that Fateh Muhammad deceased had appointed Akbar Ali complainant as acting Headman of the village and also deputed him to look after his land while ignoring Mushtaq, father of Abdul Hafeez appellant. Mushtaq Ahmad had not urged any grievance against the appointment of Akbar Ali as acting Headman of the village before Revenue Authorities or before the villagers or elders of his brotherhood. There is no evidence that he called upon his son to avenge the insult. Abdul Hafeez, under the circumstances, would rot have been incensed to an extent that he would have murdered his own grand-father particularly when he had no immediate grievance against the old man. The motive thus does not connect Abdul Hafeez with the commission of offence in any manner. As far as Muhammad Ramzan is concerned, he obviously had no motive and it has not been shown as to why he would have joined Abdul Hafeez in commission of the offence when both of them have not been shown to be having any particular relationship. 11. The case of the prosecution is that Abdul Hafeez sprinkled petrol on the deceased, set them on fire and then backed the doors of the rooms from outside making it impossible for the inmates of the room to escape. The evidence of last seen and recovery of jorry-can Ex. P23 have been pressed into service to prove this aspect of the matter against Abdul Hafeez an nobody and actually seen him doing all the aforesaid acts. According to medical evidence all the deceased lost their lives due to asthyxid or inhalation of toxic gases and primary cause of death was not, the burning. In case, petrol was sprinkled on eddings, cots or other articles in the room, the whole of the room alongwith its contents would have engulfed in flames on showing match to the petrol because the same is highly inflammable material. The clothes, beddings, etc. were found to be half burnt. Some of the lothes which were hanging on the wall were only singed and were not burnt. None of the articles were sent to Hydro-carbon Institute at Islamabad, for detection of petrol in those articles. None of the witnesses stated that the articles recovered after the incident smelled of petrol. Therefore, the allegation levelled by the prosecution that the accused had sprinkled petrol and thereafter set on fire the inmates of the rooms is not substantiated by other material on record. 12. According to complainant, he had seen the deceased near the place of occurrence when he woke up and later P.Ws. 3 & 4, the witnesses of 'Waj Takkar' statingly had seen Abdul Hafeez and Muhammad Ramzan going away from village on a motor-cycle. Abdul hafeez is admittedly, resident of the same village and resided in the house of his father which was in the same vicinity. Presence of a co-viliagers. near the place of occurrence or his moving away is never considered to be au incriminating circumstance. Abdul Hafeez appellant was arrested later in the day from the house of his father which meant that he" had not absconded after the incident. The witnesses of 'W«/ Takkar'- 'appear to have been brought into the picture subsequently as the complainant had not mentioned the fact of running away of the accused from the place of occurrence though one of the witnessess-accompanied him at the time of making report to the police and whose name is mentioned m FIR itself. 13. According to prosecution Abdul'Hafiz had put on looks on the doors of the room which, made it impossible, for the deceased to come out of tl\e room. To connect Abdul Hafeez with the locks, key Ex. P43/1 was recovered from his shop which was about 15/ln k.ms. away from his house. The case of the prosecution is that after the incident, the appellant left the spot on a motoivcycle, went to the shop and thereafter went to village. The keys Ex. P43/1 were recovered from the drawer of a table being kept in the shop which was run by Abdul 'Hafeez. appellant. The China-locks which were statingly used in the incident do not require any key to be engaged, rather these simply snap on. There was no occasion for Abdul Hafeez appellant to have kept the keys which were of no use of him in his shop after commission of offences. During investigation, the broken doors of the room were not taken into possession and it was difficult to ascertain in the circumstances whether any lock was put on the doors or not or whether the same were broken or not. This aspect of the matter does not go against the appellant-either. 14. It is case of the prosecution that' the occurrence took place at 'Sehrrwala' when the complainant and his brother woke up they found smoke, corning from the room and thereafter they broke open the doors. The edical evidence reveals that stomachers of the deceased contained semidigested food. The occurrence took place dmiutr the month of Ramdan and the deceased in all probability would have taken meals by around 6.00 P.M. on the preceding night. Presence of semi-digested food in the stomach indicated that the. occurrence took place around 9/10 p.m. as the food does not remain in the semi digested condition in stomach for longer than ¾ hours and if the occurrence had taken place at, about .9/10 p.m. there was a large number of persons moving around the village and it would not have been possible for the appellant to have walked into house of the complainant and the room where the deceased was sleeping and to have committed the offence a.-, was alleged by proser 'ion. As the occurrence took place during the earlier part of the night, the FIR thus was registered elatedly. It appears that beddings or any other articles lying in-the room, where the deceased slept caught, fire due to coal heater or any other source .while the}' were asleep and the deceased inhaled noxious gasses and were unable to move or to warn others. As hi such a .-situation where the toxic or noxious gasses/smoke is inahles, unconsciousness is induced which reach to death. The villagers detected smoke and the complainant and others went to the spot and by that time the deceased were already dead and later due to illwill existing between the parties, Abdul Hafeez appellant, was involved in the case, Muhammad Ramzan appellant has not been shown to be any connection with Abdul Hafeez appellant. The extra-judicial confession made by Muhammad Ramzan before the persons who were not in a position to have influenced the course of prosecution does not affect the case of the appellant. 15. After having gone through the entire evidence on record dispassionately, no data and material or factor to connect the appellants with the commission of offence with which they were charged is borne or spelled out. Conviction is accordingly un sustainable in law. Conmoitantly, both the appeals are allowed and conviction and sentence awarded to the appellants are set-aside. They shall be released and set at liberty forthwith if not wanted/required to be detained in any other criminal case. 18. Murder Reference No. 8 of 1997 is accordingly answered in the negative. K.K.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 1099 [DB] Present: IFTIKHAR MUHAMMAD CHAUDHARY AND RAJA FAYYAZ AHMAD, JJ. SAB IR-Appellant versus STATE-Respondent Criminal Jail Appeal No. 349 of 1997, accepted on 27.3.1998. Pakistan Penal Code, 1860 (XLV of 1860)— —-S. 302-Conviction and sentence to life imprisonment-No other evidence except Extra-Judicial & Judicial Confessional of petitioner-Challenge to- Prosecution case rests on extra judicial and judicial confession of accused- Extra judicial confession before Naib Tehsildar is in-admissible under Article 138 of Qanoorr-e-Shahadat Order, 1984-Extra judicial confess, allegedly made by appellant before PW, is also not admissible because it does not get independent corroboration from other evidence-Confession of accused has not been recorded in accordance with provisions of Section 164 Cr.P.C.—After recording confessional statement appellant remained in Levies custody i.e. custody was not. handed over to independent Agency-To corroborate confession, no independent evidence was produced by prosecution—Conviction cannot be solely based on retracted confession unless prosecution has not shown some reliable corroborative evidence regarding material paiticulars--Under Islamic concept of riminal administration of justice extra judicial confession has been considered as no evidence for purpose of awarding punishment to accused—Held: Prosecution has miserably failed to bring home guilt against appellant and he has been wrongly convicted and sentenced by trial Court-Appeal allowed. [Pp. 1102 & 1103] A, B, C, D, E & F 1995 SCMR 351 and 1992 SCMR 392. Mr. Jan Muhammad, Advocate for Appellant. Malik Sikandar, AG for State. Date of hearing: 26.3.1998. judgment Iftikhar Muhammad Chaudhary, J.--Briefly the facts of the case are that on 8th August, 1995, appellant Sabir committed murder of minor Abdul Latif, while bringing him from his house at Koto Nadai. Report of the incident was lodged by PW-Hassan Jan, wherein he disclosed that a decomposed dead body is lying in a Nadi, vide FIR (Ex. P/A). On the registration of case, Abdul Karim, Tehsildar/I.O. proceeded to the place of incident, but before his reaching there, the people of area, had already burried the dead body. He prepared the site plan. During course of investigation, he collected information (without disclosing the name of informant) that accused Sabir was accompanying a boy and they had come from Turbat and thereafter accused was found alone and that boy was not seen with him. Since the body was not being traced, therefore, he arrested the accused under suspicion. He was kept in custody for about more than 22 days and during interrogation, he disclosed that in his childhood he was working in the house of that boy namely Abdul Latif at Mand Tump. Lateron he left the service and before this incident, Abdul Latif met him at Turbat and he (appellant) inticed him to go to Karachi and when reached Awaran, they started for Jaho through Tanker and then on foots, and when they reached at the place of incident, he attempted to commit un-natural offence with Abdul Latif and on his refusal he committed his murder and then he set at fire, the face of dead body. On receiving these details, the I.O. called the father of deceased and produced before him the clothes of deceased, which they correctly identified. The I.O. on 7th September, 1995, produced the appellant before PW-Muhammad Asif, Naib Tehsildar, before whom, the appellant got recorded his confessional statement (Ex. P/4-A). On completion of investigation, challan was submitted before the Sessions Judge, Khuzdar. As appellant did not pleased guilty to the charge, therefore, prosecution in order to substantiate the allegations, examined: PW-1 Muhammad Hassan. He produced FIR as Ex. P/l-A. with him, has gone with Sabir to Gawadar, but he did not return, as such, he went in his search, but he came back and thereafter received information that a person has been killed at Jaho and dead body of the same could not be identified. On this, he went there where he was told by Naib Tehsildar that a boy has been killed an 1 he showed him the clothes of deceased, which he identified. Before his arrival, the dead body of deceased was already hurried. According to him, he also associated himself in the investigation with the Naib Tehsildar, during course whereof, accused Sabir admitted his guilt. It, is to be noted that the clothes of deceased which were statedly identified by this witness, were not shown to him in the Court. PW-3 Noor Muhammad. According to him, two years back, two persons came to his house, name of one of them was Sabir, whereas the name of other person was not known to him. He enquired from both of them, as to from where they came, they told him that they have come from Mashey Cross. They told them that they are going to Kohoto. Further stated that he has no knowledge about the incident, as according to him, Khoto is situated at a distance of 40/50 miles from his house. PW-4 Muhammad Asif, Naib Tehsildar. He recorded the confessional statement of appellant, produced the same as x. P/4-A. PW-5 Abdul Karim, Naib Tehsildar. He conducted investigation of the case and produced site plan as Ex. P/5- A. PW-6 Naseer Ahmad, N/Tehsildar. He finally produced the challan as Ex. P/6-A. Appellant in his statement under section 342 Cr.P.C. denied the prosecution case and also retracted the confessional statement. However, he did not examine himself on oath nor produced anybody in defence. On completion of recording evidence, the learned trial court vide impugned Judgment dated 15.11.1997, found the appellant guilty for offence under section 302 (b) PPC and sentenced him to life imprisonment, with benefit of section 382-B Cr.P.C. Mr. Jan Muhammad Gohar, Advocate appeared for appellant, whereas the State was represented by Malik Sikandar Khan, learned General. Learned counsel for appellant contended that prosecution case rests on the confessional statement, which has been retracted and there is no corroboration on material points to prove its contents. The confessional statement, even otherwise was not an admissible piece of evidence, as admittedly it was recorded after delay of about 24 days, from the date of custody of appellant. PW-5 did not comply with the provisions of section 164 Cr.P.C. In as much as, question to test, whether statement is true and being made voluntarily questions, were not put to him, except few questions, which were not sufficient to hold that statement is being made by appellant at his own accord. Prosecution has also relied on extra judicial confession. allegedly made by appellant, before PW-2, but it also does not corroborate to the confessional statement nor it is a true statement, therefore, appellant is entitled for acquittal, because the prosecution has failed to prove the charge against him. Learned Advocate General contended that appellant, has been rightly found guilty for the commission of offence. The statement was recorded within reasonable time, after his arrest and as there is no judicial lock-up available at Awaran, therefore, he was kept in custody for some time. According to him, in view of special circumstances of the area, where the offence was committed, strict, compliance of the relevant provisions of law was impossible, therefore, in the interest of justice, ignoring highly technical objections raised by the counsel of appellant, conviction may be maintained. We have heard the parties' counsel and also perused the record of case. It is noteworthy that prosecution, case rests on extra judicial and judicial confession of accused. As for as extra judicial confession before the Naib Tehsildar Abdul Karim, made by accused is concerned, that is in­ admissible under Article 138 of the Qanoon-e-Shahadat Order, 1984. As regard the extra judicial confession, allegedly made by appellant before PW- Wahid Bakhsh. that is also not admissible because it. does not get independent corroboration from other evidence. Additionally the admission of accused so pointed out by the witness, is contrary to the confessional statement of accused. Now coming; towards the confession of accused, it is to be seen that admittedly, it was recorded after 20/21 days, as it is indicative from an answer given by accused before PW-Muhanmiad Asif According to section 167 Cr.P.C. the Investigating Agency is allowed to retain the custody of accused for a maximum periods of 15 days and beyond the said period, the detention of accused with the Investigating Agency, renders subsequent, proceedings illegal including that, of recording confessional statement, it has always been insisted by the Superior Courts that prosecution must record the confession of accused within minimum period after his arrest in the interest of justice, but it shall not be in any case more than the authorised period of detention in police/levies custody, as it has been held in PLD 1978 Quetta 01. It is al^o an admitted position that as for as the confession (Ex. P/4-A^ is concerned, it. has hot, been recorded in accordance with the B provisions of section 164 Cr.P.C. PW-5 had not disclosed in the Certificate that the statement was recorded by accused without any coercion. inducement or pressure. The certificate has also not been appended with the confessional statement, in accordance with the provisions of section 164(3) Cr.P.C. Under the High Court Rules and Orders, it has been provided that, certain questions are required to be put to accused, in order to satisfy the conscious of the Court thai the accused is making a true statement voluntarily. No such test was applied in the instant case. It. is also an undisputed fact that after recording the confessional statement, appellant remained in levies custody i.e. his custody was not handed over to an independent Agency, for which, explanation has been offered by the learned Advocate General, but to our mind this explanation' is iVot 'satisfactory, because it militate against the mandatory provisions of law'. Since the accused was charged for a capital offence, therefore, it. was the duty cf Magistrate, who recorded the statement to make arrangement for shifting the accused in judicial custody. To corroborate the confession, no j D independent evidence was produced, by prosecution. It is an accepted j principle that for the safe dispensation of criminal justice, convection cannot be solely based on a retracted confession, unless the prosecution has not shown some reliable corroborative evidence, regarding material particulars, | as it has been held in Mithamnad Yousafvs. The State (1995 SCMR 351). At j E this unture, We wtould also like to observe that under (he Islamic concept of j criminal administration of justice, -the extra judicial confession has been considered as no evidence, for the purpose of awarding punishment to accused, as it has been held in the case of Khubab Ahmad vs. The. State (1992 SCMR 392). The learned Trial Court has seriously erred in believing the confession, without independent corroboration. because apparently, it was recorded after a considerable delay for winch, no plausible explanation was offered by prosecution, it is equally important to note that no evidence has came on record, with regard tn the cause of death, if at all Abdul Lafif has been murdered by appellant, therefore, in absence of any convincing evidence, it, was not free from difficulty for the trial court, to conclude, that. whether deceased had met with a violent death or otherwise. For the above reasons, we are convicted to- hold that prosecution has j miserably failed to bring home the guilt, against appellant and lie has been I „ wrongly convicted ami sentenced by the trial euun,, ride impugned Judgment. Consequently (he appeal is allowed, impugned .Judgment dated 15.11.1997. passed by Sessions Judge, Khuzdar, is set aside and. appellant, is acquitted of the charge. Me be ser at liberty, if nor required in any other case. Here-in-bt>fore a;v the reasons of our short order dated 20.3. (AAJSt Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 1104 [DB] Present: iftikhar muhammad chaudhry and raja fayyaz ahmad, JJ. SIKANDAR-Appellant versus ABDUL WAHAB and STATE-Respondents Criminal Acquittal Appeal No. 21 of 1998, dismissed on 1.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 417(2-A)--Offence u/S. 302/34 P.P.C.-Limitation Act (IX of 1908), S. 5-Appeal against acquittal-Condonation of delay-Prayer for—Section 417(2-A) Cr.P.C. has been added by Act XX of 1994, whereby right to file appeal was given to person aggrieved by order of acquittal, passed by any Court, other than High Court, with condition to file appeal within 30 days-This provision of law, prescribes limitation of filing of acquittal appeal by aggrieved person himself, therefore, such provision is to be construed strictly—Person, who feels aggrieved from acquittal of accused and prayer for conversion of acquittal into conviction, he has to remain vigilant and must file appeal within stipulated period-Held : Case does not warrant condonation of delay-Appeal dismissed being barred by limitation. [P. 1107] A PLD 1963 SC 151, 1968 SCMR 780, 1970 SCMR 282, PLD 1981 SC 241, PLD 1994 SC 667 and 1994 SCMR 1204. Mr. AKbar Ali Balock, Advocate for Appellant. Mr. Abdul Karim, Advocate for Respondent. Date of hearing: 1.04.1998. judgment Iftikhar Muhammad Chaudhry, J.--Appellant is aggrieved from the order dated 15th December, 1997, passed by Sessions Judge, Jaffarabad at Dera AllahYar, whereby respondent Abdul Wahab son of Jaffar, an accused for offence under section 302/34 PPC, registered vide. FIR No. 91/87 dated 09th August, 1987. at Police Station, Dera Allah Yar, has been acquitted of the charge. The appeal was presented on 24th January, 1998, beyond period of 30 days, prescribed by section 417(2-A) Cr.P.C, alongwith an application under section 5 of the Limitation Act, seeking condonation of delay: on the following grounds: - "1. That, due to bloody enmity the appellant left the area, and shifted to remote area of District, Naseerabad (Shahpur) and sent his son to hear the judgment and receive the copies. 2. That, the appellant fallen sick, and when after he ecovered he came and engaged the Counsel for filing this appeal. 3. That such affidavit is submitted herewith. 4. That, the prayer is in the interest of justice." Mr. Akbar Ali Baloch, learned Counsel, conceded that above application under the provisions of section 5 of the Limitation Act is not competent,-therefore, he filed a statement to withdraw the said application. However, he argued that there is sufficient incriminating evidence, available on record against the accused-respondent, as such, in the interest of justice, delay often days in filing the appeal, be condoned. To support his contention, he relied on 1979 SCMR 214 and PLD 1994 SC 667. On the other hand, Mr. Abdul Karim Yousafzai, learned State counsel, argued that as appellant has withdrawn the application filed under section 5 of the limitation Act, by making a statement in writing, thus there is an request for condoning the delay. Even otherwise, if this application is still treated to be available on record, then too, it does not disclose cogent/solid grounds, for condoning the delay. He stressed that question of limitation in filing of appeal, has achieved importance in this case, because respondent has been absolved from the capital charge, therefore, it would not be fair, if on whimsical grounds so set out in the application, interference is made in impugned order, as this would not serve the ends of justice. We have heard the parties' Counsel at length and also perused the record of case carefully. At the very outset, it is to be seen that certified copy of the impugned order was made available to complainant party on the date of its pronouncement i.e. 15th December, 1997. As per the stand of appellant although his son had heard the judgment and received the copy, but he had fallen sick and after his recovery, he came and engaged a counsel for filing this appeal. To substantiate this factual ground, no medical Certificate has been attached alongwith the application, purported to be filed under section 5 of the Limitation Act. In as much as no Affidavit of appellant was annexed with the application, although in ground No. 2, it was stated so. Actually this application has been signed by the learned counsel for appellant. Therefore, on the grounds mentioned in the application, delay in filing the appeal, cannot be condoned. It is important to note that according to the well known principle of criminal administration of justice namely; that once an acquittal is recorded in favour of an accused, facing criminal charge, he enjoys double presumption of innocence, therefore, Courts competent to interfere in the acquittal order, should below, in converting it into conviction. In this behalf, the Hon'ble Supreme Court in Abdul Qayyuni vs. Ghularn Yasin (PLD 1963 SO 151), refused to condone the delay of only 15 days. In that, case, accused was punished for transportation for life in murder case and in appeal, enhancement of sentence to death was sought. In this context, it was observed that' the convict might be placed, once again, in peril of his life, by a petition of this kind, and it is for this reason that the technical requirement of limitation assumes importance. It is not too much to ask that he who seeks to place his felow-citizen's life in peril, by legal process, should satisfy all the technical requirements of that process. Delay would scarcely ever be condoned, and certainly not on the grounds here advanced, namely, that the petitioner was misinformed about the period of limitation, and that he was delayed in his village through the serious illness of his wife.' The Hon'ble Supreme Court in another case of Nabi Bakhsh vs. Ghiilam Sarwar (1968 SCMR 780) declared that 'delay in a application for special leave to appeal from an order of acquittal filed by a private complainant, is not to be condoned, unless it can be shown that the person seeking leave, was actually kept out of knowledge of the acquittal and/or prevented by some act of the respondents themselves from coming in time.' Likewise in the case of Piran Ditto vs. The State arid two others (1970 SCMR 282), it was held that the 'delay is condoned in those cases, where the petitioner is prevented by an act of accused persons to file petition for special leave to appeal, in time.' Laterou in the case of Saldera us. Muhammad Yar and another (PLD 1981 SC 241), the Hon'ble Supreme Court, on making reference to the above Judgments and also taking into consideration the case of Rabid Bibi vs. Rasool Bakhsh and another (PLD 1966 SC 531) wherein petition for leave to appeal was allowed, although it was barred by time and the question of limitation was also noticed, but still on the consideration of merits of case. the delay was condoned, observed that 'right, to life is the basic right that human beings possess. Once a charge for a capital offence, duly tried, results in acquittal, the accused person acquires a veiy precious right and he should not therefore be put in jeopardy of his life by a petition for leave to appeal filed out of time. The law that, enables interference with the acquittal must therefore, be strictly applied in favour of the accused person." Similarly the Hon'ble Supreme Court in the case of Ms?. Zernat Sultana us. Munttaz Khan and 9 others. (PLD 1994 SC 667) surveyed the available case-law on the point, reference of which has been made, hereinabove, and refused to condone the delay in filing the appeal. In another case of Muhammad Ramzan vs. Muhammad Mumtaz and another (1994 SCMR 1204i the Hon'ble Supreme Court refused to condone the delay of 4 days, because no ground was putforth for condoning the delay. It is also impoitant to note that section 417(2-A> Cr.P.C. has been added by the Act XX of 1994, whereby right to file an appeal was given to a person, aggrieved by the order of acquittal, passed by any court, other then a High Court, with condition to file appeal within 30 days. This provision of law, prescribes the limitation of filing of an acquittal appeal by an aggrieved person himself, therefore, such provision is to be construed strictly. It, may be noted that prior to enacting of this provision, only the State was competent to file an appeal. Therefore, the person, who feels aggrieved from the acquittal of an, accused and prays for conversion of acquittal into conviction, he has to remain vigilant and must file the appeal within the stipulated period, because any delay beyond the said period, would necessarily create a right in favour of accxised, who has started enjoying a certified presumption of innocence in his favour on the strength of acquittal order passed by the competent court, therefore, his this right, cannot be taken away lightly. If the case in hand is tested on the above principle, it does not warrant condonation of delay, therefore, the request so made, in this behalf, is turned down. For the foregoing reasons, the appeal is dismissed, being barred by limitation. Herein-above are the reasons of our short order of even date. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 1107 Present: mansoor ALAMGIR qazi, J. MUHAMMAD SALEEM-Appellants versus MUHAMMAD ILYAS etc.-Respondents' Criminal Appeal No. 126 of 1996. dismissed on 18.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- —- S. 417-Pakistan Penal Code (XLV of I860), S. 381, 406, 420. 467, 468, 471 & 411-Appeal against acquittal-Appreciation of evidences-Learned counsel for accused/respondent has urged that no rickshaw has been recovered, no document has been taken into possession by Police from office of Excise and Taxation l.o send same for comparison test regarding thumb impression or handwriting nor any sample of hand writing and thumb impressions of accused have been obtained-Complainant, has not. produced any document on record to establish his ownership of rickshaws purchased by him from various persons-Evidence already recorded does not connect accused beyond doubt with 'commission of offence—Even if remaining evidence is examined, it would not enhance and prove case of complainant against accused-Held: omplainant has failed to establish case beyond reasonable doubt against respondents-Appeal devoid of force is dismissed on merits. [P. 1109] A, B & C Malik Zafar Mehmood Anjum , Advocate for Appellant. Mr. Muhammad Ilyas , Advocate for Respondent No. 1. Mirza Fazal-e-Haq Chughtai , Advocate for Respondent Nos. 2 and 3. Sh . Dilawar Hussain , Advocate for Respondent No. 4. Mr. Kamran Bin Latif , Advocate for State". Date of hearing: 18.3.1998. judgment The complainant feeling aggrieved by the order passed by Nawab Aftab Ahmed Khan, Magistrate Section 30, Multan dated 31.3.96, whereby the respondents were acquitted in case FIR No. 127/91 registered under Sections 381/406/420/467/468/471/411 PPC at police station Chehalyak has preferred this appeal against acquittal. 2. Briefly the facts of the case are that Muhammad Saleem complainant moved application Ex. PC stating therein that he had established a workshop by the name of Saleem Autos and he had purchased Rickshaw 7684-FDA on 24.1.84, Rickshaw 9249-FDA was purchased on 12.2.82 while Rickshaw 8346-LEG was purchased by him on 24.5.81 from ifferent people under open transfer letters and that he was plying these Rickshaws through hired drivers. On 6.4.1990 he rented out his workshop and all his tools etc. alongwith the three Rickshaws to Muhammad Ilyas his apprentice on the understanding that he would be paid s . 5,500/- as the ental /lease money. Muhammad Saleem further states that till December 1990 the said amount was paid regularly every month and then later on refused to pay the complainant. Apprehending misappropriation he reported the matter through this application Ex. PC on 30.3.91 and on basis of this, case FIR No. 127 was registered on 4.4.1991. 3. Muhammad Ilyas accused was arrested on 9.11.91 while Abdul Waheed , Mansoor Ayyaz and Muhammad Azam were also arrested in this case. After completion of investigation all of them were challaned and sent up to court on 13.12.92 and total 15 witnesses were recorded in the calendar of witnesses. 5 PWs , namely, Riaz Ahmed, Nazir Ahmed, Muhammad Bilal , Muhammad Saleem and Khalid Parvez Butt were examined in this case. Out of these witnesses Nazir Ahmed and Khalid Pervaiz Butt have not supported the prosecution case. It is stated that Ilyas through forged and fabricated documents got transferred in his name all the three rickshaws courtesy the Excise and Taxation Department and it is also stated that Abdul Waheed , Mansoor Ayyaz and Muhammad Azam co-accused had joined hands with Ilyas accused to fabricate these false documents. 4. Learned counsel for the complainant has urged that the prosecution evidence was not exhausted by the learned trial court and that the coercive measures were not used in summoning the prosecution evidence and that he had moved an application before the learned trial court to this context on 26.10.95. It is also urged that the conduct of the accused has been such that on numerous dates the accused have deliberately avoided appearance in court and sought adjournments unnecessarily. 5. On the other hand, learned counsel for the accused/respondents have argued that no rickshaw has been recovered from the possession of the respondent/accused and that no document has been taken into possession by the police in course of investigation from the office of the Excise and Taxation Officer to send the same for a comparison test regarding thumb impression or handwriting nor any samples of handwriting and thumb impressions of the accused have been obtained. That the complainant has ot produced any document on record to establish his ownership of those rickshaws purchased by him on various dates from various persons and that the evidence already recorded does not connect beyond doubt the accused with the commission of the offence. That the remaining evidence as listed in the calendar of witnesses even if examined would not enhance and prove the ase of the complainant against the accused and that the case has been lingering over a period of more than four years and the prosecution had ample opportunity to produce the evidence against the respondents but they had not utilised the opportunity. The remaining evidence against the respondents even if summoned through coercive measures as desired by the complainant would not have put any life in the case of the complainant as the essential evidence to bring home the guilt against the accused was never taken into possession by any Investigating Officer. It has been stated that this case was though investigated by many different police officers of different ranks and yet none of them acted in a sensible legal manner to collect the relevant, cogent evidence against the respondents/accused. The complainant has failed to establish the case beyond reasonable doubt against the respondents and furthermore, it is not a case which ought to be remanded for rehearing when already the last trial has spread over a period of more than four years and that the remaining prosecution evidence is of such nature that it would not enhance the case of the complainant and would be just an exercise in futility and a burden on the public exchequer. The appeal being devoid of force, is dismissed on merits. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1110 Present: SHAH JEHAN KHAN YOUSAFZAI, J. SONA KHAN and another-Petitioners versus STATE-Respondent Criminal Misc. Q No. 11, 12, 13 and 18, accepted on 20.2.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561--Pakistan Penal Code (XLV of 1860), Ss. 409, 420 468, 471 & 109- Directions to trial court for conclusion of case within one month not complied with--Proceedings against some of accused quashed and once again trial court directed by High Court, to conclude case as early as possible, but of no avail—Quashment of proceedings against petitioners- Prayer for—Record reveals that last 14 years since commencement of trial only few prosecution witnesses could be examined out of 63 witnesses mentioned in complete challan although most of witnesses are Government Servants and for the last 14 years petitioners are regularly attending trial court and no fault of such delay could be attributed to petitioners, is sufficient punishment for petitioners—It is pity to note that uptil now it has not been ascertained as to what role petitioners have played in commission of offence-In view of this slackness rather failure on part of prosecution to substantiate its case against etitioners, this Court (High Court) had already quashed pending criminal proceedings against some of accused involved in case-Keeping in view legal and factual position as well as principle of consistency criminal proceedings against petitioners quashed. [Pp. 1111 & 1112] A, B, C, D & E PLD 1986 Quetta 103. Mr. Amir Muhammad Khan, Advocate for Petitioners. Mr. GhazZfar Ali Bangash. Advocate for State. Dates of hearing : 5.12.97 and 20.2.1998. judgment By this single judgment in Cr. Misc. No. 11/97 (Soiia Khan vs. The State), I am going to dispose of connected Cr. Misc. Nos. 12/97, 13/97 and 18/97, as all the petitions are outcome of one and the same F.I.R. No. 89, dated 6/5/1980, registered at Police Station D.I. Khan Cantt, D.I. Khan. In all these petitions, the petitioners have prayed for quashinent of criminal proceedings lodged against them pending in the Court of Sessions Judge, D.I. Khan with powers of Special Judge. Anti-Corruption (Provincial). 2. Briefly stated facts of the case are that the petitioners alongwith 18 others are involved in a case under Sections 409/420/468/471/109 PPC vide FIR No. 89, dated 6.5.1980 at Police Station D.I. Khan Cantt. i.e. about 18 years ago. The accused were released on bail by the trial Court on different occasions and the complete challan was put in Court on 20.10.1984 i.e. after 4^ years of registration of the case. During the pendency of trial, Bashir Ahmad, one of the accused, had moved an application for his acquittal under Section 265-K Cr.P.C. which was rejected by the trial Court on the ground that only I.O. a material prosecution witness is left to be examined and after his deposition the said application could be decided. This order was assailed in Cr. R. No. 47/91 which was rejected on 20.5.1992 with the direction to the trial Court to examine the remaining prosecution witnesses and conclude the trial within a month positively or in alternative to decide the aforesaid application. 3. The record reveals that the directions of this Court were not complied with by the trial Court. Resultantly, the said Bashir Ahmad alongwith Gulzar Muhammad, Niaz Muhammad Khan and Major Muhammad Sattar moved another application under Section 249-A Cr.P.C. which was rejected by the trial Court vide order dated 28.10.1993, Cr. Rev. No. 103/93, Cr. Misc. Nos. 158/94, 159/94 & 160/94 were preferred before this Court which were heard by the then Chief Justice of this Court, and in the conclusion vide his elaborate judgments delivered in the above referred petitions on 18.5.1994 & 19.2.1997, respectively, accepted the petitions and proceedings against the accused/petitioners, referred to above, were quashed u/S. 561-A Cr.P.C. Once again a direction was issued that the trial against the remaining accused be concluded as early as possible. 4. I have heard the learned counsel for the parties at some length and have also gone through the record of the case with their valuable assistance. 5. It is stated at the Bar that out of 18 accused, five of them namely Mir Aqleem Khan, Allah Nawaz. Ayub Khan. Salahuddin and Mir Sahib Khan died in the prolonged proceedings. Seven of them, namely, Major(R) Sattar, Shafiullah, Mir Afsar Khattak. Bashir. Gul Hassan Shah. Said Badshah and Latif have since been retired during trial. The proceedings against Bashir Ahmad, Mubashir Ahmad and Sattar Khan. Gulzar Muhammad Khan have been quashed by this Court vide separate orders placed on file. 5. The record reveals that during the last 14 years since the commencement of trial only a few prosecution witnesses could be examined out of 63 witnesses mentioned in complete challan although most of the witnesses are government servants and for the last 14 years the petitioners are regularly attending the trial Court and no fault of such a delay could be; attributed to the petitioners. 6. The learned State counsel has conceded at the Bar, and rightly so that the trial Court could not conclude the trial in a long span of 14 years, no fault could be attributed to the petitioners. That the petitioners have already gone through mental and financial torture and agony which by itself is sufficient punishment for them and that no useful purpose will be served if the criminal proceedings against them is allowed to continue as there is no likelihood of its conclusion in near future. 7. Admittedly, in-ordinate delay of 14 years in conclusion of the trial which could not be attributed to the petitioners, is sufficient punishment for the petitioners. It is pity to note that uptil now it has not been ascertaineds 0 to what role the petitioners have played in the commission of offence. In identical circumstances in a case reported in PLD 1986 Quetta 103, it was observed as under:- "However, we are really not inclined to remand the case for retrial in the circumstances, when the case relates to incident of 1964, presented for trial on 8.12.1968 before the Court but on account of legal technicalities regarding the forum of its trial it has not been concluded in a long span of period of 14 years for no fault of theirs. The respondents have already gone through ordeal of mental as well as financial torture and agony, which by itself is sufficient punishment of them. In that case to meet the ends of justice we would like to invoke our inherent jurisdiction under Section 561-A Cr.P.C. and quash the proceedings against them and set them at liberty." 7. If further chance is given to the prosecution, I am of the firm view, that the case will linger on indefinitely with no fruitful result because from the material and evidence available on record no case could successfully be made out by the prosecution against the petitioners, in view of this slackness rather failure on the part of the prosecution to substantiate its case against the petitioners, this Court had already quashed the pending criminal proceedings against some of the accused involved in the case, as mentioned earlier. 8. Keeping in view the legal and factual position as well as the principle of consistency, I am constrained to accept the instant petitions by invoking my inherent jurisdiction under Section 561-A Cr.P.C. and quash the criminal proceedings pending against the petitioners in the Court of learned Special Judge, Anti-corruption (ProvinciaD/Sessions Judge, D.I. Khan under F.I.R. No. 89, dated 5.6.1980, Police Station D.I. Khan Cantt, D.I. Khan. Consequently, all the petitions are accepted. (K.K.F.)x Petitions accepted.

PLJ 1998 Cr PLJ 1998 Cr. C ( Karachi ) 1113 (DB) Present: rana bhagwan das & salihuddin ahmad, JJ. MUHAMMAD TARIQ--Pettioner versus STATE-Respondent Criminal Misc. No. 443 of 1997, dismissed on 9.1.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561--Petitioner is in Army-He was fpund in possession of Pistol 30 bore with cartridges-Challaned and sent up for trial-Petition u/S. 249-A dismissed by trial court and his contention that of holding authority from Officer Commanding of his Unit turned down-Quashment of proceedings-Prayer for-In case petitioner was carrying weapon under lawful authority and valid pass, it would be open to him to produce such evidence before trial court prove letters relied upon by him in support of petition-Held : There would be hardly any occasion for directing quashment of proceedings at this stage which involve deeper examination of factual aspect of case-Petition without merit is accordingly dismissed. [Pp. 11-14 & 115] A, B & C Mr. Mehboob Ellahi Salam, Advocate for Petitioner. Mr. Muhammad Ismail Memon, Advocate for A.G. for State. Date of hearing: 9.01.1998. judgment Rana Bhagwan Das, J.~The petitioner who is facing trial on a charge under section 13-A (2) B of the Arms Ordinance, 1965 before the Special Court for Suppression of Terrorist Activities, Karachi-West for being found in possession of pistol No. A 2994 of 30 bore and three live cartridges on or about 10.6.1997 seeks the quashment of the proceedings in Special Case No. 1230/1997 pending against him. 2. According to the prosecution, petitioner was arrested by Mominabad Police on the material day alongwith the aforesaid weapon and ammunition without any licence in violation of the law thus a case was registered against him and he was sent up. He moved an application for his acquittal under section 249-A Cr. P.C. before the Trial Court on the averments that he held the incriminating weapon and the ammunition under a valid authority from the Offjcer Commander of his Unit where he was employed but the trial Court declined to accept his contention and rejected the prayer for acquittal at this stage of the case without recording evidence. It is in these circumstances that the present petition under section 561-A Cr. P.C. has been moved before the High Court. 3. For proper appreciation of the controversy and the submission made at the Bar section 561-A Cr. P.C. may be reproduced hereunder :- "561-A. Saving of inherent power of High Court.-Nothing this Code shall be deemed to limit or affect, the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice." 4. At the hearing, learned counsel for the petitioner vehemently submitted that the petitioner is an employee of Pakistan Rangers and that he was duly authorised to go armed with the Pistol alongwith the loaded ammunition by his Officer incharge which he had shown to the police party at the time of his arrest but the same was not considered. Subsequently on his approach Wing Commander incharge of his Headquarters issued a letter dated 17.6.1997, Annexure-C to the petition addressed to SSP Karachi-West certifying that the weapon in question was handed over to the petition for self protection. It is further submitted that the trial Court had sent this letter to the relevant quarters for verification which was duly verified vide letter dated 12th August, 1997 Annexture-D to the petition, yet the petitioner's prayer for his acquittal was declined. 5. The question for consideration in this petition is whether trial of the petitioner before the Special Court on the aforementioned charge amounts to a gross abuse of process of court and whether it would be just, proper and expedient in the larger interest of justice to quash the proceeding in order to secure the ends of justice in the pending case. It may be pertinent to point out that official acts are presumed to have been regularly performed and there is always a presumption of correctness in favour of such acts thus it is hard to accept at this stage that the petitioner had submitted a valid Pass for going armed with the weapon in question at the time of his arrest or that the police officer incharge of the police party refused to take into consideration the said pass or that it was made to disappear for ulterior reasons. In case, the petitioner was carrying the weapon under a lawful authority and a valid pass it would be open to him to produce such evidence before the trial Court and prove the letters relied upon by him in support o this petition. As the trial Court has declined to accept such document as sufficient and adequate for warranting a finding at this stage of the case that the trial would not entail in conviction of the petitioner it is hardly possible to differ with this view. Needless to point out the petitioner is on bail and stated to be on duty and if that be so, no harassment or humilitation is being caused to him merely by standing trial before a competent court of law. In case he is able to convince the conscience of the trial court that he was carrying an arm under a lawful authority there would lie hardly any occasion for directing quashment of the proceedings at this stage which involves deeper examination of factual aspects of the case. 6. It may further be observed that section 561-A Cr. P.C. does not confer any additional powers on the High Court and it merely reserves the powers already possessed. Such powers are required to be exercised in exceptional cases where the Court is satisfied that the continuation of proceedings complained of would amount to a gross abuse of process of court r that it is absolutely necessary to exercise inherent powers to secure the ends of justice. To our mind no such case has been made out, in the circumstances. To the contrary, quashment of proceedings at this stage may amount to abuse of process of this Court which must be avoided under all ciraunstances. 7. For the aforesaid facts and reasons, we are not satisfied with the merits of this petition which is accordingly dismissed subject to the aforesaid observations Trial Court shall take steps for final decision of the case with expedition. (K.K.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C ( Karachi ) 1115 DB Present: rana bhagwan das & amanullah abbasi, JJ. Haji MUHAMMAD IBRAHIM-Appellant versus STATE & 2 others-Respondents Criminal Appeal No. 10 of 1997, dismissed on 7.1.1998. Anti-Terrorist Act, 1997-- —S. 25(i)(3K4)--Appeal against acquittal-Maintainability-Section 25 of Anti-Terrorist Act especially enacted for hearing and deciding appeals arising out of final judgments by Special Court that there is no provision for acquittal appeal at instance of private party-This right has been conferred only on Federal and Provincial Governments who may in their discretion and wisdom direct appropriate officer to file appeal against order of acquittal or sentence—Provision analogous to section 25 of Act, 1997 appears in Section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 which provides for appeals from sentences imposed by special courts-In this provision of law right of appeal against judgment of special court is granted to convict and state-No such right was made available to private complainant as envisaged by section 417(2-A) Code of Criminal Procedure which sub-section was inserted subsequently by Amendment Act, XX of 1994 with effect from 6.11.1994-Held : Appeal is completely misconceived and not maintainable at law accordingly dismissed. [Pp. 1117,1118 & 1119] A, B & C 1993 SCMR 1853 and PLD 1997 Peshawar 166. Mr, Muhammad Yousaf Laghari, Advocate for Appellant. Mr. Akhtural Haq Iqbal Qadri A.A.G. for State. Date of hearing: 5.1.1998. judgment Rana Bhagwan Das, J.--This appeal is directed against the acquittal of the respondents Nos. 2 and 3 who were tried alongwith co-accused Riaz by Special Judge Anti-Terrorism Court Hyderabad and Mirpurkhas Division Hyderabad for offences under sections 302, 392 & 397 read with section 34 PPC. At the conclusion of the trial while accused Riaz was convicted for all the offences, respondents herein were convicted only for the offences under sections 392 and 397 PPC and acquitted of the charge tinder Section 302 PPC. By the present appeal, appellant who was first informant in the said case seeks to challenge their acquittal by the trial court. 2. Anti Terrorism Act, 1997 (hereinafter referred to as the Act, 1997) passed by Majlis-e-Shoora (Parliament) received the assent of the President on 16th August, 1997 and was published in the Gazette of Pakistan Extraordinary dated 20th August, 1997 with a view to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto. The Act extends to the whole of Pakistan and came into force with immediate effect. While offences triable under the Act by the Special Court constituted under sections 13 & 14 of the Act are mentioned in the schedule attached to the Act, provisions for appeal from judgment is prescribed under section 25 of the Act and reads as under :- "25. Appeal.—(I) An appeal against the final judgment of a Special Court shall lie to an Appellate Tribunal. (2) Copies of the judgement of a Special Court shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the Appellate Tribunal within three days of the decision. (3) An appeal under sub-section (1) may be preferred by a person sentenced by a Special Court on to an Appellate Tribunal within seven days of the passing of the sentence. (4) The Attorney General of an Advocate General may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by a Special Court within fifteen days of such order. (5) An appeal under this section shall be heard and decided by an Appellate Tribunal within seven working days." (6) An Appellate Tribunal shall sit at such places, and have jurisdiction within such territorial limits, as may be fixed by the Government. (7) Subject to sub-section (8), an Appellate Tribunal shall, in exercise of its appellate jurisdiction, subject to the provisions of this Act, have all the powers conferred on an Appellate Court under Chapter XXXI of the Code. (8) Pending the appeal the Appellate Tribunal shall not release the accused on bail." 3. Analysis of the aforesaid provisions tends to show that while an appeal against the final judgment of a Special Court shall lie to an Appellate Tribunal notified by the Government; sub-section (3) lays down that an appeal may be preferred by a person sentenced by a Special Court to an Appellate Tribunal within seven days of the passing of the sentence, Sub section (4) stipulates that Attorney General and or an Advocate General may on being directed by the Federal or Provincial Government file an appeal against an order of acquittal or sentence passed by a Special Court within fifteen days of such order. However following subsections lay down the period for hearing and decision of appeal by Appellate Tribunal. It further postulates that Appellate Court shall sit at such place and have jurisdiction within such territorial limits as may be fixed by the Government and that such Tribunal in exercise of its appellate jurisdiction shall have all the powers conferred on an Appellate Court under Chapter XXXI of the Code of Criminal Procedure. Undoubtedly there is an embargo on the powers of the Appellate Tribunal in the matter of release of the accused on bail pending the decision of an appeal. It would appear from the aforesaid postulates contained in the provision of law especially enacted for hearing and deciding appeals arising out of final judgments by a Special Court that there is no provision for an acquittal appeal at the instance of a private party. This right has been conferred only on the Federal and Provincial Governments who may in their discretion and wisdom direct the appropriate officer to file an appeal against an order of acquittal or a sentence. 4. Confronted with this position, learned counsel for the appellant contended that by virtue of availability of the powers under Chapter XXXI of the Code of Criminal Procedure this Tribunal can exercise the powers under section 417 Cr. P.C. providing for a right of appeal to an aggrieved person against an order of acquittal. Be that as it may, we are not impressed by the submission as section 25(7) of the Act, 1997 only confers such powers on this Tribunal which are available to an Appellate Court under Chapter XXXI of the Criminal Procedure Code and does not lay down or confer any right on an aggrieved person to seek the remedy of an appeal against acquittal which is not otherwise stipulated in special law. 5. It is well settled that an appeal is creature of statute and must be specifically provided for by law and no party can claim the right of appeal without being conferred with such right. Even in the Code of Criminal Procedure this right was conferred on an aggrieved person by virtue of Code of Criminal Procedure (Second Amendment) Act XX of 1994. Proir to that this right was available only to the Government by directing appropriate Public Prosecutor to present an appeal from an original or appellate order of acquittal. By amended Act sub-section (2-A> was inserted in section 417 Cr. P.C. relating to appeal in case of acquittal as under - "(2-A) A person aggrieved by the order of acquittal passed by any court other than High Court, may, within 30 days file an appeal against such order." 6. Provision analogous to section 25 of the Act, 1997 appears in section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 which provides for appeals from sentences imposed by Special Courts. In this provision of law right of appeal against the judgment, of a Special Court is granted to a convict, and the State. No such right was made available to the private complainant as envisaged by section 417 (2-A) Code of Criminal Procedure which subsection was inserted subsequently by the afore­ mentioned amendment with effect from 6-11-1994. Logical conclusion that may be drawn and inferred from such circumstances would be that whenever the Legislature wanted to extend the right of appeal, it extended the same by positive legislation and wherever it did not want to extend the right, it did not make the legislation. 7. Learned counsel for the appellant was at pains to persuade as to the forum or remedy available to a private complainant aggrieved by an order of acquittal. His anxiety is understandable but we cannot stretch the provisions of law in his favour in the absence of any specific provisions in the Special law which has the over-riding effect notwithstnding anything contained in the Code of Criminal Procedure as would be evident from the language employed in section 32 of the Act, 1997. 8. As to the right of appeal a similar question in the context of Offences in Respect of Banks (Special Courts) Ordinance, 1984 came up for consideration before their Lordships of the Supreme Court of Pakistan in abib Bank Limited v. State (1993 SCMR 1853) where the Supreme Court after analysing and review of the law on the subject with particular reference to the Special legislation held hat the right of appeal is creature of statute and it must be specified in clear terms that the appeal against an order is competent. This right cannot be supplemented by implications., the apex court emphasised. 9. Prior to the above precedent in Civil Petition for Leave to Appeal No.. 430/1988 Supreme Court of Pakistan observed as under :- "The provisions of the Ordinance, as already observed, clearly indicate that the scheme established by it is not to permit an appeal against acquittal. Therefore, no substitutive proceedings can be undertaken which may make up for the denial of such a remedy. The Constitutional jurisdiction with its usual characteristics and limitations will certainly be available in appropriate cases, for examining the jurisdictional aspect of the trial and for ensuring the correct application of law." 10. Judges in the light, of aforesaid facts and circumstances we are of the considered view that this appeal is incompetent. There is however a recent decision by a Division Bench of Peshawar High (Joint in a case arising out of the provisions of Suppression of Terrorist Activities (Special Courts) Act XV of 1975, reported as Faiz Muhammad v. Mchrab Shah (PLD 1997 Peshawar 166) which also fortifies our view. 11. We, therefore, hold that the present, appeal is completely misconceived and not maintainable at law. It is accordingly dismissed. The appeal was dismissed by a short order at the conclusion of the hearing on 5-1-1998. Aforesaid are the reasons for the short order. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C ( Quetta ) 1119 DB Present: raja fayyaz ahmad & amanullah khan yasinzai, JJ. Sheikh IFTIKHAR ALI-Appellant versus STATE-Respondent I.C.A. No. 4 of 1997. decided on 6.1.1998. Contempt of Courts Act, 1976 (LXIV of 1976)-- —-Ss. 3 & 4-Publication of scandalous news item in daily Newspaper to lower status of judges and to disrepute judiciary as whole-Unconditional apology tendered by contemner found unsatisfactory by court-Awarding of sentence of six months. S.I. with fine-Inter Court appeal against sentence-Appellant at his earnest tendered unqualified apology and placed himself at the mercy of court during contempt, proceedings, he explained that at relevant time he was at Rawalpindi and no sooner he came to know, about offending headline published in Newspaper Lahore (Supplement); immediately on Tax' removed Chief News Editor of Lahore from employment-Appellant did not contest proceedings nor put any defence neither engaged any counsel to represent him and by tendering apology he admitted his guilty expressed in unequivocal terms-His sincere, honest repentance and remorse, with categorical assurance to be extremely careful in future-Such unconditional apology furnished mitigating circumstances against gravity of offence which though not purgation of gross contempt committed by appellant, as has been rightly held by Hon'ble Judge finding appellant guilty for charge- Held : Appellant has rightly been convicted by Hon'ble judge of High Court-However, in view of peculiar facts and circumstances of appellant's case coupled with his unqualified apology expressing serious and sincere remorse, High Court (DB) order for reprieve of remaining sentence of imprisonment of appellant, as period of imprisonment already undergone by appellant would be sufficient to meet ends of justice, in vindicating honour and dignity of court-Appellant be set at liberty forthwith, subject to sentence of fine in terms of impugned judgement-­ Appeal disposed of in above terms. [P. 1134] A & B Mr. AshtafAusafAli, Advocate for Appellant. Mr. NoorM. Achakzai, Addl. A.G. for State. Date of hearing: 6.1.1998. judgment Raja Fayyaz Ahmad, J.-This appeal U/S. 10 of the Contempt of Courts Act, 1976 has been preferred against the Judgment and Order passed by the Hon'ble Single Bench of this Court whereby the appellant was found guilty for the Offence U/S. 3 of the Contempt of Courts Act, 1976 and accordingly sentenced to six months, SI, with a fine of Rs. 5,000/- and in default of payment of fine ordered to further undergo SI for a period of one and a half month. 2. The stated facts of the case in brief are to the effect that on 10 th December, Ir987 Sessions Judge (Inspection) placed a report before Hon'ble Chief Justice that a ews Paper Daily 'LASHKAR' Lahore, containing derogatory head-line-has been published on 28th November, 1997 which not only is completely false but also amounts to scandalize and disrepute the s Judges and the Institution, as a whole. The substance of the objected headline was also noted in such report. On such report the Hon'ble Chief Justice, passed the following order :-- "The very headline of the News prima facie appears to scandalize and to bring disrepute to the court. For further action matter be placed before Mr. Justice Iftikhar M. Chaudhry." 3. On receipt of file and perusal of the objected caption of the aforementioned News Paper the Hon'ble Judge Mr. Justice Iftikhar Mohammad Chaudhary directed in chambers on 10-12-1997, to register this case as petition for 'Contempt of Court' because the caption of the Newspaper 'Lashkar' reveals that to scandalize the Judges in order to lower their status, a false and baseless news with the headline which may create sanction in the general public has been published. The learned Judge seized of the matter on 10-12-1997 passed the following order in court. "A perusal of the capition/title of Daily Lashkar, Lahore , revealed that the News Item was published on 28-11-1997, to scandalize the Judges of this court, in order to lower their status and disprepute the Judiciary, as a whole, basing a false and incorrect material. It further indicated that news was reported by Munir Ahmad, Bureau Chief. Mr. K.N. Kohli, Advocate who is present in court stated that Newspaper Daily Lashkar is also published from Quetta . Before issuing notices for the Editors/publishers of Daily Lashkar Lahore, I deem it proper to summon the Bureau Chief Munir Ahmad of Daily 'Lashkar', Lahore stationed at Quetta , so he may furnish further information for issuance of notices and action. SHO, Bijli Road Police Station is directed to effect service and produce him before the court on 12-12-1997. 4. Pursuant to the above directions Munir Ahmad claiming himself to be Bureau Chief of Daily 'Lashkar' appeared on 12-12-1997 before the Hon'ble Judge and stated that Sheikh Iftikhar Adil (Appellant) s/o Sheikh Mukhtar Ahmad resident, of B-27 Temple Road, Lahore is the Editor-in- Chief/publisher and printer of the News paper. Munir Ahmad the Bureau Chief for Balochistan filed art application before the learned Judge offering explanation that he had despatched a news item to the Daily Lashkar, Lahore through its Editor-:n-Ciiief but in such communication despatched by him, it was not mentioned that any FIR has been registered against the Judges of this court and according to him objectionable heading in the title of the news printed by the Editor-in-Chief. The Bureau Chief Munir Ahmad alongwith his application filed extract/contents of news sent by him to his Head Office at Lahore for publication alongwith the news item published in the newspaper which according to him be had obtained from the Head Office on Tax'yesterday i.e. 11-12-1997. On having received the above noted details/particulars of the Editor, publisher and printer; the Hon'ble Judge came to the conclusion that the offending material published in Daily Lashkar, Lahore dated 28-11-1997 amounts to scandalize the -ludgea of this Court in order to lower their statu and also to disrepute the Judiciary as a whole consequently in the opinion of tne learned Judge, the Editor in Chief, publisher, printer as well as the Bureau Chief Munir Ahmad wereprima fade liable for action under section 3/4 of the Contempt of Courts, Act. 1976. Therefore, notices were ordered to be issued to them to explain, as why they should not be dealt with under reievdnt Provision of Law. Sheikh Iftikhar Adil (Appellant) Editor-in-Chief of Daily Lashkar, Lahoie pursuant to show cause notice issued to him, on 15-12-1997 appeared before the Hon'ble Judge and filed reply of the notice wherein he tendered v.n-coiiditional apology and placed himself at the mercy of the court whofurther xplained that Chief News Editor Man Ehsan committed omission in publishing the objectionable News item in 'supplement,' Daily 'Lashkar' Lahore dated 28-11-1997. oth the replies filed by the Appellant, and Bureau Chief Munir Ahmad were not found satisfactory and the matter was fixed for charge on 1.6-12-1997. On the date ixed charge sheet alongwith the statement of allegations separately prepared were given to the Editor-in- Chief Sh : Iftikhar Adil and Bureau Chief Daily Lashkar at uetta who were directed to submit reply, if any, and also to furnish the list of witnesses they intend to produce in support of their plea alongwith the reply. It may be noted that Irfan-ul-Haq S/o Ehsan-uMlaq resident of Lahore Ex-Chief News Editor Daily Lashkar, Lahore was produced by the appellant/ contemner in pursuance of order of the Hon'ble Judge, dated 28-11-1997; who on his own filed an application wherein he admitted and accepted the objected ews item appeared in Daily Lashkar (Lahore) 'supplement' dated 28-11-1997 to have been issued by him and tendered un-conditional apology. In order to meet with the equirements of law, notice was issued to him by the learned Judge Under Section 3/4 of the Contempt of Courts Act, 1976 to explain as to why he should not. be unished for publishing highly offending news item dated 28-11-1997 scandalizing Judges of this court, in order to lower their status and disrepute the Judiciary as a hole. n such date, the appellant Sh. Iftikhar Adil Editor-in-Chief placed on record photocopy of the declaration of Daily 'Lashkar', Lahore. The appellant on 19-12-997 submitted reply to the charge sheet wherein lie tendered apology, however; explained reasons which culminated eeatually into the publication of objectionable material in Daily 'Lashkar' (supplement) Lahore dated 28-11- 1997. Likewise Malik Munir Ahmad Daily 'Lashkar', Lahore Bureau Chief stationed at uetta filed his reply thereby tendering un-conditional apology and reply to show cause notice was also filed by Irfanul Haq 'Chief News Editor' which was also found by he Hon'ble Judge to be un-satisfactory; accordingly charge sheet alongwith the statement of allegations were handed t over to Irfanul Haq for reply; who filed his eply to the charge sheet and. s statement of allegations before the learned Judge on 23-12-1997, tendering c un-conditional apology, since the contemner had ccepted their liability and c prayed to be pardoned by tendering un-conditional apology, therefore, the c learned Judge did not deem it fit to record evidence and heard the- Add!; Advocate General and the corrteainers. Finally the Hon'ble Judge vidt impugned judgment dated 26-12-1997 convicted i.e. Sheikh Iftikhar Adil (correct name as Sheikh Iftikhar Ali) and Irfanul Haq, the Editor-in-Chief and Chief News Editor respectively by sentencing them each to suffer S.I. for six months with fine of Rs. 5,000/- and in default of fine to further undergo S.I. for one and half month each, whereas; Bureau Chief Malik Monir Ahmad acquitted of the charge, for the reason mentioned in the impugned judgment. 5. We have heard the learned counsel for the appellant Mr. Ashtar Ausaf Ali and Mr. Noor Muhammad Achakzai, Addl : Advocate General at length. The learned counsel for the appellant at the very out set of his submissions, contended that he does not contest the case on merits and frankly submitted that in such like matter a counsel owes his prime duty to upheld the dignity and honour of court and with all respects and heavy heart for the wrong done which cannot be remedied, he does not hold a brief to be argued but, simultaneously with all grace and indulgence of the court, he pursuant to the un-conditional apology tendered by the appellant which the learned counsel re-affirmed, submitted that :- (a) By tendering un-conditional apology, the appellant has thrown himself at the mercy of court and referred to the contents of such tendered apology. (b) Prayed for mercy and through un-conditional apology tendered by the appellant; needs the sagacity, compassion, forgiveness and benevolence of the court in the light of canons of justice. The remorse, repentance on the part of the appellant: though cannot be a fraction of any remedy to the wrong done, yet could be considered and taken as re­ deeming and mitigating circumstances in appealing to the parental jurisdiction and conscience of the court to be pardoned: which is more at to the Injunctions of 'Holy Qurair tu forgive/pardon. (c) The appellant no sooner learnt about the objectionable leading/headline of news, removed the News Editor in Chief through 'Fax' while he was at Rawalpindi at the relevant time, who made clean breast of his responsibility and did not contest the proceedings and threw himself at the mercy of the Hon'ble Court, seeking uii-conditional apology. (d) Severe reprimand in view of the above facts and reasons would meet the end of justice and the learned counsel placed reliance on the reported judgments i.e. Habibul Wahab Elkhari vs. Khan Abdul Wall Khan PLD 1978 SC 85, PLD 1994 SC 574 and Sh. Zahoor Ahmad vs. SherAli and others 1977 P. Crl. L.J. 852. The learned Addl : Advocate General Mr. Noor Muhammad Achakzai contended that the publication of supplement of the Newspaper containing highly scandalizing leading/headline exposed the guilty mind of ihe eontemners who deserve no leniency. According to the learned Addl : Advocate General tendering un-conditional apology or expressing remorse under no circumstances in such like serious matter left no exception for the contemner. He placed reliance on NLR 1980 (Cr.) 722 and NLR 1980 (Cr.) 726. 6. Before dilating upon the above noted contentions/reasons putlbrth on behalf of the parties, it would be relevant to refer to the objectionable headline of the Newspaper which contained the following lead. "Report of theft case had been registered against Chief Justice Balochistan High Court." As regards the substance of the news conveyed to the Head Office by Malik Munir Ahmad Bureau Chief, was an information about details of a case pertaining to the Contempt of Court initiated by this Court against one Azem Jan Zarkoon and the news so despatched by Malik Munir Ahmad, as also observed by the Hon'ble Judge did not indicate his intention to scandalize the Judges of this court. Following in the text of the un-conditional apology tendered by Iftikhar Aadil Editor-in-Chief Daily Lashkar, Lahore. 7. The contemner Irfaawl Haq, Ex-Chief News Editors on .16-12 1995 tendered the unconditional apology in the following terms :- "It is respectfully submitted that the applicant admits and accepts the news item appeared in daily 'Lashkar' supplement dated 28th November, 1997 and renders unconditional apology and I put myself entirely at the mercy of the court." In reply to the charge sheet and statement of allegations the contemner Irfanul Haq, on 23-12-1997 with reference to his above noted un­ conditional apology again tendered the pardon in the same terms. It may be noted that none of the contemners denied the charge, tendered un­ conditional apologies and offered explanations noted above. %. It is an admitted feature of the case that the offending headline, published in the newspapers apparently meant and objected to scandalize the Hon'ble Chief Justice and the learned Judges and such a maligning, contemptuous and malafide act; directly has the impact in shaking public confidence in Courts and tantamounts to affect adversely the Administration of Justice; while the serious allegations against the personal conduct of Judges also tend to prejudice the public confidence besides undermining the authority of court. By imputing false criminal allegations against the Judges, as in the instant case, is a gross contempt and mischief which besides other repercussions; acts sharply on the minds of innocent readers and no impunity, exception or any explanation could be offered or to be sufficient to dislodge the it's ordinary impression, adverse effects and the apparent intended and manifest impact on the minds of the people created by the offending headline of the newspaper; in addition to the disrepute, scandalizing Hon'ble Chief Justice and a serious blow on the esteemed and honoured Institution of courts. 9. Adverting to the cited case law by the learned counsel for the appellant, in some what identical matter, in the case of Habibul Wahab Elkheri vs. Khan Abdul Wall Khan and 4 others reported in PLD 978 SO 85, the Hon'ble Supreme Court considering the sorrow expressed by the respondent during the proceedings of contempt of court, it was observed by the Hon'ble Supreme Court. "After considering the statement made before us by Mr. Abdul Wali Khan as to the circumstances in which he came to make the offending remarks, and the submissions made by the learned Attorney-General as well as the petitioners in both these case, we are of the view that the dignity and the authority of the Court have been duly vindicated, and it is not necessaiy to proceed any further in this behalf. Mr. Abdul Wali Khan has 'unambiguously reiterated his respect and regard for the Supreme Court, and also the fact that he had no intention of maligning the Court or attributing motives to any of its Judges, and that he was sorry if any statements or remarks made by him had tended to give a contrary impression. He has size expressed his determination not to repeat such remarks in future." The Hon'ble Supreme Court dealing with the matter of 'Direct contempt of court' having been established but in view of mitigating circumstances as per majority verdict, severe reprimand was ordered in the interest of justice, in the matter regarding contempt of court proceedings against General (Retd) Mirza Aslam Baig reported in PLD 1993 SC 310; the Hon'ble Chief Justice and Hon'ble Judge Mr. Justice Wali Mohammad Khan observed : "There are cases like the present one for example, a grand jury report filed in open Court if contemptuous, was treated as "direct contempt" even if the grant jurer was absent from the Court when its contents became known. Similarly written statement amounting to contempt of Court if presented before the Court, it is analogous to contempt committed in the presence and lace of the Court. Thus in so far as the direct contempt is concerned there is not much difference between the words spoken or acts done in face of the Court or statement submitted to it in writing. Similarly there is no difference in a case where contempt is committed in the face of the Court or where it is scandalized by a published, printed or written material. In this connection making of an irrelevant or scandalous attack in a pleading tiled in Court is a direct, contempt, which as already observed can be dealt with immediately brevimaim. So was the case when the statement of the respondent dated 12-2-1993 was presented and persistently pressed in the Court.. In the light of the foregoing discussion we feel that when the respondent filed the statement dated 12-2-1993, in Court and when taking note thereof the other Bench of this court earlier dealing with the case, made remarks which have rightly been taken as severe admonition and reprimand, in so far as the retrieving of the honour and dignity of the Court is concerned. The purpose and object of the law of contempt thus stood satisfied. Not only this, subsequently the respondent in his statements and conduct gave respect and high regard to the Court; by not, only submitting to its directions and orders but also by accepting in writing various elements already analysed which can operate as mitigation in his favour. It. is true that if we were to act on the precedent in the ease of Mr. M. Anwar, a fresh severe reprimand at this concluding stage might have been necessary: but in our view once a reprimand having been administered by the other Bench, repeating it for the second lime in the circumstances of the present, ease is not necessary." The Hon'ble Judge Mr. Justice Saeeduzzaman Siddiqi and Mr. Justice Abdul Qadeer Chaudhry agreeing with tie judgment in the above noted matter observed : "For reasons to be recorded later. I have reached the conclusion that the charge of contempt of Court has been established against the respondent and accordingly, I convict him for committing contempt, of this court,, However, on the question of sentence, I agree with the learned Attorney- General that there are mitigating circumstances in the case and keeping in view the same, 1 feel that a severe reprimand to respondent, would serve the ends of justice in this case. It is ordered accordingly." and while writing the reasons for the above noted conclusions, the Hon'ble Mr. Justice Saeeduzzaman Siddiqui, J. held : (PLD 1994 SC 574). "Having found the respondent gxiilty of Contempt of this Court the next question for consideration in the case in the sentence to be awarded to the conteomer. The learned Attorney-General very candidly and fairly stated before us that although respondent is guilty of Contempt of this Court on the basis of his admitted statement, but he is entitled to he dealt with leniently, in view of several mitigating circumstances in the case. The learned Attorney-General pointed out that the above statement was made by the respondent long after the decision of Haji Saifullah's case (supra) by this Curt. The iearned Attorney-General further pointed out that Mr. Wasim Sajjad, Chairman of the Senate, who voluntarily appeared with the permission of the Court, to record his statement in the case, and through whom respondent claimed to have sent the message to the Court, in his statement on oath before the Court, denied to have ever carried any message to this Court on behalf of respondent during the pendency of Haji Saifullah's case (supra). Mr. Wasim Sajjad also stated in his statement before the Court that during the discussion with the respondent when he visited G.H.Q., the latter had told him "it does not matter to him what decision is given by the Supreme Court as that was in the prerogative of the Court". According to learned Attorney-General, these circumstances show that the respondent had not tried to influence the judgment of this Court in Haji Saifullah's case (supra). The learned Attorney-General also invited our attention to the following passage in one of the two statements filed by respondent in the case on 1-3-1993 :- "that the regretful situation which arose after the event on 4-2-1993 and the consequent embarrassment caused to this Honourable Court, is most unfortunate and is deeply regretted. The respondent never intended to scandalize this Honourable Court or to cause it any embarrassment. The respondent firmly believes in the supremacy of law and that nobody is above law." The learned Attorney-General on the basis of the above facts and circumstances argued that the respondent has not shown any contumacy in his actions and has rather expressed his remorse for the same. The learned Attorney- General, accordingly, referred to the case of Inayat Khan v. M, Anwar (supra) and contended that in similar circumstances this Court had only reprimanded the contemner. Mr. Fakharaddin G. Ebrahim, the learned counsel for the respondent could not, advance any argument to demonstrate that the above statement which the respondent admitted that he made to the Press at. Lahore on 4th February, 1993, did not amount to Contempt of this Court. Keeping in view the facts and circumstances of the case, I am inclined to agree with the contention of learned Attorney-General that in view of the mitigating circumstances in the case a severe reprimand to respondent will meet the ends of justice in this case. It is ordered accordingly. Dealing with the effect of un-qualified apology the Hon'hle Division Bench of the Lahore High Court in the case of Sk. Zahoor Ahamd vs. Sher All & others reported in 1977 P, Cr. L.J. (Lah.) 852 held : "Every case proceeds on its own facts and there are also authorities where the Courts have despite an unqualified apology proceeded to convict a contemner and visit him with substantial penalty. Thus in the case of Arif Nizami and Attorney-General v. YousafAli Khan (4), Their Lordships of the Supreme Court did not consider the unqualified apologies of the contemners even though tendered at, the earliest opportunity as constituting sufficient amends and went on to impose penalties on them. These were no doubt cases which fell under that category of contempt which is known as 'scandalizing the Court', hut we do riot see why the same view cannot be taken on contempts of other types when these are of the grossest nature. It is to be observed that in contempt cases a Court is itself the causer as well as the Judge and in view of this unenviable position it is often inclined to take a very favourable view of the apology, but it does so only by way of grace and not. as already pointed ut, on the basis of any imperative rule of law." The question of apology by the contemner has been examined by the Hon'ble Supreme Court in appeal case i.e. Mohammad Yunas vs. The State, reported in PLD 1976 SC 449 wherein it, was observed and held ; "The sentence of imprisonment passed against the appellant is the maximum permissible under the law, but it was passed because the learned Judge in Chambers was not satisfied about the genuineness of the apology submitted by the appellant. Now, apart from the fact that the learned Judge in Chambers was in a better position than we are to decide whether the apology submitted was genuine, I agree with the view that an apology submitted mechanically is not sufficient by itself to purge the conternner's contempt. A contemner cannot save himself from punishment by submitting an insincere apology. He must sxibmit an unconditional apology and show by his conduct that he has repented of his behaviour. Additionally, the learned Single Judge has also taken into account the fact that interference with the Courts was increasing, and it cannot be said that this was a circumstance extraneous to the law of contempt. Mr. Butter, however, stressed the fact that the appellant was genuinely repentant and that he had perhaps not been able to express himself clearly because he was not assisted by counsel. This aspect of the case requires examination, but the better course for the appellant would be to approach the learned Judge in Chambers again. In this view of the matter, as to the authorities cited by learned counsel, I would only observe that I would re-affirm the view taken in the majority judgment of this court in Awal's case, and it was unfortunate that the attention of the learned Judge in Chambers was not drawn to this judgment. Therefore, on this ground, also, the appellant should approach the High Court again. Mr. Buttar then pointed out that as a layman, the appellant was not in a position to give any assistance to the Court. That is correct. And the fiutlinr submission was that the Court itself should have asked the appellant whether he wanted to engage a lawyer. Now whilst there cannot be any doubt, about the Court's power to punish summarily for a contempt committing in the face of the Court,, and the contempt in the instance case was of this obnoxious type, the contemners bad submitted their apologies and the law of contempt is not as simple as it was a hundred years ago. It also does not appear that the Court, was assisted by the Advocate-General, Therefore, I venture to think that it would have been batlur «;' the learned Judge in Chambers had given the appellant an opportunity of engaging counsel if he so wished. Such a procedure may not be required by law, but if it i.s followed it will half 10 ensure that the judgments of the High Coun are riot contrary the law declared by this Court. Further what is far more important is that if such procedure is followed especally in those cases in which the Court has any intention of passing a sentence of imprisonment, justice will not only be done but will be seen to be done and, in my humble opinion, this will enhance and not diminish the dignity of the Courts which is the ultimate object of the law of contempt. The appellant should, therefore, approach the High Court; again and if an application in this respect is filed it should be placed imrnadiately before the learned Judge in Chambers as the appellant has already been in jail for three months. With these observations the appeal is dismissed." Similarly the purgation of contempt of court in the light of apology tendered by the contemner was examined by the Hon'ble Lahore High Court in the case i.e. The State vs. Shaukat All and 3 others reported in PLD 1976 (Lahore) 355 and it was held :- "Sh. Shaukat Ali also gave an interview to a monthly journal 'Dhanak' which was published in its issue of August 1995, wherein the made disparaging remarks against the Supreme Judicial Council of Pakistan. The Supreme Judicial Council issued notice of contempt to him in that connection. He was found guilty and was bound down for good behaviour for one year after he had tendered an unqualified apology. In 1971 while respondent No. 1 was serving as a Judge of the High Court, he was charged for misconduct in the discharge of his duties, In re : The President v. Mr. Justice Shaukat Ali (1). During the course of the scrutiny of liis assets before the Supreme Judicial Council too he behaved similarly and committed its contempt and it was only when he was warned of stern action that better sense prevailed on him and on his apology the proceedings were dropped, and it was held that he had acted in a manner wholly unbecoming of a Judge. It is deplorable to find that respondent No. 1 has developed a tendency or. shall we say, the habit to commit repeated contempts of the superior Courts in the Country and then after he is faced with the dire consequences to beg for apology and throw himself entirely at the mercy of the Court. In Sub-Judge, First Class, Hoshangabad v. Jawahar Lal Ramchand Parwar. (1), at pages 408, column 2 and 409, column 1, at it was held that: "An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult, to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contritness, the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong­ doer's power. Only then is it of any avail in a Court of justice. But before it can have that effect it would be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage, the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless thai is clone, not only in the tendered apology robbed of all grace but it cease to be an apology; it ceases to be the full, frank, namely confession of a wrong done which it is intended to be. it becomes instead the cringing of a coward shivering at the prospect of the stern hand of justice about to descend upon his head. It then deserves to be treated with the contempt with which cowards arid bullies who do. not hesitate to threaten others and to impugn their honesty and character without, the slightest foundation and who cringe and wail when their own safety is at stake, are treated. However, I do not intend to make a point of this case because of the misconception which is prevalent in these parts about the meaning, nature and effect of an apology; nor of course am I intending to lay down any universal rule or to ignore the proviso to section 3, Contempt of Courts Act of 1926. I refer to the matter in these strong terms only in order that there should be no misconception about apologies in the future and ab»'«it ths practice in respect of the tendering of them, and in. order that there should be no possible mistake about my meaning and attitude. Mere lip service to a formula without any contrition of heart will not do." The Hon'ble Division Bench of Hie Lahore High Court in the case ofRana Muhammad Akram Khan us. The State reported in, 1993 P.Cr.L.J. 2044 made the following observations about the contempt against the Judges of Superior Courts were an unqvalified written apology though was tendered : ' T ")is bfi 1 " i ',f •- i i-v of this Court cannot wipe out "•it 1 -! pit .,•! n n inch is not a defence to the charge ? ^\ ss <•,"< , t tK learned Single Bench, it is only a mitifa- i»g l ' i rMonie 1 - The proposition that the moment a } "l'" 1 ^ ' f Ji<ertd 1»V the contemner, the contempt however gross and unexcusable may be, automatically purged cannot be conceded to, rather the question whether the apology lias the effect of purging or not is to be decided with reference to the facts and circumstances of each case. It is difficult to lay down a general proposition that the tendering of apology automatically purged contempt thereby giving licence to the people to defame Courts and Judges and then come with a beautifully worded apology. Therefore. an apology in a contempt case is not defence but a mitigating circumstance that too if it is tendered sincerely and unconditions.!!},' having the effect on the mind of the Court that, it is unconditional and sincere and it can hardly be rejected. Unconditional written apology expressing profound and real regret is a. gesture to appreciate but if the allegations are of extme serious nature particularly in the cases where the allegations are against the Judges of the superior Courts, the contemner should be dealt with strictly and seriously with no leniency, The contempt proceedings are quasi-criminal in nature, and therefore, benefit or every doubt should go to he accused. The jurisdiction of the superior Court to take action for contempt of their own authority is always jealously guarded but, it is to be exercised sparingly. In case of a person apparently defying order of the Court but leaving room for doubt with regard to his intention and belief, possibly that he acted either mistakenly or on wrong notion and advice about his duty with regard to the compliance of the order of the Court, the benefit of doubt should ungrudgingly be given to him. The appellant before this Court has again tendered a sincere unqualified apology with undertaking to be careful in future with the submission that he proceeded in the matter without the intention to flout the order but for some misunderstanding and misguidance for which he is badly and seriously perturbed. He, while placing himself at the mercy of the Court submitted that he has always been highly respectful to this Court and never thought to degrade its dignity, honour and authority. We feel that the appellant for want of proper advice and due to misguidance, having soft corner for his subordinate proceeded in the matter without realising that it could call trouble for him, therefore, the possibility of his proceeding in the matter without the intention of disobeying the order of the Court or to lower it dignity cannot be ruled out and the benefit arising in the situation as to whether he acted deliberately or proceeded in the case with no bad intention is to be given to him. We are also of the view that while treating the unconditional apology tendered by the appellant as his admission, to guilt, he should have been provided an opportunity to make his defence on the point that his act was not deliberate and intentional before convicting him. We, therefore, giving him the benefit of doubt, arising in the circumstances of the case coupled with the fact that he has sufficiently been reprimanded and faced mental agony, as a matter of grace and gesture, accept the unconditional apology tendered by him before the learned Single Judge and also before us and while accepT-in,? bis appeal set aside his conviction and sentence ai;d acqxii! him of the charsre." The rationale of the above quoted judgments in our humble opinion are that even in case of gross contempt, to which proposition we are confronted with; an earnest unconditional honest, sincere and penitent apology, per se would not be a ground for defence or to seek acquittal, however; if the conscience of the court is satisfied that such an unconditional apology tendered by the contemner qualifies the above noted conditions and keeping in view all the attending facts and circumstances of the case; the court may pass appropriate orders as it may deem fit. to vindicate the honour and dignity of the court and its Judges in the ends of justice. 11. The learned Additional Advocate General in support of his contentions placed reliance on the reported judgment i.e. NLR 1980 (Criminal) AJK 722, and 726 but the cited cases are distinguishable as the contemner during the proceedings did not express any remorse andcontested the charge. 12. In the instant case the appellant at his earnest tendered unqualified apology and placed himself at the mercy of the court during the contempt proceedings, he explained that at the relevant time he was at Rawalpindi and no sooner he came to know about the offending headline published in Daily Lashkar, Lahore (Supplement); immediately on Tax' removed the Chief News Editor of Daily 'Lashkar' Lahore from employment. The appellant did not contest the proceedings nor pnt any defence neither engaged any counsel to represent him and by tendering apology he admitted his guilty expressed in unequivocal terms, in our view his sincere, honest repentance and remorse, with categorical assurance to beextremely careful in future; to us such an nconditional apology furnishes mitigating circumstance against the gravity of the offence which though not a purgation of the gross contempt committed by the appellant, as has been rightly held by the Hon'ble Judge finding the appellant guilty for the charge. 13. In view of the above noted reasons we, are inclined to hold that the appellant has rightly been convicted by the Hon'ble Judge of this court, however; in view of the peculiar facts and circumstances of the appellant's case coupled with his unqualified apology expressing serious and sincere remorse, we order for the reprieve of the remaining sentence of imprisonment of the appellant, as the period of imprisonment alreadyundergone by him would be sufficient; to meet the ends of justice, in vindicating the honour and dignity of the court. The appellant be set at I liberty forthwith, subject to the sentence of fine in terms of the impugned judgment; and if not detained in connection with any other case; consequently the appeal is disposed of in the above terms. We order i accordingly. (K.K.F.) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1144 (DB) Present : MUHAMMAD NASEEM CHAUDHRI AND RAJA MUHAMMAD SABIR, JJ. MUHAMMAD AMEER etc.-Appellants versus STATE-Respondent Criminal Appeal No. 551 of 1992, decided on 18-2-1998. (i) Medico Legal- —It is bounden duty of Medical officer to inform concerned police in medico legal cases so that legal machinery is set in motion. [P. 1149] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34-Murder-Offence of-Conviction for-Appeal against-Appellant named in FIR-Delay in registration of FIR has no adverse effect to prosecution case-There was no previous history and enmity between PWs and accused persons statements of witnesses independently enough to connect appellants named in FIR-Occurrence took place at 5-00 P.M. during day light and chance of error with respect to identification of appellants cannot be expected-PWs were expected to be present at polling station being residents of same village-Their statements and motive of bogus voting cannot be ignored-Appellants cannot escape their criminal liability in light of motive, ocular evidence and medical evidence adduced by prosecution-Appeals dismissed. [Pp. 1150 & 1151] B to E (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/34-Murder-Offence of-Conviction for-Appeal against-Appellant was neither named nor his features were entered in FIR--He was arrested on 8-4-1991 and identification parde was conducted on 5-6-1991 but he could not be identified by PW-15-He made objection before Magistrate that he was shown to PWs while kept in P.S. for two months- In identification parade no role was specified by complainant to appellant- Prosecution miserably failed to establish its case-Appellant acquitted. [P. 1152] F & G Mr. Abdul Aziz Qureshi, Advocate for Appellants. Mr. Nasir Ahmed Qureshi, Advocate for Complainant. Mr. Bashir Ahmed Khan, Advocate for State. Date of hearing : 18-2-1998. judgment Muhammad Naseem Chaudhri, J.-This appeal is directed against judgment dated 31.5.1992 passed by Ch. Ghulam Sarwar, Judge, Special Court No. IV Suppression of Terrorist Activities, Lahore Division, Lahore whereby he convicted and sentenced Muhammad Amir appellant son of Fateh Muhammad caste Jat aged 35 years resident of village Saidpur District Kasur to death and to fine of Rs. 50,000/- or in default of its payment to undergo R.I. for two years under section 502/34 Pakistan Penal Code who also convicted and sentenced Sher Muhammad appellant son of Khuda Bakhsh caste Jat aged 25 years resident of Saidpur District Kasur and Muhammad Boota alias Booti appellant son of Noor Muhammad caste Aram aged 25 years resident of Chak No. 17 District Kasur to life imprisonment each and to fine of Rs. 50,000/- each or in default of its payment to undergo for a period of two years each under section 302/34 Pakistan Penal Code. In case of recovery of fine the same was directed to be distributed amongst the heirs of Muhammad Hussain deceased as compensation under section 544-A of the Code of Criminal Procedure. 2. The occurrence took place on 27.10.1990 at about 5.00 P.M. within the area of village Saidpur after the conclusion of the General Election to the Provincial Assembly. The facts giving rise to this appeal are that Muhammad Aslam complainant P.W. 13 got drafted complaint Ex. PD from Sardar Muhammad Ashiq Dogar, Advocate Kasur C.W.I on 30.10.1990 which alongwith copy Ex. DB of medico-legal report pertaining to Muhammad Hussain deceased he produced before Liaqat Ali Shah Inspector/SHO Police Station Khudian District Kasur P.W. 21 in the company of the said Sardar Muhammad Ashiq Dogar, Advocate while the said SHO was present in the office of the Superintendent of Police, Kasur. He sent complaint Ex. PD to Police Station Khudian District Kasur where formal FIR Ex. PD/1 was prepared by Muhammad Siddique Head Constable P.W.4 who also substituted section 307 Pakistan Penal Code by Section 302 Pakistan Penal Code due to the death of Muhammad Hussain. Muhammad Aslam complainant P.W. 13 alleged in the complaint Ex. PD that in the Punjab Provincial Assembly Elections held on 27.10.1990 his brother Muhammad Hussain (deceased of this case) was acting as the polling agent of Sardar Muhammad Hussain Dogar candidate against his rival candidate Sufi Sardar Khan. Muhammad Hussain (deceased) had a quarrel with Muhammad Amir appellant and Suleman acquitted accused, who were the polling agents of Sufi Sardar Khan, over casting of bogus votes by the voters. On the same day at about 5.00 P.M. when the polling was over Muhammad Hussain deceased went to the nearby field of peddy crop for urinating. Abruptly there emerged Muhammad Amir appellant armed with kalashnikov Sher Muhammad appellant armed with mouser pistol, Sumair Khan acquitted accused armed with carbine and Suleman acquitted accused armed with rifle alongwith two other persons both armed with rifles whom he could identify. The aforesaid persons fired at Muhammad Hussain which hit different parts of his body who fell on the ground. The occurrence was seen by him (Muhammad Aslam complainant), Sardar Khan P.W. 15 and Haji Bashir Ahmad P.W.16. On their alarm the assailants made good their escape alongwith their respective weapons. Muhammad Hussain was taken in an injured condition to District Headquarters Hospital, Kasur where he was medically examined and on the advice of the Medical Officer was shifted to Mayo Hospital, Lahore where he remained as in-door patient and expired on 9.11.1990. 3. After getting registered form al FIR Ex. PD/1 Liaqat All Shah Inspector/SHO P.W. 21 went to the place of occurrence. He made the spot inspection and prepared rough site plan Ex. PO/2. He took into possession blood-stained earth vide memo. Ex. PE attested by Muhammad Hussain P.W.6 son of Noor Ahmad and Muhammad Nawaz P.W.9. He recorded the statements of the P.Ws. He handed over the sealed parcel containing the blood-stained earth to Moharrir Thana on whose transfer the same went under the possession of Muhammad Hussain Moharrir Constable P.W.8 who handed over the same to Sher Muhammad Constable P.W. 7 on 17.3.1991 which he delivered in the office of the Chemical Examiner Lahore. 4. On 27.10.1990 and 28.10.1990 Fazal Din A.S.I. Police Station Khudian District Kasur P.W. 10 visited Mayo Hospital, Lahore who submitted application Ex.PG to enquire as to whether or not Muhammad Hussain admitted there was fit to make the statement. The Medical Officer gave his opinion Ex.PG/1 in the negative. 5. On 8.11.1990 Fateh Muhammad S.I. Police Station Khudian P.W. 11 received the information about the death of Muhammad Hussain who reached Mayo Hospital, Lahore on 9.11.1990 at 12.30 A.M. (mid-night). He took into possession the dead body of Muhammad Hussain and prepared inquest report Ex.PH. He handed over the dead body to Muhammad Iqbal Constable P.W. 5 and Muhammad Rafique constable (not produced) who took the same to the D.H.Q Hospital Kasur for post-mortem examination. After the post-mortem examination Muhammad Iqbal Constable P.W.5 handed over the dead body to the relatives. 6. The case was also investigated by Muhammad Iqbal Butt Inspector/new SHO Police Station Khudian P.W. 18 who got prepared site plan Ex.PO and Ex.PO/1 from Muhammad Nasrullah Draftsman P.W.17 containing the notes and drawing with black ink in the hand of the aforesaid Draftsman and with red ink in his own hand. He got issued the proclamation and notices pertaining to Muhammad Mukhtar alias Chhambi proclaimed offender from the Area Magistrate which he handed over to Jahangir Ali ASI P.W.I However, the said accused could not be arrested. 7. Muhammad Boota alias Booti appellant was arrested on 8.4.1991 by Dr. Muhammad Shafique, Additional Superintendent of Police, Kasur P.W.23. Through application Ex.PQ containing order Ex. PQ/1 of the Area Magistrate this accused was sent to the Judicial look up of District Jail Kasur as the identification parade qua him was to be got conducted. This witness (P.W.13) also made the spot inspection on 1.12.1990 who arrested Muhammad Amir and Sher Muhammad appellants as well as Sumair Khan and Suleman acquitted accused on 20.12.1990. Abdus Samad Shah Deputy Superintendent of Police, Range Crimes Lahore P.W.22 submitted application Ex.PJ for holding identification parade of Muhammad Boota alias Booti appellant. Muhammad Hameed S.I. Range Crimes, Lahore also investigated the case. He took the P.Ws to District Jail Kasur on 5.6.1991 where under the supervision of Mr. Riaz Mahmood Magistrate 1st Class, Kasur P.W.12 the identification parade pertaining to Muhammad Boota alias Booti appellant was conducted who was correctly identified by Muhammad Aslam complainant P.W.13 and Haji Bashir Ahmad P.W.16 while Sardar Khan P.W.15 could not identify him. Mr. Riaz Mahmood Magistrate 1st Class, Kasur P.W.12 prepared report Ex.PK of the identification parade. Thereafter the physical remand of Muhammad Boota alias Booti appellant was obtained by Muhammad Hameed S.I. P.W. 20 who on 19.6.1991 led to the recovery of 7 MM rifle PI from a deserted Haveli situated in Mauza Saidpur which was taken into possession vide memo Ex. PL attested by Muhammad Aslam complainant PW.13 and Sher Muhammad PW (not produced). He prepared site plan Ex.PL/1 of the place of recovery of rifle PI. This rifle was sealed in a parcel. This sealed parcel remained in the custody of Abdus Samad Shah D.S.P. P.W.22 who sent the same to the office of the Forensic Science Laboratory Lahore through Ghulam Rasool Constable P.W.19 on 26.6.1991 from where the report was not received as the same does not form part of the record. 8. Dr. Adnan Hakeem Medical Officer DHQ Hospital Kasur P.W.2 medically examined Muhammad Hussain injured on 27.10.1990 at about 7.00 P.M. whose blood pressure at that time was 90/70 m.m. HG and his pulse was 90 P.M. He found four injuries with firearms on the person of the aforesaid injured caused within a probable duration of three hours. He issued Ex. PB, medicolegal report, and advised that the patient may be immediately taken to Mayo Hospital Lahore. 9. In Mayo Hospital, Lahore Muhammad Hussain injured was operated upon. Dr. Shafqat Bazaz Medical Officer North Surgical Ward Mayo Hospital, Lahore P.W. 14 issued death certificate Ex. PM pertaining to Muhammad Hussain injured admitted in Mayo Hospital Lahore who was earlier operated upon there and Ex. PN is a copy of the operational notes. 10. Dr. Zia-ul-Haq Medical Officer DHQ Hospital, Kasur P.W.3 conducted the post-mortem examination on the dead body of Muhammad Hussain on 9.11.1990 at 8.00 A.M. Muhammad Hussain P.W.6 son of Noor Ahmad identified the dead body. This medical witness found then injuries on the person of Muhammad Hussain deceased which included the injuries received during the operation. According to this medical witness Muhammad Hussain deceased died of shock due to injuries to small and large intestine and left lung which were caused by fire-arm weapons. He issued Ex.PC, carbon copy of post-mortem report and Ex.PC/1, carbon copy of the diagram showing the location of the injuries on the person of Muhammad Hussain deceased. 11. After completing the investigation the police submitted the challan before the trial Court. At the trial the aforesaid witnesses appeared in the witness box and supported the prosecution case. The District Attorney produced in evidence report of the Chemical Examiner as Ex. PR and that of the Serologist as Ex.PR/1 making out that the blood-stained earth was stained with human blood. It is pertinent to mention that the report of the Fire-Arms Expert was not produced in evidence. 12. When examined under section 342 of the Code of Criminal Procedure, all the accused persons stated about their non-participation in the occurrence and took up the stand that they were falsely involved due to enmity. Muhammad Boota a//as Booti appellant took up the stand that he was kept in Thana' for more than two months who was shown to the P.Ws and that the identification parde was without any legal weight. Zafar Maqbool Headmaster who worked as Presiding Officer at the polling station, Saidpur on 27.10.1990 appeared as D.W.I and stated that a quarrel took place at the polling station between the polling agents namely Sumair Khan and Muhammad Hussain deceased. He continued that they heard a blast report after the conclusion of the polling time. Abdul Ghafoor D.W.2 was the Polling Officer at the polling station Village Saidpur who stated that no dispute occurred regarding the casting of the votes. Muhammad Ismail D.W. 3 stated that after the polling on 27.10.1990 he heard the fire shot and saw two persons running from east to west alongwith their pistols. Dr. Muhammad Javed Athar Senior Registrar, Mayo Hospital, Lahore D.W. 4 stated that Muhammad Hussain injured was operated upon, but no bullet was removed from his body. The accused persons did not choose to appear under section 340(2) on oath in their respective defence. 13. After hearing the parties learned trial Court gave the weight to the motive, ocular evidence, medical evidence and abscondance of Muhammad Boota alias Boota appellant as well as the identification parade conducted qua him. The appellants namely Muhammad Amir, Sher Muhammad and Muhammad Boota were convicted and sentenced as narrated above. However, Sumair Khan and Muhammad Suleman were acquitted by the grant of benefit of doubt. Feeling aggrieved into convicts have preferred the aforesaid Criminal Appeal No. 551/1992 which has been resisted by the State. Muhammad Aslam complainant preferred Criminal Revision No. 564/1992 with the prayer to enhance the sentences awarded to Sher Muhammad and Muhammad Boota alias Booti convicts to get the same converted to death penally and also prayed for the enhancement of the fine to the extent of all the convicts. The appellants-convicts have resisted the aforesaid revision. Both the aforesaid matters are being disputed of through this consolidated judgment. 14. We have heard the learned counsel for the appellants convicts, learned counsel for the complainant and the learned State counsel and gone through the record before us. Learned counsel for the appellants argued that the occurrence allegedly took place on 27.10.1990 at 5.00 P.M. while the matter was reported to the SHO Police Station Khudian in the office of the Superintendent of Police Kasur through the submission of complaint Ex.PD by Muhammad Aslam complainant P.W.13 and that in between the deliberations were effected to rope in the innocent persons and this aspect of the matter is enough for the purpose of the exoneration of the appellants. We do not agree with the learned counsel for the appellants in this respect. As rightly pointed out by the learned State counsel it is a case wherein the Executive Authorities supervising the General Elections to the Punjab Provincial Assembly as well as the police showed the lethargy and indolence in the matter. During the arguments it was intimated that Sardar Muhammad Hussain lost the election and Sufi Sardar Khan won the same. We are of the view that admittedly Muhammad Hussain deceased was the polling agent of the loosing candidate Sardar Muhammad Hussain and the Executive Authorities as well as the police did not initiate the criminal proceedings even though the occurrence took place at 5.00 P.M. on 27.10.1990. Muhammad Hussain was removed to D.H.Q. Hospital Kasur just after the occurrence who was examined thereby Dr. Adnan Hakeem P.W.2 who issued Medico-Legal Report a copy of which is Ex.PB, but did not intimate the police. At his advice Muhammad Hussain injured was removed to Mayo Hospital, Lahore. It is in the statement of Fazal Din ASI P.W.10 that he visited Mayo Hospital, Lahore on 27.10.1990 and 28.10.1990 when he submitted application Ex.PG to get the opinion from the Medical Officer as to whether or not Muhammad Hussain injured was in a position to make his statement who was replied in the negative. Fazal Din ASI P.W.10. had visited Mayo Hospital on 27.10.1990 and 28.10.1990 who must have met some relatives or at least some attendant of Muhammad Hussain injured. However, Fazal Din ASI did not proceed to register the case. Even the Medical Officer attending Muhammad Hussain injured in Mayo Hospital, Lahore also did not inform the police. All this shows the apathy of the police towards the complainant party with respect to the registration of the FIR. In this view of the matter the contention of the learned counsel for the appellants that the FIR was registered with deliberations and previous investigation is devoid of any legal value. It all happened because the winning candidate must have the pressure upon the police, as is a matter of common scene and frequent observation in our society. We are tempted to record our observation that whenever an injured is taken to the hospital who is examined there, it is the bounden duty of the Medical Officer to inform the concerned police so that the legal machinery is set in motion. However, in an occurrence of the instant nature which took place just on the day of the General Election to the Provincial Assembly the Executive Authorities and the Police as well as the polling staff were bound to initiate the criminal proceedings as the occurrence had taken place close to the polling station just after the conclusion of the polling time and Presiding Officer as well as his staff had become aware of the same. This assertion, as such, has failed to impress us and we hold that the delay in the registration of the FIR wherein the complaint Ex. PD was submitted by Muhammad Aslam complainant d before the SHO in the company of a learned advocate in the office of the Superintendent of Police, Kasur, due to the texture of working of the police, has no adverse effect to the prosecution case and is not fatal thereof. Learned counsel for the appellant argued that the statements of the eye witnesses have no legal force because it is the admitted position that Muhammad Aslam complainant PW.13 is a brother of Muhammad Hussain deceased while Haji Bashir Ahmad PW.16 is a maternal uncle of Muhammad Hussain deceased who statements are to be viewed with caution which are liable to be ignored as they are the interested witnesses. On the contrary learned State counsel laid the emphasis that in view of the fact that the General Elections to the Provincial Assembly took place on 27.10.1990, the presence of both Muhammad Aslam P.W.13 and Haji Bashir Ahmad P.W.16 at the polling station in village Saidpur where the aforesaid P.Ws and the deceased lived was natural. Further Sardar Khan P.W.15, a resident of village Saidpur, is not related to the deceased who is an independent person. We hold the view that this assertion need not be given the weight. Sardar Khan P.W. 15 is an independent witness and is Meo by caste who was aged 52 years when examined on 6.5.1992. There was no previous history and enmity between the P.Ws and the accused persons. The statements of the aforesaid related prosecution witnesses are independently enough to connect the appellants named in the FIR who even otherwise have been supported and corroborated by the statement of the aforesaid independent witness. The occurrence took place at 5.00 P.M. on 27.10.1990 during day light and the chance of error with respect to the identification of Muhammad Amir and Sher Muhammad appellants cannot be expected. At this stage it is proper to express that in the complaint Ex.PD it is specifically narrated that the dispute emanated on the ground of bogus voting between Muhammad Amir appellant and Muhammad Hussain deceased. This part of the statements of the eye witnesses has to prove as a corroborative piece of evidence. The statements of the D.Ws that no dispute arose need not be given the weight particularly when the facts mentioned in the statements of the D.Ws were not put to the aforesaid eye witnesses and as such the statements of the D.Ws can be ignored in the matter We pass an order accordingly. The occurrence did not take place in any house or in a street. The place of occurrence is a field which was close to the building wherein the polling was conducted which stood concluded just before the occurrence and at th aforesaid time all the persons interested in the matter are expected to be present near the polling station to know as to what is in store for the contesting candidates on the basis of the counting of the votes. The P.Ws were expected to be present at the polling station which was in village Saidpur wherein they lived and thus to the extent of the appellants named in the FIR the statements of the eye witnesses with respect to the occurrence and the motive cannot be ignored as desired and required by the learned counsel for the appellants. We, therefore, give the weight to the motive and the ocular account. 15. Learned counsel for the appellants argued that according to site plan Ex.PO the deceased was at point 'A' while the assailants were at point 'B' and the distance in between was 30 feet. According to him Dr. Adnan Hakeem P.W.2 found burning around the four wounds found by him on 27.10.1990 after examining Muhammad Hussain injured who issued Medico-Legal Report Ex.PB. He stressed that the medical evidence is in conflict with the statements of the eye witnesses when viewed in the light of site plan Ex.PO wherein the distance was 30 feet between the deceased and the assailants. He maintained that according to the aforesaid report of Dr. Adnan Hakeem PW.2 the assailants could be at a close range between 4 to 6 feet. We do not agree with him in his assertion that the case of the prosecution has become doubtful. The exact distance in such a state of affairs when the assailants emerged abruptly to surprise the deceased cannot be determined by the eye witnesses. Further during these days the weapons are sophisticated and are of latest model. This aspect of the matter is not enough to make doubtful the prosecution case and we discard this assertion. As such the medical evidence shall play the legal role so as to prove corroborative piece of evidence and we hold that the learned trial Court rightly relied upon the same. 16. We, therefore, agree with the learned trial Court to the extent of the conviction of Muhammad Amir and Sher Muhammad appellants on the basis of motive, ocular evidence and the medical evidence adduced by the prosecution against them and hold that both the said appellants cannot escape their criminal liability in the matter. 17. We now take up the case of Muhammad Boota alias Booti appellant. Learned counsel laid the emphasis that he was not named in the FIR, that according to par. 19 of the impugned judgment the recovery of 7 MM rifle PI, attributed to him, from a deserted 'Haveli' has not been given the weight and that his identification parade was conducted about two months after his arrest as he was apprehended on 8.4.1991 and the identification parade was arranged and conducted on 5.6.1991. On the contrary learned State counsel as well as the learned counsel for the complainant laid the emphasis that in the identification parade Muhammad Boota alias Booti appellant was correctly identified by the eye witnesses and that he has correctly been convicted. We, however, express the view that the reasoning adopted by the learned counsel for Muhammad Boota alias Booti appellant has to prevail. He was not named in the FIR and his features were not entered in the FIR. He was arrested on 8.4.1991. The recovery of 7 MM rifle PI from a deserted 'Haveli' attributed to him has not been given the weight by the learned trial Court. The solitary ingredient of identification parade independently is not enough for the purpose of his conviction. Even otherwise the aforesaid identification parade need not be relied upon because Muhammad Boota alias Booti appellant was arrested on 8.4.1991 and the identification parade was conducted on 5.6.1991. At the time of identification parade Muhammad Boota alias Booti could not be identified by Sardar Khan P.W.15. Further he made the objection before Mr. Riaz Mahmood Khan, Magistrate 1st Class Kasur P.W.12 during the identification parade that for about two months he was kept in the Police Station and he was shown to the P.Ws. Further in the identification parade report Ex.PK no role was ,• specified by Muhammad Aslam complainant P.W.13 and Haji Bashir Ahmad P.W.16 to Muhammad Boota alias Booti appellant and this ingredient of the prosecution case has lost its value and force. Admittedly the recovery of 7 MM rifle P.I has not been relied upon by the learned trial Court. We, therefore, hold that there was no justification to connect Muhammad Boota alias Booti appellant against whom the prosecution has miserably failed to establish its case. As such he is declared to be innocent and is not liable to face the criminal liability for which he was charged. 18. Learned counsel for Muhammad Aslam complainant argued that there was no exenuating circumstances to grant lesser punishment to Sher Muhammad appellant-convict and that all the convicts have been burdened with less compensation to be paid to the heirs of the deceased. We do not agree with him. The direct motive is attributed to Muhammad Amir appellant-convict. Keeping in view the normal financial circumstances of the convicts the amount of compensation is held to be reasonable. 19. For what has been said above, we dismiss Criminal Revision No. 564/1992 filed by Muhammad Aslam complainant. 20. In view of our aforesaid findings we accept this Criminal Appeal No. 551 of 1992 to the extent of Muhammad Boota alias Booti appellant, set aside the same to his extent and pass the order of his acquittal who shall be set at liberty forthwith, if not required to be detained in any other case. 21. We, however, dismiss Criminal Appeal No. 551/1992 to the extent of Muhammad Amir and Sher Muhammad appellants.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1153 (DB) Present: muhammad naseem ch. and sh. abdur razzaq, JJ. ABDUL HAFEEZ etc.-Appellants versus STATE-Respondent Crl. A. No. 212/95, dismissed on 2-3-1998. (i) SelfDefence- —Self Defence-Right of-Appraisal of evidence-Contention that accused/ appellants have caused injuries in exercise of their right of self defence, as complainant party had gone to take possession of disputed Ihata while armed with licensed weapons where deceased made accused (since acquitted) to fall on ground pressed his throat and wanted to denude him and in self defence accused/appellant fired at deceased and various persons collected there and in that melee complainant and his wife and another person received injuries-Held : Had complainant party come there duly armed, accused party must have received some scratches on his persons—None of accused received even a scratch on his person—Thus contention of accused/appellant that they caused injuries to complainant party in exercise of right of self defence is absolutely fallacious. [P. 1161] B (ii) Witness-Related- —Closely related deceased-Statement of-Testimony-Reliance-Mere relationship with deceased whether discard evidence or not—Question of— Evidence of witnesses cannot be discarded on ground of mere relationship with deceased-Since all three PWs have received injuries at hands of assailants, so their presence on the spot stands proved-All three witnesses have been subjected to lengthy cross examination but nothing has come on record to discredit their testimony—Their presence on spot is natural-Mere fact that two PWs have not been examined does not detract evidentiary value of other PWs who have fully supported prosecution version. " [P. 1160] A AsifMahmood Chughtai, Advocate for Appellants. AH. Masood, Advocate for State. Date of hearing : 2-3-1998. judgment Sh. Abdur Razzaq, J.--This Criminal Appeal No. 212 of 1995 by Abdul Hafeez and others arises from the judgment of the learned Judge Special Court for Speedy Trials Multan whereby he on 22.11.1993 while acquitting Abdul Ghani and Abdul Waheed co-accused convicted Abdul Hafeez, Abdul Hameed and Abdul Aziz appellants and sentenced them as under: (i) under section 302(b)/34 PPC life imprisonment as Tazir; (ii) under section 324/34 PPC five years R.I. and a fine of Rs. 20,000/- each or in default thereof to undergo further R.I. for six months each; the fine if recovered was ordered to be paid to the injured in equal shares; (iii) under section 337-A(i)/34 PPC to pay a daman of Rs. 500/- each and to suffer R.I. for a period of six months each as Tazir for each injury; (iv) under section 337-F(ii)/34 PPC to pay a daman of Rs. 500/- for each injury and to suffer R.I. for one year each for causing such injuries; (v) under section 337-F(i)/34 PPC to suffer six months' S.I. as Tazir and to pay Rs. 200/- for each injury as a daman caused to Mst. Rehmat Bibi; (vi) under the same head for causing injury No. 4 to suffer SI for one year each besides payment of Rs. 500/- as a daman each and for causing injury No. 5 to pay a daman of Rs. 300/- each and to suffer R.I. for six months as Tazir, (vii) under section 337-F(i)/34 PPC for causing injuries No. 1 to 4 on the person of Muhammad Siddique to pay a daman of Rs. 100/- for each injury and also to suffer R.I. for three months as Tazir, the appellants were further directed to pay a daman in lumpsum which was to be distributed among injured according to their injuries and in case of non-payment of daman they were ordered to be kept in jail till its final payment; (viii) all sentences were ordered to run concurrently; and (ix) benefit of Section 382-B Cr.P.C. was extended to the appellants. 2. Briefly stated the facts of this case, as gleaned from the FIR Ex.PX, are that on 7.5.1993 at 5.30 P.M. Nazir Ahmad and Muhammad Siddique sons of Muhammad Shafi complainant, went to cut fodder in field No. 4/1 of square No. 43. The complainant Muhammad Shafi alongwith his wife Mst. Rehmat Bibi were sitting in the lane on a cot from where said killa No. 4/1 and Barseem grown therein were visible. Suddenly Abdul Ghani along with his four sons Abdul Hafeez, Abdul Waheed, Abdul Hameed and Abdul Aziz went after Nazeer Ahmad and Muhammad Siddique. Abdul Ghani was empty handed, Abdul Hafeez had a 12 bore carbine, Abdul Waheed had a 12 bore gun, Abdul Hameed had a 30 bore pistol and Abdul Aziz was carrying a Sota. Abdul Ghani shouted Lalkara that they should be taught a lesson for getting the land back. Abdul Hafeez consequently fired at Nazir Ahmad which hit him on the left side of his abdomen. Abdul Hameed fired at Muhammad Siddique with his 30 bore pistol injuring his right upper arm. Both Nazir Ahmad and Muhammad Siddique were given Sota blows by Abdul Aziz. The occurrence was witnessed by Muhammad Shafi complainant and his wife Mst. Rehmat Bibi who rushed to the spot. In the meanwhile, Abdul Waheed fired with his gun at Mst. Rehmat Bibi and fractured her right hand. Both Muhammad Shafi and Mst. Rehmat Bibi were given Sota blows by Abdul Aziz when Mst. Rehmat Bibi went forward to save her husband. Aftab son of Muhammad Shafi and Khalil Ahmad son of Ali Akbar tried to intervene and rescue the assailants but were threatened with dire consequences. Nazir Ahmad succumbed to the injuries on the spot whose dead body was forcibly taken to the Ihata of the assailants. The motive for the commission of this offence is stated to be the land dispute between the parties and in order to take revenge, the accused fired at Muhammad Siddique and Mst. Rehmat Bibi who were also injured. 3. Muhammad Shafi complainant (PW12) made for the police station Noor Shah District Sahiwal and on his dictation FIR Ex. PX was recorded by Akhtar Ali Inspector (PW15) who also prepared statement of injury Ex.PY. He despatched Muhammad Shafi complainant to civil hospital through Riasat Ali constable for his medical examination and thereafter made for the place of occurrence. Mst. Rehmat Bibi and Muhammad Siddique met him at the bus stand where he prepared their statements of injuries Ex. PP and PR and also recorded their statements. He sent through Muhammad Younas constable to civil hospital for their medical examination. After reaching the place of occurrence, he found that dead body of Nazir Ahmad was lying in the cattle shed. He prepared statement of injury Ex.PT and inquest report Ex. PU. He despatched the dead body of Nazir Ahmad through Muhammad Akram constable for postmortem examination. On 8.5.1993 last worn clothes of the deceased as well as the injured were produced before him and he secured the same. He inspected the site and prepared its rough site plan Ex.PZ. He collected blood-stained earth and Barseen and made them into a sealed parcel. He also secured three empties of 12 bore gun and one empty of 30 bore pistol and made them into a sealed parcel. On 11.5.1993 he arrested all the accused from their house. He secured blood-stained clothes of all the accused except Abdul Waheed and made a sealed parcel of the same vide memos Ex.PJ. Ex.PK, Ex.PL and Ex.PM. On 13.5.1993, he got the site plans Ex.PD, Ex.PD/1 and Ex.PD/2 prepared from the Patwari. On 14.5.1993 the accused Abdul Hafeez led to the recovery of a carbine P8 which he secured and made into a sealed parcel vide memo Ex.PE. On the same day accused Abdul Hameed led to the recovery of a 30 bore pistol which he secured and made into a sealed parcel vide memo Ex.PF. The accused Abdul Waheed also led to the recovery of 12 bore gun PlO which he secured and made into a sealed parcel vide memo Ex.PG. Similarly the accused Abdul Aziz led to the recovery of blood-stained Sota P9 which he secured vide memo Ex.PM. 4. After completing investigation, the accused were sent up to Court to face trial. A charge under Sections 302/324/148/149 PPC was framed against the accused to which they pleaded not guilty and claimed trial. 5. To prove its case prosecution examined PW1 Riasat Ali constable who escorted Muhammad Shafi injured to civil hospital where he was medically examined and thereafter produced his last worn clothes P2 and P3 before the I.O. who secured the same vide memo Ex.PA. PW2 Muhammad Younas got Mst. Rehmat Bibi and Muhammad Siddique medically examined and produced blood-stained clothes of Muhammad Siddique before the I.O. who secured the same memo Ex.PB. PW3 Muhammad Akram constable took the dead body of Nazir Ahmad for post-mortem examination on 7.5.1993. After his post-mortem examination, he was given last worn clothes of the deceased P6 and P7 and a sealed phial which he produced before the I.O. who secured the same vide memo Ex.PC. PW4 Muhammad Nazir Patwari visited the place of occurrence on 13.5.1993 and prepared site plans Ex.PD, PD/1 and Ex.PD/2 and thereafter handed over the same to the I.O. PW5 Muhammad Saleem constable was given a sealed parcel containing blood-stained earth, a sealed parcel containing empties and another sealed parcel containing blood-stained clothes for onwards transmission to the office of Chemical Examiner and Forensic Science Laboratory Lahore which he delivered there intact. On 22.5.1993, he was given a parcel containing carbine P8, blood-stained Sota P9, 12 bore gun PlO and 30 bore pistol Pll for onwards transmission to the office of Forensic Science Laboratoiy and Chemical Examiner which he delivered there intact. PW6 Abdul Razzaq is a witness of recovery from the accrued Abdul Hafeez and Abdul Waheed but he did not support the prosecution version and was consequently declared hostile. PW7 Muhammad Akhtar head-constable deposed that on 10.5.1993 he was given parcels containing blood-stained earth, empties as well as four parcels containing blood-stained clothes which he delivered to Muhammad Saleern (PW5) on 14.5.1993 for onwards transmission to the respective offices. He further deposed that on 14.5.1993 he was given three parcels containing 12 bore gun, 12 bore carbine and 30 bore pistol which he delivered to Muhammad Saleem constable on 22.5.1993 for onwards transmission to the office of Forensic Science Laboratory Lahore. PW8 Muhammad Hussain has deposed about the identification of the dead body at the time of post-mortem examination. He further deposed that on 11.5.1993 blood-stained clothes of Abdul Hafeez accused Ex.P12 and Ex.P13 were secured vide memo Ex.PJ which bears his signature. On the same day hlood-stained clothes of Abdul Aziz, Abdul Hameed and Abdul Ghani accused were also secured vide memo Ex. PK, PL & Ex.PM respectively which bear his signatures. PW9 Dr. Rana Allah Ditta deposed that on 8.5.1993 at 8.00 A.M. he examined Muhammad Shafi injured and found six injuries on his person and issued MLR Ex.PN. On the same day at 8.15 A.M. he examined Mst. Rehmat Bibi and found five injuries on her person and issued medico legal certificate Ex.PO. He also signed her injury statement Ex.PP. On the same day at 8.35 A.M. he examined Muhammad Siddique and found four injuries on his person. He issued MLR Ex.PQ. On the made day at 10.00 A.M. he conducted post-mortem examination on the dead body of Nazir Ahmad. He found the following injuries on his person : I. Lacerated wound (wound of entrance), 6 cm x 6 cm x going deep in abdominal cavity on the left lateral aspect of abdomen and chest 7 cm above the left iliac bone. Wound was oval in shape, edges of wound were inverted, the surrounding skin of wound were blackened and portion of intestine was coming out of wound. ON DISSECTION: Skin sub-contanious tissues muscles, small vessels were cut on the left lateral side of chest, fracture of 9th & 10th ribs, stomach was injured and having an extensive laceration of stomach, plastic wed was found from stomac,, spleen was injured, and teared (ruptured), into pieces, left kidney injured and raptured and peritoneum injured and left side of liver also injured and lower lobe of right lung was also injured, diaphragm, right side was injured. Three pallets were found from chest and abdominal cavity, right side of chest cavity having blood and both sides of abdominal cavity were full of blood, one pallet was taken out from the back of right chest in muscles. 2. An abrasion 3 cm x 1^ on the left shoulder on back. 3. A bruise 7 cm x 2 cm on the middle of back of chest. In his opinion, death had occurred due to shock and internal haemorrhage, injury No. 1 was sufficient to cause death in ordinary course of nature. Injury No. 1 was caused by fire arm. Rest injuries were caused by blunt weapon. All the injuries were antimortem in nature. Time between injuries and death within 15 minutes and between death and post-mortem within eighteen hours. He issued post-mortem examination report Ex.PS. It is in his hand and bears his signatures. He also signed injury statement Ex.PT and inquest report Ex.PU. PW10 Abdul Hameed deposed that on 8.5.1993 the police had secured blood-stained earth and Barseem from the place of occurrence situate in killa No. 4 square No. 43 and made a sealed parcel of the same vide memo Ex.PV. He further deposed that empties of 12 bore gun P20 to Ex.P22 and one empty of 30 bore pistol P23 were secured and made them into a sealed parcel vide memo Ex.PW. PW11 Muhammad Ashraf deposed that on 14.5.1993 the accused Abdul Hafeez, Abdul Ahmed, Abdul Waheed and Abdul Aziz led to the recovery of 12 bore carbine P8, 30 bore pistol Pll and 12 bore gun P10 and blood-stained Sota P9 which were secured vide memo Ex.PE, Ex.PF, PG and PH respectively which bear his signatures. PW12 Muhammad Shafi is the complainant and has corroborated his version appearing in FIR Ex.PX. He deposed that the police prepared the injury statement and sent him to civil hospital Noor Shah for his medical examination. PW13 Muhammad Siddique anAMst. Rehmat Bibi (PW14) are the alleged eye-witnesses and both of them had supported the prosecution version appearing in FIR Ex.PX. They further deposed that while they were going to the hospital the police met them at bus stand Noor Shah and they were sent to hospital where they were medically examined. PW15 Akhtar Ali is the Investigating Officer of this case whose evidence has already been discussed above. Thereafter Mian Iftikhar Rashid Special Public Proseciitor gave up the remaining PWs being unnecessary and produced three reports of Chemical Examiner Ex.PAA, Ex.PBB, Ex.PCC, three reports of the Serologist Ex.PDD, Ex.PEE, Ex.PFF, report of the Forensic Science Laboratory Ex.PGG copy of Khasragirdwari, two sheets, Ex.PHH and closed the case for prosecution vide statement dated 21.11.1993. 6. When examined under Section 342 Cr.P.C. the accused Abdul Aziz. Abdul Hafeez. Abdul Waheed and Abdul Hameed denied the prosecution version and stated that none of them was present at the spot and have been implicated in this case falsely. However, the accused Abdul Hafeez denying the prosecution version, stated that in fact the complainant party was the aggressor. He further stated that Nazir Ahmad deceased alongwith Muhammad Siddique and Muhammad Shafi while armed with fire arms committed trespass in their Ihata. Nazir Ahmad deceased made his father Abdiil Ghani fall on the ground and tried to make him naked and also pressed his throat. He intervened to save his father whereupon Nazir Ahmad deceased fired with 30 bore pistol at him and in order to defend himself and his father he fired with his gun in self defence at Nazir Ahmad deceased. He further stated that stay pallets hit Muhammad Siddique & Mst. Rehmat Bibi PWs. Various persons had assembled there and the injxired PWs received the injuries at their hands. He furtr stated that Muhammad Sadiq Chandio SHO was inimical towards them and was having friendly relations with Muhammad Shafi complainant. He neither produced any evidence in his defence nor chose to record the statement under Section 340(2) Cr.P.C. However, none of the accused except Abdul Ghani chose to produce evidence in defence. The accused Abdul Ghani tendered in evidence copy of application Ex.DC, copy of complaint Ex.DD, copy of the judgments Ex.DE and Ex.DF, copies ofjamanbandies Ex.DG, Ex.DH, Ex.DJ and copies of FIRs Ex.DK, Ex.DL and his medical certificate Ex.DM. Thereafter he closed his defence evidence. 7. After going through the evidence produced by the parties, the learned trial Court acquitted Abdul Waheed and Abdul Ghani accused whereas convicted Abdul Hafeez, Abdul Hameed and Abdul Aziz accused/appellants who have felt aggrieved and filed this appeal. 8. Arguments have been heard and record perused with the assistance of learned counsel for the parties. 9. Learned counsel for the appellants has assailed the impugned judgment on the following grounds : (i) that prosecution evidence rests upon the statements of interested and inimical witnesses as PWs No. 12 to 14 are related to the deceased and are inimical towards the accused/. ^ ^ellants; (ii) that occurrence has not been taken place in killa No. 4/1 of square No. 43 but in the Ihata of the accused/appellants which fact clearly shows that the complainant party was an aggressor and the accused/appellants inflicted injuries while exercising the right of self defence; (iii) that had the occurrence taken place in the field as alleged by the proseciition, trails of blood must have been noticed from that spot upto the Ihata of accused/ appellants; (iv) that ocular account regarding infliction of injuries on the deceased stands falsified by medical evidence as presence of blackening of injury No. 1 shows that injury was caused from a very close range which fact stands belied from the prosecution evidence; iv) that nature of injuries attributed to Abdul Aziz and Abdul Hameed accused/appellants clearly shows that they did not share common intention with their co-accused Abdul Hafeez; and (vi) that even motive part of the prosecution version stands falsified by documents produced on record by Abdul Ghani, since acquitted. 10. Conversely the judgment under appeal has been supported by the learned State counsel. 11. There is no doubt that prosecution has examined PW12 Muhammad Shafi who is maternal uncle of the deceased, Muhammad Siddique PW13 who is brother of the deceased and Mst. Rehmat Bibi PW14 who is mother of the deceased, yet their evidence cannot be discarded on the ground of mere relationship with the deceased. Since all the three PWs have received injuries at the hands of the assailants, so their presence on the spot stands proved. All the three witnesses have been subjected to lengthy crossexamine but nothing has come on record to discredit their testimony. Their presence on the spot is also natural as both Muhammad Shafi and Mst. Rehmat Bibi were present in the lane, from which the place of occurrence was clearly visible. The mere fact that Aftab and Khalil Ahmad PWs have not been examined does not detract the evidentiary value of PWs 12 to 14 who have fully supported the prosecution version appearing in FIR Ex.PX lodged at the instance of Muhammad Shafi PW12. 12. The stand of learned counsel for the accused/appellants is that occurrence has actually taken place in the Ihata of the accused and not in killa No. 4/1 of square No. 43. This contention stands falsified from the fact that blood stained earth has not been secured from the Ihata of the accused but from the place of occurrence shown in the FIR Ex.PX. The appellants ave not challenged the securing of blood-stained earth from the place of occurrence which fact further proves that they had admitted that occurrence had taken place in killa No. 4/1 of square No. 43 and not as asserted by them. It is also pertinent to point out that all the three accused/appellants are young and grown up persons and it was very easy for them to lift the deceased from the field and to remove him to their Ihata just to show that occurrence had taken place in their house and not in the field bearing killa No.4/1 of square No. 43. 13. Again much stress has been laid on the point that there is a blackening in injury No. 1 which has been found on the person of the deceased. This fact shows that the deceased was fired from a very close range. There is no doubt that presence of blackening shows that the injury was fired from a veiy close range but this fact has come on record through the statements of PWs 12 to 14 who have deposed that the deceased was fired from a very close range. Thus there is no contradiction of medical evidence with ocular account. 14. It is canvassed that the accused/appellants have caused injuries in exercise of their right of self defence, as the complainant party i.e. Muhammad Shafi and his sons had gone to take possession of the disputed Ihata while armed with licensed weapons where Nazir Ahmad deceased made Abdul Ghaniaccused (since acquitted) to fall on the ground, pressed his throat and wanted to denude him and in self defence Abdul Hafeez accused/appellant fired at Nazir Ahmad deceased and various persons collected there and in that melee the complainant and his wife Mst. Rehmat Bibi and Muhammad Siddique received injuries. Had the complainant party come there duly armed, the accused party must have received some scratches on their persons. Admittedly none of the accused received even a scratch on his person. Thus contention of the accused/appellants that they caused injuries to the complainant party in exercise of the right of self defence is absolutely fallacious. It also does not stand to reason that persons collected on the spot also caused injuries to the complainant party only and did not touch the accused party. It has also come on record that the complainant party was unarmed. Thus the only logical conclusion is that injuries to Muhammad Shafi, Muhammad Siddique, Mst. Rehmat Bibi and Nazir Ahmad deceased were caused by Abdul Hafeez, Abdul Hameed and Abdul Aziz. Injury No. 1 on the person of Muhammad Siddique PW is attributed to Abdul Hameed accused which stands proved from the medical evidence. Injuries on the persons of Muhammad Shafi, Muhammad Siddique, Mst. Rehmat Bibi and Nazir Ahmad deceased with blunt weapons are attributed to Abdul Aziz accused and these stand proved from the medical evidence. It is thus established that all the accused shared common intention. 15. Abdul Ghani accused (since acquitted) has brought on record a number of documents which show that a pre-emption case was decided in favour of the pre-emptor and the appeal from that judgment was still pending. He has also brought on record a copy of a criminal complaint lodged by him against Muhammad Shafi and others which is still sub-judice. It is thus clear that the parties were locked in litigation against each other and this was a sufficient motive in the instant case. 16. The upshot of the above discussion is that contentions raised by earned counsel for the accused/appellants are devoid of any force and the trial Court has passed the impugned judgment in accordance with law. We do not find any force in this appeal and dismiss the same. (K.A.B.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1162 (DB) Present: muhammad naseem ch. and raja muhammad sabir, JJ. NAZIM HUSSAIN-Petitioner versus J-Respondents Criminal Rev. No. 51-98, accepted on 28-4-1998. Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- —-Ss. 4-A, and 10 read with S. 528 Cr.P.C.-Offence u/S. 302/34 PPC- Pendency of case in special court-II-Application for transfer of Case- Case transferred by sessions judge/Special Court-I to his own court-­ Challenge to-Application of S. 528 Cr.P.C. is excluded by special Act by express enactment of S. 10 of Act, 1975—Exercise of power u/S. 528 Cr.P.C. in such like cases by special Court-I is mis-conceived-There is no provision in Act, 1975, authorizing special court-I to withdraw a case entrusted to special couit-II-Grievance of any of parties regarding trial can be redressed u/S. 4-A of Act, 1975 by High Court alone—Withdrawal of case through impugned order from special court-II to special court-I is without jurisdiction-Transfer or promotion of ASJ-I will not create any vacuum because he is notified by designation and not by name-Who-soever is ASJ-I shall exercise powers conferred by Notification—Learned sessions Judge/Special Court-I presumably proceeded u/S. 528 Cr.P.C.- But without notice to accused case could not be transferred being against principle of natural justice-Held : Only remedy available to parties is under Section 4-A of Act, 1975 to approach High Court for redressal of grievance-All Special Courts are independent and equal in all respects constituted under Notification. [Pp. 1165 & 1166] A, B & C Sycd Zahid Hussain Bokhari, Advocate for Petitioner. Mazhar Iqbal Sindhu, Advocate and AsifKhalil, Advocates for State. Date of hearing : 28-4-1998. judgment Raja Muhammad Sabir, J.--In this petition, the order of learned Sessions Judge/Special Judge, Suppression of Terrorist Activities (Special Courts) Act, 1975 has been assailed on the ground that learned Sessions Judge/Special Court-I, Sheikhupura was not competent to withdraw the case from the court of Addl. Sessions Judge-I/Special Court-II, to his own Court. 2. Brief facts of the case are that the petitioner and his co-accused were facing the trial in Special Court-Ill, Suppression of Terrorist Activities Lahore Division Lahore. The aforesaid Court ceased to exist and the case was transferred to the learned Sessions Judge/Special Court-I, notified under section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The case was entrusted to Rana Zahid Mehmood, ASJ-I, Sheikhupura on 23.10.1997 who was also notified as Special Court under the aforesaid Act. It remained pending there till 24.1.1998, when he was promoted as Sessions Judge and posted as Special Judge, Anti-Corruption Gujranwala. The complainant made an application to Sessions Judge/Special Court-I, for the transfer of the said case to any other Court of competent jurisdiction on the ground of inordinate delay in its disposal. Application of the. complainant without notice was accepted by the learned Sessions Judge/Special Court-I, vide impugned order, and case was transferred by him to his own file. 3. Learned counsel for the petitioner contends that the Sessions Judge, Sheikhupura as well as Addl. Sessions Judge-I were notified as Special Judges u/S. 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. Both have equal powers for holding of the trial and disposal of the case entrusted to them. The notification only authorized the Special Court-I to entrust the case but once the entrustment has been made, he is not competent to withdraw the same to the file of his own Court or transfer it to any one else. The impugned order was passed in the absence of petitioner and without notice and as such liable to be set aside. 4. Learned counsel for the respondent, on the other hand, submits that the learned Sessions Judge/Special Court-I was competent to withdraw the case from the Court of Rana Zahid Mehmood, ASJ-I who has left the charge without substitute to his own Court for speedy disposal. He further submits that section 528 Cr. P.C. empowers him to withdraw the case from ASJ-I/Special Court-II. 5. We have heard learned counsel for the parties and perused the record. 6. In order to appreciate the legal point raised in this petition, a perusal of the Notification No. SO (SPL. CTS) 11-13/95 dated 26 th September 1997, is necessaiy whereby Sessions Judge and Addl. Sessions Judges were empowered to hold trial under the Suppression of Terrorist Activities (Special Courts), Act, 1975. The Notification reads as under :- "In exercise of the powers conferred by Sub-section (2) of Section 3 of the Suppression of Terrorist. Activities (Special Courts) Act, 1975 the Government of the Punjab in the Home Department in consultation with the Hon'ble Chief Justice of the Lahore High Court is pleased to constitute Special Courts under all the District & Sessions Judges and Additional District & Sessions Judges-I at all the District Headquarters as Presiding Officers, Suppression of Terrorist ctivities (Special Courts) Act, 1975 of their respective districts in addition to their own duties. The cases pending before the Special Courts mentioned at I above shall stand transferred to the newly created Courts to be presided over by the District & Sessions Judges of each District to which they relate who may transfer any case to the Additional District & Sessions Judge-I." 7. Para 3 of the Notification provides that the cases pending before the Special Courts shall stand transferred to the newly created Courts to be presided over by the District & Sessions Judge of each District to which they relate who may transfer any case to the Additional District & Sessions Judge I. This power of transfer has been conferred on the Sessions Judges for entrustment of such cases to Addl. Sessions Judge-I. The Sessions Judge herein referred means Special Court-I under Suppression of Terrorist Activities (Special Courts) Act, 1975 and that of the Addl. Sessions Judge-I as Special Court-II. 8. Since the case was entrusted to Special Court-II, the Special Court-I was left with no jurisdiction to withdraw it and start the trial himself or send it to any other Court. Powers of Special Court-I and Special Court-II are independent and equal in all respects. 9. Transfer of case from one Special Court to the o her is governed by Section 4-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975, which reads as under :- "Where two or more Special Courts have jurisdiction wholly or partly in the same territorial limits, the High Court may, if it considers expedient to do so in the interest of justice or for the convenience of the parties or of the witnesses, transfer any case from one Special Court to another." (As substituted for section 4-A by Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance No. XXIII of 1997, dated 4th February, 1997.) 10. A perusal of aforesaid provisions of law clearly shows that an application for transfer of the case from one Special Court to the other is only competent before the High Court and Special Courts have no such jurisdiction for transfer of the cases from one to the other. 11. Similarly, section 7 of Sub-section 1 of the referred Act provides:- "A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, (1) (and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court;) but save as aforesaid and not with standing the provisions of the Code or any other law for the time being in force or of anything having the force of law by whatsoever authority made or done; no court shall have authority to revise such sentence, or to transfer any case from a Special Court or to take any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court." 12. Similarly section 10 of referred Act lays down that the provisions of this Act shall have effect notwithstanding anything contained in the Code or in any other law for the time being in force. 13. The aforesaid provisions clearly show that application of Section 528 Cr. P.C. is excluded by the Special Act by express enactment of Section 10 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The exercise of powers under Section 528 Cr. P.C. in such like cases by the Special Court-I is mis-conceived. There is no provision in the Suppression of Terrorist Activities (Special Courts) Act, 1975, authorizing the Special Court-I to withdraw a case entrusted to Special Court-II. Grievance of any of the parties regarding the trial can be redressed under Section 4-A of Suppression of Terrorist Activities (Special Courts) Act, 1975 by the High Court alone. Withdrawal of the case through impugned order from Special Court-II by the Special Court-I to his own file is without jurisdiction. Transfer or promotion of ASJ-I will not create any vacuum because he is notified by designation and not by name. Who-so-ever in ASI-I, shall exercise the powers conferred by Notification dated 26.9.97. 14. Learned Sessions Judge/Special Court-I presumably proceeded under section 528 Cr. P.C. But without notice to accused case could not be transferred being against the principle of natural justice as laid down in B P.L.D. 1962 Lahore 437 (Haji Ghulam Sarwar vs. Muhammad Akhtar and others). The relevant observation reads as under :- In an application under section 528(2) of the Criminal Procedure Code, 1898 as distinct from transfers under section 192 (1) of the Code it is necessaiy to hear the opposite party before making an order of transfer. Although there is no provision in Section 528 of the Code making it imperative to give a notice to the other party before ordering a transfer of a case, yet the principle of natural justice makes it necessaiy that a notice shall be given to the party and an opportunity afforded to hear him before ordering the transfer." 15. Moreover this section cannot be invoked in. the proceedings under Suppression of Terrorist Activities (Special Courts) Act, 1975. We have noticed in other case to that learned Sessions Judges are passing the orders in routine in entertaining the applications for Special Court-I. Special Court-I is not competent to transfer the case from Special Court-II to himself or to any other Court. As observed above, the only remedy available to the parties is under Section 4-A of the aforesaid Act to approach the High Court for redressal of the grievances. Special Court-I has no authority for Withdrawal of the case from Special Court-II. Both are independent and equal in all respect constituted under Notification referred above. 16. For the reasons stated above, this petition is allowed. Impugned order is set aside. Proceedings pursuance to the impugned order also stand vitiated. Copy of this order shall be sent to the Registrar of this Court for communication to all concerned Special Courts for future guidance. (K.A.B.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1166 Present: raja MUHAMMAD KHURSHID, J. ZAHID SOHAIL-Petitioner versus THE STATE-Respondent Cr. Rev. No. 20 of 1998, accepted on 16.3.1998. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 265-C—Application for supply of copies of supplementary statements of PWs-Dismissal of-It has now been well understood that any statement or substance recorded in case diaiy during investigation by Investigating Officer would come within purview of S. 161 Cr.P.C. and as such, accused would be entitled to its copy before opening of trail as required by S. 265- C, Cr.P.C.--Mere fact that supplementary statements recorded by Investigating Officer were signed or thumb marked by PWs would not create any bar against their use as provided in S. 162 Cr.P.C.-As such, learned trial Judge had committed gross illegality by mis-applying provisions contained in S. 161 Cr.P.C. by refusing to supply copies of supplementary statements of witnesses as required by S. 265-C, Cr.P.C.-- Impunged order is set-aside and petition accepted-Copies of supplementary statements should be provided to petitioner. [P. 1168JA&B Mehr Muhammad Nawaz Khan, Advocate for Petitioner. Mr. Mushtaq Ahmed Bhatti, Advocate for State. Ch. Muhammad Afzal Wahla, Advocate for Complainant. Date of hearing: 16.3.1998. judgment This revision petition is directed against the order dated 22.1.98 passed by the learned Addl. Sessions Judge, Samundri, whereby, he dismissed the application of the petitioner and his co-accused whereby they had prayed for the supply of copies of the supplementary statements of Nazik Ali complainant, Abid Ali and Maqbool Ahmad PWs recorded on 27.5.95 under Section 161 Cr.P.C. It was contended in the application that the copies of the aforesaid statements were not distributed to them in pursuance of the provisions contained in Section 265-C, Cr.P.C. The learned trial Judge relying on Mukhtar Ahmad vs. The State reported as 1986 P.Cr.L.J. 1252 (Lahore) dismissed the application on the ground that the statements of the witnesses recorded in the police diaiy by the Investigating Officer does not fall within the purview of Section 161 Cr.P.C. and as such, the petitioner/accused were not entitled to their copies as prayed. 2. The order of the learned trial Judge was assailed on the ground that the provisions contained in Section 161 Cr.P.C. have been mis­ interpreted by the learned trial Judge in relation to the provisions contained in Section 265-C, Cr.P.C. In this regard, it was contended that the pith and substance of the supplementary statements of the PWs aforementioned recorded on 27.5.95 would show that those were infact recorded under Section 161 Cr.P.C. The mere fact that those were signed by the PWs would not make any difference as far as their nature was concerned or their use was to be made as provided in Section 162 Cr.P.C. Reliance was placed on Ghiilarn Rafmol alias Rasoola vs. The State reported as 1987 P.Cr.L.J. 455 (Lahore). Nazar Muhammad vs. Mushtaq Ahmad and others reported as PLD 1996 Lahore 277 and Zulfiqar All Bhutto vs. The State reported as PLD 1979 Supreme Court 53. 3. Learned counsel for the complainant also relied on PLD 1979 Supreme Court 53 and 1987 P.Cr.L.J. 455 (Lahore) to show that the statements of the above named PWs did not fall within the ambit of Section 161 Cr.P.C. as those were signed by the witnesses and were not separately recorded. It was, therefore, alleged that the petitioner/accused were not entitled to the copies of the aforesaid statements as enjoined by Section 265-C, Cr.P.C. 4. I have given my careful attention to the matter in dispute. It has now been well understood in the light of the principle laid down in PLD 1979 Supreme Court 53 that any statement or substance recorded in the case diary during the investigation by the Investigating Officer would come within the purview of Section 161 Cr.P.C. and as such, the accused would be entitled to its copy before opening of the trial as required by Section 265-C, Cr.P.C. I have gone through the police file and find that unlike the objection taken by the learned counsel for the complainant, the supplementary statements of Nazik Ali, Abid Ali and Maqbool Ahmad were separately recorded on 27.5.95 by the Investigating Officer during the investigation apart from incorporating them in the case diary of the same date vide serial No. 13 (Abid Ali) No. 14 (Maqbool Ahmad) and No. 18 (Nazik Ali). It is, thus, obvious that the objection raised by the learned counsel for the complainant is without any merit that no separate statement of the aforesaid witnesses was recorded. Infact it was separately recorded and also reduced into writing in the relevant case diaiy. The mere fact that the supplementary statements recorded by the Investigating Officer were signed or thumb marked by the PWs would not create any bar against their use as provided in Section 162 Cr.P.C. As such, the learned trial Judge had committed gross illegality by mis-applying the provisions contained in Section 161 Cr.P.C. by refusing to supply the copies of the supplementary statements of the witnesses aforenamed as required by Section 265-C, Cr.P.C. The impugned order having been passed illegally is set-aside and the revision petition is accepted with the direction that the copies of the supplementary statements of Nazik Ali, Abid Ali and Maqbool Ahmad PWs recorded on 27.5.95 shall be provided to the accused/petitioner on the next date of hearing. 5. It has been pointed out to me that the Hon'ble Supreme Court of Pakistan had fixed time limit of three months for disposal of this case. It is, therefore, directed that the trial of the case shall proceed from day-to-day till its conclusion by an early date. The parties are directed to appear before the learned trial Court on 26.3.98. The office to transmit a copy of this order to the learned trial Court well before the aforesaid date. (A.S.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 1169 (DB) Present -. hamid ali mirza and zafar hadi shah, JJ. MUHAMMAD RAFIQ-UL-ISLAM--Appellant versus STATE—Respondent Cr. Appeal No. 5 of 1997, accepted on 27-12-1997. Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)— —-S. 7 read with Ss. 4, 5 and 7 of Explosive Substances Act, 1908- Possession of explosive material-Offence of-Conviction for-Appeal to- Sanction for prosecution for holding trial under Explosive Substances Act as required u/S. 7 is mandatory and condition precedent for prosecution of accused u/S. 5 of said Act—In absence of requisite sanction/permission entire proceedings taken would be void and without jurisdiction consequently, conviction and sentence passed could not be sustained as required by S. 7 of Explosive Substances Act-Appeal accepted. [P. 1172] A&'B S.M. Shafiq Siddiqui, Advocate for Appellant. Ch. Muhammad Iqbal, Advocate for Respondent. Date of hearing : 12-12-1997. judgment Hamid Ali Mirza, J.-This is an appeal under section 7 of Suppression of Terrorist, Activities Act, 1975 directed against the judgment of conviction passed by learned Judge Special Court III Constituted under Suppression of Terrorist Activities Act, 1975, whereby appellant has been convicted under sections 4 and 5 of the Explosive Substances Act and sentenced to suffer R.I. for seven years and to pay fine of Rs. 10,000/- in case of default in payment of fine to suffer further six months imprisonment in a criminal case No. 29/94, FIR No. 166/94, P.S. Gulshan-e-Iqbal, State v. Muhammad Rafiqul Islam, hence this appeal. Brief facts of this case are that on 17.3.1994 at 2110 hours Muhammad Saif Police Constable P.S. Gulshan-e-Iqbal, Karachi, lodged the report stating therein that on the said date at about 2010 hours lie was standing in front of his house when he received spy information that there was a man present in coaster vehicle with unlicensed arm and hand-grenade in front of Taj Diy Cleaners Shop. On getting the said information he alongwith Muhammad Siddique and Niaz residents of Ziaul Haq Colony came to the pointed place and saw a coaster vehicle No. CH-9822 parked there and also saw a person sitting in the said coaster who was apprehended and on enquiry the said person disclosed his name as Muhammad Rafique son of Muhammad Raees, resident of House No. L-311, Sector II, North Karachi , when the said person was searched, one carbine and seven cartridges were found wrapped with upper side of his right leg, so also one live hand-grenade with fuse and pin wrapped in white piece of cloth were found from the lower portion of dashboard of the said vehicle. The said Muhammad Saif, Police Constable, prepared such memo of arrest and recovery of appellant/accused in presence of said mashir and brought the appellant/accused and the above said case property to P.S. After usual investigation the present appellant/accused was challaned before the trial Court. The trial Court framed the charge Ex. 7 against the appellant/accused that he on 17th day of March 1997 at about 2010 hours at Katcha Road Gulshan-e-Iqbal, Karachi, alongwith absconding accused Maulana Ali Ahmed was found in possession of one hand grenade and on enquiry he could not produce any licence for the same and thereby committed an offence punishable under section 4/5 of the Explosive Substances Act to which he pleaded not guilty as per Ex. 7/A. Prosecution examined PW 1 Ghulam Mohiuddin, the owner of the coaster as Ex. 8, who produced the photocopy of registration certificate of the said coaster, PW 2 Muhammad Siddique taxi driver, the mashir of memo of recovery of one carbine, 7 cartridges from the person of appellant and one hand-grenade with fuse from the lower portion of dashboard of coaster as per memo Ex. 9/A, PW 3 Nazeer Ahmed SIP who has been examined in place of Constable Muhammad Saif who lodged the FIR but was murdered on the same date and before that he had handed over memo Ex. 9/A, hand-grenade and seven cartridges to him and also he had registered the FIR Ex. 11. He has also sent hand-grenade to officer incharge bomb disposal unit, who sent his report as per Ex. 12. Prosecution gave up PW co-mashir Niaz as per Ex. 13 and closed its side as per Ex. 14/C. The appellant/accused was examined under section 342 Cr.P.C. wherein he denied the charged offence and stated that lie was innocent and has no knowledge about the hand-grenade that it. was lying in the dashboard and it was a killing weapon. The appellant/accused did not examine any witness in defence. After recording of evidence and hearing the counsel for parties, the impugned judgment, of conviction was passed by the trial Con rt. We have heard the learned counsel for appellant and for State. The main points for consideration in this case are whether the appellant could be said to have been found in possession of hand-grenade on the said date on the basis of evidence; (ii) whether the proceedings in absence of requisite consent of Provincial Government as required under section 7 of Explosive Substances Act would vitiate the trial and (iii) whether the conviction and sentence could be maintained. So far recovery of hand-grenade, learned counsel Chowdhary Muhammad Iqbal for State stated that he would not support the conviction and sentence passed by the trial Court on the ground that case disclosed in the FIR was inconsistent to the evidence adduced by the prosecution considering as well that testimony of PW 2 Muhammad Siddique was not confidence inspiring who was the only witness of alleged recovery of handgrenade. PW 1 Ghulam Mohiuddin Ex. 8 is the owner of coaster vehicle and has not deposed anything about the recovery of hand grenade from the coaster but has only deposed that appellant/accused was his driver and on the said date the appellant had asked him 2/3 days before Eidul Fitr that he had to take his relatives to Gadani for offering Fatiha so he needed said vehicle and for that he had fixed Rs. 1,000/- as fare for the trip. So far PW 2 Muhammad Siddique who is only rnashir of alleged recovery of hand grenade, deposed that the appellant/accused was sitting in the coaster Police searched his person in his presence as well as in presence of co-mashir when seven cartridges, one carbine were recovered from the appellant from his side pocket and when police opened dashboard of coaster from where, one white bag was secured which on opening was found to contain, one hand grenade with fuse. Police prepared such memo Ex. 9/A which bore his signature. In cross examination he stated that mashirnama was prepared in the coaster and case property was taken by police but was not, sealed in his presence. He stated that P.C. Muhammad Saif was known to him for five years before incident as they have been residing in the same locality. He further stated that police called him after 2/3 hours from his house at Police Station and obtained his signatures and some documents were prepared by one Nazeer and Ex. 9/A was prepared by ASI and signed by him. One Niaz Ahmed, barber was also called at P.S. by ASI Nazeer I.O. and obtained his signature on Ex. 9/A. He has also stated that he had not seen the paper prepared by PC Muhammad Saif prepared at: the spot and the memo Kx. 9/A was not read over to him and he was not. aware of the contents and that carbine was not. tied with the right thigh of the appellant. The case of prosecution in the FIR was that the informant P.C. Muhammad Saif received spy information that appellant/accused was having unlicensed arm and hand-grenade in his possession, consequently, he took Muhammad Siddique and Niaz Ahmed as witnesses to the place pointed by spy where he found the appellant/present in the coaster who disclosed his name as Muhammad Rafiqul Islam and on his personal search one carbine and seven cartridges were secured wrapped in piece of cloth with his right thigh besides one hand-grenade warapped in white cloth was found from the drawer just below the dashboard alongwith live fuse and pins. The above statement made in the FIR would appear to be inconsistent to the testimony of PW 2 who has denied presence of ca-mashir Niaz Ahmed at the time of recovery and also denied that one carbine and seven cartridges were found wrapped in a cloth with his thigh. P.C. Muhammad Saif who lodged FIR and allegedly secured the hand grenade and seven cartridges could not be examined because of his murder on the same day. The only testimony of Muhammad Siddique does not appear to be confidence inspiring because of his inconsistencies in his testimony and that of the prosecution case as disclosed in FIR and memo. Accordingly, it could be safely said that the prosecution has failed to produce reliable satisfactoiy and confidence inspiring evidence to support the case that the hand-grenade alongwith other ammunition was secured from the possession of the appellant/accused. Next point for consideration is whether in absence of permission as required under section 7 of the Explosive Substances Act would vitiate the trial of the case. Section 7 of the said Act runs :-- "7. Restriction on trial of offences.-No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the Provincial Government. COMMENTS Sanction for prosecution for holding trial under S. 7 of Act mandatory and a condition precedent Sanction for prosecution of accused under S. 5 of Act, however, produce after conclusion of trial proceedings, held, concluded in express violation of prohibitor and mandatory provision of law and hence vitiated trial Conviction and sentence of accused set aside, in circumstances." Reference may be made to Syed Mukhtar Hussain v. State (1984 Pakistan Criminal Law Journal 2181), wherein their Lordships observed that sanction for prosecution for holding trial under Explosive Substances Act as required under section 7 is mandatory and condition precedent for prosecution of accused under section 5 of the said Act. In absence of the requisite sanction/permission entire proceedings taken would be void and without jurisdiction consequently, the conviction and sentence passed could not be sustained. In view of the aforesaid reasonings on the first two points, the conviction and sentence cannot be maintained having been based in absence of reliable and confidence inspiring evidence as well as for want of proper sanction/permission as required by Section 7 of the Explosive substances Act. We accordingly set aside the conviction and sentence and allow the appeal. These are the reasons for short order dated 12.12.1997. (K.A.B.) Appeal accepted

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 1173 Present: ZAKIR MlRZA, J. ZIAULLAH KHAN-Petitioner versus STATE-Respondent Spl. Crl. Bail Application No. 43 of 1997, accepted on 16-12-1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/Ss. 13, 32, 86, 97, 219, and 156(1) of Customs Act, 1969- -Bail-Grant of-Prayer for-It is settled law that where goods were on free list of import and importable not being banned or prohibited items and purchased from open market after satisfying of lawful import thereof, burden of proof would shift to prosecution to prove that no duty was paid for import of said item-Applicant as a purchaser of glass from open market could not be dragged into case on ground that he has purchased glass on which no duty was paid, although it was freely available in market-Offence under clause 14 of S. 156(1) does not fall within prohibitory clause of S. 497 Cr.P.C. as offence would be punishable with three years or a fine which may extend to 25000/- or three times value of good in respect of which offence is committed-Bail granted. [P. 1175] A, B&C (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/Ss. 13, 32,^6, 97, 219 and 156(1) of Customs Act, 1969- Bail-Grant of-Prayer for-Further enquiry-Ground of~Case of prosecution depended upon documents which were in possession of customs authorities and applicant, cannot temper with these hence apprehension of tempering with prosecution evidence was not possible- Bail cannot be withheld as punishment-Applicant had thus succeeded in making out a prirna facie case for grant of bail as case against applicant required further inquiry hence is entitled to grant of bail. [Pp. 1175 & 1176] D Mrs. Ismat Mchdi, Advocate for Petitioner. Mr. Ikram Ahmad Ansari, D.A.G. for State. order I had heard this application on 14-7-1997 and by a short order granted bail to the applicant in the sum of Rs. 1,00,000/- with P.R. Bond in the like amount to the satisfaction of the Trial Court. The detailed reasons of the said order are being recorded now as under : The Prince Glass and Mirror Industries (Pvt.) Ltd., had imported a consignment of float, glass, which was meant to be stored in their warehouse known as the Bonded Warehouse No. 6-96 (Pvt.) at Gadoon Amazai. An information was received by the Appraising Intelligence Branch of the Collectorate of the Customs Karachi that the said glass was fraudulently sold by the said firm in the open market. Thus an enquiry was held which revealed that M/s Prince Mirror Glass Industries after receiving the three consignments of clear and Bronze Float Glass, filed the bills of entry through their clearing agent M/s Ghausia Impex, under safe transportation system for removal of goods from Karachi Port to their Private Warehouse at Gadoon Amazai. The transportation was allowed under Custom Rule on 16-4-1997 and 6-5-1997. According to the enquiry the goods instead of being despatched to the Bonded Warehouse at Gadoon Amazai were despatched to various dealers in Lahore, Multan and other places under instruction of the Clearing Agent and the papers were prepared for despatch and for transport, to the glass houses at Lahore and Multan, with intention to avoid payment of customs duty and other taxes. Accordingly F.I.R. was registered on 15-5-1997 at Custom House, Karachi by E.G. Tahir Hussain for violation of Sections 13, 32. 86, 97 and 219 of the Customs Act, 1969 which offences are pTinishable under Clauses 10-A and 14 and also under Section 156(1) of the Customs Act. An interim challan was submitted before the trial Court, on 30-5- 1997. The applicant surrendered before the Trial Court and filed a plea for bail before arrest which was dismissed on 25-6-1997 and he was arrested on 7-7-1997. After having failed to obtain bail from the Trial Court filed This application. It was contended that the challan would clearly show that Zia Khan accused was Manager of Kohinoor Glass Corporation Lahore, while Amir Zia was connected with M/s Prince Mirror Glass Industries (Pvt.) Limited. The only allegation against, the applicant could be that he had purchased the float glass on which no duty was paid. The applicant seems to be a purchaser of float glass from the open market and as pointed out such glass was not specified in Clause 8 and not notified as such no offences under the circumstances, was made out under Section 156 of the Customs Act. It is yet to be determined if Section 32, which has been invoked, is application and it is also contended that, Section 10(a> provides for punishment for nvo years hence, the case does not fall within the prohibitory clause of Section 497 Cr.P.C. Above all, the case is of a mistaken identification and the applicant whose name is Ziaullah Khan has been roped in place of Zia Khan the Proprietor of Kohinoor Glass Corporation, Lahore. In support of her contentions the learned counsel has relied upon the following authorities viz : (1) PLD 1986 Peshawar 186 (D.B.) (2) 1995 S.C.M.R. 387. (3) 1996 S.C.M.R. 1132. It is contended that in view of these authorities the applicant, is entitled to the grant of bail which may be granted to him. The learned D.A.G. opposed the grant of bail on the ground that even if it is a case of mistaken identification and that the father's name of Ziaullah applicant is not mentioned anywhere yet, he was not entitled to the grant of bail. Even if he is a bonafide purchaser it is for him to establish this fact during the trial. His application may be rejected. I have carefully considered the contention made at the bar and also the record and so also gone through the authorities referred herein. The names of the accused in the F.I.R. seem to be Zia Khan and Amir Zia but surprising enough that before filing the case an enquiry was held, yet the full details of these accused could not be ascertained. There is nothing to show if the applicant was Zia Khan or Amir Zia. Both of them are proprietors of the firms hence their full particulars would be available on the official record yet the name of the accused Zia Khan was not verified nor mentioned in the challan. The name of the applicant Ziaullah does not find place any where either in the F.I.R. or in the challan. Thus it is a case of mistaken identification. The prosecution is supposed to sent up a proper person to face the trial and not a person, whose identity is not established. The applicant even if is Zia Khan he does not seem to have any connection with M/s Prince Mirror Glass Industries (Pvt.) Ltd. According to the challan he is proprietor of Kohinoor Glass Corporation, who is the purchaser of Glass from the market. There is nothing with the prosecution to show that it was a restricted item and liable to duty. It is freely available in the market. It is settled law thai where the goods were on free list of import and importable not being banned or prohibited items and purchased from open market after satisfying himself of lawful import, thereof, the burden of proof would shift to the prosecution to prove that no duty was paid for import of said item. This has been held in Muhammad Zubair us. Government of Pakistan and two others reported in PLD 1986 Pesh. 186. The applicant, as already mentioned, as a purchaser of the glass from open market could not be dragged into the case on the ground that he has purchased the glass on which no duty was paid, although it was freely available in the market. The offence under clause 14 of Section 156(1) of the Customs Act does not. fall within the prohibitory clause of Section 497 Cr.P.C. as the offence would be punishable with three years or a fine which may extend to 25000/- (Rupees Twenty Five Thousand or three times the vahie of good in respect of which the offence is committed. Reliance has rightly been placed on 1995 S.C.M.R. 387 (Sikandar Khan vs. State). It appears that the entire case of prosecution depended upon documents which were in possession of the customs authorities and the applicant cannot temper with these hence the apprehension of tempering with prosecution evidence was not possible, as held in the case of Kneed Ahmad vs. State reported in 1996 S.C.M.R. 1132. It is also a settled law that bail cannot be with held as punishment. The applicant had thus succeeded in making out a Prima fade case for the grant of bail as the case against the applicant required further inquiry hence, he is entitled to the grant of bail. (K.A.B.) Bail accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Quetta) 1176 Present: amir ul MtiLK menual, C.J. Mst. HUMA etc.-Petitioners versus -Respondent Crl. Bail Applications Nos. 327 and 28 of 1997, accepted on 28-10-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/Ss. 10/11/13/16/18 of Zina (Enforcement, of Hudood) Ordinance, 1979—Bail—Grant of—Prayer for—Further inquiry—Case of—S. 10 shows that it relates to Zina or Zina bil Jaftar-Prosecution case is not of Zina bil Jabr therefore, this section has been wrongly mentioned because prima-facie doctor has not supported that Zina has been committed-Section 11 relates to Kidnapping, abducting or inducing women to compel for marriage etc.—Except S. 13 other Sections are prirna facie not attracted-From personal search of petitioners nothing has been recovered according to police-Thus prirna facie, they have not received any amount for prostitution-Therefore it is a case of further inquiry where S. 13 does apply to them or not—However, police has recovered an amount of Rs. 2000/- from Mst. L for which evidence is yet to be recorded whether same were given by accused to her-Since doctor's report is negative and it is also not denied that Petitioners No. 1 and 2 have suckling bodies, therefore, High Court is inclined to grant them bail. [Pp. 1177 & 1178] A&B Crl. Bail Applications No. 327 of 1997). Mr. Muhammad Rafique Ahmad, Advocate for Appellant. Raja Rob Nawaz, Advocate for State. Crl. Bail Application's No. 328 of 1997). Mushtaq Anjurn and Kamran Murtaza, Advocate for petitioners. Raja Rab Nawaz, Advocate for State. Date of hearing : 16-10-1997. judgment By this common order, I intend to dispose of Criminal Bail Application No. 327 and Criminal Bail Application No. 328 of 1997 as. common question of facts and law are involved in both the cases. Petitioners Huma, Malka, Lalima, Syed Muhammad Khair and Amir Hamza have filed these applications for grant of bail as their applications as such were rejected hy learned Additional Sessions Judge-PV, Quetta vide order dated 9.10.1997. Brief facts for filing of these applications are that on the report of Ghulam Dastagir, who is SHO of Police Station Crimes Branch an F.I.R. No. 45 of 1997 was registered on 25.9.1997. It was alleged that, the applicants are running a brothel house and leading an immoral life. In fact, it was alleged that Mst. Lalima and Abdullah are running a brothel house at Shah Zaman Road, Quetta, where other customers are visiting frequently. The police raided the house of Abdullah and Lalima. It is alleged that during raid from western room petitioner Huma and accused Syed Muhammad Khair were found in a position withoiit wearing their trousers. In the next room accused Mir Hamza and Mst. Malka were found. The owner of the den is Lalima and Abdullah who were also present there. It. is alleged further that, accused paid Rs. 500/- for each girl and the SHO arrested the accused persons. A .case was registered under sections 10, 11, 13. 16 and 18 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. Heard M/s. Kamran Murtaza, Mushtaq Anjum and Oh. Muhammad Rafique for petitioners and M/S. Ahmad Khan Lashari, Advocate General and Raja Rab Nawaz, for state. Counsel for petitioners contended that prinia-facie prosecution case is false because Mst. Huma is a married woman and has a suckling baby of 9 months with her whereas Mst. Malka is also married to Khairullah and has two children, out of whom one is a six months suckling baby. Neither any zina has been committed with them nor they were found in a compromising position and medical reports are negative. It was lastly contended that the cases of petitioners fall under proviso (i) of section 497 Cr.P.C. therefore, they are entitled to be released on bail. The plea of bail, however, was opposed by the State counsel. M/S. A.G. and Raja Rab Nawaz contended that Ms?. Lalima and accused Abdullah are running a den where they supply girls to customers. On such information the police raided their house and found in one room Mst. Huma with accused Syed Muhammad Khair and in other room Mst. Malka with Amir Hamza. Mst. Huma and accused Muhammad Khair were found without earing any shalwars as such bail can not be granted to them. I have considered the arguments so advanced. The police has registered a case under sections 10, 11, 13 16 and 18 of Offence of Zina (Enforcement of Hadood) Ordinance, 1979. Persual of section 10 shows that it, relates to zina or zina biljabr. The prosecution case is not of zina biljabr, therefore, this section has been wrongly mentioned because prima-facie. the doctor has supported that zina has been committed. Section 11 relates to kidnapping, abducting or inducing woman to compel for marriage etc. Except section 13 the other sections are prima facie not attracted. However section 13 reads : "13. Selling person for purposes of prostitution, etc. Whoever sells, lets for hire, or otherwise disposes of any person with intent that such person shall at any time he employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, t>r knowing it to be likely that such person will at. any time he employed or used for any purpose, shall he punished with imprisonment, for life and with whipping not exceeding thirty stripes and shall also he liahle to fine". From the personal search of Mst. Huma and Mst. Malika nothing has been recovered according to police. Thus prima-facic they have not received any amount for prostitution. Therefore, it is a case of further inquiiy where section 13 does apply to them or not. However, police has recovered an amount of Rs. 2000/- from Mst. Lalima for which evidence is yet to be recorded whether the same were given by the accused to her. Since the doctor's report is negative and it is also not denied that Mst. Huma and Malka have suckling babies, therefore, I am inclined to grant them bail. It is indeed strange that when the police entered the premises the accused Huma and Khair Muhammad seeing police did not, put on their trousers and allowed the police to see them in naked condition. Under the circumstances and particularly in view of medico legal certificates to my mind it is a case of further inquiiy, as such I grant, bail to accused persons namely Huma wife of Fareed, Malka wife of Kliairullah, Lalima wife of Muhammad Gul. Syed Muhammad Khair and Amir Hamza. They shall be so released if not required in any other case provided each of them furnish security in the sum of Rs. 20.000/- (Rupees twenty thousand) with one surety and P.R. of like amount, to the satisfaction of additional Registrar of this Court. (T.A.F.) Bail accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Quetta ) 1178

Present : AMIR UL MULK MENGAL, C.J. MUHAMMAD GT IL-Petitioner versus STATE-Respondent Crl. Bail Application No. 358/1997, accepted on 10-12-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 <2)--Offenee u/Ss. 302/324 of Pakistan Penal Code, 1860-Bail- Grant of-Prayer for-Further inquiry-Case of--Mat,erial so collected , requires further consideration as to fact whether petitioner in fact committed abetment of murder of F particularly in view of the fact that no other overt act, for example, his presence on the spot or any other act, is attributed, apart from letter which is yet to be proved to have been written by petitioner-This case being a case of further inquiiy falling under subsection (2) S. 497 Cr.P.C. High Court, therefore, inclined to grant of bail. [P. 1180] A Mr. Kamran Murtaza, Advocate for Petitioner. Mr. Abdul Karim Khan, Ynusufzai, Advocate for State. Date of hearing : 5-12-1997. judgment On 29.6.1997 at, about 8.00 p.m. one Tariq Khan son of Haji Pio Khan, Caste Panazai, reported to Levies Thana Zindra District Ziarat, to the effect that a fight had taken place in Zindra between Muhammad Ibrahim and his brothers and sons of Muhammad Usman due to which Faizul Haq and Noor Ahmad have received injuries. An F.I.R. No. 9 of 1997 was accordingly registered. The injuried persons were taken to Ziarat hospital, where Faizul Haq succumbed to injuries and died. The accused persons made their escape good. During investigation the accused persons were arrested including present petitioner. Muhammad Younas and Muhammad Gul both applied for grant of bail which was rejected by Additional Sessions Judge-Ill, Quetta vide, order dated 16.10.1997. Now, only Muhammad Gul had filed this application under section 498 Cr.P.C. for grant of bail. Heard, Mr. Kamran Murtaza for accused/petitioner and Ahmad Khan Lashari, Advocate General for State as well as Mr. Naeern Akhtar Advocate for complainant. Mr. Kamran Murtaza argued that none of the eye witnesses have implicated Muhammad Gul who was in fact, not, present on the spot. Learned counsel further submitted that only basis for arresting Muhammad Gul is a letter addressetl by Muhammad Gul to Complainant, party which wa.s full of threats and challenges. As a result of this letter when the complainant party came to Zindra, they were attacked by Muhammad Younas and others who fired upon the complainant party resultant!}' injuring Faizul Haq and Noor Ahmad, Faizul Haq died as a result of injuries. It was next argued that it is yet to be known whether the letter was written by Muhammad Gul and if so whether in fact he intended to kill the deceased, therefore on the basis of such logic and reasons it was argued that it is a case of further inquiry as far as Muhammad Gul is concerned. Learned Advocate General assisted by Mr. Naeern Akhtar (for complainant) argued that the main basis for the occurrence was the letter addressed by Muhammad Gul. Learned A.G. pointed out that it is a tribal area where such threats and challenges are taken veiy seriously as in the instant case. In fact it was argued that, if this letter had not been written the incident might have not taken place. On such basis learned A.G. contended that Muhammad Gul is an abetor who is not entitled to be released on bail. I have considered the arguments so advanced. The case of Muhammad Gul is distinguishable from the rest of the accused persons. The distinguishing feature of his case is that although he was not factually found present, on the scene of occurrence but the entire episode was the result of a letter addressed by Muhammad Gul to complainant party. It was argued that had this letter been not written incident might have been avoided which resulted i'i the death of Faizul Haq and serious injuries to Noor Ahmad. Indeed the letter might have contained some provocative material and challenges but then the question arises whether Muhammad Gul had the intention to kill or to abet killing of any one of complainant, party? I have not. been much impressed from this argument for the reasons firstly that the contents of the letters does not show that, Muhammad Gul intended or abetted ;,;> kill deceased Faizul Haque. The second reason being that the prosecution ought to have collected material prirna facie showing abetment of Muhammad Gul for the commission of the offence of murder. Last but not the least that the complainant party could approach the administration or concerned authorities showing them the letter and requesting for binding down Muhammad Gul and others for keeping peace. Be that as it may. the material so collected requires further consideration as to the fact whether Muhammad Gul in fact committed abetment of imirder of Faizul Haque particularly in view of the fact that no other overt, act, for example, his presence on the spot or any other act, is attributed, apart from letter which is yet to be proved to have been written by Muhammad Gul. Thus his case being a case of further inquiry falling A under subsection (2) of section 497 Cr.P.C. I am, therefore, inclined to grant bail to Muhammad Gul. He shall be released if not required in any other case, subject to his furnishing security in the sum of Rs. 1,0(),000/- (Rupees one lac) with two sureties of Rs. 50,000/- (Rupees fifty thousand) each and I P.R. of like amount to the satisfaction of Additional Registrar of this Court Any observations made in this bail order would be tentative and shall not be taken into consideration at the trial. <T.A.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 1181 (DB) Present: malik hamid saeed and shah jehan khan yousafzai, JJ. MASTAN SHAH-Petitioner versus ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE, BANNU & 2 others—Respondents Criminal Quashment Petition No. 29 of 1997, decided on 18.12.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Release of petitioner u/S. 169 Cr.P.C. hy Police-Setting aside order of release by Additional Sessions Judge—Quashment—Prayer for— Investigating Officer undisputedly/undeniably has discretionary powers under Section 169 Cr.P.C. in releasing accused on bail bond during course of investigation before submission of challan—Right, course to be adopted by Investigating Officer in such a situation is that at. The conclusion of investigation he should place name of accused discharged under Section 169 Cr.P.C. in column No. 2 of challan with his own remarks—Court then has to form its own opinion on basis of material on record—Held : Bail allowed u/S. 169 Cr.P.C. to accused cannot be recalled in manner as has been done by Add). Sessions Judge—Held further : Impugned order is arbitrary and without jurisdiction and accordingly set aside. [P. 1183] A, B & C PLD 1994 SC 281, 1994 SCMR 2141. Mr. Dost Muhammad Khan, Advocate for Petitioner. S. Sarnad Hassan Shc.razi, AAG for State. Pir Liaqat Alt, Advocate for Complainant. Date of hearing : 18.12.1997. judgment Malik Hamid Saeed, J.--Through the instant petition, i,he petitioner has challenged the order dated 15.11.1997 passed by the learned Additional Sessions Judge/Special Judge Bannu vide which petitioniT was arrested and his release on personal bond u/S. 169 Cr.P.C. was set aside. 2. Learned counsel for the petitioner subjected the impugned order to swear criticizen on legal premises. 3. The learned counsel took us through various provisions of Suppression of Terrorist Activities Act, 1975 and argued that Special Court is primarily a trial Court for the trial of only scheduled offences and its jurisdiction though is exclusive but. only to the extent of scheduled of fences. It has not been invested with any powers of controlling the police investigation except to the extent that after the expiry of initial statutory period of fourteen days for investigation, further extention of time for the conclusion of investigation shall be with the approval of Special Judge, While inviting our attention to Article 10 f e Constitution, he further argued that for initial custody of the accused, the Illaqa Magistrate alone is competent and it was for this very reason that provisions f the Cr.P.C. from Sections 167 to 344 have not been included in the Suppression of Terrorist Activities Act 1975, which omission is deliberate and obvious for the bove reasons and legal position. He further argued that the police powers to investigate a congizable offence have not been taken away or in any manner iminished by the provisions of Suppression of Terrorist Activities Act 1975, therefore, the Investigating Officer/Police has the same statutory powers in nvestigating a scheduled offence as of other offences under the provisions of Chapter-XIV of the Cr.P.C. He contended that during the course of nvestigation, the Investigating Officer has got some statutory privileges/discretionary powers of exclusive nature which include the powers to release an innocent erson/accused on bail bond by way of intermediate/interim relief, which of course, subject to judicial scrutiny by the Court/Tribunal competent to try him. He laid onsiderable emphasis on the observance of judicial restraints by the Court, competent to take cognizance till the time when the challan is submitted before it and ntill that stage conies the Court shall not, interfere, at the early stage of investigation, as it will amounts to un-necessary and hasty interference in the aid ourse which may cause prejudice to either side. He, however, conceded that after the cognizance is taken by the Special Court of Scheduled Offence, then it eized of the entire case which will include the grant or cancellation of bail to an accused. He was of the view that liberty of a man is more precious and can only be urtailed strictly in a legal manner and not arbitrarily. His last submission was that the learned Special Judge has acted in an arbitrary manner as he has not taken the ognizance of the case and has deprived the petitioner from his liberty on erroneous considerations. The learned Assistant Advocate General for the Suite did not controvert the above legal position. 4. Learned counsel for the complainant was, however, of the view that the Investigating Officer has got no free hand in the matter of releasing the accused under Section 169 Cr.P.C. and facts of each case must be taken into consideration and if the powers under Section 169 Cr.P.C. are exercised illegally or in a anciful manner, then the trail Court is competent to interfere in the matter even before the challan is submitted to the Court. He argued that cognizance means and includes the judicial determination of any cause by the Court. 5. We have given our anxious thoughts to the above submissions made at the bar and also perused the record of the case. 8. The main question involved in this case which requires determination is as to whether the Investigating Officer (I.O.) while investigating the scheduled offence can exercise the powers under Section 169 Cr.P.C. for releasing an accused person against whom the evidence is deficient or there exist no reasonable ground to forward him to the Magistrate and whether the Special Court, can control the course of investigation at preliminary stage. 9. In our views, none of the provisions of the Suppression of Terrorist Activities Act 1975, either expressly or impliedly oust the authority of the Investigating Officer Conferred on him by the provisions of Chapter-XIV of the Cr.P.C. No separate machinery has been provided for the investigation of scheduled offences and, therefore, the powers/authority of Police/Investigating Officer is one and the same for investigating scheduled offence. The Investigating Officer undisputedly/undeniably has the discretionary powers under Section 169 Cr.P.C. in releasing an accused under Section 169 Cr.P.C. on bail bond during the course of investigation before the submission of challan. This is an interim relief made permissible under the law to an innocent person which of course will have to stand the test of judicial scrutiny made by the trial Court at a proper stage, i.e. after taking cognizence of the case. 10. The right course to be adopted by the Investigating Officer in such a situation is that at the conclusion of the investigation he should place the name of the accused discharged under Section 169 Cr.P.C. in column No. 2 of the challan with his own remarks. The Court then has to form its own opinion on the basis of material on record. 11. As discussed above that police before submission of challan can made resort to Section 169 Cr.P.C. at preliminary stage of investigation, the trial Court shall not interfere at such a stage as this will be amouting interference premature. The august Supreme Court in the cases reported as (Malik Shaukat Ali Dogar etc; vs. Ghulam Qasim Khakwani (PLD 1994 Supreme Court page 281), and Brigadier (Reid.) Initiaz Ahmad us. Gout, of Pakistan (1994) S.C.M.R. page 2141) has firmly settled this proposition. Thus, reasonable constraints and restraints are required to be observed till the proper time to come. 12. Our Criminal System of Justice has three well demarcated phases, i.e. Investigation, Enquiry and Trial. All the three phases possesses special characteristics and distinct features and each one related to a well defined forum. 13. To ensure the smooth running of the system, one should not interfere into the specified and well defined sphere of jurisdiction of other to prevent over stepping and undue interference. 14. However, it shall not escape unnoticed that resort to the provisions of Section 169 Cr.P.C. by the Investigating Officer during the investigation or re-investigation has become a frequent phenomenon which requires to be discouraged and a serious notice should be taken by the Superior Police Officers including the Superintendents of Police and Deputy Inspector Generals concerned in the interest of justice by having a strict observance over the investigations so that the said discretionary powers of the Investigating Officers are not mis-used in any-way nor exercised blindly without, any valid and legal basis. 15. From what has been discussed above, we are dear in ourminds that the bail allowed under Section 169 Cr.P.C. to an accused cannot be re­ called in the manner as has been clone by the Additional Sessions Judge/Special Judge Banmi in the case in hand. The impugned order dated 15.11.199,7 being arbitrary and without jurisdiction is, therefore, set aside and the accused/petitioner shall be released on bail forthwith as ordered in our short order dated 18.12.1997. However, what said and observed in this order shall not influence the mind of the trial Court during trial of the case. (K.A.B.i Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 1184 Present : ABDUL HAMEED DoGAR, J. Mst. SURRAYA-Petitioner versus STATE-Respondent Crl. Misc. Application No. 444/1997, accepted on 26-12-1997. Constitution of Pakistan , 1973- —-Art. 13 read with S. 14 of Sindh Crimes Control Act, 1975 and S. 561-A of Criminal Procedure Code, 1898-Double Jeopardy-Principle of- Quashment of proceedings—Prayer for—During pendency of earlier proceedings another set of proceedings have been initiated by same police station on the same material as such in view of Art. 1,3 of Constitution of Pakistan, 1973 no person shall be prosecuted or punished for same offence more than once-This Article provides a protection against double prosecution as well as double punishment-Mere pendency of case would not attract requirement of S. 14 of Sindh Crimes Control Act more particularly when a vague and general allegations are levelled without detailing time and place of charges as such taking of cognizance of such report held would not be proper-Petition accepted. [Pp. 1186 & 1187] A & B .A. Ghaffar, Advocate for Applicant. Jawaid Akhtar, for A.G. State. Date of hearing : 26-12-1997. order 1 & 2 : Through this application, applicant has challenged the cognizance taken hy learned Tribunal viz S.D.M. Eidgah, Karachi (South) under section 14 of Sindh Crimes Control Act, 1975, hereinafter referred to as the Act, on the complaint of S.H.O. of Police Station Napier, Karachi (South). The prosecution case in brief is that on 25-7-1997 SHO of Police Station Napier, Karachi (South) submitted report under section 14 of the Act in the Court of learned S.D.M., Eidgah, Karachi (South) stating therein that applicant Mst. Surriya residing within the jurisdiction of the above police station is running brothel and is living on the earning of money by prostitution. She is in habit of committing offences of prostitution, zina and Prohibition Ordinance and have been arrested in the following cases : 1. 04/81 97/81 20/84 351/85 125/86 1/95 294-PPC 94-PPC 294/34-PPC 294/PPC 294-PPC /4 P. Ord. Ajaib Hussain, P.S., Napier. SI. Ch. Hakim Ali P.S. Napier. ASI Noor Khan, P.S. Napier. PI/SHO Shakhawat Hussain, P.S. Napier. AS T Azizur- Rehman, P.S. Napier. SI Muhammad Riaz, P.S. Napier. Convicted Convicted. Convicted. Convicted. Convicted. Convicted. 7. 40/96 3/4 P. SITariq P. trial. Ord. Muhammad P. /, S. Napier. 8. 69/96 3/4 P. ASIAli P. trial Ord. Muhammad. P.S. Napier. 9. 73/97 13/14/18 SI/SHO P. invt. Zina Ord. Zulqarnain Akhtar. Therefore, a request was made for issuance of NBWs and for getting her bound down for maintaining good behaviour for a period of 90 days. Mr. S.A. Ghaffar, counsel for the applicant mainly contended that applicant is a peaceful citizen being a married woman having grown up children and is living separately in Gali Bara Imam, Napier Road, Karachi (South). According to him, she was booked under the same proceedings on 22-7-1996 and is facing trial before the same Tribunal which is not yet finalised. As such another proceeding under same provision of law cannot be taken up afresh. Learned counsel further argued that Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 provides a protection against double punishment and no one shall be prosecuted or punished for the same offence more than once. On this contention he refers to the case of Ismail A. Rehman vs. Muhammad Sadiq & others, P.L.D. 1990 Karachi 286. He next contended that mere pendency of cases would not attract, the provisions of Sindh Crimes Control Act and cannot be an alternative of the statement of particulars to be furnished under section 5 of the Act. He lastly submitted that learned Tribunal has straight away passed order under Section 5 of the Act and has issued NBWs without, first issuing the summons and complying with the provisions laid down under Section 6 of the Act whereby the copies of complaint etc. are to be sent alongwith process. On this contention he refers the case of Haji AH Muhammad Solangi vs. Tribunal/S. DM. Nazimabad Karachi, P.L.D. 1980 Karachi 267. Mr. Jawaid Akhtar for the State conceded the arguments advanced by applicant's counsel and admits that, applicant, cannot be chailaned under the similar proceedings once the same are pending before the same Tribunal. The copy of order under section 5 of the Act. passed on the earlier proceedings shows that those proceedings were initiated on the complaint of SHO of police station Napier Road on 22-7-1996 and above order was passed on 7-8-1996 and the proceedings are still pending. During the pendency of earlier proceedings the present proceedings have been initiated on 25-7-1997 by same police station on the same material as such in view of Article 13 of the Constitution of Islamic Republic of Pakistan. 1973 no person shall be prosecuted or punished for the same offence more than once. This Article provides a prelection against dcmble prosecution as well as double unishment. This view is supported by this Court in the case of Ismail A. Rehman us. Muhammad Sadiq, PLD 1990 Kar. 281 at age-300(E) which is reproduced as under : "So far as the language of Article 13 is concerned, the woros "no person shall be prosecuted or punished for the same offence more than once" are employed. Courts may take recourse to the legislative history as well as to the intention of the legislature but hearing always if, mir.d uiat the intention is test expressed in the words used/ The mere pendency of cases would not attract the requirement of Section 1 '. j of the Act more particularly when a vague and genera) allegations are j levelled without detailing time and place of the charges as such the taking; oi'j cognizance of such report held would not be proper. This Court m the case of ! Haji All Muhammad Solangi vs. Tribunal/SDM, PLD 1980 Karachi 267 has dealt with this aspect of the case in detail and quashed the proceedings. Accordingly there seems to be no justification for i;he learned Tribunal to proceed with the proceedings specially when the similar type of proceedings are pending adjudication before him. In these circumstances this application is allowed and NBWs against the applicant are set aside arid the proceedings are quashed alongwith M.A. No. 3554/97. (T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Karachi ) 1187 <DB) Present : HAMID ALI MlRZA AND ZAFAR HADI SHAH, JJ. MANZOOR ALI GHAANGHRO-Appellant versus STATE-Respondent. Cr. Appeal No. 44 of 1996, accepted on 18-12-1997. Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- —S. 7 read with S. 2 and 5 of Explosive Substances Act, 1 --Possession of explosive material-Conviction for-Challenge to--Whether " Pat a k has" (crackers) could ermed to be "explosive substance" within meaning of S. 2 of Explosive Substances Act-Question of-Mere being in possession afPatakhas (Crackers) would not bring case for an action under Section 5 of Explosive Substances Act, 1908 unless it is proved by prosecution that said Patakhas were not in possession of appellant/accused for lawfull object-Besides, prosecution has failed to prodxice any certificate or report from armoury certifying Patakhas to be "explosive substance" within meaning of Section 2 of Explosive Substances Act--An adverse presumption under law was drawn under Article 129(g) of Qanoon-e-Shahadat, in the absence of armoury report because prosecution was clear that had said report been produced it would have gone against prosecution-It would not be out of place to state that S. 5 of Explosive Substances Act prescribes only sentence of imprisonment and not of fine whereas trial court has also passed sentence of fine against appellant-­ Appeal accepted. [Pp. 1190 & 1191] A&B Abdul Waheed Katpar, Advocate for Appellant. S.S. Akhtar-ul-Haq Iqbal Qadri, A.A.G. for State. Date of hearing : 18-12-1997. judgment Hamid Ali Mirza, J.--This is an appeal under Section 7 of Suppression of Terrorist Activities Act, 1975 directed against the judgment of conviction dated 17-3-1996 passed by learned Special Judge (STA) Larkana whereby appellant is convicted for an offence under Section 5 of Explosive Substances Act, 1908 and sentenced to undergo R.I. for seven years and fine of Rs. 5,000/- and in default in payment of fine to undergo further imprisonment for six months. The brief facts of the prosecution case are that on 20-4-1995 one Aziz-ur-Rehman ASI Incharge of P.S. Ratodero lodged report on behalf of the State stating therein that there was general strike call from Rahabar Committee Jia-e-Sindh on which date he alongwith his subordinate staff PC Khaliqdino, PC Muhammad Ayub and PC Fiyaz Hussain were deputed on their duties at Shikarpur Naka in Ratodero Town vide Entry No. 51 dated 20.4.1995 and at about 9-30 a.m. two boys came who asked the shopkeepers to close their shops, else they would cause damage to their shops and would blow-up the same hence the boys were arrested by police in presence of mashirs PC Khaliqdino and PC Muhammad Ayub and on their personal search of their body from the pocket of appellant Manzoor Ali explosive substance of atakha' was secured so also from pocket of Zahid explosive substance of 'Patakha' was secured and such memo of arrest and recovery of Patakhas was prepared by the police when ASI Aziz-ur-Rehamn lodged the FIR on behalf of the State. Police after usual investigation challaned the appellant/accused to stand the trial. The trial Court framed the charged (Ex. 2) to which the appellant/accused pleaded not guilty and prosecution examined complainant ASI Aziz-ur-Rehman (Ex. 4) who produced memo of arrest and recovery (Ex. 4/A), FIR (Ex. 4) so also order of the Secretary to the Government of Sindh, Home Department (Ex. 4/0), ma shir PC Khaliqdino (Ex. 5) and prosecution closed the side as per Ex. 6. The appellant/accused Mansoor Ali was examined under Section 342 Or.P.C. wherein he denied the charged offence and stated that he was innocent and has been falsely implicated in the case. We have heard Mr. Abdul Waheed Katpar, learned counsel for the appellant, and Mr. S. Akhtarul Haq Iqbal Qadri, learned A.A.G.. perused the evidence recorded by the trial Court. Mr. Abdul Waheed Katpar has contended that the only jionit which required consideration would be whether the 'Patakhas' (crackers) could be termed to be "explosive substance" within the meaning of Section 2 of Explosive Substance Act. According to Mr. Katpar 'Patakhas' (crackers) cannot be termed to be "explosive stibstance". Section 2 defines "explosive substance" as under :-- "In this Act the expression "explosive substance" shall be deemed to include any materials for making any deemed to include any materials for making any explosive substance; slso any apparatus, machine, implement, or material used, or intended to be used, or adapted for causing, or aiding in causing an explosion in or with any explosive substance; also any part of any such apparatus, machine or implement. He has also referred to a case Muhammad Afaq Khan Shahid & others us. The State (PLD 1987 Karachi 341) wherein learned Judge in Chambers observed at page 345 :-- "In my humble opinion the definition of "explosive substance" as given in Section 2 of the Act is to be carefully interpreted. If a literal meaning is assigned to this expression, then even ordinary sulphur, acids, nails and tin pieces which are in common daily household use, would also become an offensive object. The crackers and fireworks tilled with live gun powder freely used during marriage ceremonies, and Shab-e-Barat, being explosive substances, would become actionable and provide a basis for prosecution of their users or possessors. But it is not so." It para 19 at page 346 it has further observed :— "In my opinion there has to be a nexus between the explosive object and its use visualised in Section 3 of the Act. The explosive substance mentioned in Section 5 of the Act should be such as to qualify for a use described in Section 3 of the Act. Looked in this context the following opinion of the Expert, becomes very relevant:— "It. is correct that the crackers produced in Court today which I have examined are ordinarily called Patakhas ( <£&>.

and they are normally used as crackers during the Shab-e-Barat and on occasions of marriage ceremonies. It is correct, to say that all the material which has been produced in Court, today, cannot, be used for causing any explosion as it is in the presebt form. In the present condition this cannot cause any explosion and cannot cause any danger to human life or property."" Reference may also be made to Pritamdas Che.Uaram vs. Emperor i.AIR 1933 Sirjdh 171) wherein Division Bench of this Court observed at page 173 Column No. 1:~ "....Following the decision of two other High Courts we decide that phatakas are not explosives within the meaning of the Explosives Act but are toy fire works and as such exempt from Rule 35, Explosive Rules." In the instant case admittedly Patakhas were secured from the possession of appellant/accused but the same could not be termed to be explosive substance as observed in the above cited cases but even if assuming for the sake of arguments Patakha be termed to be explosive substance then also tbe prosecution has failed to prove/show that the said Patakhas were intended to be used or adapted for causing or aiding in causing an explosion in or with explosive substance and that the appellant/accused was apprehended in such circumstances which tend to raise a reasonable suspicion that he had committed such offence. Mere being in possession of Patakhas (crackers) would not bring the case of the appella nt for an action under Section 5 of the Explosive Substance Act, 1908 unless it is proved by the prosecution that the said Patakhas were not in possession of the appellant/accused for lawful object. Besides, the prosecution has failed to produce any certificate or report from the Armoury certifying the said Patakhas to be "explosive substance" within the meaning of section 2 of Explosive Substance Act though prosecution was given sufficient time to produce the report and for that purpose number of dates were given and announcement of judgment was postponed but ultimately as the report was not produced, the judgment of conviction against the appellant was passed even in absence of the required necessary report. Non-production of report from Armoury by prosecution to show that the Patakha was explosive substance, is fatal to the prosecution case and adverse presumption under law would be drawn under Article 129(g) of the Qanoon-e-Shahadat that had the said report been produced it would have gone against the prosecution. In the instant case also because the report has not been produced from the Armoury by the prosecution therefore it would amount that had the same been produced it would have not supported the prosecution case. It will not be out of place to state that Section 5 of Explosive Substance Act prescribes only the sentence of imprisonment and not of fine whereas the trial Court has also passed sentence of fine against the appellant, which would not be legal. Mr. S. Akhtarul Haq Iqbal Qadri, learned A.A.G., has rightly conceded that non-production of the report from the Larkana Armoury would be fatal to the prosecution case to prove that the Patakhas so secured by police was explosive substance. Mr. Katpar has further pointed out that at page-5 of the impugned judgment, the trial Court itself has observed that had the said Patakhas been in possession of the appellant at. the time of marriages of Shab-e-Barat the same would not. have amounted an offence. Mr. S. Akhtarul Haq Iqbal Qadri, learned A.A.G., does not support the conviction and sentence passed against the appellant. Accordingly on assessment of evidence and the case law we find that conviction and sentence passed by trial Court are not legal consequently the same are set aside and appeal is allowed. The appellant is on bail his bail bond is discharged. (T.A.F.) Appeal allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Peshawar ) 1191 Present: SHAH JEHAN KHAN YOUSAFZAI, J. GHULAM IQRAR nlias IQRAR KHAN and another-Appellants versus SAKHI ZAMAN & another-Respondents Criminal Appeal No. 29 of 1997, decided on 27.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)— —-S. 337-Carnal Intercourse-Conviction and sentence-Challenge to-­ Minor discrepancies in statement of complainant are ignorable-Though medical report of ppellant was not exhibited, but same is part of record and nothing adverse to medical report was agitated—Similarly, appellants were not posed with question of their deliberate absconsion while examining them u/S. 342 Cr.P.C, but same omission also does notadversely effect prosecution case-Appellants have nothing to offer any . planation regarding their wilful hiding since registration of case till their arrest-Version of complainant has got support from site plan where Investigating Officer noticed that point where complainant was subjected to inhuman treatment was empty from maize crop and there were marks as well-Ocular account of victim is also corroborated by medical report- Held : Prosecution has successfully brought home guilt, of appellants- Held further : Trial Court has awarded severe punishment because appellants have already suffered long agony of trial for about ten and half years-Impugned order partially amended reducing imprisonment of 7 years to five years R.I-Appeal partially accepted. [P. 1195] A to F Mr. Bast Muhammad Khan, Advocate for Appellants. Mr. Muhammad Khan, Advocate for State. Dates of hearing : 23-2-1998 & 27-2-1998. judgment Raqiaz Khan and Iqrar Khan being charged for committing carnal intercourse with complainant Sakhi Zaman, a student of 6th Class, vide: F.I.R. No. 277 registered on 23.10.1986 in the Police Station Ghoriwala, District Bannu, were tried as Criminal case No. 157/Cr. of 1987/1994 and on finding them guilty, convicted and sentenced them U/S 377 PPC to 7 years R.I. with a fine of Rs. 5000/- each or in default to undergo a further imprisonment of 3 months S.I. The fine money was ordered to be paid to the complainant if recovered. 2. The prosecution case as set Tip in the trial Court in brief is, that Sakhi Zarnan complainant, a student of Class 6th, on 23.10.1986 submitted an application Ex. PA/1 to the Headmaster of the School where he was admitted as student, complaining therein that on yesterday after relieving from School at 3.00 O'Clock, he went to Village Ismail Khel to inform one Shaghar Khan about the marriage ceremony. On way back to home when he reached near Khon graveyard Iqrar and Raqiaz appellants who were already present there, cought hold of him. They dragged him to the nearby field and committed sodomy with him. The said application was endorsed and forwarded to the SHO P.S. Ghoriwala for necessaiy action. The said application was incorporated in FIR referred to above. 3. The complainant was sent for medical examination to the Medical Officer. Civil Hospital Bannu, where he was examined the same day i.e. 23.10.1988 at 2.15 P.M. and the following report marked as Ex. PW-2/1 was drafted :-- "There is no stain on the clothes or on the buttocks but the child has been brought after 24 hours. However, there is slight laceration on both the anterior and posterior borders of the anus, i.e. 6.00 O'clock and 12.00 O'clock position. I my opinion the child lias been raped.' 4. The I.O. prepared the site plan Ex.PC at, the pointation of complainant. The place where the complainant, was subjected to unnatural lust is marked "4" situated in maize crop field. On the said point the I.O. noticed that it was empty from maize and marks were present. The houses of appellants were searched but they were found not present. Both the accused/appellants were proceeded U/S 87 and 204 Cr.P.C. Raqiaz appellant was arrested in 14.1.1987 and sent for medical examination to ascertain whether he was capable of sexual intercourse. The Doctor after examining him submitted his report Ex. P.M. in the following words :-- "Secondary sexual organs well developed, capable of doing the intercourse." Ghulam Iqrar alias Iqrary was arrested on 12.3.1987 and was referred for medical examination. The medical officer after holding the required examination opined as "there is nothing to suggest that the man is impotent." 5. At the commencement of the trial charge was framed agafhst both the appellants to which they did not plead guilty and claimed trial. 6. The prosecution produced 8 witnesses in all to prove the guilt of the accused/appellants, including Sakhi Zaman complainant Ajab Khan Head Master, the search witness, the Medical Officers who had examined the victum and accused and the investigating officer. Both the convict/appellants were examined separately U/S 342 Cr.P.C. In their said statements they claimed innocence and falsely charged in a concocted case. The PWs were blamed to be interested. However, they refused to give statement on Oath or produce any defence. At the conclusion, the trial Court passed the impugned order and judgment. 7. The learned counsel for the petitioner objected to the jurisdiction of S.D.M. who had recorded statements of some of the witnesses on the ground that he was not empowered U/S 30 of the Cr.P.C. and was not competent to take cognizance of a case where punishment provided is transportation for life. Schedule-II appended with Cr.P.C. provides that offence punishable U/S 377 PPC would be triable by the MIC. The record reveals that case was put in Court on 2.6.1987 in the Court of MIC. For want of jurisdiction the case was transferred to the SDM by the Sessions Judge Bannu vide Order dated 14/9/1987 where statements of PWs were recorded on different dates, but nothing was shown at the Bar that the S.D.M. was not empowered to proceed with the case. On the transfer of SDM and arrival of new incumbent the case was again transferred to EAC-V empowered under Section 30 Cr.P.C. by the Sessions Judge Bannu on 19.6.1991. Due to separation of judiciary from executive, the case remained pending in the Court of Judicial Magistrate/MIC when on 17.11.1996 on the objection of Defence counsel the case was sent to the Sessions Judge for entrustment to a Court empowered U/S 30 Cr.P.C. The needful was done and the case was transferred to the Senior Civil Judge empowered under Section 30 Cr.P.C. vide order date 30.11.1996 who recorded the remaining evidence and passed the impugned judgment and order. 8. The learned counsel further contended that there is inordinate and unexplained delay in lodging the report. The application of accusation was presented to the Head Master of the School instead of lodging report in the P.S. which was hardly 6/7 K.Ms, from the spot. The witness has explained in his deposition before the Court that the appellants after committing sodomy with him under the shadow of dagger they threatened him of dire consequences if the occurrence is disclosed to anybody. He has also explained that at the time of occurrence his father and brother were in the City who were called and on the following day he reported the matter. As regards submission of application to the Head Master, it appears that, since the victim was a student of fith Class and belongs to a poor family, he was dragged to the nearby field and subjected to carnal intercourse after the school hours. His father might have taken him to the Head Master for seeking his help whereon the application of complainant the matter was referred to the local Police Station by the Head Master. The Head Master while examined in Court has corroborated the narration of occurrence by the complainant, and his endorsement, on the application Ex. PA/1. 9. The learned counsel further contended that the story given in Ex. PA/1 and his deposition in Court are altogether different and the witness has made improvements in his statement before the Court. The witness being a child witness may have been tutored by persons inimical to the convict/appellants. The story put forward by the complainant in Ex. PA/1 and in Court statement is the same in all material aspects. The contents of the F.I.R. need not contain much details. The quest of accusation, the time and place is the same. No question/suggestion was put to the witness that he was deposing against the appellants at the instigation of others. It was observed in case "The State vs. Amanullah & another" (PLD 1978 Peshawar 102 relevant at Page 104) as follows :-- "It would be idle to contend that he has flasely substituted the innocent person for the real culprit To commit sodomy upon a boy is the type of disgrace of high magnitude and in a case of this nature the complainant would surely charge the real culprit and would never choose to exempt him and level false charge against an innocent person. The two co-accused are co-villagers of the complainant and thus there would be no question of mistaken identity." 10. The learned counsel also referred to certain case law but in criminal cases facts differ from case to case and need not to be discussed. 11. The learned State counsel while refuting the contentions raised by the learned counsel for the appellants, submitted that the convict/ appellants have played a high-handedness and a small boy, a student of 6th class, was subjected to sodomy; that the version of the complainant has got corroboration of medical evidence, and their abscondance for sufficient long time immediately after the occurrence, and the challan against them was submitted under Section 512 Cr.P.C. He maintained that the appellants have rightly been held guilty and convicted by the trial Court. 12. I heard the learned counsel for the parties and perused the record with their valuable assistance. 13. The prosecution has successfully brought home to guilt of the appellants. The minor discrepancies in the statvment of the complainant are ignorable and cannot help the appellants. Though the medical report of Ghulam Iqrar appellant was not exhibited but the same is part of the record and nothing adverse to the medical report, dated 12.3.1987 was agitated before me. Similarly, the appellants were not posed with the question of their deliberate absconsion while examining them IJ/S 342 Cr.P.C. but the B same omission also does not adversely effect the prosecution case. The appellants have nothing to offer any explanation regarding their willful iding since registration of case till their arrest. PW Appil Khan has proved warrant of arrest Ex. PK against Raqiaz appellant and Ex. PK/1 against Iqrar Khan. The witness has also proved proclamations Ex. PK/2 and Ex.PK/3 against both the appellants. 14. The version of complainant has got support from the site plan where the I.O. noticed that the point where complainant was subjected to inhuman treatment was empty from maize crop and there were marks as well. The ocular account of the victim is also corroborated by the medical report Ex. PW-2/1. 15. From the aforesaid elaborated discussion it cannot be held that the trial Court has wrongly or illegally convicted the appellants. However, as regards the quantum of sentence, the trial Court has awarded them severe punishment because the appellants have already suffered the long agony of trial for about ten and a half years. Therefore, awarding them five years mprisonment with a fine of Rs. 5,000/- each would meet the ends of justice. 16. I, therefore, partially amend the impugned order by reducing the imprisonment of 7 years to 5 years R.I. Rest of the order shall remain intact. The appellants are also granted the benefit of Section 382-B of the Cr.P.C. he time spent by them as undertrial prisoners shall be counted against them. With the above modification the appeal is dismissed. (T.A.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1196 Present: ghulam sarwar sheikh, J. GHULAM RASOOL and another-Appellants versus STATE-Respondent Criminal Appeal No. 414 of 1987, accepted on 16.2.1998. Pakistan Penal Code, 1860 (Act XLV of 1860)-- ....S. 409/34 read with S. 5(2) of Prevention of Corruption Act, 1947- Conviction/sentence-Appeal against-Learned trial court did not place both versions and data vailable on record in juxta-position, although, it is paramount duty of court to separate grain from chaff in a careful manner and by scrupulous anlaysis and must ive benefit of doubt, how slight it may be, to accused lest any innocent, is convicted—Conviction of appellants is manifestly based on conjectures and surmises as there is no direct evidence of mis-appropriation and rather of theft-Nothing has been brought on record to suggest that oil had been mis-appropriated by appellants—uspicion, by itself, however, strong it may, is not sufficient to take place of proof and warrant findings of guilt of accused-Prosecution has not only to stand on its own legs, ut also, to succeed on its merits byproving case against accused beyond reasonable doubt and every doubt is to be resolved in favour of accused—Entire evidence is ar short of requisite standard of proof qualitatively as well as quantitively and cannot afford/furnish valid basis of conviction-There is nothing to suggest mis-appropriation of oil on part of appellants—Prosecution case stands impaired beyond repair and prosecution has failed to prove its case beyond any shadow of oubt—Appeals accepted, conviction and sentencesset-aside. [Pp. 1198, 1199] A, B, C & D Mr. Azatn Nazeer Tarar, Kh. Sultan Ahmed and Amanat Ali Bokhari, Advocates for Appellants. Khawaja Shaukat Ali, Advocate for State. Date of hearing : 16.2.1998. judgment This judgment will dispose of instant appeal (Criminal Appeal No. 414/87), as well as Crl. Appeal No. 415/87 and Crl. Appeal No. 421/87, as all of it have arisen out of same FIR/case. 2. Appellants, in all three appeals stand convicted under section 409/34 PPC and sentenced to three years' R.I. each and a fine of Rs. 5,000/- each or in default there-of, to undergo R.I. for one year Sana Ullah, Muhammad Arif, Muhammad Boota and Muhammad Hussain have, also been adjudged guilty of an offence under Section 5(2) of Prevention of Corruption Act, 1947 and each sentenced to one year's R.I. and a fine of Rs. 2000/- each or in default thereof to undergo six months R.I. and their sentence on two counts to run concurrently, vide judgment dated 14.7.1987 passed by learned Special Judge (Central), Lahore. 3. Brief facts, as reflected hy and un-folded in FIR Ex. PB lodged by Wl, Muhammad Amin, Head Watchman, Badami Bagh, Railway Station, Lahore are that on 13.5.1976, he was on duty at Badami Bagh, Railway Station from 8 P.M. to 9 A.M. on 14th May, 1976. Also Noor Din, Muhammad Khan and Muhammad Akram Watchmen were on duty with him on said night. 4. On 13.5.1976, at about 10.30 P.M. Shunting Staff of Railway Station Badami Bagh, shunted oil tankers No. 6430 and 5203 from railway line 7 of Railway Yard adami Bagh to private oil siding of Badami Bagh in front of reservoir of M.M. Brothers, who, were agents of ESSO Oil Company. As disclosed in FIR, aforesaid eadwatchmen, in the company of abovenamed watchmen, went to said siding of Badami Bagh Railway Station, where, oil tankers were thus placed. Muhammad ussain hunting Master, Muhammad Boota and Muhammad Arif shunting Porters were standing near said oil tankers and drawing oil from tanker No. 6430 through a ipe to reservoir of MM Brothers, agents of ESSO at Badami Bagh Railway Station. Allah Ditta Clerk of MM Brothers, alongwith Ghulam Rasool and Bagh Ali accused ere also there. On the inquiiy of the complainant as to why oil was being drawn from said tanker at that time, Allah Ditta replied that as tankers had been laced late, they were drawing old at that time. In accordance with FIR, said persons thereafter started drawing oil from tanker No. 5203. In the meantime anaullah ASM, Irshad Hussain Shunting Master, Muhammad Shafi, Shunting Porter, Muhammad Rafiq Shunting Porter, Ghulam Farid Shunting Master accused tatedly reached there. In accordance with contents of FIR, Ikhlaq Ahmad accused owner of M.M. Brothers also arrived there at about 3 A.M. on 14.5.1976 and on his nquiry, Allah Ditta accused assure him that tankers had been emptied and thereafter at about 3.45 A.M. both the tankers were again, shunted back to the Yard for its espatch to Kala Shah Kaku Railway Station as said tankers were consignment of Oil Company at Kala Shah Kaku. According to the FIR label cards of Kala Shah Kaku ere put to said tankers, after same were brought back to Yard from oil siding. 5. Headwatchman asked ASM on duty to stop their despatch as he suspected removal of diesel oil by afore-said persons from said tankers at the M.M. Brothers Oil siding. Muhammad Jamil Inspector was also apprised of this all before complainant gave a memo, to Station Master, for restraining despatch of said tankers to Kala Shah Kaku, Muhammad Zaman, Station Master and Inspector had a dip of said oil tankers, oil tanker No. 5203 was found to contain 7 feet and 1-5/8 inches of oil whereas tanker No. 6430 was found with 2 feet and 3 inches of oil. 6. Ex. PB was lodged with PW14, who, inspected the spot, prepared ough sketch Ex. PN of place of occurrence, took one gallon of oil as "sample" from pipe of M.M. Brothers, made into a sealed parcel and secured vide emo. Ex.PC. On the same day, summaries of tankers 5203 and 6430 were taken into possession through memo. Ex. PK and Ex. PL. Samples from tanker No. 5203 and 6430 were secured in tin P2 and P3 by means of memo. Ex. PH and Ex. PJ. Report of dip by Muzaffar Hussain PW finds a mention on file as Ex. PM. Invoices Ex.PC and Ex.PC/1 vwra taken into possession by virtue of recovery memo. Ex.PE. 7. On completion of investigation, challan was submitted in Court. Accused pleaded not guilty to the charge of mis-appropriation of 8900 gallons of oil and claimed trial. 8. In all fourteen witnesses were produced by prosecution and almost similar number, of witnesses, to be exact. 13, were examined in defence. 9. All incriminating circumstances figuring against them were denied and disputed by the accused/appellants, who, however, were convicted and sentenced as indicated above, upon culmination of trial. 10. Learned counsel representing the appellants have lambasted the verdict by pointing out various snags and infirmities, which, according to them, escaped the notice of learned trial Court. Also it has been impressed that veiy FIR, which, of-course, set the law into motion is apparently the result of preliminary investigations, deliberations and consultations. Commenting various factors including shunting away of tankers, to side line, removal of oil without opening of valve etc; it has been canvassed that the vidence adduced by the prosecution can in no way be taken to be sufficient cogent and convincing to warrant conviction, which, evidently is based on surmises and conjectures. Also it has pointed out that no role has been ascribed to Sana Ullah. Accordingly, acquittal of appellants has emphatically been prayed. 11. Conversely impugned conviction and sentence have been acclaimed to be correct in all respects, duly warranted by data and material on file and even in consonance with law as well. 12. Seemingly learned trial Court did not place both the versions and data available on record in juxta-position, although, it, is paramount duty of Court, to separate grain from chaff in a careful manner and by scrupulous A( analysis and must give benefit of doubt, how slight it. may be, to accused lest any innocent is convicted. Conviction of appellants is manifestly based on conjectures and surmises as there is no direct evidence of mis-appropriation and rather of theft. As laid down in Shakir Hussain vs. The State (PLD 1956 S.C. (Pak.) 417), Nadir Shah vs. State (1980 S.C.M.R. 402), prosecution must prove, in order to establish criminal breach of trust, not only entrustment of, or dominion over property, but also, dishonest mis-appropriation, conversion, use or disposal of that properly himself by the accused or that he wilfully suffered and allowed some other person to do so. Nothing has been brought on record to suggest that oil had been mis-appropriated by the appellants. Also it is settled proposition that suspicion, by itself, however, strong it may, is not sufficient to take place of proof and warrant findings of guilt of accused. Also it is well established principle of Criminal Jurisprudence that prosecution has not only to stand on its own legs, but also, to succeed on its merits by proving the case against accused beyond reasonable doubt and every doubt is to be resolved in favour of accused. 13. Taking into consideration entire evidence on record, which can be categorised to be "2nd category" in the classification made in Ata Muhammad and another vs. The State. (1995 S.C.M.R. 599); there can be no escape from the conclusion that the same is far short of requisite standard of proof qualitatively as well as quantitively and cannot afford/furnish valid basis of conviction. As a matter of fact there is nothing to suggest mis­ appropriation of oil on the part of appellants. On account of these features, prosecution case stands impaired beyond repair. 14. In wake of above discussion, I am of considered view that prosecution has failed to prove its case beyond any shadow of doubt. As a necessary corollary, and sequence thereto all three appeals are accepted, impugned conviction and sentences are set aside and appellants are acquitted of the charges levelled against them on basis of doubt sprouting from data and material on file. 15. Being on b&if, they are absolved of all their liabilities to the bonds furnished by them. (T.A.F.) Appeal accepted.

PLJ Wm O PLJ Wm O. C. ( Quetta ) 1199 (DB) Present •. IFTIKHAR muhammad chat uiHRY and raja fayyaz ahmed, JJ. Mi 1 HAMMAD IBRAHIM-Appellant versus STATE-Respondent CrI. Jail Appeal Nos. 21 and 347 of 1997, dismissed on 6.4.1998. (i) Confessional Statement-- —-Confessional statement-Offence u/Ss. 302/109/34 PPC-- Conviction/senfeiite-Whether confessional statement, which has been retracted, can be accepted without any independent corroboration-Question of--In criminal administration of justice, it is an ordinary practice that court first of ll take into consideration occular testimony of witnesses, if available and in absence thereof, circumstantial evidence will be taken into consideration to determine; whether accused facing trial is involved in commission of crime or otherwise and if circumstances provide, some link of accused, then confessional statement would be considered and if it has been retracted, then court is duty bound to search for independent supporting corroborative evidence to prove guilt against accused-There is no ocular testimony of any of witness, for reason that dead body of deceased was found lying un-attended in a Nalla-In confessional statement, accused has stated that he gave knife blows on person of deceased and also cut his throat-His this version gets corroboration from injury Nos. 1 and 2 and with regard to giving blows on person of deceased, injury Nos. 3 and 4 could be referred-In crossexamination, no question was put to Doctor, with regard to injuries which were noted by him on person of deceased—In presence of true and voluntary confessional statement, which gets corroboration from medical evidence as well as from own statement of convict, there is no necessity to rely on any other piece of evidence, as it is recognised principle of criminal administration of justice that it is quality and not quantity of evidence, which can establish guilt against accused, facing trial. [Pp. 1202 & 1207] A, C, D & E (ii) Confessional Statement-- —Confessional statement-Delay in recording-Status-If facts and circumstances of case are sufficient to satisfy conscious of court that delay in recording confessional statement was not intentional, but due to reasons, which can be noticed from record, then even if there is delay in recording confessional statement and accused has not established that he recorded statement under duress or coercion, there is no prohibition in accepting retracted confession, provided other tests to accept confession to be volunteer and true statement of fact, are fully satisfied-Delay in recording confession, in peculiar circumstances of case, would not be sufficient to discard same. [Pp. 1204 & 1205] B Mr. Saleem Ansan, Advocate for Appellant. Mr. Abdul Karim, Advocate for Respondent, Mr. Ahmed Khan Lashari, Advocate for Complainant. Date of hearing : 1.4.1998. judgment Iftikhar Muhammad Chaudhary, J.--Appellant Muhammad Ibrahim, has been convicted under Section 302 PPC and sentenced to capital penalty, vide impugned Judgment dated 28th November, 1997, subject to confirmation or otherwise, by this Court. As such, we have proposed to dispose of Murder Reference No. 21/97 and Criminal Appeal No. 347/1997, preferred by Convict against this conviction and sentence, by this Judgment. Precisely the prosecution case is, that on 17th November, 1996, PW- 2 Haji Shah Karim, vide. Fard-e-biyan (Ex. P/2-A) informed the Tehsildar, Nushki, that when in the morning time, he came to Bazar, he was informed that a dead body of an unknown person is lying in Doso Nalla. Nuskhi. After registering the case, the dead body was taken into possession. Thereafter the same was sent for medical examination t.o hospital and as the dead body was not identified, therefore, it was kept in Mortuary. During investigation, it revealed that deceased's name is Dad Karim. As such, on 18th November, 1996, Saleh Muhammad, brother of deceased, resident of Mastung, identified the dead body, which was handed over to him, after observing formalities. During investigation, convict was arrested on 28th November, 1996. Subsequently on 12th December, 1996. he got recorded his confessional statement (Ex. P/5-B) before PW-Nasrullah Khan, the Assistant Commissioner. On completion of investigation, convict was sent-up to face trial before the Sessions Judge. As he did not plead guilty to the charge, framed and read-over to him on 22nd August, 1997. therefore, prosecution examined PWs Dr. Abdul Sattar. Haji Shah Karim. Ali Akbar, Attaullah, Naseebullah, A.C./M.F.C. and Fateh Khan. Thereafter convict was examined under Section 342 and 840(2) Cr.P.C. wherein, he denied the prosecution case and pleaded innocence. However, no defence witness was produced. Ultimately, on the conclusion of trial, the learned Sessions Judge, Nuskhi. found the appellant guilty of the offence under Section 302 (a) PPC and sentenced him to Death, with tine of Rs. 20,000/-. Mr. Saleem Ansari. learned counsel for convict, contended that there is delay in recording the confession, as such, it cannot he used against the convict for recording conviction. He further emphasised that as confession has been retracted and there is no corroborative evidence, therefore, it was not safe and in the interest of justice, t.o rely on it. He further stated that no motive has been put-up by prosecution therefore, accused is entitled for the benefit of doubt. On the point of delay in recording the confession, learned counsel referred t.o PLD .1987 SC 96; With regard to non-disclosing of motive, he referred to 1995 P.Cr.L.J. 1037-. and On the point of extending benefit of doubt, he referred to 1991 P.Ci.L.J 3r,9Sa!td 1998 SCMR 32. On the other hand. Mr Ahmad Khan Lashari. learned counsel for complainant, argued that it was an unseen murder, therefore, initially on 28th November. 1996. accused was arrested from Mastung. under suspicion. He was then brought to Nushki, where the case was registered and after interrogation, it revealed that he is the person, who has committed the murder of Dad Karim, therefore, under these circumstances, delay perse, in recording the confessional statement, would not be fatal to the prosecution case. He referred to PLD 1978 Qta 01, PLJ 1985 (Crl. Cases) Quetta 357 and NLRl997(Crl.)49. Mr. Abdul Karim Yousafzai, learned State Counsel, supported the contentions putforth by complainant's counsel. We have heard the parties' counsel at length and have also thoroughly gone through the evidence available on record. As it has been disclosed herein-above that dead body of Dad Karim was found lying in Doso Nalla, unattended, which means, that at the time of commission of crime, incident was not witnessed by anyone. In as much as, no crime weapon was recovered from the possession of accused. Surprisingly PW-Atta Muhammad, claims himself to have seen the accused, prior to the incident, on the board of a Bus, bounded from Dalbandin to Mastung, but after arrest of convict, no identification parrade was managed through him. Thus in absence of all these incriminating factors, the prosecution case mainly hingers on confessional statement of convict, medical evidence and his own statement under section 340(2) Cr.P.C. which he got recorded to disprove the accusation. It is to be observed that in criminal administration of justice, it is am ordinary practise that the court first of all take into consideration the ocular testimony of witnesses, if available and in absence thereof, the circumstantial evidence will be taken into consideration to determine; whether the accused facing trial is involved in the commission of crime or otherwise and if circumstances provide, some link of accused, then the confessional statement would be considered and if it has been retracted, then the court is duty bound to search for independent supporting corroborative evidence to prove the guilt against accused. In the instant, case, admittedly there is no ocular testimony of any of the witness, for the reason that dead body of Dad Karim was found lying un-attended in Doso Nalla. However, after its medical examination by PW-Dr. Abdul Sattar, it was kept in Mortuary. It may be noted that, when PW-Fateh Muhammad visited the pla.ce, where the dead body was lying, he recovered certain articles, particularly, knife lying near the neck. During investigation it revealed that the deceased belongs to Mastung. Thus from this angle, when investigation commenced, the I.O. succeeded in establishing contact with the brother of deceased who accordingly came and identified the dead body on 18th November. 1996, as such, it was handed over to him. Lateron during investigation at Mastung. appellant was arrested under suspicion, from the house of Muhammad Hassan on 28.11.1996, which he himself admits in his statement under section 340(2) Cr.P.C'. After his arrest, on 5th December, ] 996, he made confessional statement, which now has been retracted by him, therefore, it would be seen whether the confessional statement has rightly be used for awarding the capital sentence to convict, or not? It may be noted that a careful scrutiny of the statement of PW-Naseebullah, who had examined the convict under Section 164 Cr.P.C. indicates that he followed all necessary measures prescribed by law, to ascertain that appellant is making true and voluntary statement. In the text of confession, accused confessed that he is actually resident of Dalbandin. In connection with his business he went to Mastung. The house of his Aunt is in Mastung. He was residing in the house of his Aunt for the last two months, because he had given some money for the purpose of business to Muhammad Hassan, son-in-law of his Aunt. In the house of his Aunt, he developed friendship/relation with the daughter of his Aunt namely Haleema. Haleema had already been engaged with Dad Karim son of Sher Dil, caste Shahwani resident of Mastung, but Haleem had no liking for Dad Karim. He arid Haleem wanted to marry. For this purpose, to accomplice the object, it was necessaiy to remove fiance of Haleema from the way. He consulted with Haleema, and she also agreed to it. The marriage of Haleema and Dad Karim was fixed for 18th November, 1996. On this he went to Dalbandin, so that after having help of one or two'persons, he can commit the murder of Dad Karim, in his house, at Mastung. He chalked out the plan with his brother Ismail, cousin Aslam (son of Aunt) and another person Nefasoo to commit the murder of Dad Karim at his house in Mastung. During this time, he saw Dad Karim at Dalbandin, who had gone there to invite his relatives, to participate in his marriage. He and his companions started super-vision of Dad Karim. In the evening of 14th November, 1996, they saw that Karim had boarded in a Mini Bus. They also boarded in the same bus. During journey, they Had a chit chat with Dad Karim. At a distance from Nushki, Dad Karim wanted to get down from the bus, as he was intending to go to his relatives. He also invited them to accompany him. Therefore, they also got down from the bus. After covering some distance, he and his other companions jointly cought hold and fell down Dad Karim. He gave blows with knife and also cut, his throat and when they were assured that Dad Karim had died, they again came on the road and went back to Dalbandin by boarding on a truck. During cross examined PW-Naseebullah confirmed that on his enquiry, accused told him that he was not subjected to torture. He also stated that it is incorrect that due l,o torture accused gave the statement. The witness denied that accused was not produced before him, for recording confessional statement. Next question to the witness was put that the confession was recorded by his Reader, which he denied. It was also suggested to the witness that he handed over the convict to the same levies personnel, who brought, him. but he denied this question as well. The trend of cross examination on the statement of witness, suggest that the defence had taken different pleas, as it is indicative from the relevant portion of cross examination, noted herein-above. It is important to note that while recording statement under section 342 Cr.P.C. the appellant stated that 'it is not correct, I have not recorded my statement before the Assistant Commissioner, NushkF. Whereas in his statement on oath, he deposed that he did not record confessional statement before the Assistant Commissioner. Further stated that he was produced before the Assistant Commissioner, who obtained his signatures on the paper, again stated, that his thumb impression was affixed, while he has not, given any statement. On the basis of statement of accused on oath, it can safely be inferred that he was produced before the Assistant Commissioner, where he got recorded statement. As for as the plea of extracting confession due to torture is concerned that was not raised at all by him in his statement on oath. It means that he was not subjected to torture at all by the I.O. otherwise, there was no impediment in his way to have taken this plea in his oath statement. Now turning towards the objection of learned counsel for convict that there is delay in recording the confession. In this behalf, it is to be seen that per sc delay in recording the confession itself, would not be sufficient, unless it is not established that accused has been subjected to torture or coercion. In this context, reference can be made to Syed Shanfudnt Pirzada !>.s. Sohhat Khan and 3 others (PLD 1972 SC 363). Even otherwise, no time has been prescribed for recording the statement of accused, either in the Code of Criminal Procedure or the High Court Rules and orders, as it has been held in Shaukat Saeed c.s. The State (PLD 1978 Qta 01) No doubt, in the Judgment (PLD 1987 Qta 96) cited by learned counsel Mr. Saleem Ansari, it was held that confessional statement of accused recorded after five days of his arrest and no reasonable explanation of such delay was offered, same will be doubtful, but in this Judgement no defmate rule of discarding the confessional statement if recorded with delay, has been laid down. With utmost respect, we would like to observe that at, the time of hearing of that case, the judgment in the case of ShankaT Saeed which has been pronounced by three Judges of this Court was not cited nor the principle of law laid down in this behalf by Hon'ble Supreme Court in the case of Syed Sharifuddin Pirzada was relied upon, therefore, we are inclined to hold that if the facts and circumstances of the case are sufficient to satisfy the conscious of the Court that the delay in recording confession statement was not, intentional, but due to reasons, which can be noticed from record, then even if there is delay in recording the confessional statement and the accused has not established that he recorded statement under duress or coercion, there is no prohibition in accepting the retracted confession, provided other tests to accept the confession to be volunteer and true statement of fact, are fully satisfied. Thus it is held that delay in recording the confession, in peculiar circumstances of the case, would not be sufficient to discard the same. Now adverting towards the important aspect; whether the confessional statement, which has been retracted, can be accepted without any independent corroboration? In this behalf, we would, first, of all like to make reference to the case of State vs. Minhum alius Gul Hassan (PLD 1964 SC 813). In this report,, the Full Bench of Hon'ble Supreme Court, comprising of three Judges, laid down that retracted confession, whether judicial or extra judicial, could legally be taken into consideration, against the maker of those confession himself and if the confessions were found to be true • and voluntary then there is no need at all, to look for further corroboration. It was further observed that it is now well settled that as against the maker himself, his confession, judicial or extra judicial, whether retracted or not retracted, can under the law validly form a sole basis of his conviction, if the court is satisfied and believes that it was tme and voluntary and was not obtained by torture or coercion or inducement. The question however as to whether in the facts and circumstances of the given case the court should act upon such a confession alone, is an entirely different question and relates to the main and fundamental value of the confession and not to its admissibility under the law. The Hon'ble Supreme Court in another case of Bahadur Khan vs. The. State (1995 Law Notes SC 567), took into consideration the principle discussed in the Judgment, referred to hereinabove as well as in the case of Naqibullah and another vs. The State (PLD 1978 SC 21), and with reference to acceptance of retracted confession, opined as follows :-- "From the confession it is clear that while admitting the murder of Waris Khan it has been stated that as the deceased was not agreeable to take part of the money and the rest at a later date he started pelting stone upon his head and he sustained injury. As he apprehended that he would further injure him he gave an axe blow on his neck. Therefore, this part, of the story should also be taken into consideration while relying on the confession of the appellant. Admittedly appellant has retracted from his confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. The Court ought to examine whether a confession is made voluntarily free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting is pulpably false, ahsurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessaiy to seek some corroboration for retracted confession. The corroboration .of such confession should be of material particulars, connecting the accused with the offence." Thus in view of the above principle of law, now it is well recognized that to look forward for an independent corroboration on material particulars of retracted judicial or extra judicial confession, is the rule of prudence, for the purpose of safe administration of justice, otherwise if the conscious of the court is satisfied that the accused had made a confession voluntarily and true events have been narrated in the statement, there is no prohibition in accepting the same, even without corroboration, as it has been held in the case of Minhum alias Gul Hassan. Before applying the above test on the case in hand, it would be appropriate, at this juncture, to make reference to the injuries noted by PW-Dr. Abdul Sattar, in the Certificate, which are reproduced hereinbelow :-- Injuries :- 1. An incized wound of about 6" x 2" x 1%" horizontally infront of the neck with tailing to right side, the Trechea is totally cutted and the right Juguler vein and right, sternocheiclamostocid nniscle is cutted. 2. An incized wound about 4" x 2" x 2" horizontally on left, side of back of the neck, the cervical vertebra are visible and one vertebra was partially cutted. 3. An incized wound about 4" x 2" x 2" in horizontal direction from medial to lateral atrenal area on the baca. 4. Two lacerated wounds of about 1" x %" on the base of left thumb. Duration :- About more than 8-10 hours. weapon :- Sharp. Cause of death :-- in my opinion due to severe bleeding and due to dutting of Trachea and neck essels." In the confessional statement, accused has stated that he gave knife blows on the person of deceased and also cut his throat. His this version gets corroboration from Injury No. 1 and 2 and with regard to giving blows on the person of deceased, injury No. 3 and 4 can be referred. It may be noted that in cross examination, no question was put to the Doctor, with regard to the injuries which were noted by him on the person of deceased. Likewise there is another important circumstance, which furnishes strong corroboration to the confession statement i.e. the arrest of accused from Mastung. In this behalf, his confession statement may be referred, wherein the stated that he is resident of Dalbandin, but had gone to Mastung as he had given some money for business to son-in-law of his Aunt whose name was disclosed by him as Hassan. In his statement, on oath, the accused himself admits that on 27th November, 96, he has gone to Mastung to recover the amount and he was sitting in the house to Muhammad Hassan, from where he was arrested. On our careful and independent appreciation of above referred pieces of evidence, we are fully satisfied to hold that accused has made a true and voluntary confession, in which, he has disclosed the motive as well, for the commission of murder, namely; that, after developing relation with Haleema daughter of his Aunt, he wanted to many her, but as she was already engaged with Dad Karini, therefore, he planned to remove him from his way. Once the confessional statement is accepted to be true, then the motive, which has come through the same, is bound to be accepted. There is also another piece of evidence, which has come on record through statement of PW-Attaullah that lastly he has seen the accused in the company of Dad Karim, but we are not inclined to use this piece of evidence, because the Investigating Agency did not arrange identification test parrade of accused through this witness, immediately after his arrest. Although in the court PW-Attaullah has identified the appellant, but in our opinion it would not be safe to use this piece of evidence, because in presence of true and voluntary confessional statement, which gets corroboration from the medical evidence as well as from the own statement of convict, there is „ no necessity to rely on any other piece of evidence, as it is also the recognized principle of criminal administration of justice that it is the quality and not the quantity of evidence, which can establish the guilt against accused, facing trial. Thus for the foregoing reasons, appeal filed by appellant is dismissed. Murder Reference sent by Sessions Judge, Nushki, is accepted. Consequently, the Death sentence awarded to convict Muhammad Ibrahim by Sessions Judge Nushki, vide Judgment dated 28th November, 1997, is confirmed. 'A.S.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1208 (DB) Present : RASHII) AZIZ KHAN AND MUHAMMAD NAWAZ ABRASI, JJ. MUHAMMAD SALEEM-Appellant versus STATE-Respondent Criminal Appeal No. 206 and 473 of 1992, dismissed on 9-4-1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Double Murder-Offence of-Convict.ion for-Appeal againsl-Two eye witnesses being natural witnesses and their presence at, place of occurrence was not unnatural—Being a day time occurrence, act of firing by accused/appellant could clearly he seen by witnesses-Crime empties recovered from place of occurrence found matched with licenced gun of appellant recovered subsequently, provided strong corroboration in proof of guilt of appellant—Testimony of eye witnesses on basis of site plan cannot be challenged as they had no personal interest either in land or with complainant party and also having no grudge or ill-will against appellant, being entirely independent, and disinterested witnesses, have fully supported prosecution case—Medical evidence is also supporting piece of evidence—Report of occurrence was lodged within three hours with P.S. at distance of 18 K.M.. hence any fabrication of evidence is ruled out—No exception can be taken to the finding of trial Court, on question of motive--Appeal dismissed. [Pp. 1212, 1213 & 1214] A to G Sardar Ishaque Khan. Advocate for Appellant. Raja Shafqal Klian. Advocate for Complainant. Mr. Arnold Ghaitri, Advocate for State. Date of hearing : 9-4-1997. judgment Muhammad Nawaz Abhasi, J.--This judgment will dispose of Murder Reference No. 473/1992 referred to this Court under Section 374 Cr.P.C. by the learned Additional Sessions Judge, Chakwal, Criminal Appeal No. 206 of 1992 tiled by Muhammad Saleem appellant against his conviction and sentence and Criminal Revision No. 80 of 1993 preferred by Nawab Khan complainant against the acquittal of Muhammad Afzal and for the enhancement of compensation under Section 544-A Cr.P.C. 2. The learned Additional Sessions Judge, Chakwal vide judgment dated 30.11.1992 convicted Muhammad Saleem appellant under section 302 P.P.C. and sentenced him to death with a tine of Rs. 40.000/- or in default thereof to undergo R.I. for four years. The tine, if realized, was ordered to be paid as compensation to the legal heirs of the two deceased, namely, Baz Khan and Qadir Hussain. He was separately convicted under Section 452 P.P.C. and sentenced to five years R.I. with a fine of Rs. 5.000/- and in default thereof to further undergo R.I. for one year. Muhammad Afzal, coaccused of the appellant, was acquitted hy giving the benefit, of doubt. 3. The necessary facts introduced by Nawab Khan (P.W. 7) through complaint (Exh. PG), on the basis of which, case under Section ,'502/34 P.P.C. was registered aide F.I.R. (Exh. PG/1), are as follows :- That the complainant had a dispute of land with the accused party and a few clays earlier Muhammad Saleem and his brother Muhammad Afzal made an attempt for forcible occupation of the disputed land, but they having faced resistance patched up the matter. On 20.1.1991 at about 9.00 a.m. Qadir Hxissain son of Nawab Khan was present at. the house of Sharaf Khan, his uncle, and Nawab Khan complainant alongwith Muhammad Riaz and Muhammad Amir was sitting in the adjoining Havcli of Muhammad Razzaq. when Muhammad Saleem alia.s M\ihammad Amin and Muhammad Afzal armed with 12 bore guns raising Lalkara that today he would be tought lesson for restraining them from occupying the land, forcibly opening the outer gate of house Sharaf Khan entered in the house and Muhammad Afzal fired at Qadir Hussain, whereupon Baz Khan went on the top roof of the house of Sharaf Khan, who was fired at by Muhammad Saleem alias Mxihammad Amin appellant. Baz Khan and Qadir Hussain succumbed to the injuries at the spot. The motive behind the occurrence as stated was that widow of Karam Khan was living with her daughter, namely. Mst. Satt Bharai wife of the complainant. Karam Khan left no male to inherit his property and the land of share of the two ladies was in cultivating possession of the complainant. The accused in addition to their share also wanted to get possession of the land of the share of widow of Karam Khan and with a view to remove the resistance to that object intentionally committed murder of Qadir Hussain and Baz Khan. 4. (Jhulam Murtaza, Inspector (P.W.ll) after registration of the case reaching at the spot prepared the injury statements and inquest, reports of the two deceased. He took into possession the blood stained earth from two places and made the same into separate sealed parcels. He took into possession two empties (Exh. P. 17 ard P. 18) from the spot through memo Exh. PGG. and despatched the dead bodies of the deceased to tehsil Headquarters Hospital, Tallangang for postmortem examinations. The sealed parcels of blood stained earth and empties were sent to the Chemical Examiner and Forensic Science Laboratory for expert opinion. Muhammad Afzal after his arrest on 26.1.1991 led to the recovery of 12 bore gun (Exh. P 20) from his house and Muhammad Saleem got recovered 12 bore gun (Exh. P19) from the baithak of his house which were taken into possession through separate memos. 5. The postmortem of Qadir Hussain deceased conducted hy Dr. Muhammad Yaqoob Awan, (P.W.I) revealed the following injuries on his persons :-- 1. Seven fire-arm entiy wounds, in area bout 4%" x 3" on the front of middle of chest 4" below the supra sternal fossa, each measuring about 1/2" x 1/2" going backwards and down wards, edges were inverted. 2. Three fire-arm exit wounds on back of right lower chest 2" from mid-line 13" from the top of right shoulder in area bout 2" x 1%" each measuring 1/3" x 1/3". Edges were everted. 3. Fire-arm entry wound 1/2" x 1/2" on the middle and lateral aspect of left arm, edges were inverted. Communicating with this was exit wound of the fire-arm which was 3/4" x 3/4" having everted edges. The stomach was found contained 1/4 ounce digested food. Small and large intestines had fecal matter and Bladder was full of urine. Anti-mortem injury No. 1 was declared dangerous to life and sufficient to cause death in the ordinaiy course of nature. 6. The same Doctor conducted post-mortem examination upon the deadbody of Baz Khan and found the following injuries on his person :— 1. Fire-arm entry wound 1/2" x 1/2" on the outer side of right eye 1% from the outer canthus of right eye, going inwards the skull cavity. Edges were inverted. 2. Fire-arm entry wound 1/2" x 1/2" on the right lateral side of the abdomen, parallel to umblicus, going inwards and backwards, edges were inverted. 3. Fire-arm exit wound 1/4" x 1/4" on the back in mid-line of lumber region. Edges were everted. 4. Fire-arm entiy wound 1/2" x 1/2" on the outer side of right buttock going towards back, edges were inverted. 5. Fire-arm exit would 1/3" x 1/3" on upper portion of right buttock 2" from the midline and 4" from the injury No. 4. Edges were everted. Injury No. 5 was communicating with injury No. 4 via sub cutaneous track. The stomach was found contained 1/4 ounce of digested food, whereas large intestines had fecal matter and bladder was empty. The antimortem injuries No. 1 and 2 were found dangerous to life and sufficient collectively and individually to cause death in the ordinaiy course of nature. 1. The appellant and his co-accused having charged under Section 302/34/452 P.P.C., the prosecution in addition to the eye witness account also sought help from the evidence of motive, medical and recoveries in proof of the charge. The accused having denied the allegations in their statements under Section 342 Cr.P.C. produced Muhammad Shafique Niazi from Record Office, General Hospital, Rawalpindi as D.W.I. However, they did not appear in the witness-box in their defence as envisaged under Section 340(2) Cr.P.C. 8. Nawab Khan (P.W. 7) deposed that Muhammad Saleem alias Muhammad Amin appellant and his co-accused Muhammad Afzal sons of Pehlwan Khan attempted to forcibly occupy the land belonging to Karam Khan and they were forbidden by him and his deceased son, 3/4 days before the occurrence, whereupon the accused picked up a quarrel with them but the matter was settled through the intervention of respectables of the area. He repeating the version of the F.I.R. stated that the appellant and his coaccused armed with 12 bore guns forcibly pushing the door of the house of Sharaf Khan fired at the deceased. One shot each fired by Muhammad Afzal nd Muhammad Saleem appellant hitting Qadir Hussain and Baz Khan respectively caused their death. 9. Haji Muhammad Amir (P.W.8) and Mansab Khan (P.W.9) the other two eye witnesses of the occurrence making similar statement corroborated the toiy of F.I.R. and statement of NaWab Khan (P.W. 7). 10. It is contended by the learned counsel for the appellant that ordinarily the delay of three hours in lodging the report may not have much significance, but the peculiar circumstances of the manifestly suggest that time was consumed in fabricating the story. He argued that improvement in the motive at trial with the addition that the appellant wanted possession of total land of Karam Khan has demolished the very foundation of the case of prosecution. He contended that according to the prosecution the dispute of land was with Nawab Khan, but it was strange that he was not touched and instead his son Qadir Hussain was killed and further killing of Baz Khan, who was not involved in the dispute, was not. understandable. He challenging the presence of the eye witnesses contended that in absence of the inmates of the house, there was no fun of presence of Sharaf Khan, going of Qadir Hussain deceased there and similarly claim of presence of P.Ws. In the Haveli of Razzaq in absence of Razzaq is not appealable. He doubted the taking placing of the occurrence in the manner as stated disputing the place of occurrence giving the reason that the blood stained earth was taken from inside the room, whereas the deadbody of Qadir Hussain was found lying in the kitchen. He strenuously argued that the place, where Baz Khan was injuried being in opposite direction, injury in the manner as stated by the prosecution with blackening could not possibly be received by him. He with reference to minor contradiction and discrepancies in the statements of the P.Ws. argued that the story of the prosecution was not plausible to be accepted. 11. Raja Muhammad Anwar, Senior Advocate, appearing on hehalf of the complainant conversely argued that undisputedly in land belonging to widow of Karam Khan and Mst. Satt Bharai wife of the complainant was in cultivating possession of the complainant and the appellant having serious pprehension of kissing the land permanently had strong motive to commit the crime. He taking forceful exception to the delay of three hours in lodging the report with the explanation that consumption of this time in the circumstances, under which two innocent persons were done to death, was less than normal time required to inform the police. He contended that acquittal of Muhammad Afzal, co-accused of the appellant, giving him the benefit of doubt on the ground that two empties recovered from the spot matched with the gun recovered from the appellant does not effect the case against the appellant and the rule that the conviction on the basis of evidence disbelieved qua one or more accused is not reliable cannot be made applicable in the present case. It is argued that the eye witnesses are independent and disinterested and there being no possibility of false implication, the charge stood fully proved against the appellant. 12. Learned counsel appearing on behalf of the State adopting the arguments advanced by the learned counsel for the complainant supported the conviction and sentence. 13. We with the help of learned counsel for the parties have gone through the evidence and also heard lengthy arguments addressed by them. 14. The motive being an important, question in the background requires serious attention to visualize the circumstances under which the occurrence took place. Karam Khan, father-in-law of the complainant had no son. Mst. Satt Bharai, his daughter, is wife of the complainant. Two other daughters of Karam Khan, namely. Mst. Ghulam Zohra and Mst. Saidan Bibi, died during his life time. Mst. Saidan Bibi was issueless, whereas Mst. Ghulam Zohra was first wife of Nawab Khan, who gave birth to Qadir Hussain deceased. After the death of said Mst. Ghulam Zohra, Nawab Khan married with Msl. Satt Bharai, her real sister and after the death of Karam Khan, his property devolved upon his legal heirs including father of appellant, who was real brother of Karam Khan. The accxised being collateral nfMst. Satt Bharai. wife of the complainant, and male members in the line of decendants of Karam Khan were interested in the land left by Karam Khan. Nawab Khan was in possession of the land of Karam Khan through his wife and mother-in-law. The accused considering themselves entitled to occupy the land were not prepared to tolerate the possession of Nawab Khan over the land of Karam Khan and they being jealously offended for the resistance put by the complainant and his young son projected themselves violently. Qadir Hussain deceased through his mother and maternal grand mother being equally interested in land was target of the accused. In view of the nature of dispute and relation of parties intcr-sc, no other supposition of occurrence is inferable from the evidence and in the circumstances, no exception can be taken to the finding of the trial Court on the question of motive. 15. Nawab Khan and Haji Muhammad Ameer, the eye witnesses claimed their presence in the Haveli of Razzaq adjacent to the house of Sharaf Khan, where the occurrence took place. The learned counsel without questioning their testimony as not, reliable, argued that they were not present at the spot. The two eye witnesses being the natural witnesses, their resence near the place of occurrence was beyond reason and the stress that presence of P.Ws. in absence of inmates of the house of Razzaq was notpossible is not logical as the statement of Nawab Khan that wife and children of Razzaq were present in the Haveli is unchallenged. However, the absence of Sharaf Khan in the house is admitted by both the eye witnesses. The absence of Sharaf Khan and Abdul Razzaq from their houses cannot be a circumstance to exclude the presence of witnesses. The deceased and the P.Ws. being closely related to Sharaf Khan and Abdul Razzaq, their availability in the houses was not unnatural and the presence of two deceased and the P.Ws. in the Haveli of Razzaq and Sharif Khan is not changeable. 16. The detailed scrutiny of the evidence of eye witnesses reveals that except the land of Karam Khan, there being no dispute between the parties, there could be no other reason of taking place of the occurrence. It is noticeable that instead of changing the place of occurrence and the P.Ws. as suggested by the defence, it was easy for the complainant and the P.Ws. to claim their presence with Qadir Hussain in the house of Sharaf Khan and the presence of Baz Khan deceased could have also been shown with Qadir Hussain, deceased. The places of two deceased and the P.Ws. were shown as per their actual position and any change in the same could not be beneficial to the prosecution. The perusal of the site-plan and the statements of the eye-witnesses led us to believe that the place of occurrence could not be more visible to the P.Ws. from the Haveli of Razzaq to feel the necessity of changing their places. The investigation Officer took the blood stained earth from courtyard and roof of house of Sharaf Khan, therefore, the place of occurrence was not disputable. The possibility that, the deceased on noticing the accused took shelter in the house of Sharaf Khan could not be ruled out. but to say that the occurrence did not take place there, is not acceptable. The place where the deceased were done to death and where the appellant took position was opened to P.Ws. and they with no difficulty could see the occurrence and the intervening wall did not effect, their visibility. The eye witnesses even if could not see the occurrence minutely, the appellant being in their direct sigh!,, the act of tiring could clearly he seen by them. It being a day time occurrence in the house of Sharaf Khan in the Abadi near to the houses of the P.Ws. could not be unnoticed The crime empties recovered from the place of occurrence found matched with the licenced gun of appellant recovered subsequently provided strong corroboration in proof of guilt of appellant. The contention that the two deceased having met death at different at a reasonable distance in opposite direction from each other, the witnesses could not, possibly see the two deceased and the appellant at, the same time from the Haveli of Abdul Razzaq, has no force, Baz Khan deceased was fired, when lie was at the roof of Haveli at point No. 2 in the site plan, which place was in the direct sight, of the witnesses. Similarly the receiving of injuries by Qadir Hussain deceased in the courtyard of the house of Sharaf Khan could with no difficulty be observed at the same time. The minor discrepancies and the contradiction regarding the height of the wall, place of occurrence, position of the P. Ws. and the deceased even if has some conflict with the site plan prepared by the Draftsman cannot be given much importance. The site plan is not a substantive piece of evidence to contradict the ocular account or to disbelieve the eye witnesses. The site plan definitely is prepared on the pointation of the eye witnesses but the possibility of mistake in its preparation cannot be ruled out therefore, on the basis of site plan, testimony of the eye witnesses cannot be challenged. This could be argued that Nawab Khan having clash of interest with the accused, deposed against them, but the remaining two eye witnesses having no personal interest, either in the land or with the complainant party and also having no grudge or ill will against the appellant, being entirely independent and disinterested witnessed, have fully supported the prosecution case, consistent with the statement made by Nawab Khan in the F.I.R. and the deposition in the Court. Consequently, we do not see any reason to disbelieve the eye-witnesses and exclude their evidence from consideration. The two empties recovered from the spot by the Investigating Officer on the day of occurrence having sent to the Ballistic Expert before recovery of weapon of offence, were found matched with the licensed gun subsequently recovered from Muhammad Saleem appellant, which was strong confirmatory evidence against the appellant. Medical evidence is another supporting piece of evidence; according to which, five injuries on the person of the deceased are suggestive of the result, of two fires. 18. The report of the occurrence, taken place in the village at 9.00 AM in the morning, was lodged within three hours with Police Station at a distance of 18 kilometers disclosing all the material facts in natural sequence, and nothing being withheld, any possibility of fabrication of evidence is ruled out. 19. In the light of the above discussion, we having no reason to take a different view of the evidence, to that of Trial Court, dismiss this appeal. The facts of the case do not suggest any mitigating circumstance in favour of the appellant for lessor penalty, we, therefore, confirming the death penalty awarded to the appellant, answer the murder reference in the affirmative. Cr. Revision No. 80/93 filed by the complainant against the acquittal of Muhammad Afzal and for enhancement of compensation under Section 544-A Cr.P.O. is also dismissed. iMYFKi Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1215 Present: ghulam MEHMooD QURESHI, J. Mst. KANIZ FATIMA-Petitioner . versus • SHAUKAT HUSSAIN etc.-Respondents Crl. Misc. No. 444-H/97, allowed on 22-10-1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491-Constitution of Pakistan , 1973 Arts. 199. 203-A to 203-J and 277- Muhammadan Law by D.F. Mullah Ss. 352 to 354-Kidnapping of minors by father after eath of mother-Habeas petition against-Question of custody of minors-In matter of custody of minors, welfare of minors is paramount consideration-In absence of other, aternal grand mother has preferential right of immediate custody than father—Custody of minors with father is not proper and it is prima facie, against law whentheir aternal grand mother is alive—Matter of immediate custody ofminors should be settled promptly and for this purpose jurisdiction of H/couit can be invoked through abeas petition-Minors handed over togrand maternal mother (petitioners-Respondent was asked to seek his remedy for custody of his minor children before court of ompetent jurisdiction-Petition allowed. [Pp. 1216, 1218, & 1219] A to E 1988 SCMR 1359. 1997 SCMR 1480 re.f. M/s Ijaz Ahmed Bhatti and Abdul Qadir Hashirni, Advocates for Petitioner. Mr. Muhammad Afzal Malik, Advocate for Respondent No. 1. Kh. Noor Mustafa, Advocate for State. Date of hearing : 22-10-1997. judgment The petitioner. Mst. Kaniz Fatima has filed this habeas petition in order to get back the custody of minors, who are hiiiis and daughters of her deceased daughter. Mst. Gulshan Bibi. expired on 4.10.199H. It is alleged that at the time of death of Mst. Gulshan Bibi. the minors were living in petitioner's house. In this way soon after the death of Msi Gulshan Bibi, mother of the minors, custody of the minors remained with the petitioner. It is also averred that youngest son who was only 30 da.y.s old at the time of death of the deceased, was hronghl up in hei lap. The date of birth of minors are, Parwasha Sluuikat 20.8.]98S. Faria Shaukai. II. 11. 1989 Uinar Shaukat 19.12.1992 and Muhammad Usman 28.8. !99: minors in proper way and he is keeping them in an illegal and unlawful manner. 4. The learned counsel lor petitioner contends that, under Mohammden Law maternal mother, in the absence of mother, is entitled to the custody of minor children npt.o the age of seven years in case of son and upto the age of puberty in case of daughter. In support of his argument, learned counsel has referred to Section 353 of Muhammadan Law by D.F. Mulla. The learned counsel further contended that the father does not figure in the list provided in the said Section thus the custody of minor during his minority is preferably given to female relations of minor. 5. The learned counsel for respondents has submitted that the father beiug.natural guardian of the children is very much entitled to their custody and in absence of mother, father is alone source of help and care for the minors. He has further contended that custody of minors with their father is not illegal, therefore, this Court, cannot interfere in the matter. 6. I have given anxious consideration to the arguments of the learned counsel for parties and have also gone through the relevant law referred to by the learned counsel. It is an admitted fact that in the matter of custody of minors welfare of minors is paramount consideration. So far as welfare of minors is concerned it is a matter of factual inquiry which can be determined only after recording of evidence. This exercise cnnot be undertaken in Constitutional jurisdiction or under Section 491 Cr.P.C. In this petition the only question, which can be looked into is the interim custody of the minors till the matter of their custody is thoroughly considered and determined by the Court of competent jurisdiction keeping in view the relevant law. Section 353 of Muhammadan Law by D.F. Mulla is reproduced here under: "353. Right of female relations is default of mother.-Failing the mother, the custody of a boy \mder the age of seven years and of a girl who has not attained puberty, belongs to the following female relatives in the order given below :-- 1. Mother's mother, how highsoever; 2. Father's mother how highsoever; 3. Full sister; 4. Uterine sister; 5. Consanguine sister; 6. Full sister's daughter; 7. Uterine sister's daughter; 8. Consanguine sister's daughter; 9. Maternal aunt, in like order as sister and 10. Father aunt also in like order as sister." Under Section 352 of Mohammaden Law mother is entitled to the custody of her male child untill he has completed the age of seven years and of her female child untill she has attained puberty. In absence of mother or otherwise if she loses her right of custody on account of certain disqualification mentioned in Section 354 of Mohammaden Law maternal grand mother stepped into her shows as provided in Section 353 of Muhammadan Law. The said provisions are based on Islamic principle of jurisprudence viz. Fiqha Under Articles 277 & 203-A to 203-J of the Constitution, injunctions of Islam are to be followed by the Muslims and it is duty of the Government that all existing laws shall be brought, in conformity with the Injunctions of Islam and no law shall be enacted which is repugnant to such injunction. See the case Major Zafar Iqbal vs. Mst. Rehmat Jan and another (1994 S.C.M.R. 339). Relevant portion of this judgment is reproduced hereunder :— "In the facts and circumstances of the case the father and the mother could not be considered fit for the custody of minor, particularly as the mother has married and is residing in London while the father with second wife and four children is at present, stationed at Somalia. In these circumstances. amongst the contending parties or those who had claimed or could claim the custody of the minor, the maternal grandmother, respondent No. 1 was rightly adjudged to be the best person to have the custody of minor for his welfare. We, therefore, find no force in the petition and dismiss the same." In the cases of Mst. Saddan vs. Muhammad Nawaz and another (1991 C.L.C. 1238 (Lahore), Ch. Nazir, Ahmad vs. Addl. District Judge III, Sahiwal and others (1988 S.C.M.R. 1359) and Ghulam Ullah Memon vs. Mst. Rashid Begum (1983 S.C.M.R. 793) it has been held that grand maternal mother is entitled to the custody of minors in preference to father and even to mother, who has disqualified herself under certain circumstances. Under 'Fatawa-i-Alamgiri Jild IF and 'Ain-ul-Hadaya' Book II also substantiate the right of grand mother in respect of her grand children. In 'Ain-ul-Hadaya' at page 326 an incident of era of first Caliph Hazrat Abu Bakkar (Razi-ullah Tala Anhu) is referred. This incident has been reported by Abu Bakar bin Abi Shaben, Abdul Razzaq, Malik and Beheeqi. It is stated that Hazrat Umar (Razi ullah Tala Anhu) had married a lady of Ansars. A son Asim bin Umar born out of this wedlock. Later on Hazrat Umar divorced her. Once Hazrat Umar found his son Asim playing infront of 'Masjid Quba' he took him in his lap and tried to take him, but mother-in-law of Hazrat Umar caught hold of the minor, Asim. This dispute was brought before the first caliph who decided the matter in favour of mother or mother-in-law. In the said book the specific words of Abu Bakar (Razi Ullah Tala Anhu) are that :-- 'O' Umar this boy would like much the spitting water ( cu_^a£ ) of her mother than the delicious honey given by you." As stated above so far the question of custody of minor is concerned it is a question of fact. The above discussion with regard to right of grand maternal mother is only for the purpose to determine whether under the Muhammadan Law grand maternal mother is entitled to the custody of her grand minor children or not. The only question before this Court is with regard to immediate/interim custody. From the above discussion it has become clear that in absence of mother, maternal grand mother, has preferential right of immediate/interim custody than the father. The authorities referred to above relate to cases where the matter was determined after recording of evidence and determination of facts and circumstances of each case. In the instant case the detailed facts can only be determined by the court of competent jurisdiction. Any how from the abov discussion it is proved that it is proper and also in fitness of circumstances that till final determination of the question of custody, the minors should remain with their maternal grand mother. The custody of minors with father in. the said circumstances is not proper and it is priina facie against the law. 7. The arguments advanced by the learned counsel for respondent that in a petition under Section 491 of Cr.P.C.. this Court should not interefere in such like matters as the same falls within exclusive jurisdiction of Guardian Judge, is devoid of any force and I do not agree with this contention. The matter of immediate custody of minors should be settled promptly in accordance with the law after tentative appreciation of the facts of the case. Reliance in this respect can be placed on 1988 S.C.M.R. 1891, 1994 S.C.M.R. 339, PLD 1995 SC 633, 1996 S.C.M.R. 268, PLD 1995 Lahore 151 (DB) and 1997 S.C.M.R. 1480. Ay I have held earlier the custody with father for the time being is improper and illegal, therefore, to remove such an illegality and impropriety it is just and fair that immediate/interim custody of minors should be given to the maternal grand mother. The father can seek the custody of minors in a proper way through the court of competent jurisdiction. 8. The petitioner has averred in her petition that the respondent had got the custody of minor forcibly while they were putting up with the petitioner. A photocopy of an application submitted before S.S.P., Multan by the respondent has been produced on record by the learned counsel for petitioner in support of this contention of petitioner. A factual inquiry is needed to determine such forcible removal of the minors. However, prima facie, it is evident that the minors had been living with their grand maternal mother after death of their mother as it is admitted fact that the respondent/father lived as 'Ghar-Dimad' during the life time of his wife. Even otherwise when it is held tentatively that the custody of minors with their father is improper and illegal in the given circumstances of the present case it should have been with the maternal grand mother, then their custody should have been delivered to her on her asking for. 9. The result of above discussion is that this petition is allowed and the minors shall be handed over to their maternal grand mother, the petitioner. 1'he respondent may seek his remedy for custody of his minor children before the Court of competent jurisdiction if so advised. The respondent can meet his minor children once in a week on Sunday in the house of Mr. Abdul Qadir Hashmi, Advocate, for two hours. (MYFK) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr. C. Karachi 1220 (DB) Present: nazim hussain siddiqui & ABDUL HAMEED dogar, J-J. MUHAMMAD ASHFAQUE (a CHIEF and 18 others-Appellants versus STATE-Respondent Criminal Appeal No. 109 of 1994, accepted on 20.2.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 324-Implication of accused on basis of medical evidence-Whether justified—Question of—Medical evidence may confirm ocular evidence with regard to seat of injury, nature of injury, weapon used etc, but this evidence by itself would not connect accused with commission of crime- Held : Injuries by themselves are not sufficient to identify culprits. [P. 1234]L (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 367, 324 & 149-Enforcement of Hudood Ordinance (VII of 1979), S. 17(3)-Conviction and sentence-Challenge to-Evidence of eye witnesses does not inspire confidence-They all had tried to improve proseculion's version—Evidence of complainant is full of contradictions, omissions and improvements—Witness who has gone to extent of even dis-owning F.I.R. in material respects in order to justify his newly introduced facts, cannot be relied upon—It is veiy hard to believe that army officers could he dis­ armed by street boys-Complainant admitted his signature on FIR. yet he asserted that it, was not as he wished it-On basis of FIR investigation starts—Besides setting in motion process of investigation another oliject of FIR is to ensure, as far as possible, that interest of accused is protected against subsequent possible variation, addition and improvements-He cannot be taken by surprise at time of trial—Once first informant admits his signatures on F.I.R. strong presumption arises that it was correctly recorded-Complaiiiant, in his deposition recorded by trial court has introduced entirely different case implicating appellants, in order to bring it in conformity with supplementary challan-His grievance whs that F.I.R. was not recorded properly—Two options were available to him— Either he should have complained immediately against S.H.O to higher authorities in writing in that regard or should have filed direct complaint mentioning therein all facts, which according to him were not recorded in F.I.R.-Complainant in his deposition stated that while he was in i-nstody of abductors he heard somebody saying" Altaf Bhai had directed to kill them, throw their belongings in sea and dispose of their bodies" Neither complainant knew said person, who uttered above quoted words, nor any evidence was brought on record to identify said person, nor these words were addressed to complainant—In fact, he introduced these words as improvement to implicate appellants who were not charge-sheeted initially-Another totally unbelievable part of prosecution version is that S.H.O. after getting victims released did not arrest any of persons happened to be present there, nor registered any case, nor recorded statements of any other persons who were being tortured, nor informed police high ups that how he had reached there—Acts of malfeasance and misfeasance in those days were to extent as projected in these proceedings-Held : Prosecution has failed on its own evidence Held further : As matter of right appellants are entitled to acquittal-Appeal accepted. [Pp. 1230, 1232, 1233, 1234 & 1235] E, G, H, I, J, K, M & N (iii) Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- —.S.7—Trial in absence of accused—Conviction and sentence-Kigbt of appeal-Maintainability-Appeal is fundamental right and is continuation of proceedings, when person can be tried in absentia--In fact, in Act two rights have been provided to accused-First, he can appeal- before Special Court and explain his absence, and if satisfactory explanation is offered, court would set, aside conviction and would proceed afresh-Second right is under Section 7 of Act-He can prefer appeal before High Court -It is pertinent to point out that in Section 7 of Act, words used are "shall have right of appeal"-It means that accused can, after conviction, prefer appeal to High Court, despite fact, that he remained absent before trial Only difference would be that if he appeared before trial Court, he would have right for fresh trial and could take all pleas in defence available to him, while in case of appeal only material available on record would be examined-Nothing is provided in Section 7 of Act that before preferring appeal, appellant was required to surrender before Appellate Court- Held : Appellants also have legal right to file appeal. [P. 12301 C & D 1992 Cr. I.L.J. 101, 1972 SCMR 194, 1985 SCMR 662, NLR 1991 S< M. (iv) Suppression of Terrorist Activities {Special Courts) Act, 1975 (XV of 1975)- —S. 7(l)--Trial of accused in his absence—Whether permissible—Question of-Bare perusal of Section-7(l) of Act reals that, legislature has taken care even to safeguard interest of absconding accused and possible steps have been taken' in that regard-This is evident, from fact that advocate is to be appointed at Government expenses for accused, who is not present before court-Not only this, in sub-section (6) it has been provided I bat in case of trial in absence of accused, it, shall be presumed that he bus not admitted all allegations made against him-This in fact means that accused has denied all allegations despite fact that his statement under Section 342 Cr.P.C, has not yet been recorded—In General Law under Section 512 Cr.P.C., deposition of witnesses is recorded in absence of accused, and such deposition could be given in evidence at time of trial after he was arrested—Thus, it would be seen, in general law, case is to be tried m presence of accused and in his absence except recording eposition of witnesses as provided under Section 512 Cr.P.C. nothing else could be done-Case was tried under special law and it permits rial in absence of accused. [Pp. 1229 & 1230] A & B 1992 SCMR 1445, 1994 SCMR 1928, 1995 SCMR 127, 1995 SCMR 635, 1985 SCMR 1573. M/s I. A. Hashmi, A.Q. Halepoto, Arshad Lodhi, Aftab Sheikh, Shoaib Bukhari, Advocates for Appellants. Mr. Shaukat Hussain Zu.br.di, Advocate General of Sindh for State. Date of hearing : 6.2.1998. judgment Nazim Hussain Siddiqui, J.--This appeal is directed against the Judgment dated 9-6-1994 of Mr. Rafiq Ahmed Awan, the then learned Judge Special Court III, (STA).Karachi, whereby the appellants were convicted and sentenced as follows : 2. Appellants Muhammad Ashfaq (« Chief, Javed Kazmi and Haji Jalal were convicted under Section 367/149 PPC and sentenced to suffer R.I. for 10 years and to pay fine of Us. 5000/- each or in default thereof to suffer R.I. for further period of one year, convicted under Section 17(3) of Enforcement of Hudood Ordinance and sentenced to suffer R.I. for ten years and to pay fine of Rs. 5000/~ or in default thereof to suffer R.I. for further period of one year, convicted under Section 324 Qisas & Diyat Ordinance read with Section 149 PPC and sentenced to suffer R.I. for seven years and to pay fine of Rs. 5000/- or in default, thereof to undergo R.I. for one year and also convicted under Section 148 PPC and sentenced to suffer R.I. for three years and to pay fine of rr. 5000/- each or in default thereof to suffer R.I. for six months. All the sentences were to run consecutively. The benefit of Section 382-B Cr.P.C. was extended to them. 3. The absconding accused Altaf Hussain, Saleem-ul-Haq (" Saleem Shahzad, Dr. Imvan Farooq, Dr. Safdar Baqri, Asghar Chacha, Sajid Azad, Arshad Naeem. Ashraf Zaidi, Ismail Qureshi (« Sitara, Aftab Ahmed Sabziwala, Ayub Shah Medical Storewala, Yousaf Bakerywala, Nadeem Ayubi, Sarfraz, and Akram were convicted under Section 367/149 PPC and sentenced to suffer R.I. for ten years and to pay fine of Rs. 10,000/- each or in default thereof to suffer R.I. for further period of one year, convicted under Section 324/149 PPC and sentenced to undergo R.I. for seven yearsand to pay fine of Rs. 10.000/- each or in default thereof to suffer R.I. for farther period of one year, and also convicted under Section 17(3) EHO and sentenced to undergo R.I. for years and to pay fine of Rs. 10,000/- each or in default thereof to suffer n,.l. for further period of one year. All the sentences were to run consecutively. 4. The prosecution case, in brief, is that complainant Maj. Kaleemuddin on 20-6-1991 at about 9.20 p.m. in compliance of the order of Commander Muhammad Saleem Khan arid Col. Kazim Hussain Shall had gone Landhi in Jeep No. GS-8734, on facts finding mission, alongwith his sub-ordinate staff consisting of Hav. Moinuddin, L/NK Muhammad Yaseen, and Sep. Nisar Ahmed. On the way they picked up one Abdul Rashid to guide them. When they were in the area of Police Station Landhi 15/20 boys, duly armed with deadly weapons, surrounded their Jeep and despite the fact that the complainant had disclosed his identity, they forced him and his staff to come down from the Jeep. Thereafter, those boys started beating the complainant and his companions, and abducted them to a building, which was popularly known as 'White House'. They were dis-armed and all their weapons, documents, and cash were snatched. They were taken to a room in said building where they were again beaten by sticks and butts of rifles and were also tortured by various methods including electric shocks. The complainant party noted that, besides them many others were being tortured by applying mechanical devices. According to the FIR, the police had reached there and got the complainant and his companion released from the captors. The complainant asserted that the could identify the culprits if produced before him. 5. The investigation of this case was conducted by SHO Muhammad Ahmed Beg. On the night of incident at the order of S.P. he had gone to the Sector Office of MQM in Landhi, and met Javed Kazmi, Safdar Baqri, and Shahzad Mirza. He was made to sit in a room and Maj. Kaleem, Hav. Moin, L/NK Yaseen, Sepoy Nisar Ahmed and Abdul Rashid were brought there, who had marks of violence or their persons. 3 SMGs, three magazines, and one brief case were handed over to him. When he reached back the police station Col. Kazim also came there and took the injured to combined Military Hospital, Malir. The custody of above named Rashid was handed over to Inspector of Rangers. ASI Mannan on 24-6-1991 registered the FIR. On 1-9-1991, the SHO was directed to submit charge-sheet. Accordingly, he submitted charge sheet before ACM III Karachi, East, for its onward transmission to Sessions Judge, nominating therein four persons namely, Saleem Bhai, Jalal Bhai, Arshad Saleem Bhai, and Kazim Bhai as accused and showing them as absconders. It is significant to note that supplementary charge-sheet was submitted on 5-2-1993'in which Altaf Hussain, Saleem-ul- Haq («' Saleem Shahzad, Dr. Imran Farooq, Rehan Zaidi, Dr. Safdar Baqri, Javed Kazmi, Khalid Murtaza. Hqji Jalal Khan, Hassamuddin Jalali, Asgher Chacha, Sajid Azad Nai, Arshad Naeem, Ashraf Zaidi, Ismail Qureshi (« ; Sitara, Aftab Ahmed Sabziwala, Ayub Shah Farooq Medical Storewala, Yousuf Bakerywala, Nadeem Ayubi, Sarfraz, Ikram and Muhammad Ashfaque (<i Ashfaque Chief were also nominated as accused of this case and were shown absconders. 6. 1.0. in cross examination, admitted that from the date of FIR till 4.9.1991 investigation of this case remained with him. He frankly admitted that names of Altaf Hussain, Saleem Shahzad, Safdar Baqri, Imran Farooq, Rehan Zaidi, Akram, Sajid Azad, Ashraf Zaidi, Arshad Naeem, Khalid Murtaza, Asgher Chacha, Sarfraz, Nadeem Ayubi, Yousuf Bakeriwala, Ayub Shah, Aftab Ahmed, and Ismail Qureshi did not. at all transpire in the investigation conducted by him. He also admitted that for above reason he did not include their names as accused in the interim challan submitted by him. He even stated that it was not an interim challan, but was final which he had submitted. He also admitted that the statements under Section 161 Cr.P.C. of Maj. Kaleemuddin, Hav. Moinuddin, L/NK Muhammad Yasin, Sep. Nisar Ahmed and Abdul Rashid were recorded by him, and that the above named witnesses, in their said statement, neither named the absconding accused, nor attributed any role to them. 7. At trial, the prosecution examined Hav. Moinuddin. L/NK Muhammad Yaseen, Maj. Kaleemuddin, Abdul Rashid Khan, ASI, Abdul Mannan and S.I. Muhammad Ahmed .Beg, Capt. Saadat Ali Janjua, and Brig. Muhammad Saleem Khan were examined as court witnesses. Mr. Zafar Iqbal Cheema, who submitted supplementary charge sheet on 5-2-1993, was not examined. 8. Following injuries were found on the persons of Maj. Kaleemuddin, Hav. Moinuddin and L/NK Muhammad Yaseen :-- Maj Kaleemuddin 1. Blunt injury Nose. The nose was swollen and deformed. 2. Bruises on whole body. 3. Electric burn marks on shoulder. Hav. Moinuddin 1. Lacerated wound 2 c.m. long over right side of chin. 2. Lacerated wounds over both sides of both the ankles which were bleedings. 3. Bruises all over the body (blush marks). L/NK. Muhammad Yasin 1. Swelling over right mandible (blunt injury). 2. Hemotoma on right side of scalp (blunt injury). 3. Bniise over the back. 9. Charge under Sections 120-B, 109, 324, 148, 367, 397 PPC and under Section 17(3) EHO was framed against the appellants. 10. At the time of trial Muhammad Ashfaq Chief, Haji Jalal Khan, and Javed Kazmi were in custody and the rest were shown as absconders. 11. Appellants Muhammad Ashfaq Chief, Javed Kazmi, and Haji Jalal Khan, in their respective statements recorded under Section 342 Cr.P.C. have denied the prosecution's allegations and claimed to be innocent. They examined themselves on oath and also examined Imran Ahmed Khan, Ghulam Hussain, Muhammad Taqi, Ahmed Din, Rizwan Ahmed, Asif Jameel, Muhammad Saleem, Feroza Begum, Safdar Rehman, Iftikhar Alam, Muhammad Arshad, Zia Muhammad Mir Masood Ali Khan, Muhammad Farooq, Basiruzzaman, as their defence witnesses. 12. The case of the prosecution rests upon the occular testimony of Maj. Kaleemuddin. Moeen Ahmed, Muhammad Yasin, and Abdul Rashid. In order to appreciate the contentions raised on behalf of the appellants, it. would be appropriate to give a short resume of the prosecution evidence. 13. Maj. Kaleemuddin deposed that it was his duty to provide informations to high ups regarding antistate activities and also about law and order situation prevailing at that time. On 18-6-1991 Hav. Moeenuddin Incharge of Korangi Area, submitted a written report to him that Afaq and Amir Khan, the dissident of MQM. had arrived at Karachi, and held a press conference in the house of one Younus, who had been a Councillor/MPA. It was alleged in said report that after press conference the supporters of Afaq and Amir had captured a few boys of Altaf Group, abducted them, and detained them. Law and order situation had developed and rangers were deployed at, various places in Landhi area. 14. On 20-6-1991, at about 10.00 a.m. he (Major Kaleemuddin) alongwith three military personnel had gone to Landhi area. When he reached there, he noticed that so many women, children, and boys were screening and were complaining about non-availability of water and electricity. Hav. Moinuddin, L/NK. Yousuf, and Sep. Nisar Ahmed werewith him. When they reached near turning of Landhi area, they found 10 boys, duly armed with automatic weapons there, who asked them to get down from the Jeep, although they were informed that he (complainant) was an army officer. The complainant party arrested two boys, who later on succeeded in running away. The complainant party proceeded further and saw another group of 15/20 boys and they were being led by appellant: Ashfaq Chief. The complainant party was over-powered and they were taken to the building mentioned earlier. Complainant Major aleemuddin also deposed that he had seen there Safdar Baqri, Saleem Shahzad, and Dr. Imran Farooq. He informed Saleem Shahzad about the conduct of those boys and instead of extending apology the latter gave a full punch to him (complainant). He noticed that, about 15/20 boys were there, and were being tortured. He had also seen there Hciji Jalal. According to him, he was tortured continuously for about, two hours. He was blind folded, clothes were torn and a generator was brought there. His under wear was removed and he was given electric shocks on hips. He heard somebody saying "Altaf Bhai had directed to kill them, to throw their belonging in the sea and dispose of their dead bodies". He also stated that Saleem Shahzad and conversation on telephone and he ordered Safdar Baqri to kill the complainant party. At this point of time, he requested them to allow them to have ablution. He also deposed that within 5 minutes Saleem Shahzad changed his decision and asked his companions not to kill the complainant party. SHO Landhi Ahmed Beg rescued there and reached the complainant party. Arms and ammunition snatched from the complainant party were returned back. He was medically examined at CMH and after his medical examination on 21-6-1991 he again came back at P.S. and Col. Kazim was already there. Both he and Col. Kazim whole day kept on tiying to get the FIR registered, but with no result. Again on 22-6-1991 they attempted to get the FIR registered, but without success. Likewise, on 23-6-1991 the case was not registered. He claimed that on 23-6-1991 in the evening his report was written on a white paper and it was a katcha report. On 24-6-1991 at 1230 ~ rioon the FIR was registered. He admitted his signatures on the FIR. 15. In cross-examination, he admitted that whatever he stated, in examination-in-chief, the same was not mentioned in the FIR. He has admitted that in the FIR the names of Altaf Hussain, Saleem Shahzad, ImnUi Farooq, Safdar Baqri and Ashfaq Chief are not mentioned. He also admitted that personally, he had not made any complaint to high officers including SP, DIG, I.G. and Home Secretary about detailed statement of the incident, which he allegedly dictated to one ASI. He admitted that it was in his knowledge that on 19-6-1992 operation clean up was started by Pakistan Army in Sindh, and he had not made any complaint to the authorities involved in said operation to redress his grievance for not recording his FIR, in the way he liked and for not holding proper investigation, nor requested for its re-investigation. He showed his ignorance, if supplementary charge-sheet in this case was submitted on 5-2-1993. He stated between the period 19-6-1992 to 5-2-1993 his further statement or any other statement, in connection with the incident, was not recorded by any police official. He denied the suggestion that he was directed by high officials to make such statement for providing justification to the operation clean up started on 19-6-1992. He admitted that it was not mentioned in the FIR that electricity and water supply in the Landhi area, known as Mohajir Khel, were dis­ connected. He admitted that he had not mentioned that he had seen Javed Kazmi in the light of vehicle, when it was surrounded by 15/20 boys. He also °d; admitted that had not, mentioned in the FIR that in said building he had seen Dr. Imran Farooq, Saleem Shahzad, and Safdar Baqri. He also admitted that he had not mentioned in the FIR. that when he asked Saleem Shahzad that what was going on, instead of replying in a polite way, he got up and gave a fist blow to him. He also admitted that it was not mentioned in the FIR that Dr. Imran Farooq, Safdar Baqri, Haji Jalal, Ashfaq Chief and Javed Kazmi tied the complainant party with the poles. He also admitted that it was not mentioned in the FIR that with a generator lie and his companions were given electric shocks. He also admitted that he had not mentioned in the FIR that he heard somebody talking on telephone that Altaf Bhai had given direction to kill all the members of the complainant party. 16. P.W. Hav. Moinuddin, in examination-in-chief, deposed on the lines, the evidence of Major Kaleemuddin was recorded. In cross examination, he deposed that he had not seen those boys before the incident, although he remained posted in the Landhi area for 1% years. He claimed that he could identify, if they were produced before him. He admitted, he had not seen the boys, who snatched his arm and ammunition. He stated that due to dark in the area, P.W. Rashid was taken to lead the complainant party to Mohajir Khel. He stated that he could not give the names of the workers who tied his hands and chained him with the poles. According to him, there were 17 boys as workers. 17. P.W. L/NK Muhammad Yaseen admitted, in cross examination, that three accused who faced trial were not present, when Jeep of the complainant party was stopped and surrounded. He also stated that he could not say as to who had snatched the weapon from him. He deposed that he cold not identify the persons who have beating to Maj. Kaleem. He also stated that arms and ammunitions belongings to complainant party were snatched when the Jeep was surrounded, and the documents and other articles were snatched in the hall of said building. He deposed that the person who gave them beating were not present in the Court, when the case proceeded. According to him, after the incident till 20-5-1993 he remained in Lahore. He stated that he did not know any one among those 16/17 persons, who were in the hall. 18. P.W. Abdul Rashid Khan, in examination-in-chief, stated that he is a brother of Younus Khan, who was Ex. MPA. He also stated that his brother had differences with MQM Altaf Group. In cross-examination, he admitted that on the night of incident, he reached P.S. Landhi, after the incident at about 3.00 a.m. or 4.0 a.m. and remained there upto 6.30 a.m. According to him, he was taken by the Rangers from the Police Station to an unknown place. Further, he stated that he remained with the Rangers for one month. Also he deposed that after he was released by the rangers, he remained at Quetta, Islamabad, Lahore and other-places. He stated that his statement was recorded in this case in the year 1993. He admitted that he and his brother Muhammad Younus had affiliation with MQM Haqiqi. He also admitted that he had not stated before the police that electric supply of the area had been dis-connected. He also admitted that he had not stated in his police statement that Ashfaq Chief, Haji Jalal, Ismail Tara, Ashfaq Zaidi, Nadeem Yousufi, Javed Kazmi, Imran Farooq, Rehan, and 60/70 other persons were also present in the hall. He mentioned that e had not stated before the police that the names of above persons were known to him. He also mentioned that he had not, stated before the police that Ashfaq Chief, aved Kazmi and Hqji Jalal. repeatedly came and gave him beatings. He also deposed that he had not stated before the police that Saleem Shahzad had abused Maj. Kaleem and repeatedly made inquires about Afaq, Amir and ounns Khan. He also irfenfioned that he had not, stated before the police that Haji Jalal, Ashfaq, Javed Kazmi, Safdar Baqri, Saleem Shahzad had given him shocks with a generator. 19. Maj. Saadat All found injuries on the person of P.Ws as mentioned earlier. 20. P.W. Muhammad Saleem Khan, who was Commander Mehran Rangers, in June 1991, deposed that at that time he was working as Dy. Force Commander. He deposed about, the conditions prevailing in Karachi, particularly in Landhi area. According to him, on 18-6-1991 Afaq and Amir held a press conference in the area of Landhi Mohajir Khel and leveled serious allegations against Altaf Hussain Chairman of MQM. He deposed that after said conference, it was reported that MQM Haqiqi had kidnapped 10 workers of MQM and that, it was a case of infighting within an organizations. According to him. on 18/19 June, 1993 intermitted firing kept on going in Landhi 3 and Mohajir Khel area. He further deposed that he was informed that it was necessary for deploying troops in Landhi 3. and Mohajir Khel area, in order to stop said in-fighting. On 20th June 1991 at 9.00 p.m. He asked Maj. Kaleem to go into the troubled area, and assess the situation himself and report to him. On the night of incident, he was informed that the complainant and his team had been kidnapped by the MQM. 21. In cross-examination, he deposed that the Investigating Officer knew his name prior to the lodging of the FIR. He deposed that the complainant reported to him the whole incident orally and did not give him any compliant in writing. He maintained that he investigated the matter, but did not meet, the SHO Landhi for getting the FIR registered. He stated that SSP Salman Syed was Ex-Army OffiVfer of Punjab Regiment. He stated that he did not give any report in writing to SSP, giving the names of any of the culprits with reference to the above incident. He admitted that Col. Kazim and Maj. Kaleem did not report, this matter to him in writing regarding not lodging the FIR. He deposed that he had seen the FIR. which was supplied to the complainant on 24-6-1991. He staged that the complainant had not signed the FIR under any coercion or threat He deposed that the complainant, did not give him details in writing to the effect that he was brought from the torture cell by SHO Landi. He deposed that he did not. take-up the matter with Civilian authorities that the FIR was sketchy and did not. include all the facts. He also deposed that he did not take any action for one year until clean-up operation was started on 19-6-1992. He stated that authority of Pak. Army was stifled due to political expediency of the then Provincial Government. He also stated that inspite of above facts, the matter was discussed with the then Chief Minister late Jam Sadiq Ali, but he latter did not consider it appropriate to take any action. He also stated that he was not aware that whether any action was recommended against the 1.0. in this matter. He stated that he had not, visited the place of occurrence upto 15-3-1994, when his statement, was recorded. He stated that a sketchy FIR was recorded, as its registration was being resisted by the MQM leaders. 22. Before dealing with the submissions of learned counsel for the appellants, we consider it necessary to point out that this appeal was admitted on 13-2-1995 by a Division Bench of which one us (Nazim Hussain Siddiqui, J.) was a member. Mr. Abdul Ghafoor Mangi. the then learned Advocate General had challenged the maintainability of appeal on the ground that, appellants Nos. 4 to 19 being absconders and fugitive from law, the appeal filed on their behalf was not maintainable in view of Section 5- A(7) of the Suppression of Terrorist Activities (Special Courts) Act 1975, hereinafter called the Act. The appeal, however, filed by the appellants was admitted for regular hearing with an observation that the question of maintainability of the appeal of absconders would be decided at the time of regular hearing. 23. Sub-section 4 of Section 5-A of the Act provides that accused may be tried in his absence if the Special Court, after an inquiry', is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice. Proviso of this Sub-section provides that the accused shall not be tried unless a proclamation in accordance with the provisions of Section 87, of the Cr.P.C. has beep published in respect of him and until the proclamation has been published in at least 3 national daily newspapers out of which two shall be in Urdu Second proviso of this sub-section provides that Special Court shall proceed with the trial after taking necessary steps to appoint an advocate to defend the accused person, who is not before the Court. Sub-section 6 of Section 5-A provides that on accused, who is tried in his absence under sub-section 4, shall be deemed not to have committed any offence for which he has been charged. Sub-section 7, provides that if within 60 days from the date of his conviction the person tried under sub-section 4. appears before the Special Court voluntarily, or his apprehended and brought before the Special Court and proves to its satisfaction that he did not abscond or concealed himself for the purpose of avoiding the proceedings against him, the Special Court shall set aside the conviction and proceed to try him for the offence for which he is charged. Proviso of this sub-section provides that the Special Court; may exercise its power, after the expiry of the aforesaid period, if the person appears before it and satisfies it that he was prevented from appearing, within the said period by circumstances beyond his control. Section 7(1), of the Act provides that a person sentenced by Special Court shall have a right of appeal to the High Court. 24. A bare perusal of aforesaid section reveals that the legislature has taken care even to safeguard the interest of absconding accused and all possible steps have been taken in that regard. This is evident from the fact that an advocate is to be appointed, at the government expenses, for the accused, who is not present, before the Court. Not only this, in sub-section 6 it has been provided that in case of trial in absence of the accused, it shall be presumed that he has not admitted all the allegations made against him. This, in fact means that the accused has denied all the allegations despite the fact that his -tatement under section 342 Cr.P.C. has not yet been recorded. 2f In General Law under Section 512 Cr.P.C., deposition of witnesses ;s recorded in absence of accused, and such deposition could be given in evidence at the time, of trial after he was arrested. Thus, it would be seen, in general law, the case is to be tried is presence of the accused and in his absence except recording the deposition of witnesses as provided under Section 512 Cr.P.C. nothing else could be done. This case was tried under special law, and it permits trial in absence of accused. Therefore, the case law relating to the point of absconsion with reference to general law, would not be applicable to the cases tired under the Act. 26. The Appeal- is a fundamental right and is a continuation of proceedings, when person can be tried in absentia, there is no reason as to why his appeal could not be heard as such. The words trial includes proceedings in appeal. For this reference can be made to the case of Indian Jurisdiction i.e. State ofM.P. us. Mohandas 1992 Cr.I.L.J. 101, at 104 & 105. In fact, in the Act two rights have been provided to accused. Firstly, he can appear before the Special Court and explain his absence, and if satisfactory explanation is offered, the Court would set aside the conviction and would proceed afresh. Second right is under Section 7 of the Act. He can prefer appeal before the High Court. It is pertinent to point out that, in section 7 of the Act, the words used are "shall have a right of appeal". It means that an accused can, after conviction, prefer appeal to the High Court, despite the fact that he remained absent before the trial Court. The only difference would be that if he appeared before the trial Court, he would have right for fresh trial and could take all pleas in defence available to him, while in case of appeal only material available on record would be examined. Nothing is provided in Section 7 of Act that, before preferring appeal, the accused was required to surrender before appellate Court. In the case of Muhammad Aslam and 5 others us. The State 1972 SCMR 194. Hon'ble Supreme Court in a murder case after having recorded the finding to the effect, that prosecution had failed to prove its case beyond reasonable doubt acquitted all the appellants including one, who during pendency of appeal, had absconded away and his acquittal was recorded in absentia. In another case reported as Muhabbat All and another vs. The State 1985 SCMR 662. Hon'ble Supreme Court while setting aside conviction of the appellant recorded under Section 302/34 PPC also set aside the conviction of non-appealing convict and ordered for his acquittal. In the case of Ghulam Bari vs. Waqar Zaheer and Other National Law Reporter (NLR 1991 SCJ 292), It was held by Hon'ble Supreme Court that benefit of acquittal can also be extended to the non-appealing convict for the purpose of doing complete justice. 27. Accordingly, we hold that the appellants have legal right to file this appeal. 28. Learned counsel for the appellants have assailed the impugned judgment on legal grounds and on merits as well. 29. We first propose to dispose of the legal pleas. Mr. I.A. Hashmi learned counsel for the appellants contends that three National Newspapers, as required under first proviso of sub-section 4 of Section 5-A of the Act, are not available on record of the Trial Court, and since it is a mandatory requirement, the trial stands vitiated. It is noted that the trial Court/Special Court, on 4-3-1993 had passed an order under Section 512 Cr.P.C. and also for proceedings under Sections 87 & 88 Cr.P.C. against the absconding accused at Sri. Nos. 4 to 19. Trial Court had also appointed Mr. I.A. Hashmi as defence counsel for absconding accused at Government expenses. Direction was also issued to the office for issuing proclamation for publication in three daily Newspapers at least two of them were to be in Urdu, with a further direction that the name of the defence counsel (Mr. I.A. Hashmi) was to be disclosed in those publications. Precisely stated the plea of Mr. Hashmi is that Newspaper are not available on the file of trial Court He has not argued that those publications were not made. When asked that he was a defence counsel at Government expenses, why he had not brought this fact to the notice of the Trial Court, he replied that it was duty of the prosecution, and that, till today, he was not aware if the proclamation was actually published or not. Mr. Hashmi is the advocate of choice of the appellants, as he has preferred appeal on their behalf before this Court. It being so, we hold that no prejudice was caused to the appellants and appeal would be decided on its merits. 30. Mr. A.Q. Halepoto and Mr. Hashmi both argued that Sections 120-B and 367 PPC are not 'scheduled offences' within the meanings of scheduled offences, as appearing in section 2 of the Act, as such, the Special Court was not competent to proceed for said offences. They also argued that Section 397 PPC is not a substantive offence and charge under said section could only be framed alorigwith sections 394 and 395 PPC, which was not done. 31. It is noted that if the Cpurt was to think that the accused might have committed the offence it could frame the charge. At the stage of framing charge, probative value of the material on record cannot be gone into. To constitute a criminal conspiracy there must be an agreement of two or more persons to do an act which is illegal, or which is to be done? by illegal eans. Suffice it to say that no material was brought on record to attract Section 120-B PPC. Section 367 PPC is also not attracted as there is no material to show that alleged abduction was for causing grievous hurt." 32. Section 397 does not create any substantive offence, but it accomplishes Sections 392 arid 395 PPC. In its nature it is a rider to Section 394 PPC. It appears inadvertently instead of mentioning Section 394/397 PPC only Section 397 PPC was referred. Section 394 PPC is a scheduled offence. Learned A.G. however, concedes that Sections 120-B and 367 are not scheduled offences 33. Learned counsel for the appellants have argued that section 17(3) Enforcement of Hudood Ordinance, 1979 is also not a scheduled offence, and the same could not be tried by the Special Court. This proposition is also not disputed by learned Advocate General. Mr. Halepota also argued that sub-section 3 of Section 17 SHO is attracted when a person is guilty of 'Harabba' in the course of which no murder was committed, but the property as mentioned in sub-section was taken away. In this regard, he referred to the deposition of P.W. L/NK Muhammad Yaseen. who deposed that 15/20 persons armed with deadly weapons surrounded the jeep of the complainant party and snatched the weapons lying therein, and that they had beaten the complainant party. The witness specifically admitted, in cross examination, that three accused, who were in custody at the time of trial, were not present on the spot when jeep was stopped and surrounded. Further, he deposed that he could not say as to who had snatched the weapons from the complainant party. He also admitted that, he could not identify those persons, who had given beating to the complainant, 34. Mr. Halepoto submitted that the identify of indictee is absolutely necessary and the present appellants could not be indicted. The contention is sound. In view of the present evidence, Section 17(3) of EHO is also not attracted. 35. On merits Mr. A.Q. Halepoto argued that how it could be possible that four army/ranger officers could be dis-armed of their most sophisticated weapons by street boys. He also argued that there was no iring, no injury, or death on the spot. He contended that ex-fade, it was a cooked up case against all the MQM leadership and that the prosecution had decided to rope in all the important, MQM Leaders after two years of the incident. He submitted that no recovery of any incriminating article was made, as no such article was produced before the trial Court. 36. Merits of the case are to be decided on the basis of evidence available on record. The rules of evidence prescribe the best course to get truth. In criminal cases much higher degree of assurance is required and it is the basic requirement of law that there must be clear and unequivocal proof that the offence was committed by the known persons. Decision in criminal case can not be based upon mere supposition, but is must rest upon legal grounds established by legal estimony. The rules of evidence cannot be departed on the basis of moral conviction. The rule of oral evidence requires that best available evidence must alone be given, and while dealing with oral evidence probabilities, presumptions, and surrounding circumstances shall always be looked into. This is necessary for the reasons that more of ten than not. svich evidence is mixture of truth falsehood, ignorance and motive etc. , 37. Keeping in view, the above principles, it, is noted that the r evidence of abovenameu eye witnesses does' not inspit.e confidence. They all had tried to improve the prosecution's version. In fact, it would be more appropriate to say that at the time of trial, they set up entirely a different case, then initially it was. The evidence of the complainant is full of contradictions omissions and improvements. The witness who has gone to the extent of even dis-owing the FIR in material respects in order to justify his newly introduced facts, cannot be relied upon. It is very hard to believe that army officers could be dis-armed by street boys. The complainant admitted his signatures on the FIR, yet, he asserted that it was not as he wished it. He maintained that his further statement was not recorded, while I.O. Muhammad Ahmed Beg stated that so was done. 38. On the basis of FIR the investigation starts. Besides setting in motion the process of investigation another object of FIR is to ensure as far as possible, that the interest of the accused is protected against subsequent possible variation, addition, and improvements. He cannot be taken by surprise at the time of trial. Once the first informant admits his signatures on the FIR a strong presumption arises that it was correctly recorded. In the case reported as Mujahid Hussain us. The State 1985 SCMR 1753 (Relevant Page 1576 Paragraph 9), it was observed by the Hon'ble Supreme Court that first information report though per sc was not substantive evidence was nevertheless an important document inasmuch as it disclosed facts of occurrence as initially known, laid down the foundation of the case, and provided clues for investigation. It was also held in this case that when there was discrepancy in number and identity of accused a stated in FIR and ocular evidence and the explanation by the witnesses being clumsy casting doubt not only on the integrity of the complainant but also on the veracity of the ocular witnesses themselves, it was possible that the witnesses were not certain as to the number and identity of the accused. 39. As observed earlier, the complainant in his deposition recorded by the trial Court has introduced entirely a different case implicating the appellants, in order to bring it in conformity with the supplementary challan submitted on 5.2.1993. His grievance was that the FIR was not recorded properly. Two options were available to him. Either he should have complained immediately against the SHO to the higher authorities in writing in that regard, or should have filed a direct complaint mentioning therein all the facts, which according to him, were not recorded in the FIR. Surprisingly, nothing was done. Such type of evidence to say the least, is to be discarded out rightly. 40. Mr. A.Q. Halepoto, learned couri.^1 for the appellants cited the case of Shah All and others us. The Crown reported in PLD 1954 Sind 136 to contend that when different sets of evidence are available and none of them was acceptable without corroboration the evidence which requires corroboration cannot corroborate each other. Mr. A.Q. Halepoto, learned" counsel for the appellants also cited the case of Sycd Saecd Muhammad and another vs. The State 1993 SCMR 550, to submit that statements of witnesses in the Court in which improvement are made to strengthen the prosecution case are not worthy of reliance. Above case supports his contention. Also it is very hard to believe that for four days the complainant and his superior officers were not able to get the FIR registered. 41. The complainant in his deposition stated that while he was in the cusiuHv of the abductors he heard somebody saying "Altaf Bhai had directed to kill them, throw their belonging in the sea, and dispose of their dead bodies". The evidence learnt through the medium of a third person is called heresay and ordinarily such evidence is not admissible for the reason, amongst others, that such statement is not subjected to cross examination. In the instant case, neither the complaint knew said person, who uttered above quoted words nor any evidence was brought on record to identify said person, nor those words were addressed to the complainant. In fact, he introduced these words as improvement to implicate the appellants, who were not charge sheeted initially. 42. Evidence of P.Ws Moinuddin, Miihammad Yaseen, Abdul Rashid and Muhammad Saleem Khan more or less suffers from same defects as that of complainant. Their testimony like complainant also does not inspire confidence, and has no evidentiary value. First there of them are eye­ witnesses and the fourth one viz. Muhammad Saleem Khan has reiterated the newly introduced prosecution version and tried to justify it. 43. Another totally unbelievable part of the prosecution version is that SHO after getting the victims released did not arrest any of the persons happened to be present there, nor registered any case, nor recorded the statements of other persons who were being tortured, nor informed the police high ups that how he had reached there. The acts of malfeasance and misfeasance in those days were not to the extent as projected in these proceedings. 44. Mr. Zafar Iqbal Cheema, who submitted sitpplementary charge sheet on 5.2.1993 and had allegedly collected evidence against the appellants Nos. 4 to 19 was not examined by the prosecution nor it was disclosed at the stage of arguments that what evidence he had collected against them. 45. Injuries mentioned earlier were simple in nature and were caused by unknown boys, who had stopped the jeep. Injuries by themselves are not sufficient to identify the culprits. Mr. A.Q. Halepoto, learned counsel . for the appellants cited (1) The State vs. Abdul. Karim 1992 SCMR 1445 (2) L Muhammad Iqbal vs. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928 (3) Mehmood Ahmad and 3 others vs. The State, and another 1995 SCMR 127 and (4) The State vs. Muhammad Sharif and 3 others 1995 SCMR 635 and submitted that medical evidence may confirm the ocular evidence with regard to the seat, of the injury, nature of injury, weapon used etc., but. this evidence by itself would not connect the accused with the commission of the crime. Above noted cases support the contention raised by the learned counsel for the appellants. 46. Mr. Shaukat Hussain Zubedi, learned Advocate General has not supported the 'impugned Judgment', and at the same time argued that the case be remanded to Session Court having jurisdiction in the matter. He also argued that this case should have been tried by the Session Court and not by the Special Court . It is not the case of total lack of jurisdiction. The trial Court had jurisdiction to try cases punishable under sections 394/397, 307/324 PPC. It is noted that this case was challaned initially before learned Sessions Judge, Karachi , East, and by the Government Order dated 11-2-1993 was transferred to the Special Court . Looking to the quality of vidence, no useful purpose would be served by remanding it. Under the circumstances, the accused would be acquitted. Besides, the rosecution cannot take advantage of its own wrong. The maxim "nullus commodum capere projest de injuria sur propria" (having done the wrong cannot take advantage of own wrong) would apply to this case. It is note fair to ask for remand at this stage. 47. It is a case of almost no legal evidence. We are surprised that how on this evidence learned trial Judge convicted the appellants. 48. Since the case of prosecution has failed on its own evidence, we do not consider it necessary to discuss the evidence brought in defence. 49. Under the circumstances, as a matter of right the appellants are entitled to acquittal, on 6.2.1998 after hearing the arguments we had allowed the appeal, set aside the impugned judgment, and acquitted all the appellants. Appellants Muhammad Ashfaq (» Chief, Jalal Khan, and Javed

Kazmi were ordered to be released forthwith if not required in any other case. Appellants Nos. 4 to 19 were ordered not to be arrested in this case. These are the reasons for the short order announced on 6.2.1998. Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 1243 Present: IHSAN-UL-HAQ chaudhary, J. ZAMIR UL HASSAN etc.-Petitioners versus STATE-Respondents Crl. Misc. No. 38/Q-98, accepted on 6.4.1998. F.I.R.--Quashment of~ —F.I.R. registered u/S. 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and 9/15 of Control of Narcotic Substances Act, 1996-Quashment of-Prayer for-Case was registered merely on suspicion and this fact was submitted by complainant that he suspected powder was Acetic Anhydride used for production of Heroin-Laboratory report showing result of samples as phenobarbitone, caffeine and Methyl salicylate—In reply to cross examination it is admitted that henobarbitone is not used in manufacturing of Heroin-There was no justification whatsoever to continue with prosecution of petitioners after reports were received by ANF and at least after same were proved by CW-1 and 2-There is even not remotist possibility of petitioners being convicted in face of clear evidence of experts-Proceedings against petitioners are illegal, unwarranted and clearly abuse of process of court-Petition accepted and proceedings quashed. [Pp. 1245, 1246 & 1247] A, B, C, D & F Rana Muhammad Arshad Khan, Advocate for Petitioners. Ch. Muhammad Suleman, Advocate for Respondent. Date of hearing : 6.4.1998. judgment This is to be read in continuation of our short order of today. 2. The relevant facts for decision of this petition are that the petitioners were cited as accused in case F.I.R. No. 1/97 dated 14.1.1997 registered with P.S. Anti Narcotics Force, Model Town, Lahore U/S 3/4 of the Prohibition (Enforcement of Hadcl) Order, 1979. The F.I.R. was lodged on the receipt of written complaint of Rana Abad AH Inspector, ANF, Lahore. It was alleged that the officers received information that M/S Multi Pharma (Pvt.) Ltd. 2-Lakshmi Street, New Anarkali Lahore is selling Acetic Anhydride powder used for the production of Heroin openly and on receipt of this information a raiding party, headed by Lt. Col. Muhammad Younas Joint Director, ANF, Lahore and including of complaint, Ijaz Kazmi, Maj. Abdur Rab and other subordinates was formed to raid the premises. They reached the office of Multi Pharma (Pvt.) Ltd. in the official vehicle. The petitioners were found present in the premises and on search the raiding party took into custody three bags weighing about 20 kg containing powder used in the manufacture of heroin, a Cartoon weighing 52 kg, small drum weighing 26 kg beside them took into custody two white canes and one blue plastic cane into possession containing 11 kg each of Acetic Anyhdride. They took samples of 5 grams each of the powders and six Ounce of the liquid. They were put under seal. In the end it was written that prima facie the petitioners have been found guilty of keeping in their possession Acetic Anhydride for use of manufacturing of heroin for sale, therefore, they were guilty of offences U/S 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and 9/15 of the Control of Narcotics Substance Act, 1996. The ANF after investigation submitted the report U/S 173 in the Court of Sessions Judge Lahore and alongwith the report also reports of the Pakistan Council of Scientific & Industrial Research and report of the Chemical Examiner. Reports from the Pakistan Council of Scientific & Industrial Research are Annexures H & J. 3. The trial Court recorded the statements of CW-1 and 2 appended as Annexures K & L with this petition respectively. The petitioners have moved for quashment of the F.I.R. on the ground that they were involved in Criminal case merely on the basis of suspicion and the allegations were belied by reports Ex. CW-1/1 and CW-2/1. The petition was admitted to hearing. Notice was issued to the respondent, who has entered appearance through Ch. Muhammad Suleman, Advocate and contested the petition on behalf of the respondent. 4. Learned counsel for the petitioners ar ued that Multi Pharma (Pvt.) Ltd. is holder of licence for the manufacturing Drugs registered under RESULTS QUALITATIVE AND QUANTITATIVE ANALYSIS OF PHENOBARBITONE 1. Identification: Infra Red Spectrum and Chemical tests are identical to standard Phenobarbitone. 2. Assay: 100% Phenobarbitone. 3. The sample supplied is 100% Phenobarbitone and it is not a precursor to the manufacture of Heroin. The same was proved by CW-2. He stated that all the three chemicals namely Phenobarbitone, Caffeine and Mehtyl salicylate were not used for the manufacturing of Heroin. There was no justification whatsoever to continue with the prosecution of the petitioners after these to reports were received by ANF and atleast after the same were proved by CW-1 and 2. The prosecution is clearly abuse of process of law. The same cannot be allowed to go on. There is even not remotist possibility of the petitioners being " convicted in face of this clear evidence of experts. The scope of quashment was examined with reference to the available precedents starting with the case of Emperor vs. Khawaja Nazir Ahmad (AIR 1945 PC 18) in W.P. No. 1203/97/RWP decided on 16.10.1997 wherein it was held as under :-- "The rule thus modified makes limited interference possible against violation of the fundamental rights, criminal injury, prosecution of citizen by abusing the statutory powers or machinery of criminal law being used mala fide or for ulterior purpose. The High Court in such case could look into the facts and pass order as were found just, legal and quitable." This is a fit case for applying the above principle. 8. The ANF is discharging very onous duty but it does not mean that it should be allowed to play with the rights and liberty of the citizens. It was the duty of the officers and their prosecutors to immediately move for cancellation of the case after the receipt of reports of PCSIR Laboratory which is an official institution of reputate. 9. The arguments as to misuse of Phenobarbitone are beyond the competency of ANF. It would be actionable under the Drugs Act, 1971 and not under the ANF Act, 1996. The proceedings against the petitioners are illegal, unwarranted and clearly abuse of the process of the Court. We are proposing action against the concerned officials of the ANF but if in future this attitude continued then the responsible officials have to suffer the consequences of their illegal acts. It is made clear that act initially may not be illegal or mala fide but after coming to know of true position, to insist would make the action illegal and mala fide. 10. The upshot of this discussion is that this petition is accepted. The result is that the proceedings in case F.I.R. No. 1/97 are quashed. (A.S.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. ( Lahore ) 1247 Present: sheikh abdur razzaq, J. MEHDI HASSAN and another-Petitioners versus STATE and another-Respondents Cr. Revision No. 344 of 1997, dismissed on 24.3.1998. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 202--0ffence u/S. 302/324/34/PPC-Four accused named in F.I.R.- Challan submitted against two accused and accused/petitioners have not been sent up to face trial as they have been found innocent during investigation—Summoning of all four accused by court after conducting preliminary inquiry u/S. 202 on a complaint, to face trial-Provisions of S. 202 enjoins upon court holding enquiry to record evidence of witnesses produced to form its own opinion u/S. 203 Cr.P.C. regarding prinia facie guilt of person complained of—There does not appear any logic in examining Investigating Officer or perusing Ziminies as private complaint is usually preferred having felt aggrieved of hostile attitude of police-Investigations that they had conducted and that being so, their evidence would have been inadmissible-An enquiry u/S. 202 Cr.P.C. is not a regular trial or a full dress rehearsal for trial, for adjudging guilt or otherwise of person complaint against but only an enquiry for inding out as to whether there was sufficient evidence to put person complained against on trial and not sufficient evidence for convicting him- Complainant/respondent No. 2 not only examined him, but also brought on record statements of 4 witnesses, including an injured eye witness, besides medical evidence-It was not necessaiy fo,r lower court to examine police file before issuing process to secure presence of petitioners- Petitioners can, if so advised, produce their evidence in defence during trial-Petition dismissed. [P. 1250] A, B, C & D Mr. Munir Bhatti, Advocate for Petitioners. Mr. R.A. Awan, Advocate for Complainant/Respondent No. 2. Ch. Muhammad Bashir, A.A.G. for State. Date of hearing : 24.3.1998. judgment Briefly stated the facts are that on 18.4.1997 Sher Afghan Malik complainant/respondent No. 2 alorigwith his family members had come to the house of his brother Parvez Hassan Malik at Jauhar Town, Lahore. His brother sent the son of complainant Ali Hassan and his own son Haseeb Malik to fetch bottles. At about 2.45 p.m. when they were returning home in the car and were only a few feet away from their house, Muhammad Atif, Muhammad Amer, Munir Ahmad and Mehdi Hassan stopped their car infront of their own car, took out Haseeb Malik and Ali Hassan from the Car and started beating them. Upon this Haseeb Malik told them that Ali Hassan was their guest and he should not be beaten. On their hue and ciy Parvez Hassan, and his nephew Naveed Malik came out and saw that Muhammad Atif armed with Churri, Munir Ahmad armed with .222 bore rifle and Mehdi Hassan armed with pistol. Mehdi Hassan fired with his pistol, whereas Muhammad Atif inflicted Churri blows to Naveed Malik which hit on his right, flank. Haroon Malik and complainant etc. stepped forward to rescue Naveed Malik etc. upon which Mehdi Hassan caught hold of Haroon Malik and fired with his pistol hitting him (Haroon Malik) on his left hand. Muhammad Atif and others ran away raising Lalkara. Accordingly law was set into motion by Sher Afgan by filing a written complaint. Initially case was registered against the assailants under Sections 324/34 PPC. As a result of death of Naveed Malik the offence under Section 302 PPC was also added. 2. The investigation of this case was conducted by different police officers who found Mehdi Hassan and Munir Ahmad innocent and finally the challan was submitted against Muhammad Amer and Muhammad Atif. 3. Feeling aggrieved of the hostile attitude of the police, the petitioner/respondent No. 2 (Sher Afgan Malik) preferred a private complaint against the accused/petitioners named in the FIR No. 139 dated 18.4.1997. The complaint was entrusted to Ch. Zafar Hussain, A.S.J., Lahore, who after conducting preliminary inquiiy under Section 202 Cr.P.C. summoned all the four accused to face trial under Sections 302/324/34 PPC vide order dated 1.11.1997. 4. The accused/petitioners Mehdi Hatesan and Munir Ahmad have felt aggrieved of the order dated 1.11.1997 and have filed this revision petition. 5. Arguments have b°en heard and record perused. 6. It is submitted by the learned counsel for the accused/petitioners that as a result of FIR No. 139 dated 18.4.1997 the case was firstly investigated by Fawad Waheed SI/SHO PS Township who found the present petitioners innocent in this case, that as a result of subsequent investigations conducted by Rashid Mehmood SI/SHO PS Green Town, Javed Hussain Shah DSP Nawankot, Tariq Masood SI PS Sabzazar, Mr. Mujahid SP and DSP, CIA Cantt, the petitioners have been found innocent and as such they have not been sent up to face trial, that lower Court while conducting the inquiry under Section 202 Cr.P.C. simply relied upon statements of PW1 Haroon Malik, PW2 Parvez Hassan, PW3 Haseeb Malik and PW4 Parvez Islam besides the statement of Slier Afgan Malik and has not cared to examine the investigating officers named above who had held the present petitioners as innocent in their respective investigations, that it was the duty of the lower Court to examine the said Investigating Officers or at least to go through the case diaries regarding the investigations conducted by them, that as they have not looked into the investigation papers of the police officers named above, so the lower Court has not exercised the jurisdiction vested in it in accordance with law. In support of his contention he relied upon Muhammad Ibrahim & others vs. Qudrat Ullah Ruddy & others (PLD 1986 Lahore 256), Khurshid Anwar vs. The State & 3 others (1996 MLD 111- Karachi), Khatija vs. The State & another (PLD 1978 Karachi-348) and Anwar All Khan & others vs. Wahid Bux & others (1991 SC-MR 1608), 7. Conversely the learned eou!i; j el for the complainant/respondent No. 2 has submitted that trial Court 1ms conducted the preliminary inquiry as stipulated under Section 202 Cr.P.C., in accordance with law and has rightly not looked into the investigations conducted by different police officers; that the complaint had been filed having been aggrieved of the investigations conducted by different police officers, as such there was no question of either relying upon the said investigations, or making a reference to said investigations, that the Investigating Officers could give evidence only about the opinion they had formed consequent upon the investigation that they had conducted and their evidence would be inadmissible while conducting inquiry under Section 202 Cr.P.C. In support of his contention he relied upon Muhammad Ashrafand 2 others vs. The. State (1994 SCMR 688), Mushtaq Ahmad vs.-Muhammad Saleern & 2 others (1995 P Cr.L.J. 1900-Lahore), Mukhtar Ahmad vs. Muhammad Khurshid Kamal & another (199.1 P Cr.L.J. Note 81 Lahore), Muhammad Saeed & 3-others vs. The State & another (PLD 1984 Lahore 323), Zahid Khalil vs. Wajid Ali & another (1990 P Cr.L.J 713 Lahore) and Muhammad Ibrahim vs. Muhammad Hanif & others (1983 P Cr. L J 1051). 8. The stand of the learned counsel for the petitioners is that looking at the provisions of Section 202 Cr.P.C. from ail angles, in the event of an enquiiy, the person conducting the enquiiy should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officers, or in the alternative, call for and persue the Zimnis, with his assistance, to enquire into the reasons and circumstances which may have weighed with him in holding some of the accused as innocent and relies upon authority reported in PLD 1986 Lahore 256. The view expressed in the authority referred above, runs contrary to the provisions of Section 202 Cr.P.C., which enjoins upon the Court holding nquiry to record evidence of the witnesses produced and then to form its own opinion under Section 203 Cr.P.C. regarding prima facie guilt of the person complained of. There also does not appear any logic in examining the Investigating Officer or perusing the Ziminies as private complaint is usually preferred having felt aggrieved of the hostile attitude of the police. Thus non examining of Investigating Officer/s by trial Court, in the instant case, did not amount to any illegality. The grievance of the petitioners is clearly without substance. The Investigating Officers could give evidence about the g opinion they had formed consequent upon the investigations that they had conducted. That being so, their evidence would have been inadmissible, as held by the apex Court in Muhammad Ashraf and two others vs. The. State and another (1994 SCMR 688). Again an enquiry under Section 202 Cr.P.C. is not a regular trial or a full dress rehearsal for trial, for adjudging guilt or otherwise of person complained against but only an enquiiy for finding out as to whether there was sufficient evidence to put person complained against on trial and not sufficient evidence for convicting him, as held in Muhammad Saeed and 3 others vs. The State and another (PLD 1984 Lahore 323). 9. I am not inclined to agree with the learned counsel that there was to sufficient evidence to summon the petitioners alongwith other accused to face trial. In the instant case, complainant/respondent No. 2 not only | examined him, but also brought on record the statements of 4 witnesses, including an injured eye witness i.e. Hassan Malik, besides the medical evidence. It, was not necessaiy for the lower Court to examine the police file before issuing process to secure presence of the petitioners. The petitioners, can, if so advised, produce their evidence in defence during trial. 10. There is a marked distinction as to the approach of appraisal of evidence at the time of holding of a preliminary enquiry and at the regular olding of criminal case. At the former stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas at the later stage, the Magistrate or the Court is required to appraise the evidence thoroughly and to record findings on the basis of such appraisal and that any benefit of doubt arising out of such appraisal, should be given to the accused person. 11. In view of the above discussion, the impugned order passed by the learned Additional Sessions Judge, Lahore dated 1.11.1997 does not suffer from any illegality, infirmity and the trial Court did not act improperly. There is no merit in this revision petition which is hereby dismissed. Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1251 (DB) Present: KHAN RlAZ-UD-DlN AHMED AND GHULAM SARWAR SHEIKH, JJ. HAZARAY SHAH-Appellant versus STATE-Respondent Crl. Appeal No. 13 of 1994/BWP, dismissed on 26.11.1997. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302-Double murder-Offence of-Conviction for-Appeal against-Place f occurrence is outside the house of PW-1, hence, he is a natural witness-Occurrence took lace at broad day light and witness has no enmity with appellant-Presence of other witnesses on place of occurrence could also not be shattered-Many a time offenders ommit heinous offences with very trivial motive and some time even without motive- Even otherwise, motive is not a substantial piece of evidence-Eye witnesses are atural and impartial, thus their testimony does not require any corroboration-Neither incident took place all of a sudden, nor origin of fight is hidden behind mist of uspicion—No allowance is permissible to a desperado with gory and blood thirsty nature-Motive is not denied-Appellant is not only responsible for gruesome murder of wo persons; but also inflicted injuries upon P.W.-He does not deserve any premium-Appeal dismissed. [Pp. 1256, 17 & 1258] A to DPLD 1976 SC 557, 1995 CMR 776 ref. M/s Muhammad Farrukh Mahmood Malik and Muhammad Sadiq Channer, Advocates for Appellant Raja Muhammad Suhail Iftikhar, Advocate for State. Date of hearing: 26.11.1997. judgment Ghulam Sarwar Sheikh, J.-Hazaray Shah son of Muhammad Ramzan Shah, Gust-e rived, resident of Qabil Lar Tehsil Khanpur District Rahimyar Khan, indicted for "Qall-e-Amd" of Muhammad Ramzaii and Allah Diwaya and launching murde''<:u.s assault upon Muhammad' Yar PW was tried and convicted by Rao Akhur Ali, learned Additional Sessions Judge, Khanpur, under Section ',W:i PPC on nvo counts and sentenced to death as "Tazeer" on each count, lie was also convicted and sentenced for causing injuries on the person of Muhammad Yar, details thereof need not be recapitulated a.s Muhammad Yar. Uic victim, has forgiven the convict and necessary permission to compound stands accorded. 2. Prosecution case as unfolded in, gleaned out and reflected by FIR Ex. PA is to the effect that on 23.5.1992 at 11.00 A.M. Muhammad Khalid PW-1, his lather Muhammad Rainzan .since deceased, his grand-father Allah Diwaya also deceased, alongwith Muhammad Yar Panwar PW were sitting under a "Sheesham" tree outside their house in village Qabil Lar. Hazaray Shah, the convict, came there brandishing a "TOKA". He inflicted an injury with it on the neck of Muhammad Ramzan and shouted that he was being taught a lesson for impounding his goat. In a bid to apprehend the convict,. ' Allah Diwaya, grand-father of complainant, was also inflicted injuries on his head, neck and leg. Muhammad Yar Panwar PW raised hue and cry and sustained injuries on his hands and head. Alarm raised by complainant and said PW, attracted Karim Bakhsh and Haji Rashid Ahmad, who, also witnessed the occurrence. 3. Muhammad Ramzan breathed his last at the spot, whereas Allah Diwaya and Muhammad Yar were taken to Civil Hospital, Khanpur, wherefrom they were referred to B.V. Hospital, Bahawalpur. Allah Diways, however, succumbed to his injuries on his way to B.V. Hospital Bahawalpur and Muhammad Yar was admitted there and medically examined. Muhammad Khalid PW-1 reported the matter to Muhammad Nawaz Khan Inspector/SHO, Police Station, Khanpur, on the same day within one hour of the occurrence. 4. After registration of the case, and directing Muhammad Hafeez ASI to go to hospital, to attend to the injured, PW-13 Muhammad Nawaz Khan, Inspector/SHO proceeded to the place of occurrence. He visited the spot, prepared inquest report Ex. PM of Muhammad Ramzan, collected blood stained earth from the place of murder of Muhammad Ramzan and after making it into a sealed parcel took it into possession vide memo. Ex. PB. He also secured blood stained earth from the place where Allah Diwaya and Muhammad Yar PW had received injuries and after making it into sealed parcels took it into possession by means of Ex. PC and Ex. PD respectively. 5. While present at the place of occurrence he received information about demise of Allah Diwaya in the hospital. He reached there, prepared inquest report Ex. PR in respect of Allah Diwaya and returned to the place of occurrence, where Zahoor Ahmad Constable produce before him last worn blood stained clothes of deceased Muhammad Ramzan and blood stained clothes of Allah Diwaya delivered to him by PW 5 and PW6 after post mortem examination. Same were taken into possession through memo Ex. PV and Ex. PW, respectively. 6. On 25.5.1992, he arrested Hazaray Shah accused/appellant, who, led to the recovery of "Toka" which, was taken into possession by means of memo, Ex. PE. He (accused) also led to the recovery of his blood-stained Kurta P-2 and Romal P-3 from his residential Kotha". Same were taken into possession vide memo. Ex. PF and made into a sealed parcel. On 1.6.1992, he got prepared site plan Ex. PS and Ex. PS/1 from Halqa Patwari. He recorded the statements under Section 161 Cr.P.C., of P.Ws., completed the investigation and submitted challan against the accused. 1. Autopsy on the dead body of Muhammad Ramzan was conducted on 23.5.1992 by Dr. Hafiz Muhammad Qasim PW. 5, who observed following injuries: - 1. An incised wound horizontally placed 18 cm long 2 cm wide and 7 cm deep on the posterior side of neck cutting whole verbiberal column, muscle and blood vessels. 2. An incised wound 12 cm x 4 cm, 5 cm deep on posterior side of right leg on back of right knee cutting both bones. 3. An incised wound 12 cm x 4 cm, 5 cm deep 16 cm below right knee on posterior side of right leg. 4. An inciscled horizontally wound 9 cm x 4 cm, 5 cm deep on posterior side of right leg, 25 cm from right knee. Both bones were cut. 5. An incised wound 10 cm x 5 cm, 4 cm deep on posterior side of left leg, 15 cm from left knee joint. Both bones were cut. 6. An incised horizontal wound 12 cm x 4 cm x 4 cm x 4 cm deep on posterior side of left leg, 26 cm from left knee joint. Both bones tibia fubula were cut. 8. In the opinion of the doctor, death occurred due to injury No. 1 which out the spinal cord, blood vessels and mucle of neck and was sufficient to cause death in ordinary course of nature. All the injuries were antimortem and caused by sharp edged weapon. 9. Dr. Mazhar-us-Zaman Somro PW. 9 examined Muhammad Yar PW on 23.5.1992 and found following injuries on his person:- . Amputation of right hand at mid palmar side right thumb is preserved. 2. An incised wound 1.5 x 1 inch bone deep on the left temporal region of Skull 2 inch above the left ear. 3. An incised wound 2.5 x 1/2 inch on the middle of scalp 6 inches from left ear bone was cut and mineges were exposed. 4. An incised wound 1 x 1/2 inch bone deep on the right parital region of skull 2 inch from injury No. 3. 5. An incised wound 2x2 inch bone deep on the back of scalp 4 inches from the right ear. 6. An incised wound 3 x 1/2 inches on the right side of neck muscle deep 3 inches from right ear lobule. 7. An incised wound 1 x 1/2 inch bone deep 3 inches from left elbow joint Bone is protruding from the wound. It is on ulnar side of left fore arm. 8. An incised wound 0.5 x 0.5 inches skin deep on ulnar side of left fore arm 3 inches from ulnar tubercle. 9. An incised wound 2 x 0.5 inch skin deep on the lateral aspect of thigh 11 inches from the left knee joint. OPINION Injury No. 1 was declared as Itlaf-Salahyat Udw. Injury No. 2 was declared as Shujja Madiha. Injury No. 3 was declared as Shujja Ammah. Injury No. 4 was declared as Shujja Mediha. Injury No. 5 was declared as Shujja Mediha, Injury No. 6 was declared as Shujja Hafifah. Injury No. 7 was declared as Ghair Jaifa Munaqqlan. Injury No. 8 was declared as Ghair Jaifa Darniyaha. Injury No. 9 was declared as Ghair Jaifa Darniyaha. 10. Post mortem examination of dead body of Allah Diwaya was conducted by Dr. Jameel Akhtar Shaheen PW. 6, who, observed following injuries on his person:- 1. An incised wound sized 3 x 1/2 inch on lateral aspect, of left foot. The lower end of Tibia was fractured. 2. An incised wound size 13 cm x 2.5 cm on the lateral aspect of left thigh. The lower end of femur was fractured. 3. An incised wound seize 10 cm x 2.5 cm on the inidial aspect of midial malleolous. The Tibia was fractured and the midial tibial artery was cut. 4. An incised wound size 10 cm x 8 cm on the postro-midial aspect of left elbow. The joint was opened and humerus was cut. 5. An incised wound size 2.5 cm x 1.5 cm x skin deep on the midial aspect of left forearm. 6. An incised wound size 8 cm x 1.5 cm on the left, antroparetal region of skull. The underlying bones were fractured. I. An incised wound size 8 cm x 1.5 .cm on the left side of skull on the occipital region bone was fractured. 8. An incised wound 6 cm x 1.5 c.m. skin deep on the left side of back of neck. 9. An incised wound 3 cm x 1/2 cm skin deep on the back of next. 10. An incised wound size 2.5 cm x 1.5 cm on the dorsel aspect of index finger of right hand. Middle phalynx was fractured. II. The middle ring and little fingers were amputated on right hand. 12. An incised wound size 5 cm x 1.5 cm skin deep below the angle of left mendable. 11. He was of the opinion that death occurred due to excessive blood loss from all the injuries especially from right leg injury No. 2. These injuries led to shock Coma and death. All these injuries were anti-mortem, caused by sharp edged weapon and sufficient in the ordinary course of nature to cause death. 12. Prosecution examined as many as 14 witnesses in support of its case. Muhammad Khalid PW 1, first informant, Muhammad' Yar PW- 2/injured witness and Hqji Rashid Ahmed PW. 3 furnished occular account and they supported the prosecution case as set up in the'FIR Ex. PA and duly re-iterated by PW. 1. 13. Recovery of blood stained Toka P. 1, weapon of offence and that of blood stained Romal P. 3 and blood-stained shirt P. 2 worn by the convict at the time of occurrence were supported by Hqji Rashid Ahmad PW and Muhammad Nawaz Khan Inspector Police PW. 13. 14. Mxihammad Rarnzan Constable PW. 8 as Naib Moharrir of Police Station Sadar Khanpur handed over two sealed parcels to Muhammad Sarwar Constable for onward transmission to the office of the Chemical Examiner. These parcels were originally received from Investigating Officer Muhammad Nawaz Khan PW. 13 by Abdul Qayyum Head Constable PW. 12 and were said to contain blood stained earth. 15. According to the reports of Chemical Examiner Ex. PV and that of the Serologist Ex. PW these articles were found stained with human blood. 16. In his statement under Section 342 Cr.P.C. Hazaray Shah denied his involvement in the occurrence and claimed innocence. He did not opt to make statement under Section 340(2) Cr.P.C. and led no evidence in his defence. 17. Learned trial Court convicted and sentenced Hazaray Shah accused as detailed in opening part of this judgment. Reference as envisaged by Section 374 Cr.P.C was sent by learned trial Court, whereas the convict has challenged the same through this appeal. This judgment will dispose of both (M.R. No. 10/94 and Criminal Appeal No. 13/94) together. 18. Learned counsel for the appellant has canvassed that so-called eye-witnesses, namely, Muhammad Khalid PW. 1, Muhammad Yar PW. 2, and Haji Rashid Ahmad PW. 3 did not witnesses the occurrence and the details given by them and also their conduct at relevant time is improbable and un-natural. It has been remarked that Muhammad Khalid PW. 1, son and grand son respectively of Muhammad Ramzan and Allah Diwaya/two deceased cannot be believed because of his role as "silent spectator" when his near and dear were being butchered. Much emphasis has been laid down motive set up by the prosecution to contend that the convict committed Qatle-Amd of two persons and made murderous assault on third merely because his goat were impounded is too weak, for commission of this offence. In wake thereof, learned counsel representing the appellant has almost not disputed the conviction and simply impressed that the accused could not be awarded capital punishment particularly when the motive ascribed is too flimsy to lead to such an incident and real motive will have to be taken as wrapped in mystery or left unveiled intentionally. It has been maintained that in such circumstances, intensity of punishment was not to touch the peak. Reliance has been placed upon Taj Din and another vs. The, State. (PLD 1986 Lah. 142), Ata Muhammad and another vs. The State (1995 S.C.M.R. 599), Rasool Bux and another vs. The State (1980 S.C.M.R. 225), Ahmad Khan v. The State (1985 S.C.M.R. 975), ChandKhan vs. Akbar and others (1986 S.C.M.R. 1878), Sher Daraz Khan vs. The State (1983 S.C.M.R. 266) and Ghulam Muhammad vs. The State (N.L.R. 1988 Criminal 490) in support of the contentions. 19. Conversely, learned counsel representing the State has vehemently opposed appeal by arguing that the eye witnesses account is natural one especially when occurrence took place in broad day light and outside the house of Muhammad Khalid PW. 1 in which Muhammad Yar PW. 2 sustained injuries, that the consideration of motive is not necessary for commission of heinous offence because many a time murders are committed on even trivial motive. Plea of mitigating circumstances has been resisted with the assertion that the incident claimed lives of two innocent person, who, were "Masoomuddum". 20. Place of occurrence is outside the house of Muhammad Khalid PW. 1. Thus, Muhammad Khalid is a natural witness of the occurrence, which, undoubtedly took place at 11.0 A.M. in broad day-light. This PW has no enmity or rancour with the appellant. Though Muhammad Yar PW has now forgiven the appellant, yet, he supported the prosecution case at the trial. So his presence on the place of occurrence is also proved beyond any shadow of doubt. Similarly, Haji Rashid Ahmad PW. 3 has successfully stood to the test of cross-examination. Even his presence on the place of occurrence could not be shattered. All the P.Ws. fulfilled the test as laid down by august Supreme Court in case of Roshan Din and 4 others vs. The State (PLD 1976 SC 557). Therefore, in our view, learned trial Judge rightly appraised the eye-witness account. 21. Argument that motive was trivial to commit this heinous offence has not impressed us because many a time offenders commit heinous offences like murder with veiy trivial motive and sometime even without any motive. Even otherwise, motive is not a substantial piece of evidence and is used for corroboration of eye-witnesses account, if the same is required under the circumstances of the case, particularly, where the eye-witnesses have enmity against the accused. In this case, the eye-witnesses are natural and impartial and thus their testimony does not require any corroboration. 22. We are were aware that triviality of motive does assuage quantum of punishment especially when it is in shape of Capital punishment; but this privilege, can be extended to the convict/accused when he is found/adjudged to have committed the offence without pre-meditation, deliberation and preparation and in other word when the occurrence appears to have taken place at the spur of moment. We are also not oblivious that an extreme penalty is not called for when immediate cause of attack is not known and prosecution is not in a position to explain origin of fight. 23. However, human re-action over a particular pungent situation always varies and fluctuates from man to man. Pain due to kick on shin may soon pass away; but, such exercise on self respect may have incredible imprints. Wounded pride and ruffled dignity do not necessarily require big event or strong motive; ripples do appear with the throw of the slightest pebble. It is very difficult to put lid firmly on the simmering cauldron of vanity. Seemingly the convict took impounding of his goat as a direct onslaught on his prestige. He as unable to reconcile or compromise with the situation and came well prepared with a "Toka" to teach a befitting lesson to those who injured his pride by detaining his cattle. Neither incident took place all of a sudden nor origin of fight is hidden behind the mist of suspicion. 24. There can be no cavil with the proposition that no allowance is permissible to a desperado with gory and blood thirsty nature. Gruesome and callous act ascribed to him have no justification for showing any leniency as prayed. Motive is the case in hand is not denied, however, it is claimed that it was a mole-hill instead of mountain and does not call for putting rope around the neck of convict. But if this logic is allowed to take roots in the soil of criminal administration of justice, then murders over triffles would be taken as a casual activity, innocent victims would find no escape and rather criminal instead claim immunity. We are therefore, unable to find any mitigating circumstance. As indicated above, convict is not only responsible for gruesome murder of two persons; but also inflicted injuries upon Muhammad Yar PW. As a necessary corollary, he does not deserve any premium. 25. Following illuminating observations made in Talib Hussain and others vs. The State (1995 S.C.M.R. 1776) are applicable on all fours to the facts of nstant case as well:- "We may observe that there is a marked distinction between a case in which prosecution alleges a motive but fails to prove it and a case in which no motive is alleged or the alleged motive is too weak. In the former case, the superior Courts after taking into consideration the facts of the cases concerned, have reduced the sentence of death into imprisonment for life, whereas in the latter category of cases, the above rule has not been followed. We may point out that there is no legal requirement that in order to award maximum penalty of death in a murder case, the motive should be alleged and proved. If the prosecution proves the case against an accused in a murder case beyond reasonable doubt, the normal sentence is death. If above normal sentence is not to be awarded, the Court is to make out a case for reduction of sentence on the basis of mitigating circumstances. In the present case, the appellants, though .related to the deceased, trespassed into their Dera at Sheri time in the holy month of Ramzan and killed three male members of the family. If the incident would have taken place during day time in a Bazar or in the field, one could assume that something might have happened immediately before the occurrence of the incident, which prompted the killing of the deceased, but in a case where the accused launched a premeditated attack by trespassing into the Dera of the deceased and that too at, Sehri time, one cannot presume that something might have happened immediately preceding to the incident. We are, therefore, of the view that it is not a fit case where this Court should interfere with the imposition of the sentence by the two Courts below." 26. We, therefore, find no illegality in the impugned judgment and maintain the conviction as recorded by learned trial Court against the appellant on two counts of Qatl-e-Amd. There is no mitigating circumstances in his favour for alteration of his sentence from normal penalty of murder, i.e. hanging by neck. He committed Qatl-c-Amd of two innocent persons. Mere trivial nature of motive is not sufficient to reduce the sentence, rather it works otherwise. 2T. Muhammad Yar injured PW has forgiven the appellant and through an application has sought permission of Court to compound the offence with him. Necessary permission to compound the offence with the appellant has been accorded through separate order and, therefore, conviction and sentence of appellant for the injuries on the person of Muhammad Yar PW is hereby set aside and his appeal is accepted to said extent only. 28. Death sentence on each count imposed upon the appellant is confirmed and Reference is answered accordingly. Appeal, to the extent indicated above, consequently, fails and is hereby dismissed. Statement of Mr. Muhammad Akhtar Chishti. counsel for PW-2 & Muhammad Yar son of Nabi Bakhsh, resident of Mauza Obatta, Police Station Sadar Khanpur. on S.A; Muhammad Yar son of Nabi Bakhsh is injured witness against Hazaray Shah in present case. He has forgiven him in the name of Allah Almighty. His conviction and sentence to the extent of causing/inflicting injuries upon person of Muhammad Yar may be set aside, and he may be acquitted on that count. In this case against Hasarya Shah, appellant/convict for Qatl-e-Amd, on two counts, and also for causing injuries to prosecution witness, namely, Muhammad Yar s/o Nabi Bakhsh; injured PW has forgiven him in the name of Allah Almighty and prayed that the appellant be acquitted to the extent of injuries sustained by him at the hands of appellant. 2. As the offence is compoundable, necessary permission, asked for, is hereby accorded. In wake thereof conviction and sentence of appellant to the extent, of injuries sustained by Muhammad Yar, prosecution witness, is set aside and he is acquitted of the charge under Sections 334, 336, 337-A & F, of course as a result, of composition of offence to said extent only, in terms of Section 345(6) Cr.P.C. Cr. Misc. No. l-M/97 is disposed of accordingly. (AAJS) Orders accordingly

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1260 Present: GHULAM SARWAR SHEIKH, J. SARFRAZ AHMED alias GANESH etc.-Appellants versus STATE-Respondent Criminal Appeal No. 362 of 1994, dismissed on 24.3.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/34-Murder-Offence of-Conviction for-Appeal against-Number of injuries inflicted upon person of deceased is a speaking evidence of pate of anger-Both appellants came well prepared-Mode of commission of crime speak loudly about malice and ill will boiling in mind of appellants-There was a strong motive, which stands established even by statement of appellant-Ocular evidence leaves not an iota of doubt about guilt of appellants-Guilt of appellants stands proved beyond any reasonable or shadow of doubt-Testimony of PWs is devoid and bereft of any glaring discrepancy—Mere relationship of eye. witnesses is not sufficient to discredit their veracity unless it is proved that they harbour grudge, animosity or pique against accused person—Both appellants were rightly convicted-Appeal dismissed. [Pp. 1263 & 1265] A to F Khawaja Sarfraz Ahmed, Advocate for Appellant. Sh. Ehsan Ahmad, Advocate for State. Date of hearing: 24.7.1997. judgment Sarfraz Ahmad alias Ganesh, one of appellants, allegedly, owed a sum of Rs. 500/- to Khurram Sarshar. In connection with its re-payment an altercation andquarrel, statedly, took place between them in Dara Mast Shah on 15.5.1993. Shahid Sarshar complainant and Zafar Ahmad PW intervened and eventually, Sarfraz Ahmad alias Ganesh appellant is said to have promised to re-pay the debt on 17.5.1993. 2. In this back ground and with such motive, aforesaid, Sarfraz Ahmad alias Ganesh and his brother Imtiaz Ahmad alias Billi, in furtherance of their common intention, are, alleged, to have caused intentional murder of above mentioned, Khurram Sarshar S/o Mukhtar Sarshar, by causing injuries on his person with daggers at about 9.00 P.M. on 17.5.1993 in Shahab-ud-Din Park failing within area of Police Station Nekapura Sialkot. 3. Story of woe, an reflected by, un-folded in, and gleaned out of statement Ex. PG, in brief, is that on 17.5.1993, fateful and eventful day, Shahid Sarshar, complainant, returned to his house from mosque after offering Isha prayers. On learning from his mother that his brother, Khurram Sarshar, had, gone alongwith Imtiaz Ahmad alias Billi appellant in connection with re-payment of loan, he and his tenant namely, Sher Muhammad went out to ascertain the same. In the street they were joined by Zafar Iqbal PW, who, accompanied them. When all of them reached Shahab-ud-Din Park, they were attracted to the cries of "Bachao, Bachao", of Khurram Sarshar. They rushed towards that place and saw that Sarfraz Ahmad alias Ganesh and his brother Imtiaz Ahmad alias Billi were causing injuries to Khurram Sarshar with daggers. On- seeing them, both assailants made good their escape towards grave-yard. Upon failure to apprehend them, complainant his companions returned to the venue and found Khurram Sarshar rolling in a pool of blood. He succumed to his injuries on the spot. 4. Complainant and his companions were still present, there, when Manzoor Hussain, Sb-Inspector Police, on learning of the incident, reached there and recorded statement Ex. PG of Shahid Sarshar, upon which formal FIR Ex. PG/1 was drawn. He prepared injury statement Ex. PJ and inquest report Ex. PK and rough site plan Ex. PL of the occurrence. 5. During investigation blood stained earth was seized vide memo. Ex. PH and made into a sealed parcel. Blood-stained clothes comprising shirt P. 1, Skalwar P. 2 and Underwear P. 3 were taken into possession by means of memo. Ex. PB. Site plans Ex. PA and Ex. A/1 were got prepared and recoveries of chhuri and dagger P. 4 and P. 5 were effected through Ex. PC and Ex. PJ. Autopsy on dead body was prepared by Dr. Fakhar Zaman. 6. On commencement of trial before learned Sessions Judge, Sialkot, appellants were charged under Section 302 PPC read with Section 34 of the same Code, for causing death of Khurram Sarshar, in the manner stated above. On their pleading not guilty to it, prosecution led evidence against them by producing as many as 11 witnesses. Prominent amongst them are Dr. Fakhar Zaman (PW. 6) who, conducted post mortem examination of dead body of Khurram Sarshar. Aftab Baber (PW. 5), Pervaiz Ahmad (PW. 11) in whose presence blood stained chhuri P. 4 and dagger P. 5 were recovered vide memos. Ex. PC. and Ex. PJ at the instance of Sarfraz Ahmad alias Genesh and Imtiaz Ahmad alias Billi, accused, while, in custody. Shahid Sarshar (PW. 7) and Zafar Ahmad (W. 8) furnished ocular account of the occurrence and Muhammad Yousaf (PW. 9), ASI partly investigated the case after sad demise of aforesaid Manzoor Hussain Sub- Inspector. 7. When examined under Section 342 Cr.P.C. appellants denied all the incriminating circumstances figuring against them in prosecution evidence, professed innocence and alleged false implication due to suspicion. 8. On conclusion of trial, appellants were found and adjudged guilty of the offence with which they were charged and consequently convicted and sentenced to life imprisonment each. They were further directed to pay a sum of Rs. 40,000/- each to legal heirs of the deceased and in default thereof to suffer further R.I. for a term of six months. 9. Aggrieved by these findings, arrived at, by learned Sessions udge, Sialkot vide judgment dated 23.6.1994, the appellants have preferred this appeal against their conviction and sentence. Likewise, feeling dissatisfied, with quantum of punishment, complainant Shahid Sarshar has prayed for enhancement of the same through Crl. Revision No. 319/94. This judgment shall dispose of both of it together. 10. Learned counsel for the appellants has lambasted the verdict, by pointing out that the same is rife and replete with legal and technical snags, which, unfortunately, escaped notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. His main attack, inter alia, is upon alleged delay in reporting the matter to police, delay in post mortem examination, absence of signatures of Medical Superintendent on inquest report and injury statement, non-production of deceased's mother, who, had imparted information of his taking along by appellant Imtiaz Ahmad alias Billi to complainant and contradictions and discrepancies occurring in the prosecution evidence. 11. Conversely, learned counsel for the complainant as also learned Counsel representing the State have remarked that the appellants being responsible for such a gruesome, cold blooded and brutal murder, are liable to be awarded extreme penalty. 12. Let it be clarified, at the veiy out set, that FIR was lodged with agility, which fell, within human competence. Occurrence had taken place between 9 to 10 P.M. and criminal law was set into motion at 10.45 P.M. Deceased was soaked in blood and the complainant in trauma due to goary incident, but, even then, he nominated the appellants with their weapons. Variance about time is of little significance in wake thereof. It is not expected of grief stricken like PW. 7, brother of the deceased, to give minute details of ncident or dilate upon occurrence in fool-proof manner. FIR was lodged with alacrity ruling out chances of tutoring, deliberations or consultations. No doubt F.I.R. is not a substantive piece of evidence, but, when made, with alertness certainly washes .away prospective mist of suspicion and prosecution story embodied therein starts gleaming to enable Investigating Officer to go ahead toward positive direction, to unveil other hidden facts. 13. Motive in the present case, never, remained wrapped in mist or shrouded in mystery. It was spouted at the inception and with passage of time got fortification from the defence. In his statement under Section 342 Cr.P.C. Sarfraz Ahmad alias Ganesh accused-appellant un-equivocally admitted and candidly conceded that he owed a sum of Rs. 500/- to the deceased, but added, that he had cleared off the debt and financial liability. Altercation in this regard, only two days before incident, was also admitted in the same breath. Learned Sessions Judge rightly took notice of the fact that no evidence to substantiate claim of re-payment of above loan, was adduced. Polemic between deceased and Sarfraz Ahmad alias Ganesh on 15.5.1993, ceitainly left the appellant with simmering fuiy. Pain on chin by kick may soon vanish, but blow on self respect is unforgettable and causes anguish for ever. Number of injuries inflicted upon the person of the deceased is a speaking evidence of spate of anger. Both the appellants came well prepared and pre-meditation to satisfy their ruffled dignity. Seemingly their wounded pride constrained and rather compelled them to teach a lesson to the deceased. Imtiaz Ahmad alias Billi appellant equally shared the agony of his co-appellant brother Sarfraz Ahmad alias Ganesh with artifice and took him to Shahab-ud-Din Park, where, he was done away with, brutally. Mode of commission of crime as mentioned above speak loudly about malice and ill-will boiling in the mind of appellants. It is not essential that such an incident must precede a motive. Sometime, pungent remarks and abuses do suffice to provocate and haunt a criminal mind, which, is impervious to reason. Altercation and quarrel over re-payment of sum of Rs. 500/- gave birth to a motive for wreaking vengenance, which, is further writ large in shape of not less than 14 injuries on the person of the deceased. It is state of mind of an assailant as to which way and where he would response to motive. In these circumstances, there can be no other conclusion than that there was strong motive, which, stands established even by statement of appellant namely Sarfraz Ahmad alias Ganesh. 14. Ocular evidence too leaves not an iota or scintilla of doubt, about the guilt of appellants. Admittedly PW. 7 is real brother of the deceased while PW. 8 is his cousin. It is trite and settled law that mere relationship of eye-witnesses is not sufficient to discredit their veracity unless it is proved that they harbour grudge, animosity or pique against the accused' person. There is nothing on record to ascribe any of it to PW. 7 and PW. Both synchronize on every material point like weapon of offence, motive and seat of injuries etc. Their testimony is devoid and bereft of any glaring discrepancy. If some innocent contradictions have crept into, it can hardly be taken to have impaired prosecution case beyond repair. Human memory fade with passage of time, it cannot retain details with precision; retentive memoiy is rare phenomenon. Compactness, otherwise, looks un-natural, waivering and fluttering appear on the periphery of human memoiy. 15. It has been argued with vehemence that PW7 and PW 8 had no inkling about painful years of 1983, 1988, 1989 and 1990, which left vestiges like Ex. DD. Ex. DE, and Ex. DF on the character of deceased. This attack is without any force. Complainant PW 7, while making statement Ex. PG made it clear that he had returned from England three years prior to the occurrence. He was not expected to know every inch of the past of his deceased brother. Moreover registration of the cases in the past five years, lias nothing to do with the incident of murder and ignorance of eye­ witnesses about stories of the past, would not. make their depositions doubtful by any figment and stretch of imagination. There is no reason to disagree with the learned trial Court that, the above lapses attributed to PW7 and PW8 would not, create any dent in the prosecution case. Arguments that PWs are at variance ahout time of occurrence or reporting the matter to the police at 10.45 P.M. and thereby they cannot be taken to be present at the scene, particularly, when disappearance of deceased had dawned upon hem at 9.00 P.M. do not hold water. They were not expected to speak on any point with utmost clarity and precision. Both of them are rather in harmony on all material aspects of the case. Learned counsel has just tried to make mountain out of mole. As such ocular account when scanned with the help of Medical Evidence leave no room for suspicion about active involvement of appellants in the commission of crime. There looks no plausible reason as to why eye-witnesses would flasely implicated the appellants and screen out real culprits. No suggestion whatsoever was put and advanced that the deceased had enmity with any other person. The documents produced by the defence and referred to earlier would show that the cases were registered against the deceased in the year 1983-89. It was story of the past. This closed chapter could, not give rise to substitution especially when those cases were not registered at the behest of the appellants, whose innocence is not spelled out from any corner of ocular account, rather, it has placed the lid firmly upon their guilt. Aspersions cast upon the Medical Evidence especially relating to signatures upon injury statement and inquest report Ex. PJ and Ex. PK have no shimmering of genuineness. If at all these lapse occurred, same cannot be treated injurious from the prosecution point of view nor they paint any hazy picture favourable to accused. Nature and number of injuries are off paramount importance. Injuries Nos. 1, 8, 10, 11 and 13 were grievous and dangerous to life and death was caused by shock, haemorrhage and cardio respiratoiy failure. Autopsy was conducted on 18.5.1993 at 11.00 a.m. It was mentioned on the post mortem report Ex. PO that as per police record time of death was 9.15 p.m. on 1^.5.93. PW. 6, added that time between post mortem and occurrence was about 14/15 hours. In the opinion of Medical Officer all injuries were caused with sharp edged weapon. Time which lapsed between death and injuries was reportedly instantaneous. These aspects do not run counter to the ocular evidence rather lend truth to same. It is manifest that incident was not one man's show. Nun) her of injuries commensurate with the number of accused. It further fortifies that the incident took place between 9.00 p.m. to 10 p.m. Same cement the prosecution story that accused were armed with sharp edged weapons. In brief, Medical Evidence is in line with the ocular evidence. Recovery of P. 5 further connects appellant Imtiaz Ahmad alias Billi with the guilt. Chhuri P. 4 was found stained with human blood vide report of Chemical Examiner Ex. PN and that of Serologist Ex. PN/1. Recoveries are treated as corroborative piece of evidence. Guilt can be proved even independent of recoveries. Chhuri P. 4 was recovered at the instance of Sarfraz Ahmad alias Ganesh appellant while dagger P. 5 at the pointation f Imtiaz Ahmad alias Billi appellant. As P. 5 was not blood-stained, hence it was not sent to Chemical Examiner and Churri P. 4 recovered from Sarfraz Ahmad alias Ganesh was stained with blood. Investigation of this case was initially conducted by Manzoor Hussain, Sub-Inspector, who, however, expired and the rest of investigation was carried out by PW. 10, Muhammad Zaman, when, no mala fide stands ascribed to any of them. In wake thereof, guilt of the appellants stands proved beyond any reasonable or shadow of doubt. Both the appellants launched criminal assault upon Khurram Sarshar with pre-meditation and full preparation under the sting and influence of a definite motive and common intention and inflicted not less than 14 injuries on his person. As none of eye-witnesses has specifically stated that which of the fatal injury was caused by whom; it cannot be determined with certitude that fatal and grievous injuries were caused by one or other accusedappellant. In these circumstances, both the appellants were rightly convicted under Section 302(b) read with Section 34 PPC and each sentenced to imprisonment for life as Tazir. 16. Judgment, now sought to be impeached and set at naught, is accordingly based on sound reasonings and conclusions arrived, therein, do not appear to suffer from any lacuna. Same, accordingly, does not call for any alteration, interference and intervention. 17. For above reasons, Appeal as well as Revision merit dismissa and are hereby dismissed. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1265 [DB] Present ZAFAR PASHA CHAUDHRY AND CH. IJAZ AHMAD, JJ. INTIZAR HUSSAIN-Appellant versus STATE-Respondent Criminal Appeal No. 93 and M.R. No. 258 of 1993, heard on 25.11.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-B-Murder-Offence of-Conviction for-Challenge to-Witnesses corroborated each other on all material points-They were subjected to lengthy cross examination, but nothing favourable to appellant or damaging prosecution case could be elicited-Eye witnesses have no enmity against appellant, as such they have no reason to falsely implicate him in case entailing capital punishment-Witnesses have reasonably explained their presence at place of occurrence and fact that injured was immediately removed to hospital clearly indicate that, occurrence could not be unwitnessed-Had same not been witnessed there was no possibility of injured to have been carried to hospital-Apart from that witnesses have successfully stood of cross-examination-Although recovery of pistol, is of no much help to prosecution, but evidence of witnesses supported by medical evidence is sufficient to place safe reliance on their testimony—Prosecution has not, been able to establish motive and coupled with fact that igniting cause is also not known-Held: Sentence of death is converted to that of imprisonment for life-Appeal dismissed and conviction u/S. 302-B PPG upheld. [Pp. 1267,1268 & 1269] A, B, C, D, E & F Ch. Abdul Ghani, Advocate for Appellant. Mr. Tahir Haideri Wasti, A.A.G. for State. Date of hearing: 25.11.1997. judgment Zafar Pasha Chaudhry, J.-This judgment will dispose of Murder Reference No. 258/93 as well as Criminal Appeal No. 93/93 directed against the judgment dated 7.3.1993 passed by Ch. Sarfraz Ahmad Tarar, Addl. Sessions Judge, Sahiwal, whereby the appellant Intizar Hussain was convicted u/s 302-B PPC and awarded sentence of death as Tazeer, with a fine of Rs. 10,000/-, in default thereof to undergo RI for one year. 2. The prosecution case in brief as disclosed from the statement of Imam Ali Shah PW-7 made by him through FIR Ex. PH is that on 13.9.1991 at 4.00 p.m he was going to Chak Thathai alongwith his son Tahir Hussain (deceased), Jan Muhammad Takreem Hussain PW-8. When they reached near water course in Chak No. 36/E.B., they were confronted by Intizar Hussain appellant who was sitting in ambush armed with 12-bore pistol. He raised lalkara that he would not spare Tahir Hussain as he had been interfering in his Business of Sale of Narcotics etc. Immediately, thereafter, he fired a short from his pistol hitting Tahir Hussain on the right side of his nose. Tahir Hussain fell down. The complainant and his companions tried to over power the appellant but he threatened, on which they had to retreat. The appellant filed away alongwith his pistol. Tahir Hussain deceased was carried to Civil Hospital, Arifwala by a Tractor trolley who was admitted in the hospital and Medico Legal Report was obtained. The occurrence was witnessed by the complainant PW-7, Takreem Hussain PW-8 and Jan Muhammad. As regards motive, it was stated that the deceased had admonished the appellant who used to deal in Narcotics. The appellant took it seriously ill and thereafter by arming himself with fire arm committed the murder of Tahir Hussain. 3. The FIR was recorded by Muhammad Mumtaz SI/S.H.O. PW-9. Thereafter he visited the hospital but the injured Tahir Hussain was not in a position to make a statement. On account of darkness due to late hours, the Investigating Officer could not visit the place of occurrence, therefore, he visited the same on the next day i.e. 14.9.1991. He secured blood stained earth Ex. PD, prepared rough site plan Ex. PI and recorded the statements of six PWs at the spot. In the meanwhile, injured Tahir Hussain scummed to the injuries and expired in the hospital. Section 324 PPC was, therefore, substituted by Section 302 PPC. He prepared injury statement Ex. PG and inquest report Ex. PK and the dead body was despatched to the mort.ua ly for post mortem examination. He got prepared scaled site plan from the Patwari in triplicate Exs. PB, PB/1 and PB/2. The appellant was arrested on 23.9.1991 and on 29.9.1991 he got recovered pistol P-4, 12-bore which was secured through recovery memo Ex. PC. After completing the necessary investigation and other formalities the appellant was challaned and sent up to face trial. 4. Since Dr. Tanveer Ahmad who conducted the post mortem examination and prepared MLR EX. PF as well as post mortem report EX. PE had left for abroad, therefore, both the documents were identified to be in the handwriting of the said Doctor by PW-5 Abdul Jabbar Dispensar. In MLR EX. PF, a fire arm injury 2 cm x 1 cm x going deep blind on the right side of root of nose was observed. Subsequently during post mortem examination, the same injury was noted and described. It was a wound of entrance which had perforated scalp and skull. Membranes or brain were also perforated and congested. One pellet from inside of brain was removed. The injury had been caused by fire arm and was sufficient to cause death. Time in between injury and death was stated to be 10 to 15 hours and between death and post mortem was 8 to 12 hours. 5. The prosecution examined ten witnesses in order to establish its case against the appellant. PW-1 Muhammad Shamoou Constable is a formal witness. PW-2 Umar Din Patwari prepared site plan in scale of 40 karams to an inch. PW-3 Muhammad Yar attested the recovery of pistol P-4 ffected at the instance of the appellant from an iron box in his house. PW-4 Ghulam Hussain identified the dead body of the deceased and attested some formal recoveries. PW-6 Muhammad Zafar constable is a formal witness. PW-7 Imam AH Shah complainant, father of the deceased, and PW-8 Takreem Hussain have furnished eye witness account of the occurrence. Both of them made statements consistent with the narration of fact in the FIR EX. PH. Both the witnesses corroborated each other on all the material A points. They were subjected to lengthy cross-examination, but nothing favourable to the appellant or damaging the prosecution case could be elicited. PW-9 Muhammad Mumtaz SI/S.H.O. conducted the investigation, details of which have already been rioted and referred above. PW-10 Khurshid Altaf is a clerk in D.H.Q. Hospital. He produced Indoor and Outdoor registers as well as Admission Register and Death Register. The relevant entries regarding admission of Tahir Hussain and subsequently his death are recorded. Although examination of this witness was not veiy essential yet out of abundant precautions, the prosecution examined him alongwith the record. 6. After examining the aforesaid witnesses the learned D.D.A. tendered in evidence the report of Chemical Examiner EX. PL as well as Serologist EX. PM and with that closed the case of the prosecution. 7. The appellant was examined u/s 342 Cr.P.C. All the incriminating evidence as well as circumstances were put to him. He denied the allegations as well as recovery. In answer to Question No. 8, he made the following reply:- "I have been falsely involved in this case by the complainant and the police. Tahir Hussain was a Notorious Narcotics dealer. He was in league with the police. He was also a bad character and had been involved in many cases. He had many enemies. His murder was an unwitnessed murder. The Police after due deliberation with the complainant and the PWs falsely implicated me in the present case." 8. The learned counsel for the appellant after going through the statements of the witnesses especially eye witnesses straight away conceded that he would not contest the conviction of the appellant, however, he would made submissions with regard to quantum of sentence. We however, have gone through the evidence on the record with a view to ascertain whether the prosecution had proved the case against the appellant beyond any doubt. The eye witnesses have no enmity against the appellant, as such they have B no reason to falsely implicate him in the case entailing capital punishment. It has however, been suggested that the presence of eye witnesses at the place of occurrence did not appear probable. The witnesses have reasonably explained their presence at the place of occurrence and the fact that the injured was immediately removed to the hospital clearly indicate that the occurrence could not be unwitnessed. Had the same not been witnessed then there was no possibility of the injured to have been carried to the hospital. The fact that he was carried to the hospital and was examined leaves no doubt that eye witnesses were present at the place of occurrence. Since the eye witnesses had seen the assailant, there can be no reason on earth to have spared the real culprit and substituted the appellant, against whom there was no serious enmity or grievance. Apart from that the witnesses have successfully stood the test of cross-examination. After going through the examination in chief and cross-examination, one is convicted that they had seen the occurrence, otherwise, they could not have explained the occurrence in minor details as was done by them. The learned trial Judge, therefore, has rightly relied upon their testimony. Although recovery of pistol, as observed, is of no much help to the prosecution but the evidence of the witnesses supported by the medical evidence is sufficient to place safe reliance on their testimony. The conviction, therefore, is unexceptionable. 9. As regards the quantum of sentence the learned counsel has argued that the prosecution has not been able to establish motive. Apart from the eye witness statements there is nothing on the file to show that the appellant infect dealt in narcotics or that he was admonished previously so severely by the deceased that murder could be committed on account of the said insult or admonishing. It has been argued with vehemence that on the contrary, it has been admitted by the complaint himself that the deceased had criminal antecedents and also involved in the Business of Narcotics etc. Reference has been made to the statement of PW-7 Imam Ali Shah in para No. 3 at page 30 of the paper book, wherein he stated as follows :-- I do not remember if a case of decoity was registered against my son Tahir Hussain at P.S. Malka in the year 1982-83. Again said it is correct that a case was registered against my son of decoity due to party faction. It is correct that Tahir Hussain Shah deceased was challaned in a case of narcotic. Volunteered it was a false case. It is correct that a case of narcotic was registered against my son Tahir Hussain Shah deceased at P.S. Mailsi Distt. Vehari. It is correct that no case of narcotic was ever registered against Intizar Hussain." On the basis of the admissions made by the PW, it is hard to believe that the motive as set up by the prosecution is correct, rather it transpires that the deceased himself indulged in criminal activities and also was required in a narcotic case. With this back ground in mind we are persuaded that the award of capital punishment does not seem to be proper and justified. If the deceased himself indulged in criminal activities and also in narcotic then as to what preceeded the commission of murder remains shrouded in mysteiy. Even if it is believed as deposed by the eye witnesses that the appellant dealt in narcotic then the natural influence would be that both, the appellant as well as deceased had similar antecedents and the possibility that some dispute might have ensued in between them immediately before the occurrence cannot be ruled out. The prosecution witnesses are silent on the same. As already observed, the prosecution has not been able to establish the motive and coupled with the fact that igniting cause is also not known, the imposition of sentence of death is not called for. We, therefore, dismiss the appeal and upheld the conviction of the appellant u/S. 302-B PPC. However, sentence of death is converted to that of imprisonment for life. The fine of Rs. 10.000/- as imposed by the learned trial Judge is upheld and maintained. On realization, the same would be paid to the heirs of the deceased as compensation. In default thereof to undergo RI for one year. The benefit u/s 382-B Cr.P.C. is extended. (AAJS) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1269 [DB] Present: khalil ur rehman ramday and tassaduq hussain jilani, JJ. NIAMAT ALI-Appellant versus STATE-Rcspondent Criminal Appeal No. 415 and Murder Reference No. 240 of 1992, decided on 11.12.1997. Pakistan Penal Code, 1860 (XLV of 1860)- —-S. 302--Murder~Offence of-Conviction tor-Challenge to-Whether appellant murdered his wife in "Ghairat "--Question of-It was prosecutions, wn case that Mst. "I" was married to appellant-It had, however, been claimed that appellant had divorced Mst. T whereafter, deceased had contracted marriage with her and was thereafter keeping her in separate house-Appellant had specifically denied having divorced his wife-Prosecution did not bring on record any proof of dissolution of appellants marriage with said lady nor did prosecution produce any evidence in form of Nikah Nama etc. establishing marriage of deceased with said lady-It is not believable that having divorced his wife about two years ago, appellant would nourish such strong grudge against one marrying his divorced wife so as to take life of one marrying his former wife-Appellant had not divorced Mst. T and deceased was keeping said lady without any valid marriage-Held: Ghairat is one of rights vesting in person where any female connected with such person was subjected to immoral act-Held further: Appellant was not liable to punishment either u/S. 302 (a) or 302(b) PPC-His case falls within ambit of section 302(c) PPC, and directed to suffer ten years R.I. [Pp. 1273 & 1274] A, B, C, D & E PLD 1994 Lahore 129, 1992 SCMR 2047 and PLD 1996 SC 274. M/s Ehsan Qadir Shahamd and Ehtisham Qadir Shah, Advocates for Appellant. Mr. Salahuddin Zafar, Advocate for State. Date of hearing: 11.12.1997. judgment Khalil-ur-Rehman Ramday, J.--One Niamat Ali had been tried by a learned Addl. Sessions Judge at Sargodha for the murder of one Muhammad Asghar and having found the said Niamat Ali guilty of the said charge, through his judgment dated 7.4.1992, the said learned Addl. Sessions Judge convicted the said Niamat Ali under Section 302(b) P.P.C. and punished him with death as Tazir. 2. Murder Reference No. 240 of 1992 seeks confirmation of the said sentence of death while Niamat Ali approached this Court through Crl. Appeal No. 415 of 1992 calling in question the above noticed conviction and punishment recorded against him. Both these matters are being disposed of together through this single judgment. 3. The occurrence in question had taken place near the house of Asghar deceased in Mohalla Islampura on 3.10.1991 at about 8.30 p.m. about 2% kilometers from Police Station Urban Area of Distt. Sargodha and the said occurrence had been reported at the said police station by a brother of Asghar deceased, namely, Muhammad Ashraf at about 9.15 p.m. 4. Narrating the occurrence and the back-ground leading thereto Muhammad Ashraf complainant had mentioned that his brother Asghar deceased had two wives and that he had kept his second wife, namely, Mst. Irshad Bibi in a rented house in Islampura. He had added that Asghar eceased had not returned to his house in Sunbal Colony for two days and that in the evening of the day of occurrence he went to Islampura to find out ahout his said brother and was informed by Mst. Irhsad Bibi that Muhammad Asghar deceased had still not returned home. Muhammad Ashraf complainant had further alleged that just as he was returning from the said house of the deceased he saw Niamat Ali appellant launching an attack on Muhammad Aslam deceased near the turning of the street with a dagger. The complainant had fiirther claimed that while he saw the appellant injuring his deceased brother he raised a Lalkara at which the appellant ran away towards the chowk. The complainant had further disclosed that on receiving these injuries Asghar deceased fell injured while Suleman (P.W. 6), Abdul Majeed (given up) and Haji Shaukat Ali (given up) who had also witnessed the occurrence managed to over-power and apprehend Niamat Ali appellant at the spot. Ashraf complainant had further added that leaving Niamat appellant with Suleman P.W. he and Abdul Majeed (given up) rushed his brother Asghar to the hospital who however died on the way. 5. The motive alleged by the complainant for the murder in question was that Mst. Irshad Bibi was earlier married to Niamat Ali appellant who however divorced her whereafter Asghar deceased had married Mst. Irshad Bibi. Niamat Ali appellant had felt aggrieved of this act of Asghar deceased and it was on account of this grievance that the appellant had done the deceased to death. 6. After recording the F.I.R. Muhammad Azam S.I./S.H.O. (PW. 9) reached the place of occurrence where Suleman (PW. 6) handed over Niamat appellant to him who was then formally arrested by the said Investigating Officer. Suleman P.W. had also produced blood stained dagger (PW. 5) before Muhammad Azam S.I. which dagger was seized by the said I.O. vide memo Ex. P.E. Azam S.I./I.O. found blood in the paved street and he collected one of the blood stained bricks and took the same into possession vide memo Ex. P.D. 7. When confronted with the prosecution case under Section 342 Cr.P.C. the appellant denied having inflicted injuries on the person of Asghar deceased; denied his arrest at the spot and also denied recoveiy of a blood stained dagger. He had also denied having divorced Mst. Irshad Bibi or that Asghar deceased had married the said lady after seeking divorce from the appellant. The appellant's plea which, however, emerges from the suggestions made through cross-examination of eye-witnesses and the I.O. was that the appellant had never divorced Mst. Irshad Bibi and that the deceased was keeping the said female or had married her without, dissolution of her marriage with the appellant. 8. Canvassing acquittal for Niamat appellant, his learned counsel pleaded that the complainant and Siileman P.W. were planted eye-witnesses of the occurrence in question; that the apprehension of the appellant at the spot and the alleged snatching of dagger P-5 from him by the alleged eye­ witnesses was a fabrication; that the said appellant had been falsely implicated only on account of suspicion and enmity and that in the circumstances, it could not be said that the prosecution had been successful in proving its case against Niamat appellant beyond all reasonable doubts. In the alternative, it had been argued that the appellant having acted under Ghairat, was not liable to any punishment u/S. 302(a) or 302(b) P.P.C. 9. Suleman (PW-6) is not connected at all with the complainant party in any manner whatsoever nor could the defence demonstrate any illwill or animosity on his part which could have prompted him to maliciously involve Niamat appellant in the occurrence in question . He was, thus, an independent witness of the murder in question. On a question put to him by the learned cross-examiner, this witness had declared that his place of residence was only about 3/4 furlongs away from the place of occurrence. He was thus also a witness of the vicinity of the place of occurrence. The defence could not impeach his credibility and therefore nothing exists on record which could persuade us not to place reliance on the testimony offered by Suleman (PW-6). 10. It is true that Ashraf complainant who is the other eye-witness of the occurrence in question is a brother of Asghar deceased but that by itself would not be sufficient to discard his testimony because it could not be demonstrated at the trial that he had any reason or motive which could have led him to falsely involve the appellant in the present occurrence. It shall also be noticed that the occurrence in question had taken place at about 8.30 p.m. and the F.I.R. had been recorded at the police station within about 45 minutes of the said occurrence. The F.I.R. thus being so promote, eliminates the possibility of Ashraf complainant not having witnessed the occurrence and having been falsely planted as an eye-witness. His testimony also inspires confidence. 11. Not that any corroboration was required to believe the eye­ witness account of the occurrence yet the fact that Niamat appellant had been apprehended at the spot by the eye-witnesses alongwith blood stained dagger P-5 and the fact that the said appellant and the said dagger P-5 had been produced before the I.O. at the spot when he reached the place of occurrence is a rather important piece of evidence which rather strongly supports the prosecution case. 12. Consequently, we hold that no exception could be taken to the finding reached by the learned trial Judge that it was Niamat appellant who had done Asghar deceased to death. 13. The question which now requires determination is as to whether Injunctions of Islam permitted punishment of Qisas in the present case. 14. It was the prosecution's own case that Mst. Irshad Bibi abovementioned was married to Niamat Ali appellant. It had, however, been claimed that the said appellant had divorced the said Mst. Irshad Bibi whereafter, Asghar deceased had contracted marriage with her and was thereafter keeping her in a separate house in Islampura. 15. iamat appellant had specifically denied having divorced Mst Irshad Bibi. The prosecution did not bring on record any proof of the issolution of the appellant's marriage with the said lady nor did the prosecution produce any evidence in the form of Nikah Nama etc. establishing the marriage of Asghar deceased with the said Mst. Irshad Bibi. Therefore, it is not possible for us to hold that Niamat appellant had in fact divorced, Mst. Irshad Bibi and further that Asghar deceased was keeping the said lady as his validly married wife. The complainant had claimed that the ppellant had divorced his said wife about, two years prior to the occurrence. As has been noticed above, no proof is available on record about this alleged divorce and in any case, it is not believable that having divorced his wife about two years ago, Niamat appellant would nourish such a strong grudge gainst the one marrying his divorced wife so as to take the life of the one marrying his former wife. Because of the conspicuous omission on the part of the prosecution to lead evidence with respect to the above-noticed important aspect of this matter, we feel compelled to hold that the appellant had not divorced Mst. Irshad Bibi and that Asghar deceased was keeping the said lady without any valid marriage. 16. In Muhammad Siddique's case (P.L.D. 1994 Lah. 129) which was although a bail matter, one of us (Khalil-ur-Rehman Ramday, J.) had the occasion to consider such a situation in the light of the Injunctions of Islam and had reached the conclusion that the Holy Qur'an and the Sunnah of the Holy Prophet (S.A.W.) clearly recognised Ghairat as one of the rights vesting in a person where nay female connected with such a person, as in the present case, was subjected to an immoral act. The Hon'ble Supreme Court also had the occasion of considering a similar matter in more than one cases. Irr State vs. Muhammad Hanif (1992 S.C.M.R. 2047), it was declared by the Supreme Court that Qatl-c-Amd could be held liable to Qisas only where the person killed was not liable to be killed or was Masoom-ud-Dam and it. Was urther held that a person disgracing the modesty of a female could not be said to the Masoom-ud-Dam. Similar was the declaration of the Supreme Court in Ali Muhammad vs. Ali Muhammad (P.L.D. 1996 S.C. 274). 17. Consequently, we hold that Niamat appellant was not, liable to be punished in the present case either u/S. 302(a) of the P.P.C. or u/S. 302 (b) of the said Code. His case thus falls within the ambit of Section 302(c) o the P.P.C. 18. Resultantly. we set-aside the impugned conviction and punishment recorded against Niamat Ali appellant u/S. 302(b) of the P.P.C. He is, however, convicted u/S. 302 (c) of the said Code and is directed to suffer ten years R.I. Havine examined the matter, we do not feel inclined to pass any order u/S. 544- A Or.P.C., because it, was an immoral act on the part of the deceased himself ^'hich had led to his murder. 19. Niamat \li appellant shall be allowed the benefit of the provisions of section - ! '->2-B of the Code of Criminal Procedure. 20. The sentence of death awarded to Niamat Ali appellant having been set-aside, tt ere is no question of confirmation of the same. Murder Reference No. 2-J' 1 '92 is, therefore, answered accordingly. 21. Cji vppeal No. 415/92 is disposed of in the above terms. Sent.en e of death is not confirmed. (T.A.F ; Appeal partially allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1274 Present: AMJAD ALI, J. STATE-Appellant versus MAQSOOD AHMAD etc.-Respondents Cr. Appeal No. 502 of 1992 accepted on 15.7.1997. riminal Procedure Code, 1898 (V of 1898)-- —S. 249-A-Powers of court to acquit accused at any stage-Inherent powers—Exercise of—Whether accused could be acquitted without hearing prosecution—Question of—Learned Trial Magistrate had obtained written arguments from learned counsel for accused-respondents and had passed acquittal order without hearing prosecution side-Even on this score order of learned trial Magistrate is not, sustainable-While acquitting accused learned trial Magistrate was motivated simply because of close relationship with complaint—He was thus of the view that statements of four witnesses examined by prosecution were not worthy of any credence--Since complainant, his son and his brother-in-law were allegedly injured by respondents, prima fade, they were all veiy natural witnesses and their testimonies could not, be brush aside summarily simply because of their relationship with each other—Acquittal order, therefore, was not passed after due appreciation of evidence-Appeal accepted. [P. 1277] A & B Mr. Shujaud Din Qurehsi, Advocate for State. Sh. Muhammad Asadullah, Advocate for Respondents. Bashir Ahmad Rai, Advocate for Complainant. Date of hearing : 14.7.1997. judgment On the report of Raja Ali Asghar, the complainant, a case vide FIR No. 124/89, dated 12.5.1989 was registered at Police Station, South Cantt, Lahore, against seven persons, namely Maqsood, Tahir, Tariq, Azam, Rafique, Ghaffar and Nasir, under sections 307, 148/149 of the Pakistan Penal Code. According to the complainant, about 2-3 days prior to the occurrence, the women-folk of the parties had an altercation where-upon respectables of the mohallah got the matter resolved. But on the 10th May. 1989, at about 8.30 p.m., while he was coming back to his house after making certain purchases and at that time his two brothers-in-law, namely Muhammad Nawaz and Muhammad Altaf were having certain discussion in front of his house, all of a sudden Maqsood armed with hatchet, Tahir armed with spade, Tariq, Rafique and Ghaffar armed with lathis, Azam armed with knife and Nasir empty handed came there raising lalkaras. Maqsood gave a blow to Muhammad Nawaz with his hatchet at the back of his head, Tahir caused head injury to Muhammad Nawaz with his spade. Tariq also caused an injury at his left arm with his lathi. Azam injured the complainant through his knife. The complainant's son Ali Ansar and his brother-in-law Altaf wh came forward to rescue him were lso attacked. Rafique caused an injury to Muhammad Altaf with his lathi. Similarly. Ghaffar attacked complainant's son with his lathi, while Nasir caused injury with his fists. The complainant raised hue and cry upon which Muhammad Latif son of Fazal Dad and his wife Mst. Nazeern Begum came at the spot, and saw the whole incident. The accused-assailants thereupon decamped away. 2. During the investigation, the police found Abdul Ghaffar, Muhammad Rafique and Azam as innocent, while the remaining accused were charged to stand trial before the Magistrate (with powers of section 30 Cr.P.C), Cantonment Lahore. Four witnesses, namely Raja Ali Asghar, the complainant and three injured, namely Muhammad Nawaz, Muhammad Altaf and Raja Ali Ansar appeared as P\V1, PW2, PW 3 and PW 4 respectively. The remaining two witnesses Muhammad Latif and complainant's wife Mst. Nazeeran Begum were yet to be examined. In addition thereof prosecution had yet to examine Mushtaq Ahmad, Abdul Hameed and Naseer Ullah constables, Dr. Muhammad Aslam CMO, General Hospital, Lahore, and Dr. Major Ahmad Hassan, CMH, Lahore, who had examined the injured and Khadim Hussain ASI, P.S. Lahore Cantonment. 3. In the meanwhile, the accused moved an application under section 249-A Cr.P.C. for their acquittal on the grounds that the prosecution had failed to produce the remaining witnesses in the Court, the four witnesses examined by the Court were inter-related and on the basis of the statements of these four witnesses, there was no likelihood of the conviction of the accused. The learned Magistrate by his order, dated 7.1.1992, accepted the application and held that the prosecution had not proved the guilt of the accused and that given any more opportunity to the prosecution would be a wastage of time and thus he acquitted the accused. The present appeal has, therefore, been filed on behalf of the State assailing the aforesaid order of the learned Magistrate, mainly on the ground that the prosecution witnesses were not, summoned by the Court nor the Court, had given any consideration to the statements of the eye witnesses and the injured and had disposed of the case summarily. 4. I have heard the parties at length. On behalf of the State and the complainant, it was contended that proper opportunity of producing evidence by the prosecution was not given nor the learned Magistrate had taken into consideration the medical reports tendered by the doctors who examined the injured and were present on the record. It was also contended by Rai Bashir Ahmad Advocate, learned counsel for the complainant, that mere relationship of the prosecution witnesses with the complainant does not per se makes the prosecution version false and fabricated, particularly when they ere injured during the occurrence which took place in front of the house of the complainant. In support of his contentions, the learned counsel referred toRehman vs. The State (PLD 1988 Lahore 643) and Muhammad Jurnan vs. The State (1992 P.Cr.LJ. 1922) wherein it was held that mere relationship with the deceased, the testimony of eye witnesses and natural witnesses of the occurrence cannot be ignored. 5. Sh. Muhammad Asad Ullah, Advocate, appearing on behalf of the respondents (acquitted accused) contended that Muhammad Nawaz PW 2 and Altaf PW 3 were brothers-in-law of the complainant (PWl), while PW 4 was the real son of the complainant. Similarly, the other two eye-witnesses, namely Muhammad Latif and Mst. Nazeeran Begum were the nephew and wife of the complainant respectively. He was, therefore, of the view that no reliance could be placed on the averments of these witnesses being interested persons. According to him, the incident took place in the open bazar, but no independent witness of the locality was cited in the array of witnesses. He also contended that three accused of the occurrence, namely Abdul Ghaffar, Muhammad Rafique and Muhammad Azam against whom specific roles were attributed in the FIR have already been discharged as they were found innocent by the police and consequently, the whole prosecution story proves to be false and fabricated. Learned counsel for the respondents was also of the view that, since the trial Magistrate had acquitted the accused aftertaking into consideration all the pros and cons of the case, it does not deem desirable to interfere in the findings of acquittal recorded by the trial Court. In support of his contentions, the learned counsel also referred to Sultan Ahmed vs. Ghulam Raza and others (1995 SCMR 664), and Muhammad Alt and others vs. The, State and others (1995 SCMR 231), wherein the Supreme Court had not interfered in the findings of the acquittal recorded by the High ourt. Learned counsel also referred to Aftab Ahmad and others vs. The State (PLD 1989 Lah. 520), wherein the High Court-had not remanded the case for re-trial as the matter related to the year 1980 and the parties had undergone the ordeal of protracted trial for nine years. 6. It is, however, clear that in Aftab Ahmad's case the parties had also entered into a compromise and on that basis the learned Judge did not remand the case for re-trial. The other two cases referred to above by the learned counsel for the respondents are also distinguishable as in both the cases, the findings of acquittal were recorded after due appreciation of the evidence. None of these cases relate to acquittal during the pendency of the trial under the provisions of section 249-A Cr.P.C. In the present case, however, it is clear from the record that after framing the charge on the 31st October, 1989, the case had been adjourned for over 25 times, but several adjournments were allowed becaxise of absence of one or other of the accused who were on bail, it is also to be seen that, except two witnesses, namely Muhammad Latif and Mst. Nazeeran Begum the other witnesses to be produced by the prosecution were all government functionaries including two doctors. The trial Court was fully empowered under the law to cause production of witnesses by adopting legal coercive measures. No such measures appears to had been initiated by the learned trial Magistrate. t 1. Under section 249-A of the Code of Criminal Procedure, a Magistrate can acquit an accused at any stage of the case, if after hearing the prosecutor and the accused, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. In this context, learned counsel for the complainant contended that as is apparent form the record, the learned trial Magistrate had not heard the parties. There is quite a force in these contentions as on 4.1.1992. the learned trial Magistrate had obtained written arguments from the learned counsel for the accused-respondents and had passed the acquittal order on the 7th January, 1992, without hearing the prosecution side. Even on the scope the order of the learned trial Magistrate is not sustainable. 8. From the impugned order, it also appears that while acquitting the accused the learned trial Magistrate was motivated simply because of close relationship with the complainant. He was thus of the view that the statement of four witnesses examined by the prosecution were not. worthy of any credence. Since the complainant, his son and his brothers-in-law were llegedly injured by the respondents, prima facie, they were all very natural witnesses and their testimonies could not be brushed aside summarily simply because of their relationship with each other. The acquittal order, therefore, was not passed after due appreciation of the evidence. 9. In view, thereof, the impugned order of the learned trial Magistrate dated 7.1.1992 cannot be upheld. The same is accordingly set. aside and the case is remanded to the trial Court for fresh adjudication after examining the remaining witnesses. The prosecution shall make all efforts for production of the evidence so that the trial is not unnecessarily delayed. The learned trial Magistrate will however be at liberty to close the evidence if the prosecution fails to discharge its obligation within the reasonable time allowed by the Court. The appeal is accepted accordingly. (K.A.B.) Appeal accepted

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1278 Present: ghulam mahmood qureshi, J. MUHAMMAD WARYAM-Petitioner versus MEHMOOD alias MOODA etc.-Respondents Crl. Misc. No. 1261-CB and 1081/B/1997, dismissed on 31.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(5)-Bail-Cancellation of-Murder-Offence of-Bail granted to one 1 ccused, but refused to other co-accused having same role-Petitions for cancellation of bail as well as for giant of bail to co-accused—According to Zimni both accused have been declared innocent—Case of both accused is that of further inquiry-Contents of FIR clearly show that both of them were placed under similar circumstances-Court below did not act on correct principle of law i.e.. rule of consistancy-Complainant party could not succeed to make a good ground which could justify cancellation of bail already granted to respondent No. 1, whereas bail petition of co-accused having same role accepted-Orders accordingly. [P. 1280] A, B & C 1983 SOME 124, P.Cr.L.J. 1302 ref. Makhdoom Ijaz Hussain Bukhari, Advocate for Petitioner/Complainant. Ch. Muhammad Anwar Khan, Advocate for Respondent. No. 1 and petitioner in Crl. Misc. 1081/B of 1997. Mirza Fiaz ul Din Ahmad, Advocate for State. order This order shall dispose of application for cancellation of bail of respondent No. 1, Mehmood alias Mooda as well as connected post arrest bail application Crl. Misc. 1081/B/97) of Aziz, alias Ghazi, co-accused of respondent No. 1. 2. On the complaint of Muhammad Waryani F.J.R. No, 255/96 dated 4.8.1996 was registered at P.S. Saddar Mian Channim against Daini, Aziz alias Ghazi (petitioner in Crl. Misc. No. 1081/B/97) and Mehmood alias Mooda (respondent No. 1) for committing the murder of one Riaz Ahmad, son of the complainant and injuring Mst. Razia alias Nazo, sister of the deceased. Post arrest bail application was moved in the Court of learned Sessions Judge, Khanewal on behalf of Mehmood and Aziz. Mehmood alias Mooda was allowed bail, but the bail application to the extent of Aziz alias Ghazi was refused vide order dated 9.4.1997. 3. The learned counsel for petitioner/respondent No. 1 contends that the case of petitioner is at par with that of Mehmood, who has already been admitted to bail by the learned Sessions Judge, Khanewal. The learned counsel further contends that the same role has been attributed to him in the F.I.R. It is next contended that the investigation conducted by the SP, Aziz and Mehmood, accused, have been found innocent and have been placed in column No. 2. No overt act has been attributed to Aziz-petitioner and there is absolutely no allegation that he has caused any injury to the deceased or injured PW, Mst. Razia. So far as the assault upon the deceased is concerned all the three fire shots were caiised by Daim, accused, who remained throughout at the spot. He further contends that no recovery has been effected from the petitioner, Aziz, as the alleged sota according to F.I.R. itself was never used in the occurrence. He further submitted that there is absolutely no circumstances narrated in the F.I.R., which can show common intention and presence of the petitioner along with his co-accused Mehmood alias Mooda. He further contends that no cogent reason has been given by the learned Sessions Judge while dismissing the bail application of petitioner, Aziz, when on the same ground Mehmood his co-accused has been admitted to bail. In the F.I.R. there is no distinction whatsoever, in the role attributed to petitioner, Aziz and Mehmood co-accused. On the basis of principle of Consistency the petitioner was also entitled to bail. 2. The learned counsel for the complainant as well as the learned counsel appearing on behalf of the state have vehemently opposed the bail application of Aziz alias Ghazi. The learned counsel for complainant has contended that both the accused are vicariously liable for the murder. He has also referred to Zimirii No. 9, which according to the learned counsel was sufficient to establish the guilt of the accused as the petitioner Aziz and Mehmood, respondent No. 1, were also found guilty. 3. The learned counsel for complainant petitioner in regard to application for cancellation of bail of Mehmood, accused, has submitted that his bail is liable to be ca»if " ' on the ground of misusing the concession of bail granted to him by the '... ms Judge, and threatened the eye witness of occurrence Mst. Razia ahc "

10 restrain her from following the above said murder case. Upon hei i. ti"?al he and his brother has committed .zijiabil-jabr with her and a cast FIR No. 208/1997 under Section 10/18 of Offence of Zina (Enforcement of Hudoodi Ordinance 1979 was registered against them. 4. Ch. Muhammad Anwar, Advocate, who is also counsel for Mehmood, respondent No. 1 has controverted the arguments of learned counsel for complainant. He contends that the case for committing of zina bil-jabr, according to the investigation conducted by the S.P., Khanewal, has been found false and even S.P. has recommended for registration of a case against Mst. Razia under Qazf Ordinance. The learned counsel further contends that all these efforts ^made by the complainant party were just to make a ground for cancellation of bail granted to Mehmood accused and for that they have used every tactic, which they could do. In these circumstances the bail granted to respondent No. 1 cannot be cancelled as he has already been declared innocent alongwith his co-accused Aziz. 5. I have heard the learned counsel for parties and have also gone through the record. I have also gone through Zimines Nos. 9 and 15. According to Zimini No. 15, Mehmood o//as Mooda and Azia alias Ghazi, ccused, have been declared innocent and the D.S.P. did not agree with the investigation carried out by the S.H.O. In view of difference of opinion recorded by the two Investigating Officer, the case of both the above said accused is that of further inquiry. I observe here that while admitting Mehmood accused to bail, the learned Sessions Judge has refused bail to Aziz, whereas the contents of F.I.R. clearly shows that both of them were laced under similar circumstances and situation and if this was so the court have to maintain equality. There was no distinction between the rule of both accused. In the matter of bail, the Court below did not act on correct principle of law, specifically in cases of this type, and fail to maintain equal treatment between the person placed in similar situation and circumstances. See the cases Abdul Salarn vs. The. State (1980 S.C.M.R. 142), Khadim Hussain vs. The State (1983 S.C.M.R. 124) and Muhammad Naseem alias Naseemo us. The State (1996 P.Cr.L.J. 1302). Both the above said accused have been placed in column No. 2. The learned counsel for complainant has sought cancellation of bail of Mehmood accused on another ground that he has misused the concession of bail and has allegedly committed zina-bil-jabre and a case F.I.R. 208/97 was got registered by Mst. Razia, sister of deceased and injured PW of the said murder case. The arguments of the learned counsel for complainants has no substance as the said case was cancelled and the complainant party could not succeed to make a ground which could justify cancellation of bail already granted to respondent No. 1. 6. In view of above discussion, I see no merit in this application for cancellation of bail of Mehmood, accused respondent No. 1, the same is dismissed accordingly. The connected matter i.e.. bail application on behalf of Aziz alias Ghazi (Crl. Misc. No. 1081/B/97) is accepted, keeping in view the principle of Consistency and also being the case of further inquiry Aziz alias Ghazi, petitioner, is also entitled to be released on bail. He is allowed bail subject to furnishing bail bond in the sum of Rs. 1,00,00()/- with one surety in the like amount to the satisfaction of trial Court. (MYFK) Order accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. Lahore 1281 [DB] [ Multan Bench] Present: MUHAMMAD NASEEM CHAUDHRI AND ABDUR RAZZAQ, J J. MUHAMMAD JAVAID etc.-Appellants versus STATE-Responclent Crl. Appeal No. 870 of 1988, decided on 9.3.1998. Pakistan Penal Code 1860 (XLV of 1860)-- —-S. 302/149/148-Murder-Offence of-Convictioii for-Challenge to - Motive stands established—Occurrence took place much before sunset and there cannot be hance of error in identification of assailants—F.I.R was promptly lodged—There is no chance of substitution—Defence has no been able to shatter ocular account hrough weapon of crossexamination-In the circumstances there is every justification to relyupon statements of interested witnesses when general ublic always avoid and show apathy towards becoming eye-witnesses in sensational cases of gruesome murder-Recovery of churris from two appellants is a strong ircumstance in favour of prosecution for the purpose of corroboration to ocular account—Injuries found on person of four deceased persons were in onsonance with statements of eye-witnesses and thus medical evidence is not in conflict with statements of eye­ witnesses-Appeal dismissed. [Pp. 1288 & 1289] A, B, C, & E Mian Subah Sadiq, Advocate for Appellants. Syed Ali Raza, Advocate for State. Date of hearing: 9.3.1998. judgment Muhammad Naseem Chaudhri, J.-This appeal is directed against, judgment dated 15.8.1998 passed by the Punjab Special Court, for Speedy Trials No. 1, Lahore whereby Muhammad Javed and Muhammad Zafar appellants were convicted and sentenced to death each on four counts and to fine of Rs. 5,000/- each on four counts or in default of its payment to undergo R.I. for a period of 2 years each on fcmr counts; convicted and sentenced Nazar Muhammad, Muhammad Aslam and Gulzar Shah appellants to life imprisonment each on four counts and to fine of Rs. 5,0007- each on four counts or in default of its payment to further undergo R.I. for a period of two years each on four counts under sections 302/149 Pakistan Penal Code; convicted and sentenced all the aforesaid five appellants to undergo R.I. for a period of two years each under section 148 Pakistan Penal ("ode. All the five appellants were directed to pay Rs. 1,0(),000/- (rupees one lac) each to legal heirs of all the four deceased persons as compensation under section 544-A of the Code of Criminal Procedure or in default of its payment to undergo imprisonment for a period of six months. 2. It is proper to express that due to the enforcement of the Presidential Amnesty Order, 1988 during the month of December, 1988 the sentences of death awarded to Muhammad Javed and Muhammad Zafar on each four counts have been converted to life imprisonment. Further it is recorded that according to the information imparted by the Superintendent, Central Jail, Sahiwal Nazar Muhammad appellant son of Masta expired on 2.2.1993. 3. The present occurrence took place at 6.00 p.m. on 12.8.1986 in Mauza Baseerpur, District Okara wherein Muhammad Rafique, Muhammad Aslam, Muhammad Sharif and Muhammad Afzal all sons of Sheikh Ahmad, resident of Railway Road, Baseerpur were murdered. 4. In this case, FIR Exh. PF was recorded by Naveed Iqbal SI/SHO Police Station Baseerpur, District Okara on 12.8.1986 at 6.30 p.m. who according to the report Exh. PW-l/B on summons Exh. PW-1/1 prepared by Abdul Qadir ASI Police Station Baseerpur PW-1 had expired on 18.2.1988. 5 The facts of the prosecution case are narrated in FIR Exh. PF prepared by Naveed Iqbal SI (since deceased) at the instance of Muhammad Hanif complainant PW-10, a brother of the deceased persons. It is narrated in the FIR that his brothers Muhammad Rafique and Muhammad Aslam (both deceased) plied their wagon No. LEP 7575 from Baseerpur to village Parmanand. Muhammad Rafique deceased was the driver while Muhammad Aslain deceased worked as the cleaner. Muhammad Aslam and Muhammad Javed both sons of Nazar Muhammad Kharal were also maintaining the wagon on which Muhammad Zafar was the driver and Muhammad Javed was the cleaner. On that date (12.8.1986) at 3.00 p.m. due to the availing of the wagon time, the dispute arose between Muhammad Rafique and Muhammad Aslam deceased persons on the one side and Muhammad Zafar and Muhammad Javed appellants sons of Nazar Muhammad on the other side at wagon Adda Baseerpur while he (complainant) was also present there. His brothers Muhammad Rafique and Muhammad Aslam deceased went to Mauza Parmanand after boarding the passengers in the wagon. Muhammad Zafar and Muhammad Javed appellants were annoyed. They issued the threats that in future they (deceased persons) would not be in a position-to take away the wagon. At about 6.00 p.m. Muhammad Rafique and Muhammad Aslam deceased persons arrived back from Mauza Parmanand. Close to the National Bank Branch near the Wagon Adda, Nazar Muhammad appellant armed with hatchet, Muhammad Aslam appellant and his 'Behnoi' Gulzar Shah appellant each armed with Sota as well as Muhammad Javed and Muhammad Zafar appellants each armed with 'Khanjar' emerged from the shop and attacked Muhammad Rafique and Muhammad Aslam deceased persons who raised the alarm and started running towards the East on the Pacca road. The appellants overpowered them in front of Railway Station. Nazar Muhammad appellant inflicted the hatchet blow from the blunt-side on the head of Muhammad Rafique deceased who fell on the ground and in that position Muhammad Zafar appellant inflicted the 'Khanjar' blows in his left flank, right arm and right thigh. He (complainant) alongwith his son Akram PW-9, his Behnoi Rashid Ahmad as well as his brothers Muhammad Sharif and Muhammad Afzal (also deceased of the case) stepped ahead to rescue Muhammad Rafique and Muhammad Aslam deceased persons. Within their sight Gulzar Shah appellant, gave the edge (Hujj) with his Sota on Muhammad Aslam deceased who fell down. Muhammad Javed gave the 'Khanjar' blows on his right front chest, left upper arm and left arm-pit. Muhammad Zafar appellant inflicted the 'Khanjar' blows on the chest, abdomen and left arm of Muhammad Sharif deceased. Muhammad Javed appellant inflicted the 'Khanjar' blows on the left front chest, left, flank and abdomen. He (complainant PW-10) his son Akram PW-9 and his Behnoi Rashid Ahmad PW (not produced) did not go ahead as they were afraid. His four brothers Muhammad Rafique, Muhammad Aslam, Muhammad Sharif and Muhammad Afzal expired at the spot. Leaving them there he went to Police Station Baseerpur and got recorded FIR Exh. PF Naveed Iqbal SHO (since deceased) went to the place of occurrence who took into possession the deadbodies of Muhammad Sharif, Muhammad Afzal, Muhammad Rafique and Muhammad Aslam. He prepared the respective injury statements and the inquest reports pertaining to the deceased persons. He handed over the deadbodies to Muhammad Ali Constable PW-6 who removed them to Civil Hospital, Havaili Lakha for post-mortem examination and thereafter delivered the blood-stained clothes of each of the deceased before Naveed Iqbal SHO. The, aforesaid SHO took into possession the blood-stained earth from those places Muhammad Afzal, Muhammad Rafique and Muhammad Sharif deceased were lying and from wagon No. LEP 7575 wherein the deadbody of Muhammad Aslam was lying. He prepared the respective memo attested by Atta Muhammad PW-7 and Amjad Ali PW (given up). He sealed the blood-stained earth in different four parcels. Naveed Iqbal SHO got prepared site-plans Exh. PA and Exh. PA/1 from Nisar Ahmad Draftsman Baseerpur PW-2 on which the notes and drawings with black ink are in his hand and those in red ink are in the hand of the SHO. 6. The appellants namely Nazar Muhammad, Muhammad Javed, Muhammad Aslam and Muhammad Zafar were arrested on 13.8.1986 while Gulzar Shah appellant was arrested on 3.9.1986. While under police arrest Nazar Muhammad appellant led to the recovery of hatchet P-15 from his house on 23.8.1986 which was taken into possession vide, memo Exh. PBB. On the same date Muhammad Zafar appellant led to the recovery of blood­ stained 'Chhuri' P-l from his house which was taken into possession vide memo Exh. PAA when Exh. P-l was sealed in a parcel. On 23.8.1986 Muhammad Javed appellant led to the recovery of blood-stained 'Chhurri' P- 2 from his house which was taken into possession vide, memo Exh. PZ and was sealed in a parcel. Muhammad Aslam appellant led to the recoveiy of Sota P-16 from his house which was taken into possession vide memo Exh. PY. Both the sealed parcels were handed over by Naveed Iqbal SHO to Muhammad Shafi ASI PW-4 for keeping in the Malkhana. On 8.9.1986 Gulzar Shah appellant led to the recovery of Sota P-3 from his house situated in Mauza Phullan Toh which was taken into possession vide memo Exh. rCT All these mernos were attested by Allah Ditta PW-8 and Munir Ahmad (PW (jiot produced). 7. Muhammad Shafi ASI PW-4 handed over the four sealed parcels containing the blood-stained earth and two sealed parcels containing the blood-stained 'Chhuris' on 27.8.1986 to Sabir Hussain Constable who delivered the same intact in the office of the Chemical Examiner Lahore. 8. Dr. Muhammad Fakhar Ali Senior Medical Officer, Civil Hospital Havaili Lakha, District Okara conducted the postmortem examination on the respective deadbody of Muhammad Aslam, Muhammad Sharif Muhammad Afzal and Muhammad Rafique on 13.8.1986 who were identified by their relative Atta Muhammad PW-7. 9. On 13.8.1986 this medical witness conducted the post-mortem examination at 9.30 a.m. on the deadbody of Muhammad Afzal. He ound seven injuries on his person. According to him the cause of death was shock and haemorrhage due to injuries No. 1 to 5 which were dangerous and were sufficient to cause death. He issued carbon copy Exh. PB of the post-mortem report and carbon copy Exh. PB/1 of the diagram of injuries. 10. On 13.8.1986 at 10.50 a.m. PW-1 conducted the post-mortem examination on the deadbody of Muhammad Sharif. He found three injuries on his person. According to him the cause of death was shock and haemorrhage caused by the injuries. He issued carbon copy Exh. PC of the postmortem report and carbon copy Exh. PC/1 of the diagram showing the injuries. 11. On the same date at 11.45 a.m. this medical witness conduct the postmortem examination on the deabdody of Muhammad Aslam and found six injuries on his person. According to him the cause of death was shock and haemorrhage caused by injuries. He issued carbon copy Exh. PC of the post-mortem report and carbon copy Exh. PC/1 of the diagram showing the injuries. 12. On the same date at 11.45 a.m. this medical witness conducted the postmortem examination on the deadboy of Muhammad Aslam and found six injuries on his person. According to him the cause of death was shock and haemorrhage caused by the injuries. He issued carbon copy Exh. D/1 of the postmortem examination report and carbon copy Exh. PD/2 of the diagram showing the location of injuries. 13. On 13.8.1986 at 12.45 a.m. this Medical Officer conducted he postmortem examination on the deadbody of Muhammad Rafique and found six injuries on Ins person. He expressed that the cause of death was shoc and haemorrhage resulting from the injuries. He issued carbon copy Exh. PE of the post-mortem report and carbon copy Exh. PE/1 of the diagram showing the location of injuries. 14. According to the reports Exh. PFF, Exh. PGG, Exh. PHH and Exh. PJJ the earth taken into possession from four places was stained with blood. According to reports Exh. PMM, Exh. PNN, Exh. POO and Exh. PSS the earth taken into possession from four places was stained with human blood. According to report Exh. PKK and Exh. PLL the 'Chhuri said to have been got recovered by Muhammad Javed appellant and the 'Churri' said to have been got recovered by Muhammad Zafar appellant were stained with blood. According to reports Exh. PQQ and Exh. PRR both the aforesaid 'Chhuris' were stained with human blood. 15. After completing the investigation the police submitted the challan before the trial Court. The appellants namely Nazar Muhammad, Muhammad Javed, Muhammad Aslam and Gulzar Shah were charged under section 148 and under section 302/149 Pakistan Penal Code on four counts for the alleged murder of Muhammad Rafique, Muhammad Aslam, Muhammad Sharif and Muhammad Afzal deceased persons. They pleaded not guilty thereto and claimed to be tried. During the trial the aforesaid PWs stood in the witness-box and supported the prosecution case in clear terms. Abdul Qadir PW-1 was entrusted with summons Exh. PW-1/1 to get served Naveed Iqbal SI/SHO Police Station Baseerpur and after making the effort in the matter he gave his Deport Exh. PW-l/B that the aforesaid SI/SHO ad died on 18.2.1988. The prosecution was allowed to produce the secondary evidence in the matter vide order dated 7.8.1988. The evidence of motive has been furnished by Muhammad Hanif complainant PW-10. The occular evidence comprises the statements of Muhammad Akram PW-9 and his father Muhammad Hanif complainant PW-10, a brother of all the four deceased persons. The medical evidence comprises the statement of Dr. Muhammad Fakhar Ali PW-3 who conducted the postmortem examination on the aforesaid four deadbodies. On Court question he deposited that an abrasion could be caused with the edge of the Sota P-3 but not linear. When examined under section 342 of the Code of Criminal Procedure Muhammad Aslam, Muhammad Zafar and Gulzar Shah appellants deposed about their non-participation in the occurrence and denied the fact that they were running any wagon. Nazar Muhammad appellant (at present deceased) and Muhammad Zafar appellant deposed that four days before the occurrence, due to the previous enmity, they had injured Muhammad Hanif PW who bore the grudge against them and that the four deceased persons attacked upon them when they had to injure them with knife and 'Chhuri' in selfdefence. All the appellants did not appear under section 340(2) of the Code of Criminal Procedure on oath in their defence. Dr. Muhammad Ashraf Medical Officer Tehsil Hospital, Dipalpur DW-1 examined Nazar Muhammad appellant on 14.8.1986 at 2.00 p.m. and found five injuries with hlunt weapon on his person. He issued carbon copy Exh. PQ of the medico legal report and carbon copy Exh. PQ/1 of diagram showing the location of the injuries. This medical witness examined Muhammad Zafar appellant on 14.8.1986 at 2.15 p.m. and found two injuries on his person caused with sharp edged pointed weapon. He issued carbon copy Exh. DR of the medico legal report and carbon copy Exh. DR/1 of the diagram showing the location of the injuries. 16. Muhammad Javed appellant submitted school leaving certificate Exh. DS and medico legal report Exh. DT pertaining to Muhammad Hanif complainant PW. 17. After hearing the parties learned trial Court gave the weight to the motive, occular evidence, recovery of blood-stained 'Chhuri' and medical evidence. Consequently the appellants were convicted as narrated above. Hence this appeal which has been resisted by the State. 18. First of all we would like to dispose of this appeal to the extent of Gulzar Shah appellant. In this respect of the contentions of the learned counsel for Gulzar Shah appellant are that he was a Zunindar by profession living in village Phullan Toli at a distance of seven miles from the place of occurrence who is the son-in-law of Nazar Hussain appellant, that there is no allegation of motive against him to the effect that he quarreled before the actual occurrence resulting in the murder of four deceased, that the infliction of the edge of Sota attributed to him has been falsified by the medical witness (PW-3) and that he has simply been roped in due to his relationship with the remaining appellants so that he is not in a position to help them. 19. On the contrary learned State Counsel laid the emphasis that the case of Gulzar Shah appellant is not divisible keeping in view the ocular evidence. We hold the view that Gulzar Shah appellant is entitled to be acquitted who seems to have been falsely involved. Admittedly he is a Zimindar by profession and is not running the wagons which could be a source of dispute between him and the deceased person. No doubt he is the son-in-law of Nazar Hussain appellant and the 'Bchnoi' of the remaining appellants Muhammad Javed, Muhammad Aslam and Muhammad Zafar, yet this aspect of the matter is not enough to connect him with the occurrence without independent proof and corroboration to make him liable thereof. The opinion of the Medical Officer on Court question was that abrasion could be caused with the edge of Sota but not a linear abrasion. The role of giving the edge (Hujj) with Sota and issuance of threats was attributed to Gulzar Shah appellant The role of lalkara is simply proverbial. The medical evidence is in conflict with the role attributed to him. The grain is to be sifted from the chaff as the theory of indivisibility of evidence is not applicable these days. We are of the view that Gulzar Shah has been falsely involved in view of his delicate relationship with the remaining appellants. We, therefore, accept this appeal to the extent of Gulzar Shah appellant, setaside the same to his extent and acquit him. Gxilzar Shah appellant, is present on bail. His bail bond is cancelled and surety, discharged. 20. Nazar Shah appellant has died on 2.2.1993 in view of the information imparted to this Court by the Superintendent Central Jail, Sahiwal vide his letter No. 13610 dated 10.12.1997 forming part of the appellate record. As such this appeal to the extent of Nazar Hussain appellant has become infructuous. 21. With respect to the case of Muhammad Javed, Muhammad Aslam and Muhammad Zafar appellants the contentions of their learned Advocate are that the motive has not been established and rather four days before the occurrence Muhammad Hanif had a quarrel with Nazar Muhammad and Muhammad Zafar appellants who was injured and was medically examined when medico legal report, Exh. DT, was issued. According to him the motive has not been independently established to the effect that at 3.00 p.m. a. occurrence took place later on resulting in the inception of the gruesome and sensational murders of the four brothers namely Muhammad Rafique, Muhammad Aslam, Muhammad Sharif and Muhammad Afzal. According to him the deceased persons attacked Nazar Muhammad and Muhammad Zafar appellants who were medically examined when medico legal reports Exh. DQ and Exh. DR were issued qua Nazar Muhammad and Muhammad Zafar appellants. He maintained that there was no dispute of running the wagons. We do not agree with him. As rightly pointed out by the learned State Counsel the statement of Dr. Muhammad Ashraf DW-1 who medically examined Nazar Muhammad and Muhammad Zafar appellants and issued the relevant medico legal reports Exh. DQ and Exh. DR has completely shattered this stand of the appellants by deposing that in his opinion the injuries on the persons of Nazar Muhammad and Muhammad Zafar could not have been caused on 12.8.1986. It is not an intentional concession as stressed by the learned counsel for the appellants. This part of the statement of this Medical Officer (DW-1) has defused the stand taken by the appellants. The statement of Muhammad Hanif complainant PW-10 has established that, the parties were running the wagons, to contradict which no evidence has been produced in defence and that some hours before the actual occurrence there was dispute between both the parties for the availability and utilization of time regarding the lying of wagons from Baseerpur to Mauza Parmanand. it can safely be expressed that there is the common complaint of the public that the transporters effect the over-loading in the wagons, misbehave with the passengers, make the over-charging, direct the passengers to sit on the roofs; etc. etc. Likewise it is a matter of common observation that even though the arrangements are effected for the plying of the wagons on the settled timings, there is the jealousy between different transporters running the individual business of transport initiating the disputes of the instant nature now and then. This all happens due to the fact that even though greed is a curse there is no end to it. The dispute arose between both the parties at 3.00 p.m. and immediately on the return of two deceased persons from Mauza Parmanand the occurrence took place. The fact of receiving the injuries four days before by Muhammad Hanif complainant PW-10 regarding which medico legal report Exh. DT has been produced does not stand established because medico legal report Exh. DT has not been proved by the Medical Officer who is said to have issued the same after his examination and even this document was not put to Muhammad Hanif when he stood in the witness-box as PW-10. We would be glossing over an important aspect of the matter by expressing that the murder of one person can be without motive while the murder of four persons cannot be without motive and in the instant case motive could be nothing else than the dispute which arose about three hours before the occurrence about the timings of the running of the buses. Consequently while dealing the motive which stands established, the plea of self defence raised by Nazar Muhammad and Muhammad Zafar has also been dealt with and it is held that the same is not available to them especially when Dr. Muhammad Ashraf DW-1 has specifically deposed that Nazar Muhammad and Muhammad Zafar appellants did not receive the injuries on 12.8.1986. 22. The occular evidence has been challenged on the ground that even though the occurrence took place in a populated area only Muhammad Hanif complainant PW-10 (brother of all the four deceased persons) and his son Muhammad Akram PW-9 stood in the witness-box and supported the prosecution case. It was added that they being the interested persons were also inimical those four close relatives lost their lives and without corroboration from any independent persons of the area especially when the occurrence took place near wagon stand the charge framed against the appellants has not been established. We hold the view that the reasoning adopted by the trial Court is balanced as well as confidence inspiring. Learned counsel for the State has rightly pointed out that during these days when the gulf between different sections and citizens in the country is widening the general public always avoid and show the apathy towards becoming the eye-witnesses in such sensational cases of gruesome murders. It is not a case wherein one person lost the life. In this occurrence four persons lost their lives and whole of the episode must have been branded upon the respective soul of Muhammad Hanif complainant PW-10 and his son Muhammad Akram PW-9. The occurrence took place on 12.8.1986 at 6.00 p.m. i.e. much before the sunset and there cannot be the chance of error in the identification of the assailants. The FIR was promptly lodged. In the circximstances of the matter when four persons lost their lives it cannot be expected that there could be the chance of substitution. It was not an ordinary occurrence. The presence of the PWs at the spot was justified in view of the business being carried on by the deceased persons and the fact that some hours before the actual occurrence the dispute had arisen which was the motive of the occurrence. Muhammad Akram PW-9 and Muhammad Hanif PW-10 have stood the test of cross-examination. The D defence has not been able to shatter their statements through the weapon of cross-examination. In the circumstances there is every justification to rely upon the statements of the eye-witnesses and we pass an order accordingly. 23. The recovery of blood-stained 'Chhuri' P-l attributed to Muhammad Zafar appellant and the recovery of blood-stained 'Chhuri' P-2 at the instance of Muhammad Javed appellant is a strong circumstance in favour of the prosecution for the purpose of the corroboration to the ocular account. The medical evidence comprising the statement of Dr. Muhammad Fakhar Ali Medical Officer, Civil Hospital , Havaili Lakha PW-3 is also a corroborativepiece of evidence. Even though the query was made by us in the matter to narrate the reasoning to make us disbelieve this part of the evidence, learned counsel for the appellants expressed his inability to do so. He had no reasoning to make us hold that the medical evidence is devoid of legal force. The injuries found on the person of the four deceased persons were in consonance with the statements of the eye-witnesses and thus the medical evidence is not in conflict with the statements of the eye-witnesses. 24. Learned counsel for the appellants has not been able to make us hold that FIR was registered with deliberations. It was a gruesome occurrence wherein four persons were murdered. It can safely be expressed that no person in the area including the police would have dared to go astray from the actual facts and from all that had actually occurred. 25. With our aforesaid reasoning we hold that the prosecution has established the charge framed against the aforesaid three appellants. We do not find any merit in this appeal and dismiss the same to extent of Muhammad Javed, Muhammad Aslam and Muhammad Zafar appellants.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1290 [DB] [ Rawalpindi Bench] Present: IFTIKHAR HUSSAIN CHAUDHRY AND raja muhammad khurshid, JJ. MUHAMMAD ILTAF-Petitioner versus STATE-Respondent Crl. Appeal No. 90/94 and MR. No. 208/94, decided on 18.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302~Murder--Offence of--Conviction for~Challenge to-Prompt lodging of F.I.R.--There is not remotest possibility of substitution of accused particularly when only one assailant was nominated in F.I.R. by eye­ witnesses-Motive stand proved-Through scientific analysis it was found by Ballistic Expert that pistol was wedded with crime empties picked up from place of murder-Although witnesses are related but corroboration rendered by evidence would make testimony of eye-witnesses quite plausible to sustain conviction. [P. 1294] A, B, C, D & E Mr. Z. Babar Awan, Advocate for Appellant. Raja Muhammad Ayub Kiani, Advocate for A.A.G. for the Respondent. Ch. Muhammad Iqbal, Advocate for Complainant. Date of hearing: 18.2.1998. judgment Raja Muhammad Khurshid, J.-The appellant/convict was sentenced to death under Section 302 PPC for the murder of Malik Dalail Khan and was further burdened with the payment of Rs. 50,000/- as compensation to the legal heirs of the aforesaid deceased or in default to undergo 6 months R.I. vide judgment dated 12.7.1994 passed by Mr. Azhar Hafeez Sheikh, the then learned Sessions Judge, Chakwal. 2. The appellant/convict, feeling aggrieved of the impugned judgment, has preferred an appeal as according to him, the prosecution had failed to prove its case against him. Yar Muhammad, a son of the deceased and one of his heirs filed Criminal Revision No. 83 of 1994 with the prayer that the amount of compensation awarded to the legal heirs of the deceased being inadequate be enhanced. The learned trial Judge also made a reference under Section 374 Cr.P.C. for the confirmation of death sentence passed upon the appellant/convict. 3. All the three matters mentioned above will be disposed of together as those have arisen from the same impugned judgment. 4. The facts are that the appellant/convict was arrested for the murder of Malik Dalail Khan at the report of Captain (R) Muhammad Iqbal Malik for an occurrence which took place at about 4.30 p.m. on 6.6.93 in the area of village Pichnand situated at a distance of 27 K.m. towards North of Police Station Lawa, District Chakwal. The FIR about the occurrence was registered on the same day at about 5.45 p.m. The complainant stated in the FIR that his maternal cousin Malik Dalail Khan deceased was Chairman of village Pichnand and was residing in a haveli adjacent to Ahmedia Baitu-ul- Hamd. The complainant was on way to the aforesaid Ahmedia Bait-ul-Hamd from his house at about 4.30 p.m.; that on reaching near the haveli of the deceased, he saw the appellant/convict standing in the door-way while armed with a pistol. The deceased was lying at a cot in the 'Dcyorhi' of his haveli at that time. The appellant made four shots from his pistol one after the other within the view of complainant; out of which one bullet hit under the left eye of the deceased, whereas, the other struck on the right side of the abdomen. The deceased got up from the cot in injured condition and ran towards the inner court-yard of his house but he could hardly come out of the 'Deyorhi' and had fallen in the court-yard. He succumbed to the injuries at the spot. The occurrence was seen by Lai Khan son of Ajaib Khan and Ghulam Raza son of Muhammad Khan residents of Pichnand in addition to the complainant. All three of them tried to apprehend the appellant but in vain as the latter managed to escape while brandishing his pistol. The bone of contention for the murder dated back to the year 1989 when Allah Yar a real maternal uncle of the appellant was murdered. In that murder case, relatives of the deceased namely Muhammad Younas, etc. were challaned to the Court. In relation, the appellant had injured one Abdul Qayyum from the opposite side with a fire shot. A case under Section 324 PPC was registered against the appellant on account of the aforesaid incident and he was sent to the Court, to face the trial. The deceased was pursuing both the aforesaid cases against the appellant and his co-culprits. About two months prior to the unfortunate occurrence, the appellant returned to home on bail. On the fateful day, the deceased with Imtiaz Ali son of Lai Khan set out for Talagang in the morning time. The appellant confronted them in the street and challenged the deceased that he should give up pursuing the cases against him otherwise, it will not be good for him. In pursuance of that threat the appellant had murdered the deceased. 5. The prosecution examined two out of three eye-witnesses namely Muhammad Iqbal complainant (PW. 9) and Lai Khan son of Ajaib Khan (PW. 10) respectively. Both of them corroborated each other while rendering the ocular account of occurrence in which the deceased was done to death. The recovery witness namely Ameer Khan (PW. 7) was examined to prove the recovery of weapon of offence i.e. pistol (P. 7) vide recovery memo (Ex. PJ). The crime empties (P 6/1 to 4) were recovered vide recovery memo (Ex. PH) for which Lai Khan son of Painda Khan CPW. 61 was examined at the trial. Imtiaz Ali Khan (PW. 8) was examined to show that he was with the deceased at 7.00 a.m. when the appellant had extended threat to the former for pursuing the cases against him. The medical evidence was brought on record through Dr. Muhammad Aftab who was examined as PW. 1. He had performed the autopsy on the dead body of the deceased and had also prepared the post mortem report (Ex. PA), whereas, Ex. PA/1 and Ex. PA/2 were drawn up as pictorial diagrams of the injuries. He had also signed the injury statement (Ex. PB) and the inquest report (Ex. PC) when they were produced before him by the police alongwith the dead body at the time of autopsy. The motive of the occurrence was substantiated through the statement of the complainant (PW. 9) and Imtiaz Ali (PW. 8). The circumstantial evidence consisting of the recovery of blood stained earth and crime empties from the spot was relied upon to pin point the place of murder. The crime empties (P. 6/1-4) and the weapon of offence i.e., pistol were sent through a separate parcels to the ballistic Expert for examination. The analysis conducted by the Ballistic Expert led to the conclusion that the crime weapon recovered from the accused was wedded to the crime empties picked up from the place of murder. 6. In the light of the above evidence, the learned trial Judge recorded the finding of conviction as aforesaid. 7. Learned counsel for the appellant has contended during the arguments that the case against the appellant was quite doubtful as it was tried to be proved through the witnesses who were related to the deceased and were also interested being inimical to the accused/appellant; that the medical evidence was in conflict with the ocular account of occurrence as according to the PWs four shots were made at the deceased, whereas, the post mortem report shows four fire arm injuries out of which three are entiy wounds and one is exit wound, hence one shot remained un-accounted, making the case highly doubtful; that the weapon of offence was recovered from the house of the appellant in presence of interested witnesses; that the ecovery of weapon of offence itself was doubtful because it will be somewhat unnatural that an accused after committing a capital offence would keep the weapon of offence in his own house so as to be linked with the occurrence, the natural conduct would be converse as in such a situation, the accused would try to destroy the weapon of offence or to dispose it of in such a manner that it should not be available to any one; that the FIR though tried to be drawn up promptly but infact the time was gained after stopping the case diaiy to give an impression that the case was registered without any delay; that infact, there was no motive with the appellant/convict to murder the deceased as the latter was admittedly never involved in any case against him nor he was an eye-witness in any of the cases relied upon by the prosecution; lastly, it was contended that the eye­ witnesses though related, were also not present at the spot to see the occurrence as their statements were contradictory regarding the number of shots and the injuries found on the body of the deceased as pointed out above. 8. In the light of the aforesaid submissions, it was contended that the case against the appellant was highly doubtful and the conviction against him was not liable to stand being an innocent person as claimed by him in his statement under Section 342 Cr.P.C. 9. Learned counsel for the State resisted the appeal and supported the impugned judgment on the ground that though the eye-witnesses were related to the deceased but at, the same time, they were natural as they were residing in the same village and it was not unnatural that they would be present when the occurrence had taken place; that they were corroborated by the medical evidence which shows that the deceased had three fire arm injuries and the fourth was an exit wound; that the occurrence had taken place in a flash of moment and it would not be a material difference if three shots had hit the deceased, whereas, the eye- itnesses had mentioned that four shots were fired; that it would not amount to any contradiction because usually an exit wound gives an impression to a naked eye that it was the result of fire shot. It was only after the post mortem examination that a perception could be made whether it was an entry wound or an exit wound of a fire arm shot. Hence, there could be no contradiction on that score between the eye-witnesses and the medical evidence, rather they supported each others. Likewise, the recovery of the pistol, used during the occurrence, at the instance of the appellant/convict would further support the eye­ witnesses particularly when it was found wedded to the crime empties, picked up from the spot; the mere fact that, the pistol was hidden by the ccused in his house would not give any premium to him because it is always a whim of an offender to deal with the weapon of offence in a manner, he thinks fit. In some cases, an offender may destroy and in other cases, he may hide it in rather safe place like home lest it may come into the hands of some stranger while throwing it away after the commission of offence. It was, therefore, alleged that there was nothing unusual if the recovery of the pistol was effected from the house of the appellant/convict, The motive was allegedly proved through reliable evidence as none of the witnesses was inimical to the appellant nor they were interested in sending him to gallows if he was innocent. The natural instinct of the witnesses who were related to the deceased would compel them to bring a real culprit to the book who had killed their blood relation. Hence the mere relationship would not make any difference until and unless some enmity is brought on record to show that the witnesses had rendered themselves unreliable and inimical qua the accused. In the instant case, no such material was brought on record. Hence, mere relationship of the witnesses would not render their testimony worthless. 10. We have considered the submissions made at the bar. First of all it is to be seen whether or not the prosecution has been successful to prove its case beyond any reasonable doubt against the accused. The cardinal principle of criminal law lays heavy duty upon the prosecutor to bring home guilt of an offender against, him beyond any reasonable doubt. In the instant case, the occurrence had taken place at 4.30 p.m., whereas, the FIR was lodged at 5.45 p.m. on the same day although the police station was at a distance of 27 K.Ms. from the place of occurrence. The prompt lodging of the FIR would rule out any possibility of padding, deliberation or concoction of the facts relating to the occurrence. Although the eye-witnesses and Imtiaz Ali, another witness touching the point of motive and the threats given to the deceased by the appellant on the unfortunate day at 7.00 a.m are related to the deceased but they appear to be truthful witnesses because they would nurse a keen instinct that they should bring the real culprit to face the trial. As such, there is not the remotist possibility of for substitution of the accused particularly when only one assailant was nominated in the FIR by the eye-witnesses. Even otherwise, there is a back-ground in the light of the motive and the threats delivered by the appellant/convict to the deceased early in the morning of the day of murder. The deceased was a Chairman of the local Council and when he was asked by the appellant/convict to desist from pursuing the cases against him. The deceased replied that he will speak the truth because it was his duty to do so being a respectable man and a Chairman of the Village Council. Thus the taste of the reply given by the deceased to the appellant was not platable for the latter which instigated him to kill the deceased. The motive thus stands proved as alleged by the prosecution. 11. The recoveiy of the pistol, hidden in the house of the appellant, at his instance further linked him with the occurrence particularly when through a scientific analysis it was found hy the Ballistic Expert that the same was wedded with the crime empties picked up from the place of murder. The crime empties were sent earlier to the Laboratory and were deposited there on 14.6.93 through Muhammad Anwar (PW. 5), whereas, the pistol was deposited on 26.6.93 through Ahdul Qaddus, Constable (PW. 4) respectively. Since both the items were sent in separate parcels through separate persons to the Laboratory and recovered on different dates, herefore, it had become impracticable to fabricate them against the accused as alleged by the learned counsel for the appellant during the arguments. 12. It is true that the eye-witnesses and the witnesses of occurrence regarding threats were related to each other and to the deceased but they were amply supported by the recoveiy of weapon of offence which as said above had matched with the crime empties in view of report (Ex. PM) of the Ballistic Expert. In such a situation, the corroboration rendered by this piece f evidence would make the testimony of the eye-witnesses quite plausible to sustain the conviction of the appellant safely. Likewise, the objection raised from the defence side has no substance that since there were three entry wounds and one exit wound from fire arm, therefore, the presence of the eye-witnesses was rendered doubtful at the spot. In this respect, it was contended that if they had been present to see the occurrence then they should have .slated that three fires were made on the deceased and one fire was missed in order to corroborate the medical evidence. Understandably an ttempt is made to make up the discrepancy about the fourth shot by introducing the supplementary statement after the egistration of the case. Even if this supplementary statement is ignored, it will have to be kept in mind that the human eye has a limitation to watch such type of occurrence which takes place in flash of moments without giving much time to a naked eye to preserve a photographic or camera-like recording with computerised exactitude about the shots fired and the injuries produced by such shots at the victim, one has to visualise that such occurrence which happens so quickly in an awe-inspiring atmosphere, even the witnesses have to watch such tragedies with conscious feeling about their own safety and security. Even otherwise eveiy one has a different power of observation under such tressing situation and if n exit wound has been considered to be an entiy wound under such a traffic situation, it would not produce any substantial lacuna so as to mar the whole evidence which otherwise stands test of truthfulness by the supporting evidence, collected against the offender. The instant case is no exception to be treated differently. 13. In the light of the above discussion, we have come to an irresistable conclusion that the prosecution has been able to prove its case beyond any reasonable doubt against the appellant/convict. 14. Before parting with the judgment, we would like to say that the appellant/convict was examined under Section 342 Cr.P.C on the conclusion of the trial. He advanced a plea of bald denial regarding the occurrence and took up a topsy-turvy plea while replying question No. 12 that he had illicit affairs with Riaz Begum D/0. Noor Khan, a brother of Lai Khan PW, being a niece of Ghulam Raza, given up PW and for that reason, both of them had allegedly involved him in a false case with the connivance of the complainant. However, there is nothing on record to support this plea which seems to be a cooked up story without having its bottom. 15. In view of the above facts, we find no merit in Crl. Appeal No. 90/94 which is dismissed and the death sentence awarded to the appellant by the learned trial Court under Section 302 PPC is maintained and CONFIRMED. 16. Murder Reference No. 208/94 made by the learned trial Judge under Section 374 Cr.P.C is answered in affirmative. 17. The compensation of Rs. 50,000/- awarded to the legal heirs of the deceased appears to be reasonable and adequate and calls for no interference. The same is, therefore, maintained and the Crl. Revision No. 3/94 filed by Yar Muhammad, a son of the deceased for enhancement of compensation is accordingly dismissed being without merit. (K.K.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1296 [ Rawalpindi Bench] Present: dr. munir ahmad mughal, J. MUHAMMAD SUDHEER-Petitioner versus STATE-Respondent Crl. Misc. No. 14/B-1997, accepted on 16.1.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Offence u/S. 302/34-Minor or adult- Question of-Further inquiry-Case of-School leaving certificate shows that on relevant date, petitioner's age was fifteen years, five months and ten days-Petitioner seems to be a minor for the purpose of offence u/s 302 and as such petitioner's case falls u/S. 06 PPG i.e. Qatl-e-Amd not liable to Qisas, punishment of which is given in Section 308 PPC which in case of proof of guilty is only Diyat-No doubt, second proviso to ection 308 PPC a minor who had attained sufficient maturity so as to be able torealize consequences of his act, may also be punished with imprisonment of either escription which may extend to 14 years as Ta'z/'r--Butdetermination of attainment of sufficient maturity can be made at trialafter recording evidence, hence it is a ase f further inquiry-Petition allowed. [P. 1298] A Ch. Fazal-ur-Rehman, Advocate for Petitioner. Mr. Amjad Haineed Ghauri, Advocate for State. Date of hearing: 16.1.1997. order The petitioner is involved in a case FIR No. 530 dated 13.10.1995 for an offence under section 302/34 PPC registered at Police Station R.A. Bazar, Rawalpindi . 2. The allegation against the petitioner is that he committed the murder ofMst. Zainab Siddique, his step-mother while she was asleep in her house. The motive behind this incident was the revenge of the petitioner for the marriage of the deceased with his father. 3. The bail is pressed on the ground that the occurrence took place during the dead of night and without any eye-witnesses; that the petitioner was minor at the relevant time of occurrence; that his case does not fall within the definition of 'Qatl-e-Amd' liable to Qisas under section 306 PPC; that the only evidence collected against the petitioner is joint extra judicial confession which was recorded after twenty-three days of the alleged occurrence; that the post-mortem report negates the prosecution story and the alleged recovery of Chhuri from the petitioner was not stained with blood. 4. The bail is opposed on the grounds that the petitioner is specifically named in the FIR; that the minority of the petitioner cannot come in the way of believing him guilty as the offence of murder was heinous offence; that if there is any contradiction between the ocular account and the medical evidence, it cannot be seen at the bail stage; that the offence alleged gainst the petitioner falls within the prohibitory clause of section 497 Cr.P.C. 5. In the police record, the age of the petitioner is mentioned as 17/18 years which means that, the police is not definite about the exact age of the petitioner. According to school leaving certificate, Government Inter College , Poonch, the date of birth of the petitioner is 3.5.1980 which shows that on the relevant date, his age was fifteen years, five months and ten days. The definitions of an 'adult' and a 'minor' are given in clauses (a) and (i) of section 299 PPC, which are reproduced as under:- (a) "adult means a person who has attained, the age of eighteen years; or, being a female the age of sixteen years, or has attained puberty whichever is earlier". (i) "minor" means a person who is not an adult". 6. In the circumstances, the petitioner seems to be a minor for the purpose of offence under section 302 PPC and as such, his case falls under section 306 PPC i.e., Qatl-e-Amd not liable to Qisas, tHe punishment of which is given in section 308 PPC which in case of proof of guilty is only Diyat. No doubt, the second proviso to Section 308 PPC a minor who had attained sufficient maturity so as to be able to realize the consequences of his act, may also be punished with imprisonment of either description which may extend to 14 years as Ta'zir. But the determination of attainment of sufficient maturity can be made at trial after recording evidence hence it is a question of further inquiry. In the case of Sajjad Ahmad vs. Muhammad Amir and another (Crl. Appeal No. 372 of 1994, the Hon'ble Supreme Court has observed:- "The learned Judge iri the High Court took note of the fact that under sections 306 and 308 PPC, capital punishment cannot be awarded to a minor even if he is found guilty of murder although under the second proviso of subsection (1) of section 308 PPC, he may also be punished with imprisonment of either description for a. term which may extend to fourteen years as Ta'zir if at the time of committing Qatl-e-Amd the inor offender had attained sufficient maturity to realize the consequences of his act. The learned Judge rightly observed that this aspect of the matter could only be determined during the trial on the basis of evidence adduced by the parties and was, therefore, a case of further inquiry. Thus, visualized the discretion exercised by the learned Judge in allowing bail to the respondent under the first proviso to section 497 Cr.P.C. is not open to exception." 7. The case of the petitioner is also similar to the case in which the above observation was made. As such, he is granted bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of learned trial Court. Copy Dasti on payment of usual charges. (K.K.F.) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1299 Present: MUHAMMAD AsiF JAN, J. MUHAMMAD SHARIF alias KALI and 2 others-Petitioners versus STATE-Respondent Crl. Misc. No. 435/B/98, accepted on 17.2.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail--Grant of-Prayer for-Offence u/s 399/402 PPC-Further inquiry-Case of-Where there is only an assembly of five or more persons hut no other attending circumstances to indicate either intention or preparation for commission of dacoity then case against accused persons ould not fall within prohibition contained in sub-section (1) of Section 497 Cr.P.C. and would at best be a matter of further inquiry within meaning of sub-section 2 of Section 497 Cr.P.C. which would entitle such accused persons to grant of bail. [P. 1301] C (ii) Pakistan Penal Code, 1860 (XLV of 1860)- —S. 399-Section 399 PPC envisages preparation to commit dacoitypreparation is a step beyond intention and has to be established through some overt act from attending circumstances which are indicative of such intention. [P. 1301] B PLJ 1996 Karachi 46. (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —- S. 402-In order to fall within mischief of Section 402 PPC, an accused person shall have to be a member of an assembly consisting of at least five persons-If assembly is less than five persons, it shall not fall within purview of Section 402 PPC-This is first requirement-Second requirement is that assembly of 5 or more persons should have assembled for a definite purpose, i.e. committing dacoity-If assembly of five or more persons is for any other purpose it will not fall within purview of Section 402 P.P.C.-Both these ingredients have to be proved by prosecution beyond all reasonable doubts. [Pp. 1300 & 1301] A Mirza Khalid Shafiq Baig, Advocate for Petitioners. Syed Moazzam All Shah, Advocate for State. Date of hearing: 17.2.1998. order Muhammad Sharif alias Kali son of Abdullah aged about 27 years, Muhammad Amin aged about 22 years and Muhammad Sharif son of Chiragh Din aged about 23 years were arrested on the 28th of July, 1997 and are in jail ever since awaiting their trial which has not yet commenced, in pursuance of a case registered against them vide first information report No. 196/97, dated the 28th of July, 1997, under sections 399 and 402 P.P.C. at Police Station Sarai Mughal, Tehsil Pattoki, District Kasur, regarding an occurrence which took place on the 28th of July, 1997, at 8.15 P.M. near the B.S. Link Bridge which is ahout 4 miles from Police Station Sarai Mughal of District Kasur where the first information report was lodged on the same day by Inspector Muhammad Anwar and the formal first information report was drawn under section 399 P.P.C. read with section 402 P.P.C. 2. According to Inspector Muhammad Anwar he received secret information while on patrol duty that the petitioners alongwith some others were present near a bridge at a distance of about 4 miles from Police Station Sarai Mughal and had assembled therewith an intention of committing dacoity. Accordingly, a raiding party was organized and a raid was conducted as a result of which Muhammad Sharif, Muhammad Amin and Muhammad Sharif petitioners were pprehended at the spot while some others managed to run away. A .32 bore revolver was recovered from Muhammad Sharif, a mouser was recovered from Muhammad Amin petitioner and a 7 mm carbine was recovered from Muhammad Sharif petitioner. 3. Section 399 P.P.C. lays down that whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 4. Section 402 P.P.C. provides that whoever, at any time after the passing of this Act shall be one of five or more persons assembled for the purpose of committing dacoity, shall be piuiished with rigorous imprisonment for a term which may extent to seven years, and shall also be liable to fine. 5. In order to fall within the mischief of .section 402 P.P.C., an accused person shall have to be a member of an assembly consisting of at least five persons. If the assembly is of less than five persons, it shall not fall within the purview of section 402 P.P.C, This is the first requirement. The second requirement is that the assembly of 5 or more persons should have assembled for a definite purpose, i.e.., committing dacoity. If the assembly of five or more persons if for any other purpose it will not fall within th purview of section 402 P.P.C. Both these ingredients have to be proved by the prosecution beyond all reasonable doubts. In this context learned counsel for the petitioner places reliance upon the case of Hameed and others v. The State reported in 1992 P.Cr.L.J. 2030. 6. The mere assembly of five or more armed persons at one place at any given time will not give rise to any presumption that they have assembled to commit dacoity as was held by a Division Bench of the Karachi High Court in the case of Sirajul Haque and 2 others v. The State reported in 1994 P.Cr.L.J. page 685. The same view was taken by this Court in the case of Muhammad Suhail v. The. State reported in P.L.D. 1994 Lahore 383, where it was held that intention simpliciter was not cognizable. 7. Section 399 P.P.C. envisages preparation to committ dacoity. Preparation is a step beyond intention and has to be established through some overt act from the attending circumstances which are indicative of such intention as was held by the Sindh High Court in the case of All Nawaz and 2 others v. The State reported in P.L.D. 1996 Karachi 146. The same view was taken by a Division Bench of this Court in the case of Shaffaqat Ali Mullan alias Juj v. The State reported in 1991 P.Cr.L.J. page 2395 and Shujaat Ali alias Chan Shah v. The State reported in 1991 P.Cr.L.J. 2277. 8. Where there is only an assembly of five or more persons but no other attending circumstances to indicate either the intention or the preparation for the commission of dacoity then the case against the accused persons would not fall within the prohibition contained in sub-section (1) of „ section 497 Cr.P.C. and would at best be a matter of further enquiry within the meaning of sub-section (2) of section 497 Cr.P.C. which would entitle such accused persons to the grant of bail as held by a Division Bench of Sindh High Court in the case of Amir Ali Khan v. The State reported in 1994 P.Cr.L.J. 576. 9. Resultantly, the petitioners are granted bail provided they furnish bail bonds in the sum of Rs. 50,000/- each with two sureties each in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1302 [ Multan Bench] Present: sh. abdur razzaq, J. ABDUL HAMEED and another-Petitioners versus STATE-Respondent Crl. Misc. No. 797-B-97, accepted on 9.7.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497 (2)-Bail-Grant of-Prayer for-Further inquiry-Case of-Offence U/Ss. 365, 337-A(i), 337-F(i)/148/149 P.P.C.-Petitioner H has been shown empty handed and has not been attributed any part-Nature of injuries attributed to petitioner shows that these have not been inflicted with any intention to cause death of injured and maximum punishment which can be awarded for causing such injuries does not fall within prohibitory clause-Provision of section 364 PPC are attracted or not, is yet to be seen at the time of trial-There is a delay of three days in lodging F.I.R.--Case of further inquiry-Bail granted. [P. 1303] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioners. Qazi Yaqoob Ayyaz Siddiqui, Advocate for State. Mr. Abdul Ghaffar Ramay, Advocate for Complainant. Date of hearing: 9.7.1997. judgment The petitioners stand charged under Sections 365, 337-A(i), 337-F(i)/148/149 P.P.C. vide FIR No. 73 dated 11.4.1997 registered at P.S. Fateh Sher, District Sahiwal. 2. It is contended by learned counsel for the petitioner that the occurrence took place on 8.4.1997 whereas the report was lodged on 11.4.1997, that the delay of three days has not been properly explained, that as per contention raised in the FIR Abdul Hameed petitioner has been shown as empty handed, whereas Muhammad Mushtaq petitioner is stated to be armed with an Iron bar, that the injuries attributed to Mushtaq petitioner are punishable up to 3 year as such the offence does not fall within the prohibitory clause, that the provisions of Section 365 or 364 PPC are not attracted in the instant case, that as per investigation conducted by the D.S.P., the petitioners have been found innocent, that petitioner Mushtaq was arrested on 16.4.1997 whereas Abdul Hameed petitioner was arrested on 13.4.1997 and since then they are in judicial lock up, that all these facts make the case of the petitioners open for further inquiry, as such they may be granted the relief of bail. 3. Conversely the bail application has been opposed by the learned State Counsel assisted by learned counsel for the complainant. 4. It is stated by learned counsel for the complainant that the investigation conducted by D.S.P. declaring the petitioners innocent did not find favour with the trial Court, that as per investigation conducted by S.P. Sahiwal, both the petitioners have been found guilty for the commission of offences alleged against them, that the petitioners have not approached this Court with clean hands as they suppressed the factum regarding rejections of previous bail petitions vide orders dated 16.4.1997 and 30.4.1997 and have disclosed about order dated 13.5.1997 only, that provisions of Section 364 PPC are attracted as the injured was removed about 1% mile away and was caused injuries with intention to cause his murder, that offence u/s 506/341 PPC have also been added vide case diary dated 24.5.1997 on the basis of statements recorded subsequently, that case does not fall within the ambit of section 497(2) Cr.P.C., as such petitioners are not entitled to the relief and relied upon 1985 S.C.M.R. 1982. He thus prayed petition be dismissed. 5. As discussed above, petitioner Abdul Hameed has been shown empty handed and has not been attributed any part, what to speak of active role. However, petitioner Mushtaq Ahmad has been attributed injuries with Iron bar. The nature of injuries clearly shows that these have not been inflicted with any intention to cause death of the injured and the maximum punishment which can be awarded for causing such injuries does not fall within the prohibitory clause. Again the question of provisions of Section 364 PPC are attracted or not, is yet to be seen at the time of trial. The petitioners are in jail for the last about three months. There is delay of three days in lodging FIR and one Investigating Officer has also found the petitioners as innocent, though such findings are not binding and were reversed in the subsequent investigation. However, all these facts, put together, make the case of petitioners open for further inquiry as such petition is accepted and they are admitted to bail in the sum of Rs. 25,000/- each with one surety each in the like amount to the satisfaction of the trial Court. (K.K.F.) Bail granted

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1304 (DB) Present: muhammad naseem chaudhri and rao iqbal ahmad khan, JJ. ABDULLAH SHAH alias BABAR ALI etc.-Appellants versus STATE-Respondent Criminal Appeal No. 22 of 1988, accepted on 11.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/392/450/34-Murder and dacoity-Offence of-Conviction for- Appeal against-Both appellants raised objection before Magistrate who supervised identification parade that they were shown-Occurrence took place on 4.4.1985, while identification parade pertaining to appellants was conducted on 4.3.1986 and 2.8.1986-No sanctity can be granted to such identification parades, thus this ingredient is devoid of legal force which is liable to be discarded-Regarding recovery of Sten-gun, no person of locality was -called and joined-Recovery was made after a long delay of 1/1-4 years-Moharar who was handed over crime empties has not been produced in evidence-In .fact crime empties were not despatched to F.S. Laboratory-Report of Fire Arm Expert has no legal weight which cannot be relied upon and is liable to be ignored-Medical evidence is also of no legal value so as to connect both appellants with occurrence—Prosecution has failed to connect appellants with occurrence—Appeal accepted. [Pp. 1315, 1316, 1317 & 1318] A to F 1991 SCMR 331 and NLR 1994 Criminal 281 [DB] ref. Mr. Munir Ahmad Bhatti, Advocate for Abdullah Shah alias Babar All, Appellant. Rana Muhammad Sarwar, Advocate forAsifMahmood, Appellant. Muhammad Arshad and Jamil Ahmad, Respondents-Accused alongwith Mr. Muhammad Siddiquc Chughtai, Advocate. Malik Abdus Salam, Advocate for the State. Date of hearing: 11.02.1998. judgment Muhammad Naseem Chaudhri, J.--This judgment is intended to dispose of the following criminal appeals:- (i) Criminal Appeal No. 22 of 1988 preferred by Abdullah Shah alias Babar Ali appellant against the State against his conviction. (ii) Criminal Appeal No. 144 of 1988 preferred by Asif Mahmood against the State against his conviction. (iii) Criminal Appeal No. 418 of 1988 preferred by the State against the acquittal of Muhammad Arshad and Jamil Ahmad respondents (present in Court). 2. Both Criminal Appeal No. 22 of 1988 preferred by Abdullah Shah alias Babar Ali appellant son of Tassaduq Hussain resident of Ghausia Street, Rajgarh, Lahore and Criminal Appeal No. 144 of 1988 preferred by sif Mahmood son of Muhammad Shafi, resident of Qasim Pur Colony, Multan are directed against judgment dated 16.1.1988 passed by the learned Judge, Punjab Special Court for Speedy Trials (V), Multan whereby both the aforesaid appellants were convicted and sentenced to R.I. for a period of 5 years each and to fine of Rs. 2,000/- each or in default to undergo further R.I. for 6 months each under Sections 450/34 Pakistan Penal Code; to R.I. for a period of 10 years each and to fine of Rs. 5.000/- each or in default of its payment to undergo R.I. for a period of one year each under Section 392/34 Pakistan Penal Code and to suffer death penalty each and to fine of Rs. 5,000/- each or in default of its payment to further undergo R.I. for a period of one year each under Section 302/34 Pakistan Penal Code. At this initial stage it is proper to record that due to the enforcement of the Presidential Amnesty Order, 1988 the death penalty awarded to each of the aforesaid both the appellants stands comnmtted to life imprisonment. 3. The facts giving rise to the aforesaid appeals are narrated as under:- A dacoity was committed in United Bank Limited, Industrial Estate Branch, Multan on 4.4.1985 at 12.20 p.m. about which Muhammad Irshad SI Incharge Police Post Muzaffarbad, Police Station Mumtaz Abad, Multan PW-17 received the information at 12.30 at noon while he was present in Muzaffarbad Town. He straightaway went to the aforesaid Branch of United Bank Limited where he reached at 12.40 p.m. Muhammad Nawaz Manager UBL PW-14 working at the relevant time of occurrence handed over to him complaint Exh. PE wherein it was narrated that he (Muhammad Nawaz PW-14) was present in the aforesaid bank on 4.4.1985 at 12.20 p.m. alongwith Jamil Akhtar Laghari Cashier PW-16, Waheed-ul-Hassan Officer PW (not produced) and Sanab Gul Ghowkidar armed with gun (deceased of this occurrence). No customer was present in the bank at that time. Suddenly three persons entered in the building of the bank. One person was having the height of 5' --9", wheatish coloured with stout and smart body aged 25 years wearing white Shalwar Kameez and armed with a Sten-gun. The second person was of the height of 5' --4" with black type colour of body with weak physique, aged 25 years wearing white Shalwar Kameez while armed with carbine. The third person was of the height of 5' -7" having white colour with average body aged 21 years wearing light blue Shalwar Kameez having pistol in one hand and a 'Thaila' in the other hand. The three persons arrived on a motor-cycle who could be identified by him and the aforesaid other persons. The first person warned loudly and opened the firing with his sten-gun on Sanab Gul Chowkidar standing close to Jamil Akhtar Cashier on the left side. Sanab Gul fell at the spot in injured condition. He and the PWs bowed down. The second person fired with the carbine and through the issuance of threats made them to stand in hands up position. He inquired about the cash. The staff was taken to the Strong Room. Jamil Akhtar Laghari Cashier was brought out and the keys of the safe were procured by the accused on threats. He collected the cash from the counter and the cash box. The third accused placed the cash in the 'Thaila'. Thereafter the accused confined them in the Strong Room and issuing the threats went out of the building of the bank and made good their escape on a motor-cycle. The door of the Strong Room was not properly closed which stood opened with a push. They came out and saw that Sanab Gul Chowkidar was wriggling who expired at the spot. The aforesaid accused had taken away cash amount of Rs. 2,68,000/- as well as 12-bore gun No. 171219 owned by the bank. 4. Muhammad Irshad SI PW-17 sent complaint Exh. PE through Iftikhar Ali Constable to Police Station Mumtaz Abad, Multan where formal FIR Exh. PE/1 was repared by Muhammad Sharif Moharrir Head Constable PW-4. He took into possession the deadbody of Sanab Gul and prepared the injury statement as ell as the inquest report. He sent the dead body to Civil Hospital, Multan for post-mortem examination through Khadim Hussain Constable PW-2. He made the ost nspection. He took into possession blood-stained earth (sealed in a parcel), eleven crime empties P- 91/1-11 of sten-gun (sealed in a parcel), one crime empty P-92 of 2-ore gun (sealed in a parcel), empty magazine P-93 of sten-gun, Bandolier P-94 and seven live cartridges P-95/1-7 of 12-bore gun owned by the bank. He prepared emo Exh. PQ attested by Muhammad Nawaz PW-14 and Waheed-ul-Hassan PW (not produced). He recorded the statements of the PWs. He prepared ough site plan Exh. PV. He left the spot at 4.00 p.m. and went in search of the culprits. Near Railway Crossing Nadir Abad on Sher Shah Road, Multan Khadim ussain onstable PW-2 produced before him last worn clothes P-l to P-3 with one sealed phial handed over to him by the medical witness after the autopsy which he (SI) took to ossession vide memo Exh. PB attested by the said Constable. He called Shaukat Hayat Draftsman PW-1 who on his request and pointedness of the PWs prepared site-lans Exh. PA to Exh. PA/1 containing the drawings and notes with black ink in the hands of the Draftsman and those with red ink in his hand. Both of them signed he said site plans. Muhammad Irshad SI PW-17 handed over the sealed parcels to Muhammad Ishaque Moharrir Constable Police Post Muzaffar Abad Police tation Mumtaz Abad (not produced as PW) on 5.4.1985. However, the investigation of the case was transferred to IA Multan on 4.5.1985. Thereafter the investigation as conducted by Mr. Nasrullah Khan Niazi Sub-Inspector CIA Multan PW-18. He joined one Abdul Qadir Shah as the accused and arrested him on whose information e arrested Abdul Basit acquitted accused and one Shahbaz Saleem on 7.6.1985. At that time Abdul Basit acquitted accused was present at General Bus Stand Multan. His person was searched when the said SI (PW-18) took into possession pistol P-74, with live cartridges P-74/1-3 vide memo Exh. PJwhen site-plan Exh. PJ/1 of the place of arrest was prepared. On the same date (27.6.1985) Abdul Basit acquitted accused took the SI (PW-18) to Dera Budhu Tehsil Multan to the house of Muhammad Arhsad acquitted accused who was arrested. While under police arrest Muhammad Arhsad acquitted accused from his house led to the recovery of suit-case P-80 containing the Shalwar and Kamiz P-81 and P-82 (not stained with blood); one pair of blood-stained Shalwar Kameez P-83 and P-84, one pair of blood­ stained Shalwar Kameez P-85, P-86 which were taken into possession vide memo Exh. PM. The blood-stained Thaila P-87 the first blood-stained pair of Shalwar Kameez P-83, P-84 and the second pair of blood stained pair of Shalwar Kameez P-85, P-86 were separately sealed in respective three parcels. Muhammad Arshad accused while under police arrest on the same date from his house led to the recovery of motor-cycle (without number plate) P-88 before this SI which was taken into possession vide memo Exh. PN. Muhammad Arshad acquitted accused while under police arrest from an almirah of his house led to the recovery of an amount of Rs. 22,000/- comprising of currency notes of different denominations (P-75/1-100, P- 76/1-100, P-77/1-100, P-78/1-180 and P-79/1-4) which were taken into possession vide memo Exh. PL. Muhammad Arshad acquitted accused led to the recovery of revolver P-99 with 6 live cartridges P-99/1-6 from his house which were taken into possession vide memo Exh. PK. Site-plan Exh. PN/1 of the places of recovery of motor-cycle, aforesaid currency notes and revolver was prepared. The aforesaid memos were attested by Akram Khan and Afzal Khan PWs (not produced). Nasrullah Khan Niazi SI PW-18 handed over the three sealed parcels containing the clothes and the parcel containing the pistol to Aziz Ahmad Moharrir Constable CIA PW-8 on 27.6.1985 who on 8.7.1985 handed over the three sealed parcels of the clothes to Dalair Khan Constable PW-9 on 9.7.1985 for delivering the same in the offices of the Chemical Examiner, Lahore. Aziz Ahmad Moharrir Constable PW-8 delivered the sealed parcel containing the pistol to Muzaffar Khan Constable PW-10 on 17.7.1985 which according to Muzaffar Khan was delivered in the office of the Chemical Examiner, Lahore and not in the Office of the Forensic Science Laboratory, Lahore. Abdul Basit, Muhammad Arshad and Jamil Ahmad accused were sent on judicial remand on 28.6.1986 to District Jail, Multan as their identification parade was to be got conducted. 5. On 1.7.1985 Malik Abdur Rashid Magistrate 1st Class, Multan PW-3 supervised the identification parade pertaining to Abdul Basit, Muhammad Arshad and Jamil Ahmad accused. During the identification parade Muhammad Nawaz PW-14 correctly identified all the aforesaid accused. Jamil Akhtar PW-16 correctly identified Jamil Ahmad and Muhammad Arshad accused who could not identify Abdul Basit accused. Waheed-ul-Hassan PW (not produced) correctly identified Jamil Ahmad and Muhammad Arshad accused. Malik Abdur Rashid Magistrate 1st Class, Multan PW-3 prepared his report Exh. PD with respect to this Identification Parade. 6. Abdullah Shah alias Babar Ali appellant was arrested from Karachi on the night falling between 25/26.2.1986 who was also the accused of an other crime case bearing No. 702 of 1985 registered at Police Station Mumtaz Abad, Multan. He was brought to Multan and on 26.2.1986 was sent to the Judicial Lock-up, District Jail, Multan for his Identification Parade. Application Exh. PS was submitted on 2.3.1986 for holding the Identification Parade. On 4.3.1986 Malik Abdur Rashid Magistrate 1st Class, Multan PW-15 supervised the Identification Parade with respect to Abdullah Shah alias Babar Ali accxised who was correctly identified by Muhammad Nawaz complainant PW-14, Jamil Akhtar PW-16 and Waheed-ul-Hassan PW (given up). Malik Muhammad Aslani Magistrate 1st Class, Multan (PW- 15) prepared the report Exh. PT pertaining to this Identification Parade containing his certificate Exh. PT/1. 7. During the investigation Abdullah Shah alias Babar Ali appellant took the Investigating Officer to House No. 11. Ghausia Street, Rajgarh, Lahore from where the said accused received an amount of Rs. 7,000/- of currency notes P-4 to P-73 from one Muhammad Yameen paid to him on 'Qarz-i-Hasna' and produced the same before Muhammad Nasrullah Khan SI PW-18 which he took into possession vide memo Exh. PF attested by Raza Muhammad PW-6 and Muhammad Javed PW (not produced), both residents of Saman Abad. Lahore. 8. During the investigation Abdullah Shah alias Babar Ali accused amed Asif Mahmood appellant as his co-accused. Asif Mahmood appellant was confined in Camp Jail. Lahore in some other case alongwith Muhammad Mushtaq (an other accused) who were arrested in this case as well on 28.7.1986 and were got transferred to District Jail, Multan through pplication Exh. PK containing the order of the Additional Deputy Commissioner (General)/Additional District Magistrate, Lahore. They were removed to Multan on 28.7.1986 and were sent to Judicial Lock-up on 29.7.1986 as the Identification Parade had to be conducted. On 2.8.1986 alik Muhammad Aslam Magistrate 1st Class, Multan PW-15 supervised the Identification Parade of Asif Mahmood appellant and Mushtaq Ahmad accused. Muhammad Nawaz complainant PW-14 correctly identified both of them while Jamil Akhtar PW-16 identified Asif Mahmood appellant. Waheed-ul-Hassan PW (given up) also correctly identified both these accused. Malik Muhammad Aslam Magistrate 1st Class, Multan PW-15 prepared report Exh. PU of this Identification Parade containing his rtificate Exh. PU/1. The physical remand of Asif Mahmood appellant and Mushtaq Ahmad accused were obtained by Nasrullah Khan Niazi SI PW-18 on 10.8.1986. While under police arrest Asif Mahmood appellant led to the recovery of sten-gun P-96 with magazine P-97 from his house situated in Qasimpur Colony, Multan lying underneath an iron box placed in a room. Memo Exh. PR attested by Muhammad Nawaz PW-14 and Muhammad Saeed Constable PW (not produced) as well as site-plan Exh. PR/1 of this place of recovery were prepared. Both P-96 and P-97 were sealed in a parcel. This parcel was handed over to Ahmad Bakhsh Moharrir PW-11 by the said SI on 12.8.1986 who delivered the same to Muhammad Yaqoob Constable PW-12 on 20.8.1986 and he delivered the same intact in the office of the Forensic Science Laboratoiy, Lahore. 9. Dr. Iftikhar Hussain Qureshi Medical Officer Civil Hospital, Multan conducted the post-mortem examination on the deadbody of Sanab Gul Chowkidar on 4.4.1985 at 4.45 p.m. Sheraz Khan PW-5, an uncle of the said deceased, identified the deadbody. This medical witness found 12 injuries caused with fire arms on the person of the deceased. He expressed the opinion that the death occurred as a result of injuries No. 1 and 3 which were sufficient to cause death in the ordinary course of nature collectively as well as individually. He sealed the bullets and multiple small metallic in a phial which alongwith the last worn clothes of the deceased were handed over by him to Khadirn Hussain Constable PW-2. He issued carbon copy Exh. PG of the post-mortem report and carbon copy Exh. PG/1 of the diagram showing the location of the injuries. 10. After completing the investigation the police submitted the challan before the Court of Session at Multan. 11. It is a case of dacoity wherein Mushtaq Ahmad and Abdul adir Shah were also joined as the accused who were acquitted under Section 265- K of the Code of Criminal Procedure by the learned Additional Sessions Judge, Multan on 14.5.1987 from whose Court the case was afterwards transferred to the learned Special Judge who finally decided the same. 12. Abdullah Shah alias Babar Ali and Asif Mahmood appellants alongwith the acquitted accused persons namely Muhammad Arshad, Jamil Ahmad and Abdul Basit were charged under Sections 450, 396. 302, 148/149 Pakistan Penal Code who pleaded not guilty and claimed to be tried. 13. At. the trial the aforesaid prosecution witnesses appeared in the witness-box and supported the prosecution case. It occurs in the crossexamination of Dr. Iftikhar Hussain Qureshi PW-7 that he could not distinguish between the pellets and the bullets and that the small pellets have been found by him in injury No. i and injury No. 3 only. Shaukat Hayat Draftsman PW-1 stated that he visited the spot on 5.4.1985 on which date he prepared the rough site-plans and that his statement was recorded by the police on 17.4.1985. It is proper to express that the site-plans Exh. PA to Exh. PA/2 are shown to have been prepared on 17.4.1985. Muzaffar Khan onstable PW-10 stated that the sealed parcel containing the pistol was handed over to him on 17.7.1985 which he delivered in the office of the Chemical Examiner, Lahore. When cross-examined he stuck to his aforesaid stand and denied the suggestion that the parcel of the weapon was delivered by him in the office of the Forensic Science Laboratory, Lahore. Ahmad Ghaus Shah Head Constable PW-11 stated in his cross-examination that he received two sealed parcels out of which one contained sten-gun but he was hot aware about the contents of the second sealed parcel and could not state as to whether the said parcel contained some live bullet or some empties. Muhammad Nawaz complainant Bank Manager PW-14 introduced Jamil Ahmad and Abdul Basit as the accused persons who had been standing outside the building of the bank and who had also left on a motor-cycle. It occurs in his cross-examination that he had identified Mushtaq in the Identification Parade held on 2.8.1986 as one of those three persons who had entered the bank premises and had committed the dacoity. He added that there was much resemblance between Muhammad Arshad accused and Mushtaq identified by him in the Identification Parade and that he was not sure whether he was Arshad accused or Mushtaq accused. He stated that he was not sure whether Arshad accused was the real culprit or Mushtaq. He again stated that the statement made by him in the examination-in-chief that Arshad accused while armed with pistol had come to the bank and committed the dacoity was incorrect and that his statement involving Mushtaq as the accused was correct. He stated that the police did not get identified the cloth bag P-87 and motor-cycle P-88 from him during the investigation. He clearly stated that it was Mushtaq who entered the bank premises for committing the dacoity and it was he who was identified by him in the Identification Parade. He denied the suggestion that hand-bill Exh. DE containing the photographs of Asif Mahmood and Abdullah Shah alias Babar Ali appellants was shown to him by the Investigating Officer before the holding of the Identification Parade qua each of them. He denied the suggestion that on each occasion of the Identification Parade of Abdullah Shah alias Babar Ali appellant and Asif Mahmood appellant he was shown their respective photograph by Nasrullah Khan Niazi SI. He denied the suggestion that Asif Mahmood appellant was brought from Lahore to Multan in his company who was shown to him by CIA Police before the Identification Parade. Malik Muhammad Aslam Magistrate 1st Class, Multan PW-15 stated that Asif Mahmood appellant riased the objection during the Identification Parade that he was shown to the witnesses earlier. Muhammad Irshad SI PW : 17 stated in his cross-examination that according to inquest report Exh. PN three persons had committed the dacoity, that he prepared the rough site-plan Exh. PV of the place of occurrence on 4.4.1985 and that in the inspection note prepared by him on his first visit he had not narrated the fact that two culprits remained outside the bank at the time of the occurrence. He stated that he received the site-plans Exh. PA to Exh. PA/2 from the Draftsman on 17.4.1985. It also occurs in his crossexamination that he handed over the sealed parcel of crime empties P-91/1- 11 and a crime empty of 12-bore, P-92, to Muhammad Ishaque Moharrir Police Post Muzaffar Abad on 5.4.1985. It is proper to record at this stage that this Muhammad Ishaque Moharrir has not been produced in evidence to make out the despatch of the aforesaid parcel to the office of the Director Forensic Science Laboratory, Lahore. Nasrullah Khan Niaz SI CIA PW-18 deposed in his cross-examination that the sealed parcels of crime empties had been sent to the Forensic Science Laboratory on 3.5.1985, that the sealed parcel of pistol P-74 was sent to the Forensic Science Laboratory on 14.7.1985 and that the report pertaining to pistol and the parcels of crime empties were sent by the Forensic Science Laboratory to the police at the Police Station, but he could not tell the date in this regard. He added that he despatched the sten-gun to Forensic Science Laboratory on 12.8.1986 which was returned to the police intimating that the crime empties of the case previously despatched to the Laboratory had been sent back by the Laboratory to the Police Station and that the Director of the Forensic Science Laboratory intimated that the parcel of sten-gun should be resubmitted to him if the crime empties of the case were still available intact with the police. He stated that thereafter on 21.8.1986 the sealed parcel of sten-gun P-96 and the parcel of crime empties P-91/1-91 and P-92 sealed in an other parcel were again sent to the Forensic Science Laboratory. 14. Learned Public Prosecutor adduced in evidence reports Exh. PX and Exh. PZ of the Chemical Examiner, Lahore as well as reports Exh. PAA and Exh. PBB of the Serologist, Lahore according to which earth, the white coloured bag and the clothes were stained with human blood. He also produced report Exh. PCC of the Director Forensic Science Laboratory Punjab Police, Lahore according to which the crime empties were held to have been fired from sten-gun P-96. Thus this report is shown to be in positive. 15. Both the appellants and the acquitted accused were individually examined under Section 342 of the Code of Criminal Procedure who stated about their non-participation in the occurrence. They denied the alleged recoveries attributed to them and did not claim the relevant articles including the ctbthes, motor-cycle and cash amounts. Abdullah Shah alias Babar Ali and Asif Mahmood stated that they as well As their photographs were shown to the prosecution witnesses before the holding of the Identification Parades. They took up the stand that they had been falsely involved due to one Sarbuland Khan. Jamil Ahmad acquitted accused produced Electoral Roll Mark DO in the defence. Asif Mahmood accused produced Muhammad Ismail Head Constable DW-1 in his defence who had brought daily dairy of Police Station Haram Gate pertaining to the period from 26.7.1986 to 18.8.1986. According to report No. 42 dated 28.7.1986 Asif Mahmood appellant, Mushtaq and Muhammad Akhtar were kept in the police lock up in case FIR No. 203 of 1985. According to report No. 4 dated 29.7.1986 the above mentioned three persons were taken away from the Police Station by Ahmad Khan Constable No. 1834 at 8.35 a.m. This DW-1 proved the relevant copies as Exh. DO and Exh. DP. The other appellant and the acquitted accused did not produce the defence evidence. All of them did not choose to appear in their own defence on oath as contemplated under Section 340(2) Cr.P.C. 16. We have noted that the learned trial Court acquitted Muhammad Arshad on the ground that Muhammad Nawaz Bank Manager complainant PW-14 exonerated him while standing in the witness-box and in his place introduced Mushtaq Ahmad. Both Jamil Ahmad and Abdul Basit were acquitted with the reasoning that neither they were named in FIR nor mentioned in the statement of Jamil Akhtar eye-witness recorded by the police who appeared as PW-16 and that they were not shown in the spot inspection note as well as rough site-plan Exh. PV prepared initially and site-plans Exh. PA, Exh. PA/1 and Exh. PA/2 prepared and submitted on 17.4.1985 by Shaukat Hayat Draftsman PW-1. However, both Abdullah Shah alias Babar Ali and Asif Mahmood appellants were convicted on the grounds that their features were according to those narrated in complaint Exh. PE, that they were correctly identified in Identification Parade by Muhammad Nawaz complainant PW-14 and PW-16, recovery of sten-gun P-96 with report Exh. PCC of Fire Arms Expert and the corroboration by the medical evidence. Feeling aggrieved both Abdullah Shah alias Babar Ali and Asif Mahmood preferred the aforesaid appeals which have been resisted by the State. 17. Against the acquittal of Muhammad Arshad, Jamil Ahmad and Abdul Basit accused persons, Criminal Appeal No. 418 of 1988 was preferred which was dismissed at the limine stage to the extent of Abdul Basit acquitted accused while the same was admitted to the extent of the remaining two acquitted accused who were admitted to bail. This appeal has been resisted by both Muhammad Arshad and Jamil Ahmad acquitted accused. 18. We have heard the learned counsel for the parties of all the three appeals and gone through the record before us. For the proper disposal of the dispute in hand we propose to dispose of criminal appeal No. 418 of 1988 preferred by the State against the acquittal of Muhammad Arhsad, Jamil Ahmad and Abdul Basit. It is proper to express that vide order dated 11.12.1988 the then learned Division Bench dismissed this appeal in limine to the extent of Abdul Basit acquitted accused with the reasoning that there as no evidence of his having entered the bank at the time the dacoity was committed, having looted any money or of having assisted the culprits in any manner. With regard to Muhammad Arshad and Jamil Ahmad respondents/ acquitted accused, learned State Counsel argued that Muhammad Arhsad accused led to the recovery of attach-case containing blood-stained bag and clothes vide memo Exh. PM, led to the recovery of motor-cycle P-88 vide memo Exh. PN and led to the recovery of an amount of Rs. 22,000/- vide memo Exh. PL from his house. He added that Jamil Ahmad accused led to the recovery of an amount of Rs. 22,000/- from his house before the police vide memo Exh. PO. He continued that Muhammad Arhsad and Jamil Ahmad respondents/acquitted accused were correctly identified during the Identification Parade by Muhammad Nawaz Manager complainant PW-14 as well as Jamil Akhtar PW-16 and that the aforesaid aspect of the matter has been ignored by the learned trial Court without any legal justification. ccording to him the aforesaid type of evidence is enough to connect both Muhammad Arshad and Jamil Ahmad acquitted accused with the present occurrence and that they cannot escape their criminal liability in the matter. We. however, do not agree with him. As rightly pointed out by the learnedcounsel for Muhammad Arshad and Jamil Ahmad respondents/acquitted accused; Muhammad Nawaz complainant PW-14 while standing in the witness-box particularly stated that his statement in examination-in-chief that Muhammad Arshad accused while armed with pistol had come to the bank and had committed dacoity was incorrect, that his statement in crossexamination that it was Mushtaq Ahmad who had committed dacoity and not Muhammad Arshad accused was correct, that he was quite sure that Muhammad Arshad accused was not one of those dacoits who had entered the bank and committed dacoity and that he had identified Muhammad Arshad accused in the Identification Parade under the mistaken impression as he had great resemblance with the aforesaid Mushtaq Ahmad accused. A perusal of the record has made out that Nasrullah Khan Niazi PW-18 admitted in his cross-examination that the features of Muhammad Arshad accused did not tally with any features of the persons given in the complaint Exh. PE. He also admitted that he had mentioned in the report under Section 173 of the Code of Criminal Procedure that according to his investigation Muhammad Arshad accused had not gone in the bank alongwith others for committing the dacoity. Since the participation of Muhammad Arshad had become doubtful in view of the statement of Muhammad Nawaz complainant PW-14 as well as Nasrullah Khan Niazi SI PW-18, the statement of Jamil Akhtar PW-16 about the identification of Muhammad Arshad and the aforesaid recoveries of currency-notes, blood­ stained clothes and motor-cycle from his house have rightly not been given the weight by the learned trial Court especially when it is simply unnatural that an accused would keep the blood-stained clothes worn by him and his two co-accused in his house more than two months after the occurrence. The aforesaid recoveries have been refuted by the said accused Muhammad Arshad. Thus we had that Muhammad Arshad has rightly been acquitted by the learned trial Court. With respect to Jamil Ahmad acquitted accused suffice it to express that Muhammad Nawaz complainant PW-14 and Jamil Akhtar Cashier PW-16 did not mention the presence of any body outside the bank at the time of the commission of the alleged dacoity. In complaint Exh. PE and copy of statement Exh. DE of Jamil Akhtar PW-16 recorded by the police the features of Jamil Ahmad acquitted accused are not mentioned. The rough site plan Exh. PV was prepared by Muhammad Irshad SI immediately after his arrival at the spot who also prepared the spot inspection note. The Draftsman (PW-1) prepared site-plan Exh. PA and submitted before the police on 17.4.1985. In the aforesaid site-plans the presence of Jamil Ahmad acquitted accused is not shown outside the bank premises. This aspect of the matter is enough to make us agree with the learned trial Court regarding the order of acquittal of Jamil Ahmad accused. The aforesaid reasoning has made us to hold that the identification of Jamil Ahmad accused in the identification parade held on 1.7.1985 by Muhammad Nawaz complainant PW-14 and Jamil Akhtar PW-16 need not be given the weight especially when the mere identification would not be sufficient to prove the case of the prosecution against him. The recovery of an amount of Rs. 22,000/- attributed to Jamil Ahmad accused has not legal force on the ground that it was not specified that the currency notes P-89/1-70 and P-90/1-70 were taken away by the dacoits. The aforesaid recoveries have been refuted by Jamil Ahmad accused. The reasoning adopted by the learned trial Court with respect to the acquittal of Muhammad Arshad and Jamil Ahmad accused/respondent of this appeal preferred by the State has sound footing and we affirm the same. Consequently we hold that Criminal Appeal No. 418 of 1988 has no force and we dismiss the same. Both Muhammad Arshad and Jamil Ahmad respondents/acquitted accused are present on bail before us. Their bail bonds are cancelled and sureties, discharged. 19. Now we take up Criminal Appeal No. 22 of 1988 preferred by Abdullah Shah alias Babar Ali and Criminal Appeal No. 144 of 1988 preferred by Asif Mahmood appellant. 20. At the very out-set it would be proper to express that the strength of the case of the prosecution revolves around the following ingredients:- (i) That the features of Abdullah Shah a/;«s Babar Ali and Asif Mahmood appellants were according to those narrated in complaint Exh. PE and that they were correctly identified by Muhammad Nawaz complainant PW-14 and Jamil Akhtar Cashier PW-16. The respective reports of Identification Parade are Exh. PT containing Certificate Exh. PT/1 of Malik Muhammad Aslam, Magistrate 1st Class, Multan PW-15 pertaining to Abdullah Shah alias Babar Ali and report Exh. PU containing Certificate Exh. PU/1 of Malik Muhammad Aslam Magistrate 1st Class, Multan PW-15 about Asif Mahmood appellant. (ii) Recovery of sten-gun P-96 attributed to Asif Mahmood appellant supported by positive report Exh. PCC of the Director, Forensic ScienceLaboratory, Lahore. (iii) Medical evidence on the basis of the deposition of Dr. Iftikhar Hussain Qureshi, Medical Officer, Civil Hospital, Multan PW-7 who found pellets and bullets from the dead body of Sanab Gul which made out that two types of fire arms were used during the occurrence. 21. Both the learned counsel for the appellants argued that the narration of the features of the appellants in complaint Exh. PE is of no salubrious effect in favour of the prosecution case because Muhammad Nawaz complainant PW-14 has specifically stated that he had identified Muhammad Arshad acquitted accused in the Identification Parade under the mistaken impression as he had great resemblance with Mushtaq Ahmad accused (not challaned), that Nasrullah Khan Niazi SI PW-18 admitted in his cross-examination that the features of Muhammad Arshad acquitted accused did not tally with any features of the three persons given in the complaint Exh. PE, that the acquitted accused Muhammad Arshad was not named as the person who was identified when Muhammad Nawaz complainant PW-14 stood in the witness box and that the photographs of both Abdullah Shah alias Babar Ali -and Asif Mahmood were shown to different persons when Nasrullah Khan Niazi SI visited different places of Lahore on 4.8.1985 and visited different places of Rawalpindi on 5.8.1985. They prayed for making a perusal of the case diary maintained by tke police during the investigation. On the contrary learned State Counsel laid the emphasis that both Muhammad Nawaz complainant PW-14 and Jamil Akhtar Cashier PW-16 are respectable persons being bank employees who have rightly been believed by the learned trial Court about the correct identification by them of'both the appellants/convicts. At the very out-set we would express that it is not a case of ocular account with identification and names of the accused wherein the status of the witnesses can be considered and given the weight by placing the reliance on their statements. In the instant matter both the appellants at the time of their identification parade took up the stand that they were shown to the witnesses before th« identification parade. We have made a perusal of the aforesaid case diary dated 4.8.1985 and 5.8.1985 prepared by Nasrullah Khan Niazi SI PW-]$ wherein it is specifically narrated that while respectively visiting Lahore and Rawalpindi the photographs of Abdullah Shah o^'os Babar Ali and Asif Mahmood appellants were shown to different persons and informants at both the aforesaid places. This aspect of the matter has made out that Nasrullah Khan Niazi was in possession of photographs of both these appellants-convicts. The entiy in daily diary dated 28.7.1986, copy Exh. DO, of Police Station Haram Gate and the entry in daily diary dated 29.7.1986, copy Exh. DP, of Police Station Haram Gate, Multan have been gone through which have made out that Asif Mahmood appellant was detained therein and was not immediately sent to Judicial Lock-up District Jail, Multan. Both the appellants-convicts raised the objection before the concerned Magistrate who supervised the Identification Parades that they were shown and the aforesaid material is enough to justify their aforesaid stand/defence. Exh. DE is a hand-bill containing the photographs of both Abdullah Shah alias Babar Ali and Asif Mahmood appellants (alleged assailants of this case) said to have been got published by and distributed on behalf of the Senior Superintendent of Police, Multan. This Exh. DE contains the photographs of both these appellants. Even though it distribution has been denied by the Investigation Officer Nasrullah Khan Niazi PW-18, yet his denial in the matter can be ignored on the simple ground that no accused who has become a fugitive of law would like to get published the aforesaid type of hand bills containing the photograph(s) to get himself entrapped. The Investigating Officer PW-18 as expressed and held above, was in possession of the photographs of both these appellants and the publication of the same on hand-bill Exh. DE can well be expected from the police as all types of efforts were being made for the arrest of the appellants on the ground of being involved in a bank dacoity case. The occurrence took place on 4.4,1985 while the Identification Parade pertaining to Abdullah Shah alias Babar Ali appellant was conducted on 4.3.1986 and the Identification Parade with respect to Asif Mahmood appellant was held on 2.8.1986. As held above the photographs of both the appellants were in possession of Nasrullah Khan Niazi SI PW-18. The aforesaid interval in between the date of occurrence and the respective date of holding of the Identification Parade when the Investigating Officer had the photographs of both the appellants with him have made us to hold that no sanctity can be granted to the Identification Parades and thus this ingredient of Identification Parades is devoid of legal force which is liable to be discarded. We pass an order accordingly. Thus the respective Identification Parade pertaining to the respective appellant need not be given the weight. 22. Regarding the recovery of sten-gun P-96 supported by positive report Exh. PCC of the Arms Expert the contentions of the learned counsel for Asif Mahmood are that the aforesaid recovery is violative of Section 103 of the Code of Criminal Procedure as the same was attested by Muhammad Nawaz complainant PW-14 while no person from Qasimpur Colony Multan was called and joined therein at the alleged time of recovery, that no weight can be granted to the alleged recovery made after long delay on 11.8.1986 from the house easily accessible to every body living jointly therein, that the place of recovery was such that the possession of sten-gun P-96 could not be expected to be within the exclusive knowledge of Asif Mahmood appellant and that the delivery of sealed parcel containing crime empties P-91/1-11 matched with sten-gun P-96 has not been established because Muhammad Irshad SI PW-17 is said to have handed over the sealed parcel containing crime empties P-91/1-11 to Muhammad Ishaque Moharrir Police Post Muzaffar Abad Police Station Mumtaz Abad who has not been produced in evidence. On the contrary learned Counsel for the State canvassed that in the circumstances of the matter the recovery of sten-gun P-96 stands proved and that the statement of Nasrullah Khan Niazi SI PW-18 has proved that parcel containing crime empties P-91/1-11 was sent to the Forensic Science Laboratory. Our view is that the reasoning adopted by the learned counsel for the appellant has to prevail It is the admitted position that no person from Qasimpur Colony Multan was called and joined at the alleged time of recovery of sten-gun P-96. There is no evidence on record to make out that sten-gun P-96 was lying concealed within the exclusive knowledge of Asif Mahmood appellant under the iron box lying in the living room of the house which the inmates could easily visit. It means that the exclusive possession of sten-gun P-96 of Asif Mahmood appellant has not heen established. It has been commanded by the Hon'ble Supreme Court of Pakistan in ArifAli vs. Muhammad Rarnzan alias Janan and 4 others (1991 SCMR 331) that the recovery made after long delay from a place accessible to every one in the house could not be used as a corroborative piece of evidence. This judgment was announced in a murder case. According to the ruling published as Iftikhar alias Gattu and another vs. The State (NLR 1994 Criminal 281 (DB) Lahore) the recovery of the weapon of offence from a house which is neither in the ownership of an accused nor in his exclusive possession has no legal force which has not to be relied upon. The idea behind the aforesaid reasoning is that any incriminating article lying in the house wherein there was joint living cannot be held to be in exclusive possession of the appellant and also within his exclusive knowledge and the alleged type of recovery, as such, cannot be given any wight to make Asif Mahmood appellant criminally liable in the matter. The aforesaid type of recovery is admissible under Article 40 of the Qanoon-e-Shahadat Order, 1984 and without having been established the same cannot be entitled to any legal weight. Further Muhammad Irshad SI PW-17 is said to have handed over the sealed parcel containing crime empties P-91/1-11 to Muhammad Ishaque Moharrir Constable Police Post, Muzaffar Abad Police Station Murntaz Abad who is said to have kept the same in the 'Malkhana'. However, he has not been produced in evidence. No doubt Nasrullah Khan Niazi PW-18 deposed that the aforesaid parcel was received back and was afterwards sent to the Director Forensic Science Laboratory, Lahore but about the police having received the same from the aforesaid office no evidence has been produced and further that where the said parcel was preserved. Ahmad Ghaus HC PW-11 stated that he sent two sealed parcels one containing the sten-gun and the other containing the live bullets handed over to him by Nasrullah Khan Niazi SI through Muhammad Yaqoob Constable PW-12 to the Forensic Science Laboratory. It means that he did not send the parcel containing the aforesaid crime empties specifically exhibited as P-91/1-11 earlier. This missing link about the despatch of crime empties P-91/1-11 is enough to make out that from sten-gun P-96 the fake firing was effected and thereafter the same was sent to the Forensic Science Laboratory and that the initial crime empties were not despatched there. This aspect of the matter has made us to hold that the report Exh. PCC of the Fire Arms Expert has no legal weight which cannot be relied upon and is liable to be E ignored. The only irresistible conclusion which can be drawn from the aforesaid state of affairs and reasoning would be that the ingredient of recovery of sten-gun P-96 supported by report Exh. PCC of the Fire Arms Expert has no legal force so as to connect Asif Mahmood appellant with the present occurrence. 23. No doubt Sanab Gul expired during the bank dacoity. However, in view of what has been expressed and held above, the medical evidence is of no legal Value so as to connect both the appellants with the occurrence. In view of the aforesaid analysis of evidence and findings we hold that the p prosecution has failed to connect Abdullah Shah alias Babar Ali and Asif Mahmood appellants with the present occurrence who are held to be innocent and entitled to be acquitted. 24. We, therefore, accept both the aforesaid appeals preferred by them, set-aside the impugned judgment and acquit Them. They were detained in Jail to undergo the sentences awarded to them and we had passed the order of their release through our short order, if not required to be detained in any other case. This is our detailed judgment for the disposal of the aforesaid appeals on merits. (MYFK) Appeals accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1318 (DB) Present: muhammad naseem chaudhri and raja muhammad sabir, JJ. ABDUL MAJID alias FAUJI etc.-Appellants ' versus STATE -Respondents Criminal Appeal No. 163 of 1994, dismissed on 24.2.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/324/148/149-Double murder-Offence of-Conviction for-Appeal against—Motive which stands admitted and established shall play legal role against appellants—Fact that PWs were inimical towards accused due to previous litigation has not to effect prosecution case especially when they were travelling in cars alongwith complainant-General public always avoid and show apathy towards becoming eye witnesses in such cases of long standing enmity between influential persons—Assailants were visible to Complainant party as one of them was injured during occurrence-They were correctly identified by eye witnesses—FIR was promptly lodged and all facts mentioned therein were corroborated by eye witnesses-Ocular evidence coupled with complaint and corroborated by medical evidence has correctly been relied upon by trial Court-Recovery of weapon of offence from accused has been proved by prosecution and its positive report of technical services has enhanced its value to connect appellant with occurrence—Enmity between parties is not disputed-- Piosecution has established its case against appellants—Appeal dismissed. [Pp. 1325. 1326. 1327. 1328, 1329, 1330 & 1331] A to E & K to O. (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- ----S. 302-Double murder-Offence of-Conviction for-Appeal against- Whether site plan of occurrence is substantive piece of evidence- Question of-mission to indicate position of eye witnesses in site plan would not lead to inference of such witnesses being not present-Mere fact that presence of witnesses is t entioned in site plan, would not invalidate their testimony—This can be at the most omission on part of I.O. and it would not make doubtful prosecution case-This axity need not be given weight. [P. 1328] F to J PLD J992 SC 211, PLD 1980 SC 317, P.Cr.L.J. 3019 ref. Ch. Muhammad Hussain Chhachhar, Advocate for Appellant. Ch. Rafique Ahmed Bajwa and Ch. Shaukat Rafique Bajwa, Advocates for Appellant. Mr. J.V. Gardener, Advocate for State assisted by M. Iqbal Bhatti, Advocate for Complainant. Dates of hearing : 23.02.1998 and 24.02.1998. judgment Muhammad Naseem Chaudhri, J.-This appeal is directed against judgment dated 15.8.1993 whereby the learned Judge, Special Court No. V, Lahore constituted under the Suppression of Terrorists Activities (Special Courts) Act, 1975 convicted and sentenced Abdul Majeed alias Fauji son of Hassan Din, Caste Rajput, resident of village Bhaseen, District Lahore and Hafiz Sultan Ahmad appellant son of Muhammad Siddique Caste Kamboh, resident of village Wasmian, District, Lahore to suffer death penalty each and to fine of Rs. 50,000/- each or in default of its payment to undergo R.I. for a period of two years each on two counts under sections 302/149 Pakistan Penal Code, to rigonnis imprisonment for a period of seven years each and to fine of Rs. 20,000/- each or in default of its payment to rigorous imprisonment for a period of one year each on each count of making the murderous assault on Haji Muhammad Akram Butt PW-3, Muhammad Hussain PW-4 and Manzoor Hussain PW-5 under sections 324/149 Pakistan Penal Code and to rigorous imprisonment for a period of one year each and to fine of Rs. 2,000/- each or in default of its payment to further undergo R.I. for three months under section 148 Pakistan Penal Code. 2. The co-accused namely Karamat Ali, Liaquat Ali and Muhammad Ashfaq tried in absentia were also convicted and sentenced exactly as narrated above under the aforesaid sections of Pakistan Penal Code. 3. An occurrence took place on 6.9.1991 at 7.45 p.m. on Pacca Road on the bank of BRB Canal, Lahore near Kashmir High School Mohallah Takki Mauza Bhaseen wherein Niamat Ali and Muhammad Jamil were murdered while Haji Muhammad Akram Butt MPA complainant PW-3, Muhammad Hussain PW-4, Manzoor Ahmad PW-5, Wilayat Ali PW (given up) and a passerby Mushtaq Masih PW (given up) were seriously injured when Karamat Ali accused was injured at the hands of Muahmmad Akram Butt complainant PW-4 who claimed the exercise of right of private defence in the matter. Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants were arrested who after full-fledged trial were convicted on 15.8.1993 as narrated above while Karamat Ali, Liaquat Ali and Muhammad Ashfaq were tried in absentia who, as required by law, were provided the legal assistance. 4. Both the aforesaid convicts Abdul Majeed alias Fauji and Hafiz Sultan Ahmad who faced and defended the trial in person have preferred this Criminal Appeal No. 163 of 1994 which is being disposed of through this judgment. 5. The facts giving rise to this appeal are narrated in complaint Exh. PD recorded by Atif Hayat Inspector/SHO Police Station Bata P\ir, Lahore (PW-15) at Asliraf Filling Station/Petrol Pump at 8.05 P.M. at the instance of Muhammad Akram Butt complainant the then MPA (PW-3). It is contained in Exh. PD that after attending the Prize Distribution Ceremony in Government High School. Attukay Awan on Pakistan Defence Day on 6.9.1991 he was returning at 7.45 p.m. to his village Bhaseen, Batapur, Lahore in the company of Niamat Ali and Muhammad Jamil (both deceased of this case) as well as Muhammad Hussain PW-4, Manzoor Ahmad PW-5 and Wilayat Ali PW T (given up> while they were in Mitsubishi wagon. From Jallo Morr, they reached Pacca road on the bank of BRB Canal near Kashmir High School, Mohallah Takki, Mauza Bhaseen. One Suzuki car No. LHR-3627 and an other car having the No. LET-8422 followed them. From his Mitsu Bishi wagon be turned back and saw the cars. A burst of Klashinkov was fired at his wagon which punctured the rear tyre. He and his companions identified the inmates of both the cars in the light of the vehicles. They were Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants each armed with Klashinkov as well as Liaquat Ali, Muhammad Ashfaq, Karamat Ali and two unknown persons each armed with mousers. The assailants alighted and made the reckless firing with the fire arm weapons upon him and his companions Muhammad Jameel and Niamat Ali occupying the front seat of the wagon were injured who expired there and then. He (complainant PW-3) as well as Muhammad Hussain PW-4, Manzoor Ahmad PW-5, Wilayat Ali PW (given up) and one passerby Mushtaq Masih PW (given up) were seriously injured. He (complainant PW- 3) fired with his 16 M licensed rifle in the exercise of right of private defence which hit Karamat Ali accused who was injured The firing attracted his brother Karamat Ali PW-6, his brother Yasm PW (not produced) and his nephew (not named and not produced) who also saw the occurrence. The cause of the occurrence is stated to the previous enmity based on murders with Abdul Majeed alias Fauji and others due to which the aforesaid assailants alongwith two unknown persons in prosecution of common object effected the firing to murder them. He had left the deadbodies of Muhammad Jameel and Niamat Ali under the custody of Muhammad Ashraf son of Niamat and Malik Farmiash Ali son of Abdur Rahim. He was being taken to Mayo Hospital for treatment by his brother Karamat Ali PW-6. He requested the police for taking the legal action. 6. Atif Hayat Inspector/SHO Police Station Batapur sent complaint Exh. PD to Police Station Batapur through Amjad Ali Constable where Muhammad Riaz Moharrir/HC PW-17 prepared formal FIR Exh. PD/1. 7. Karamat Ali PW-6 handed over the injured persons to his younger brother Shaukat Butt and accompanied Atif Hayat Inspector/SHO Police Station Batapur, Lahore (PW-15) to the place of occurrence. The Inspector/SHO (PW-15) took into possession the deadbodies of Niamat Ali and Muhammad Jameel deceased persons. He prepared the respective injuiy statements and the respective inquest reports pertaining to each deceased and sent the deadbodies for post-mortem examination under the escort of Sultan Ahmad Constable PW-10 who after the post-mortem examination delivered the last worn blood-stained clothes P-l and P-2 of Muhammad Jameel deceased vide memo Exh. PA before the SHO and last worn blood­ stained clothes P-3 and P-4 of Niamat Ali deceased vide memo Exh. PB before the SHO attested by Tahir Hussain ASI. The SHO prepared the spot inspection-note after making inspection of the place of the occurrence who also prepared rough site-plan Exh, PP of the place of occurrence. He took into possession blood-stained pieces of glass from inside Mitsubishi wagon where Niamat Ali deceased and Muhammad Jameel deceased were lying murdered which he sealed in two different parcels. He prepared memo of recoveiy Exh. PE. He took into possession seven empties P-7/1-7 from inside Mitsubishi wagon fromwhere the firing was effected by Muhammad Akram complainant PW-3. Memo Exh. PF was prepared. The empties P-5/1-104 of klashinkov and empties P-6/1-6 of mouser were taken into possession from inside Suzuki car No. LHR/3627 and from out "side of the same which were ealed in two different parcels when memo Exh. PG was prepared. Mitsubishi agon P-9 without number plate containing seven entry holes nd three broken glasses were taken into possession vide memo Exh. PD. Suzuki car No. LHR/3627 said to have been used during the occurrence by the assailants having the sign of entry hole was taken into possession vide memo Exh. PC/1. Karamat Ali PW-6 and Muhammad Yasin PW (given up) attested the aforesaid memos. Atif Hayat SHO PW-15 submitted application Exh. P. Q before the Medical Officer as-to whether Muhammad Hussain injured PW-4 was fit to make the statement and application Exh. PS pertaining to Wilayat Ali injured PW (given up) and the Medical Officer gave is report Exh. PQ/1 and Exh. PS/1 in his presence in the positive about each injured. He submitted application Exh. PR and application Exh. PT pertaining to Manzoor Ahmad injured PW-5 and Karamat Ali injured accused about their condition to make the statement and the Medical Officer gave his report in the negative that both of them were not fit to make the statement. At the request of the SHO and pointedness of the PWs Younas AM Shah Draftsman PW-7 prepared site-plans Exh. PH and Exh. PH/1 containing his notes and drawings in blank ink and that of the SHO in red ink. 8. The aforesaid sealed parcels were handed over by Atif Hayat SHO PW-15 to Muhammad Riaz Mohari HC PW-17 on 6.9.1991 who handed over the parcels containing the blood-stained pieces of glass on 12.9.1991 to Sultan Ahmad Constable PW-10 which he delivered in the office of the Chemical Examiner, Lahore. The parcels containing the empties were handed over by the SHO to Muhammad Riaz Moharrir HC PW-17 on 6.9.1991 who delivered the same on 23.9.1991 to Sultan Ahmad Constable PW-10 which he delivered in the office of the Forensic Science Laboratory, Lahore. 9. Abdul Majeed alias Fauji appellant was arrested on 21.9.1991 by Muhammad Inayat Ullah SI PW-13 from the house of his brother-in-law Muhammad Alain situated in village Kakkar as the said SI was in possession of warrant of arrest handed over to him by the SHO. On 17.10.1991 Karamat Ali absconder-accused was arrested from Services Hospital, Lahore by Muhammad Inayat Ullah SI PW-11 where he was under treatment as he as injured during the occurrence at the hands of Muhammad Akram complainant PW-3. However, Karamat Ali appellant later on fled away and became fugitive of law. 10. On 27.9.1992 while under police arrest Abdul Majeed alias Fauji appellant led to the recovery of klashinkov P-5, three magazines P-6/1-3 and ight live cartridges P-7/1-8 from the bank of BRB Canal, Lahore under­ neath the bushes after digging the earth which was taken into possession by Atif Hayat Inspector/SHO vide memo Exh. PC attested by Tahir Hussain ASI PW-2 and Muhammad Sarwar Constable PW (given up). He sealed the aforesaid fire arms in a parcel which he handed over to Muhammad Riaz Moharrir HC PW-17 on the aforesaid date and the same was handed over by him to Sultan Ahmad Constable PW-10 on 12.10.1991 which he delivered in the office of the Director, Forensic Science Laboratory, Lahore. From the office of the Chemical Examiner, Lahore reports Exh. PNN and Exh. POO about the blood-stained pieces of glass and reports Exh. PLL and Exh. PMM from the office of the Serologist were received that the pieces of glass were stained with human blood. The report Exh. PKK of the Technical Services was also received making out that the klashnikov empties were fired from the klashinkov got recovered by Abdul Majeed alias Fauji. Thus this report was positive. Ahmad Din ASI PW-1 was handed over the summonses for the service of Karamat Ali, Liaquat Ali and Muhammad Ashfaq absconding accused which remained unserved. 11. Atif Hayat Inspector/SHO PW-15 took into his possession Toyota Corolla car No. LET-8422 P-10 owned by Hafiz Sultan Ahmad appellant on 6.11.1991 vide memo Exh. PT attested by Shaukat AH PW-18. 12. On 6.9.1991 Dr. Aziz-ul-Islam casualty Medical Officer Mayo Hospital, Lahore medically examined Muhammad Akram complainant injured PW-3, Muhammad Hussain injured PW-4, Manzoor Ahmad injured PW-5 and Wilayat injured PW (given up). He issued the Medico Legal Reports about the aforesaid injured. 13. On 8.9.1991 Dr. Muhammad Khalid PW-11 conducted the post­ mortem examination on the deadbody of Muhammad Jameel aged 35 years who was identified by his brother Muhammad Khaleel PW-9. This medical witness found ten injuries on the person of the deceased. It is proper to express that two injuries are numbered as l.A and l.B. He expressed that the injuries were ante-mortem caused by fire arms and that the cause of death was damage to the vital blood vessels. He issued carbon copy Exh. PJ of the post-mortem report. 14. Dr. Mahfooz Ahmad PW-12 conducted the post-mortem examination on the deadbody of Niamat AH aged 60 years identified by his son Muhammad Ashraf PW-8. This medical witness found 13 injuries with fire arms on the person of this deceased. According to him the cause of death was injuries to the vital organs in the thorax and abdomen alongwith the blood vessels. He issued carbon copy Exh. PK of the post-mortem report and the carbon copy Exh. PK/1 of the diagram showing the location of the injuries. 15. Jamat AH Inspector SHO Police Station Batapur, Lahore (PW- 19) arrested Hafiz Sultan Ahmad appellant on 9.9.1992 from a garden of Banasah Wala carrying a klashinkov which he took into his possession and got registered a case under Section 13 of the Arms Ordinance against him. He joined him as the accused of this case. 16. After completion of the investigation the challan was submitted before the trial Court. Both Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants were charged under sections 302, 324, 148/149 Pakistan Penal Code who did not plead guilty and claimed to be tried. At the trial the aforesaid PWs stood in the witness-box and supported the prosecution case. 17. Safdar AH Constable PW-14 was handed over the summons Exh. PW-14/A for the service of Dr. Aziz-ul-Islam. The Deputy Medical Superintendent made the report that he remained on leave and thereafter did not join whose whereabouts were not known. Safdar AH Constable PW- 14 made his report Exh. PW-14/B that the whereabouts of Dr. Aziz-ul-Islam were not known. On that the prosecution was allowed to produce the secondary evidence. Muhammad Hussain Record-Keeper Mayo Hospital, Lahore PW-16 claimed to be aware of the hand-writing and the signatures of the aforesaid Dr. Aziz-ul-Islam PW. He proved medico legal report Exh. PFF pertaining to Manzoor Ahmad injured PW-5, medico legal report Exh. PGG with respect to Muhammad Akram injured PW-3, medico legal report. Exh. PHH pertaining to Wilayat Ali PW (given up) and medico legal report Exh. PJJ about Muhammad Hussain injured PW-4. According to him the aforesaid medico legal reports were in the hand of Dr. Aziz-ul-Islam which were signed by him. He was not cross-examined. 18. Both the appellants were examined under section 342 of the Code Criminal Procedure who deposed aboiit their non-participation in the occurrence. They took up the stand that they were falsely involved as there was long standing enmity and pendency of criminal cases between the parties. Abdul Majeed alias Fauji refuted the recovery of klashinkov P-5 who did not claim the same. They did not choose to appear on oath in their own respective defence under section 340(2) of the Code of Criminal Procedure. 19. Muhammad Rasheed DW-1, Motor Taxation Clerk posted in the office of the Excise and Taxation Department Farid Kot House, Lahore stated that according to the record of his office Mitsubishi station wagon was imported by Mrs. Iffat Begimi of Gawal Mandi, Lahore which was subsequently transferred to Sh. Amir-ud-Din resident of Shah Almi Gate, Lahore on 7.10.1991 and that Mitsubishi wagon was allotted registration No. LOG-8887 on 7.10.1991 on the application of SH. Amir-ud-Din. Ghaffar Ahmad Constable Police Station Faisal Town, Lahore proved copy of FIR No. 51 dated 6.3.1993 registered at Police Station Faisal Town, Lahore. Sultan Ahmad appellant tendered in evidence documents Exh. DE to Exh. DL as well as Mark-B to establish the adverse record maintained by the police ertaining to the complainant and other eye-witnesses and the pendency of the criminal litigation. Abdul Majeed alias Fauji produced in evidence documents Exh. DM to Exh. DP which are the copies of different FIRs. 20. After hearing the parties the trial" Court gave the weight to the motive, ocular account, recoveries from the place of occurrence, recovery of klashinkov P-5 and the medical evidence. Holding that the prosecution has connected Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants with the charge framed against them the trial Court convicted both of them on 15.8.1993 as narrated above. They have preferred this Criminal Appeal No. 163 of 1994 which has been resisted by the State. 21. The case of the prosecution rests on:- (i) Motive. (ii) Ocular evidence. (iii) Recovery of blood-stained pieces of glass coupled with reports of the Chemical Examiner and the Serologist and the recovery of Suzuki Car. (iv) Recovery of klashinkov empties P-l/1-4 from the spot on 6.9.1991 alongwith recoveiy of klashinkov P-5, three magazines P-6/1-3 and 8 bullets P-7/1-8 coupled with the positive report of Exh. PKK of the Technical Services, Lahore. 22. We have heard the learned counsel for the parties and the learned State Counsel as well as gone through the record prepared and maintained by the learned trial Court. The first contention of the learned counsel for the appellants is that there is long standing enmity between the parties and that due to that the appellants have been falsely roped in. He maintained that the occurrence took place when there was darkness and that since the original assailants were not known to the complainant and the eye­ witnesses they have fictitiously named the appellants to wreck the vengeance on the basis of the criminal litigation. He also referred to the previous record of the eye-witnesses mentioned in Exh. DE pertaining to Muhammad Akram complainant PW-3, his brother Shaukat Ali PW-18 and Karamat Ali PW-6 and maintained that the complainant party was locked in litigation with other persons as well an that they were also involved in different cases of smuggling. He made up the arguments that in such a state of affairs the false involvement of the appellants cannot be ruled out. We, however, do not agree with him. As rightly pointed out by the learned Counsel for the State it is not a case of substitution as this plea was neither raised during the investigation nor during the trial. In this sensational and gruesome occurrence it cannot be expected that the complainant party would let off the real assailants so as to falsely rope in the appellants on the basis of the admitted previous litigation. The taking into possession from the place of occurrence the Suzuki car P-8 bearing No. LHR 3627 containing the bullet hole owned by Abdul Majeed alias Fauji appellant by the Investigating Officer on his first visit, is a strong material and circumstance to repel this assertion of the learned counsel for the appellants. The material produced by the parties has conspicuously established that the parties were locked in criminal litigation since long. The aforesaid canvassing made by the learned counsel for the appellants that the motive is a double edged weapon and the chance of their false involvement cannot be ruled out has failed to impress us in the circumstances of the matter and we hold that the motive which stands admitted and established shall play the legal role against, the appellants. 23. With respect to the ocular evidence the contentions of the learned counsel for the appellants are that the same comprises the statements of the interested and inimical witnesses and that some of them were related inter se and that these aspects of the matter have eclipsed the weight of their statements, it was added that even though the occurrence took place on the Canal Bank near Mohallah Takki of village Bhaseen no independent person has been made to stand in the witness-box. In this regard specific mention was made to Mushtaq Masih injured PW who was a passerby and was given up even though he was a Christian by his religion and was an independent witness. On the contraiy learned State Counsel has laid the emphasis that Muhammad Akram complainant PW-3, Muhammad Hussain PW-4 and Manzoor Ahmad PW-5 were injured during the occurrence whose presence at the spot cannot be ruled out and that the non-appearance of Mushtaq Masih is not fatal to the prosecution case especially when he was not brought in defence by the accused persons. Our view is that the reasoning adopted by the learned counsel for the appellants has no legal force and that the trial Court has rightly placed the reliance on the statements of the eye-witnesses. Only Karamat Ali PW-6 was not injured during the occurrence as he was attracted at the spot on hearing the fire shots. The remaining three eye-witnesses namely Muhammad Akram PW-3, Muhammad Hussain PW-4 and Manzoor Ahmad PW-5 were injured at the spot during the occurrence which aspect of the matter has cemented their presence during the occurrence. The fact that the PWs were inimical towards the accused persons due to previous litigation has not to affect the prosecution case especially when they were travelling in the cars alongwith tke complainant who was arriving after attending a Prize Distribution Ceremony in a school due to defence Day of Pakistan on 6.9.1991. The said manner of occurrence has enhanced the value of the statements of the injured witnesses. The non-appearance of any witness from the public is not fatal to the prosecution case on the grounds; first that the occurrence did not C take place in a Mohallah or in a street which took place on the pacca road constructed on bank of BRB Canal. Secondly, the general public always avoid and show the apathy towards becoming of the eye-witnesses in such cases of long standing enmity between the influential persons in the area. During these days the public has to save its own skin as well by not meddling and entering into such affairs and disputes of others. It is a matter of common knowledge that inc ases of such nature the independent persons from the public do not take the courage to step-forward to make the deposition as the eye-witnesses. The public rather avoid from becoming the witnesses of recovery etc. etc. As such the said assertion raised by the learned counsel for the appellants has no legal force which is ignored. 24. learned counsel for the appellants argued that the occurrence took place at 7.45 p.m. on 6.9.1991 when there was darkness, that the assailants could not be recognized in the light of the cars and that the chance of error with respect to the identification of the assailants by the PWs who were in the vehicles ahead of the assailants could not be ruled out. 25. On the contraiy it was argued by the learned State Counsel and the counsel for the complainant that the firing was effected by the assailants from the cars as well as from the outside of the same as the empties P-5/1- 104 and empties P-6/1-6 were taken into possession vide memo Exh. PG from inside Suzuki car No. LHR 3627 as well as from the outer place of the same. They maintained that even according to complaint Exh. PD the assailants are alleged to have alighted from the cars who were known to the complainant party due to the previous litigation and whose car numbers must be within their knowledge. They expressed that the assertion raised by the learned counsel for the appellants in view of the aforesaid factual position has no legal force. We are of the view that the reasoning adopted by the learned counsel for the appellants need not be given the weight in the light of the assertions made by the learned Advocate for the adverse party and the learned State Counsel. It is specifically mentioned in complaint Exh. PD on the basis of which FIR Exh. PD/1 was drafted that on their arrival at the spot in two cars the assailants named therein including Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants alighted from the cars. The car(s) of the nears and dears and the car(s) of the antagonists can well be identified by the concerned party in no time and this is the reason that the number of both the cars are specifically mentioned in the complaint Exh. PD. These cars were owned by the appellants. In view of the long enmity it cannot be expected that the owners of the car would give the same to any other person to use the same for some illegal and criminal purpose. The fact that Karamat Ali was injured at the hands of Muhammad Akram complainant PW-3 during the occurrence who later on remained admitted in Services Hospital, Multan has made us to hold that the assailants were visible to the complainant party. Had no body from the assailants been injured the factual position would have been different. In view of the time of occurrence i.e. 7.45 p.m. it can be expressed that without the head lights the cars of both the parties could not be driven. The fact that empties P-5/1-104 of klashinkov and empties P-6/1-6 of Mouser were taken into possession from inside and outside of Suzuki car No. LHR-2627 is enough to make out that the assailants came out of the car to participate in the occurrence and they could be identified properly by the PWs. An important aspect of the matter which cannot be lost sight off is the statement of Karamat Ali PW-6 who saw the occurrence after his attraction at the spot due to fire shots. While standing outside of the cars being used by the complainant party he can well be expected to look at the faces of the assailants and the identification of the enemies of the families must, have been branded upon his soul. The fact of the matter that Karamat Ali co-accused was taken away in injured condition by the other accused is also a circumstance in favour of the prosecution to have facilitated the PWs to have seen the assailants. It is proper to refer to the recitals of complaint Exh. PD wherein the names of all the assailants with the specific roles have been narrated by Muhammad Akram complainant PW-3 which means that the FIR has to prove to be a corroborative piece of evidence in this regard. The PWs have stood the test of cross-examination with regard to this controversy under disposal. We, therefore, hold that the assailants were correctly identified by the eye­ witnesses whose statements have correctly been relied upon by the trial Court. Further it cannot be expected that in view of the sensational nature of the occurrence in hand; the real culprits would be let off to falsely rope in the appellants 'on the ground of previous enmity. Hence the occular account has the positive force in favour of the prosecution. 26. Learned counsel for the appellants referred to rough site plan Exh. PP prepared by Atif Hayat Inspector/SHO on 6.9.1991 at the time of his maiden visit to the place of occurrence as well as site-plan Exh. PH drafted by Younas Ali Shah Draftsman PW-7 containing the notes of Atif Hayat SHO and argued that the places from which the empties P-5/1-104 of klashinkov and empties P-6/1-6 of mouser were taken into possession have not been shown in rough site plan Exh, PP and that in both the aforesaid site-plans, viz. Ex. PP and Exh. PH the points where the assailants were particularly standing have not shown. He added that this aspect of the matter has made doubtful the presence of the assailants at the place of occurrence and the taking into possession of the empties and that the legal benefit of the said aspect of the matter shall be derived by the appellants. On the contrary learned counsel for the State laid the emphasis that such type of lapses are occurring and the negligence is being shown by the Investigating Officers as well as the Draftsmen intentionally as the interference in the investigation is made on behalf of the accused persons. According to him the assertion raised by the learned counsel for the appellants has no force. We have to express that in the ruling published as Mst. Shamim Akhtar vs. Fayyaz Akhtar and others (PLD 1992 Supreme Court 211) it has been commanded that the site-plan of occurrence is not a substantive piece of evidence. It has been held in Ali Sher us. The State and three others iPLD 1980 Supreme Court 317) that the omission to indicate the position of the eye-witnesses in the site-plan would not lead to the inference of such witnesses being not present particularly when the presence of such witnesses at the spot at the time of occurrence is natural in the circumstances of the case. This ruling was relied upon in the ruling printed as Nauroze vs. The State (1986 P.Cr.L.J. 3019 (Quetta) wherein it was held that the mere fact that the presence of the witnesses is not mentioned in the site-plan and the places where they were alleged to be present were not shown in the site-plan would not invalidate their testimony and that this can be at the most an omission on the part of the Investigating Officer. Likewise the conclusion which can be drawn with respect to the contentions of the learned counsel for the appellants in this case would be that if the points from which the empties were taken into possession and the points where the accused persons were present at the time of the firing on the deceased and the injured PWs were not shown that would not make doubtful the prosecution case, not to speak of that the same would be fatal to the prosecution case. It shall not be out of place to express that such type of negligence and lapse on the part of the Police Officers/Investigating Officers and the Draftsmen have become an order of the day. Even though the Investigating Officer and the Draftsman act in hand and glove by showing soft corner towards the accused in respect of the preparation of the site-plans not containing all the facts in recalcitrant manner, this laxity need not be given the weight as canvassed by the learned counsel for the appellants especially when the FIR was promptly lodged and all the facts were mentioned therein which have later on been corroborated by the eye-witnesses. It cannot be expected that the aforesaid site-plans were not prepared according to complaint Exh. PD this aspect has made out that the laxity pointed out by the learned counsel for the appellants shows the weak grip of the Investigating Officer and the Draftsman towards the performance of their respective duty. We are least impressed by this assertion raised by the learned counsel for the appellants and ignore the same. 27. The cumulative effect of the aforesaid discussion would be that the ocular evidence coupled with the complaint Exh. PD on the basis of which formal FIR Exh. PD/1 was drafted has correctly been relied upon by the trial Court and we also give the weight to the same. 28. With respect to the medical evidence the contention of the earned counsel for the appellants is that the same is in conflict with the ocular evidence as Dr. Muhammad Khalid PW-11 found the blackening of the injuries found by him on the cleadbody of Muhammad Jameel. According to him the distance between car No. LHR 3627 from which and from around of which the firing was effected at Mitsubishi Station Wagon was 36 feet and the burning could not be caused. He also referred to the statement of Dr. Mehfooz Ahmad PW-12 who conducted the autopsy on the deadbody of Niamat Ali according to which no blackening was found on the injuries on the person of this deceased. He made up the argument that from a distance of 36 feet the fire shot would not cause the blackening and thus the prosecution case has become doubtful as the statements of the eye-witnesses are liable to be ignored. On the contrary learned State Counsel laid the emphasis that indiscriminate firing was effected from the Klashinkoves and mousers and that the aforesaid types of weapons are that of highly complex and efficient category. He added that the firing was effected from inside and outside of car No. LHR 3627 and it can be expected that the friction was produced when the firing hit the iron body of Mitsubishi Wagon P-9 while the same may have not generated the heat when crossing the glass screen. He added that due to the aforesaid aspects of the matter the injuries on the ersons of both the deceased were received in the aforesaid manner and condition found by both the medical witnesses. We fully appreciate the analysis made by the learned Counsel for the State and agree with his reasoning. Due to the indiscriminate firing from the sophisticated weapons of Klashinkoves and mousers the deceased had received the injuries while occupying the seats in Mitsubishi Wagon P-9. The fire shots crossed the glass screens and the iron body. The blood-stained pieces of glass were taken into possession and there were holes on the iron body of wagon P-9 which eans that the empties crossed through and thorough. Th Medical Officers were not cross-examined on this point and their statements are of not help in the matter. The aforesaid aspect has to be dealt with an analyed technically. As such we express and hold that the piercing of bullets through and through the iron body of the vehicle produces friction and energy creating the spark and consequently generating the heat which naturally would blacken the injuries on the body of the victim which also occurred in this case regarding the injuries found on the body of the aforesaid deceased named as Muhammad Jameel particularly when from the iron rear body of the vehicle he was at a distance of four to five feet occupying his seat therein. With the passage of time during these days we shall have to bring ourselves out of the old and orthodox opinion already being followed with regard to indigenous and local weapons like single/double barrel guns, revolvers and pistols etc. etc. with respect, to the injuries in the matter received with such type of fire arms. The klashinkoves and mousers of latest investions and devices with different types of power and velocity can generate such energywhich can cause the aforesaid types of injuries containing the burning on the same even from some distance. It is a matter of common knowledge that during these days influential persons having long standing enmities inter se prefer to keep latest and sophisticated weapons like Klashinkoves and mousers etc. which can prove to be more effective and deterent giving better results impacts gainst the adverseries. Further we have already believed the eye-witnesses for the reasoning mentioned supra. We, therefore, hold that the medical evidence has corroborated the ocular evidence. 29. With respect to recovery of Klashinkov P-5 said to have been goteffected by Abdul Majeed alias Fauji appellant under Article 40 of the Qanoon-e-Sahahdat Order, the contention of the learned counsel for the appellants is that the positive report received from Fire Arms Expert has to be ignored because Sultan Ahmad Constable PW-10 stated that he delivered the crime empties on 23.10.1991 while Muhammad Riaz Moharrir HC PW- 17 deposed that he handed over the same to the said Sultan Ahmad Constable on 23.9.1991. We have to express that the learned State Counsel has rightly pointed out that this a typographical mistake. A perusal of report Exh. PKK of the Technical Services has made out that one sealed parcel was received on 23.9.1991 and the other on 12.10.1991. Obviously the parcels containing the crime empties P-5/ 1-104 of Klashinkove were first taken and thereafter the other parcel containing the Klashinkove was delivered on 12.10.1991. This reasoning has no force. It was further argued that the recovery of Klashinkove P-5 is attributed to Abdul Majeed appellant from an open place on the bank of BRB Canal which was visited by general public and that the same is of no legal effect. Abdul Majeed alias Fauji appellant led to the recoveiy of Klashinkov P 5 after digging the earth on the bank of BRB Canal. It means that the possession of Klashinkov and its having been buried at the place of recovery was well within he exclusive knowledge of Abdul Majeed alias Fauji appellant. In the cimimstances of the matter the prosecution witnesses of the police force are held to be competent to attest the memo of recoveiy. Thus not only that the recoveiy has been proved by the prosecution, the positive report Exh. PKK of the Technical Services has enhanced its value so as to connect Abdul Majeed alias Fauji appellant with the occurrence. This part of the prosecution evidence has also advanced the prosecxrtion case. 29. The defence evidence produced by the appellants is of no help to them for their exoneration. If on 6.9.1991 the Mitsubishi Station Wagon was without registration in the name of Muhammad Akram complainant and without number plate that would not make out that the same was not in possession of the aforesaid complainant as the same wagon P-9 was taken into possession by the Investigating Officer vide memo Exh. PD/2 in damaged condition from which the blood-stained broken glass pieces were also taken into possession from two places. Further the enmity between the parties is not disputed. 30. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the prosecution has established its case against both Abdul Majeed alias Fauji and Hafiz Sultan Ahmad appellants against whom the charge has been proved by the prosecution and who have rightly been held criminally liable in the matter of this gruesome occurrence wherein two persons Muhammad Jameel and Niamat Ali lost the lives and the murderous assault was made on Muhammad Akram complainant PW-3, Muhammad Hussain PW-4 and Manzoor Ahmad PW-5. As such both the appellants cannot escape their criminal liability in the matter. 31. For what has been said above, we see no merit in this appeal and dismiss the same. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1331 (DB) Present: muhammad naseem chaudhri and sh. abdur razzaq, JJ. ARSHAD and another—Appellant versus STATE-Respondent Criminal Appeal No. 724 of 1988, heard on 8.12.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/109/404/120-B-Murder-Offence of-Conviction for-Appeal against-Motive of occurrence rightly believed by trial Court-Similarly recovery of weapons of offence has been believed-Eye witnesses strongly supported story of prosecution-PW 12 & 13 were independent and trust worthy witnesses and there is nothing on record to suggest that they had got any motive for deposing falsely against appellants-Ocular account further gets support from medical evidence-Held: Prosecution has been successful to prove its case beyond any reasonable doubt-Appeal dismissed. [Pp. 1335 & 1336] A to D Mr. Seerat Hussain Naqvi, Advocate for Appellant. Ch. Muhammad Anwar Bhinder, Advocate for Complainant. Mr. S.D. Qureshi, Advocate for State. Date of hearing: 08.12.1997. judgment Sh. Abdur Razzaq, J.--Master Zafarullah Khan son of Ghulam Qadir, a close relative of Lai Khan son of Ahmad Khan complainant, was transferred from Khojianwali on 15.10.1986, and was posted as Headmaster Government Middle School Jehurianwali. On 16.10.1986 at 12.30 noon, Lai Khan complainant (PW-11) along with Ghulam Nabi (PW-12) and Muhammad Walayat (not produced) went to the school to escort Master Zafarullah Khan deceased. When they reached school, they found that school had been closed and Master Zafarullah Khan had gone to see the damaged wall of Government Girls School. He along with Muhammad Walayat and Ghulam Nabi followed Master Zafarullah Khan. When they reached near the Havaili of Muhammad Akbar son of Shana, they found that Master Zafarullah Khan was standing in front of the house of Bahadur Khan son of Sardar Khan and was looking towards the said school. In the meanwhile, Nazir son of Mian Khan armed with a carbine, Arshad son of Rehmat Khan armed with a .12 bore gun and Nawaz son of Muhammad Hussain empty handed emerged from the house of Bahadur rChan. Arshad and Nazir fired with their respective weapons hitting Master Zafarullah Khan on the back of his neck and back respectively, who fell down. Nawaz accused raised Lalkara that they had taken the revenge of the murder of Mirza Khan. He then left the spot along with his companions and also removed the licensed 7 mm rifle of Master Zafarullah Khan which he used to keep with himself for his protection. He also heard Bahadur Khan and Mst. Sughran Bibi saying that they had taken the revenge of murder of Mirza Khan. This incident was witnessed by Muhammad Asif son of Nawab Khan and Iftikhar Ahmad son of Fateh Muhammad. 2. The motive behind this occurrence is the enmity which has been going on between the deceased and the accused over the murder of Mirza Khan, an uncle of Nazir accused as well as over the murder of wife of Master Zafarullah Khan. Leaving Nawab Khan to guard over the dead body, Lai Khan complainant made for the Police Station and met Ahmad Shujaa Inspector/SHO (PW-15) who prepared FIR Ex. PN, as per statement of complainant. 3. After registration of case, Ahmed Shujaa Inspector/SHO (PW-15) made for the place of occurrence. He prepared inquest report Ex. PK and injury statement Ex. PK/1. He handed over the dead body to Faiz Ahmad constable for post-mortem examination. He inspected the spot and secured blood-stained earth vide memo Ex. PC. He secured three empties Ex. P6/1-3 vide memo Ex. PD. On 17.10.1986, Faiz Ahmad constable produced last worn clothes Ex. PI to P4/1-2 of deceased and a sealed phial which he secured vide memo Ex. PB. He got the accused Arshad transferred from Qadirabad police and arrested him on 20.10.1986. On 22.10.1986, he got the site-plans Ex. PA and Ex. PA/1 prepared from Akhtar Naqqash. On 31.10.1986. he arrested the accused Nazir from the Dera of Rehmat Ali and on his personal search, secured a 12 bore carbine P9 and 2 live cartridges P, 10 1-2 and prepared memo Ex. PL and prepared site-plan of the place of recovery- Ex. PL/1. On 31.10.1986, he arrested Mst. Sakina Bibi and Mst. Sughran Bibi. On the same day, Anwar Hayat ASI produced before him accused Bahadur Khan, on 1.11.1986, the accused Arshad led to the recovery of a .12 bore gnn P-ll from his Dera which was secured vide memo Ex. PM and prepared site-plan of the place of recoveiy Ex. PM/1. After completing investigation, he got the accused challaned. 4. A charge under Sections 302/109/404/120-B PPC was framed against the accused to which they pleaded not guilty and claimed to be tried. 5. In order to bring home guilt to the accused, prosecution examined PW-i Akhtar Naqqash who deposed that on 18.10.1986, he visited the place of occurrence and prepared site-plans Ex. PA and Ex. PA/1 and handed over the same to the I.O. on 20.10.1986. PW-2, Faiz Ahmad constable deposed that on 16.10.1986, he escorted the dead body of Master Zafarullah Khan for autopsy. On 17.10.1986, he produced last worn clothes Ex. PI to P4/1-2 of deceased alongwith a sealed phial P-5 before the I.O. who secured it vide memo Ex. PD. On 26.10.1986, he was given two sealed parcel containing blood-stained earth and empty cartridges for onwards transmission to the office of Chemical Examiner and Forensic Science Laboratory Lahore. On 3.11.1986, he was given two parcels containing carbine and .12 bore gun for delivering in the office of Forensic Science Laboratory which he delivered there intact. PW-3 Rashid Ahmad ASI deposed that on 17.10.1986, he was posted as Moharrir at P.S. Kunjah and was given two sealed parcels containing blood-stained earth and empties for keeping the same in Malkhana. On 26.10.1986, he delivered the said parcels to Fai Ahmad onstable (PW-2) for onwards transmission to the office of Chemical Examiner Lahore. On 31.10.1986 and 1.11.1986, he was given two parcels containing carbine and 12 bore gun respectively by I.O. for keeping in Malkhana. On 3.11.1986, he delivered both the said parcels to Faiz Ahmad, (PW-2) for onwards transmission to Forensic Science Laboratory Lahore. PW-4 Ghulam Qadir deposed that police had secured blood-stained earth from the place of occurrence and made it into a sealed parcel vide memo Ex. PC. He further deposed that police had secured empties of .12 bore P-6/1-3 which were made into a sealed parcel vide memo Ex. PD. PW5 Muhammad Azam deposed that police had arrested Nawaz and Bahadur Khan in his presence and as a result of personal search of accused Nawaz had recovered 7 mm rifle Ex. P-7 and two live cartridges Ex. P8/1-2 vide memo Ex. PE. PW 6 Dr. Syed Talat Iqbal deposed that on 17.10.1986 at 9.00 A.M. he conducted the post-mortem examination of Master Zafarullah Khan deceased. He found three fire injuries on his person, out of which injuries No. 1 and 2 were wounds of entiy whereas injury No. 3 was a wound of exit. In his opinion hoth the injuries were anti-mortem and caused by fire arm and death had occurred due to haemorrhage and shock n account of both these injuries which were individually and collectively sufficient to cause death in the ordinary course of nature. Time between injury and death as immediate whereas between death and post-mortem examination was 24 hours. He issued correct carbon copy of post-mortem examination report Ex. PG and sketch f injuries Ex PG/1. He signed inquest report Ex. PK and police papers Ex. PK/1. PW"? Arhsad Ali deposed that he identified the dead body of Master Zafarullah Khan t he time of post-mortem examination on 17.10.1986. He further deposed that Faiz Ahmad constable produced last worn clothes PI to P4/1-2 of deceased and a sealed hial P-5 before the 1.0. who secured it vide memo Ex. P-B which bears his signature. He further deposed that on 31.10.1986 Nazir accused was arrested and as a result f his personal search, carbine P-9 and two live cartridges PI0/1-2 were secured and made into a sealed parcel vide memo Ex. PL. PW-8 Fateh Muhammad deposed hat Arshad accused led to the recovery of gun P-ll which was secured vide memo Ex. PM. PW-9 Bashir Ahmad has deposed that Mst. Sughran Bibi, Mst. akina Bibi and Bahadur Khan had hatched a conspiracyin presence of Gulzar Ahmad PW, Arhsad, Nazir and Nawaz accused for the murder of deceased. PW-10 uhammad Siddique ASI deposed that on 31.01.1986, Ahmad Shujaa Inspector/SHO (PW 15) arrested accused Nawaz and on his personal search recovered a 7 mm rifle x. P-7 and two live cartridges P8/1-2 vide memo Ex. PE. PW-11 Lai Khan is the complainant and has corroborated his version appear in in FIR Ex. PN. PW-12, Ghulam Nabi and PW-13, Ifitkhar Ahmad have corroborated the prosecution version appearing in FIR Ex. PN. PW 14 Zafarullah Khan Arms Clerk has deposed that aster Zafarullah Khan deceased was issued a licence No. 2432 for 7 mm rifle. PW 15 Ahmad Shujaa Inspector/SHO is the Investigating Officer of this case whose vidence has already been discussed above. Lastly Mr. Manzoor Hussain Bhatti District Attorney gave up the remaining PWs being unnecessary and after producing certain ocuments Ex. PO to PS, Mark A to C closed the case for prosecution. When examined under Section 342 Cr.P.C. accused Mst. Sughran Bibi and Bahadur Khan denied the rosecution version and stated that they have been involved in this case falsely due to their relationship with Irshad brother of Arshad accused. They also produced certain ocuments in their defence. Similarly accused, Arshad, Nazir and Nawaz accused repudiated the prosecution version and stated that they have been involved in this case falsely. The accused Arshad and Nazir further stated that they had been inthe custody of Qadirabad Police prior to this occurrence and as such were innocent. All he accused got their statements recorded under Section 340(2) Cr.P.C. 6. After going through the evidence produced by the parties, thetrial Court gave weight to the prosecution version to the extent of Arshad and Nazir accused and convicted both of them under Section 302/34 PPC and sentenced each of them to death and a fine of Rs. 50,000/- each or in default thereof to further undergo R.I. for five years each. The fine, if realised, was ordered to he paid to the legal heirs of the deceased. The accused Mst. Sakina Bibi, Mst. Sughran Bibi, Bahadur Khan and Nawaz were acquitted. 8. The appellants Arshad and Nazir aggrieved of aforesaid judgment have filed this appeal to challenge their conviction and sentence. 9. We have heard the learned counsel for the appellants as well as learned State counsel and have gone through the record before us. 10. The learned counsel for the appellants has contended that the prosecution case was highly doubtful from its very inception because innocent persons were named in the FIR, as was found during the trial. In this respect a reference was made to the acquittal of Mst. Sakina Bibi, Mst. Sughran Bibi, Bahadur Khan and Nawaz. Hence, it was contended that the learned trial Court fell in error to convict the present appellants on the basis of same evidence which was disbelieved qua the acquitted accused. The application of the principle falsus in uno falsus in omnibus was invoked to support this contention. The judgment was further assailed on the ground that no independent witness of the locality was either cited or examined though the occurrence took place in the street which is the centre of the village, from which inference can easily be drawn that prosecution story is doubtful and natural witnesses were not supporting the case of prosecution, that all the three witnesses were chance witnesses and their presence on the spot was highly unnatural, that even otherwise said three witnesses were interested witnesses being relatives and partymen of the deceased, that even motive attributed to the appellants was not proved from the evidence brought on record. It was thus prayed that the appellants were entitled to acquittal. 11. The learned counsel for the State assisted by learned counsel for the complainant contended that the prosecution had proved its case beyond any shadow of doubt against both the accused-appellants. In this respect it was alleged that the prosecution had examined eye-witnesses to support its case. These witnesses were corroborated by the medical evidence and recoveiy of weapons of offence. It was further contended by the State counsel that mere fact that four accused were acquitted would not help the appellants because the principle of falsus in uno falsus in omnibus was not applicable to the facts of the present case. 12. The ocular account of occurrence clearly showed that the deceased had died on account of firing made by Arshad accused followed by another fire of Nazir. The motive of occurrence as given in the FIR has rightly been believed by the learned trial Court. Similarly recovery of weapons of offence has been believed. It is clear from the evidence of eyewitnesses that all of them strongly supported the story that the deceased was done to death by Nazir and Arshad accused. As such there is no doubt about this version, which stands proved beyond any reasonable doubt on account of testimony of eye-witnesses. The mere fact that Lai Khan complainant (PW- 11) is the uncle of wife of deceased would not discredit his testimony because his statement stands supported and corroborated by Ghulam Nabi (PW-12) and Iftikhar Ahmad (PW-13) whose presence at the spot cannot be doubted by any stretch of imagination. It is particularly so because, they (PWs-12 and 13) have no blood relationship with the deceased and as such were independent and trustworthy witnesses and more so when there is nothing 6 on the record to suggest that they had got any motive for deposing falsely against the accused-appellants. 13. The ocular account further gets support from the medical evidence which has come on record through the statement of Dr. Syed Talat Iqbal (PW 6) who conducted autopsy of deceased and found three injuries on his body, out of which injuries Nos. 1 and 2 were wounds of entry, whereas injury No. 3 was wound of exit. According to him both the injuries were ante-mortem and caused by fire-arm. Again ocular account further stands corroborated by evidence of recovery of weapons of offence recovered from the accused-appellants Nazir and Arshad. It has come through the statement of PW-7 Arshad Ali that Nazir Ahmad accused was arrested on 31.10.1986 and on his personal search carbine Exh. P-9 alongwith two live cartridges Ex. P10/1-2 were recovered vide memo Ex. PL. Similarly accused Muhammad Arshad led to the recovery of gun P-ll which was secured vide memo Ex. PM attested by Fateh Muhammad (PW-8). Evidence of recovery of weapons of offence further stands corroborated from the report of Director Forensic Science Laboratory Ex. PQ. 14. In view of our above discussion, we hold that prosecution has been successful to prove its case beyond any reasonable doubt. The sentence awarded to Arshad and Na/ir appellants does not call for any interference for the reasons already stated above. 15. It is pertinent to mention that it was pointed out at the very out set .by the learned counsel for the appellants that due to General Amnesty Order of the President 1988, the death sentence awarded to the appellants stands commuted to imprisonment for life. Thus, while dismissing the appeal, we extend the benefit of Section 382-B Cr.P.C. to the appellants. MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1337 Present: RAJA MUHAMMAD SABIR, J. MUKHTAR etc.-Petitioners versus STATE etc.-Respondents Criminal Misc. No. 65-Q of 1997, dismissed on 11.12.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A read with Ss. 167 & 173-Quashment of proceedings-Murder--Offence of--Challan not submitted within 15 days-Bail was granted to petitioners by Magistrate of S. 30-Petition for cancellation of bail by complainant-Proceedings initiated for cancellation of bail by Sessions Judge-Challenge to-It was a murder case which is exclusively triable by Sessions Court and Magistrate was not competent to release accused on bail under pretext that Challan was not submitted within 15 days- Condcut of Magistrate creates suspicion about bonafide exercise of judicial powers by him-Section 167 Cr.P.C. does not empower him to grant bail to accused of offence exclusively triable by Session Court-­ Prosecution has been seriously prejudiced by order of Magistrate who has released accused while wrongly interpreting law-Complainant has rightly moved application for cancellation of bail of accused-Petition dismissed-Magistrate was issued show cause notice. [Pp. 1338 & 1339] A to D AIR 1959 Madhya Pardesh 147, PLD 1996 Kar. 517 ref. Sardar Manzoor Ahmed Khan, Advocate for Petitioners. order Through this petition, learned counsel seeks quashment of proceedings initiated at the instance of the complainant, by the learned Sessions Judge, Muzaffargarh, in pursuance of an application for cancellation of bail granted to the petitioners by the learned Magistrate Section 30, Alipur vide his order dated 4.4.1997. 2. Learned counsel submits that the police failed to submit challan of case FIR No. 22/97 registered at Police Station Shehr Sultan, under Sections 302/148/149 PPC against the petitioners within 15 days who were arrested on 16.2.1997 and 19.2.1997 in terms of the provisions of sections 167 and 173(1), Cr.P.C. and as such the learned Magistrate was legally justified to release the accused on bail instead of sending them to judicial lock up. It is further contended that the afore-said order of the learned Magistrate was on administrative side, therefore, the learned Sessions Judge has no jurisdiction to entertain the petition of the complainant for cancellation of bail granted to the petitioners and the proceedings before the learned Sessions Judge are liable to be quashed. 3. I have gone through the order of the learned Magistrate which is placed as Annexure 'C' with this petition. It was a murder case which is exclusively triable by the Sessions Court and the Magistrate was not competent to release the accused on bail under the pretext that challan was not submitted W'ithin 17 days. The learned Magistrate has referred to some judgments of the Superior Courts in his order but none of the afore-said judgments laid down as a rule that if challan is not submitted within 15 days or the provisions of sections 167 or 173 Cr.P.C. are contravened the Ilaqa Magistrate can enlarge the accused on bail even in an offence which was exclusively triable by the Sessions Court. The conduct of the Magistrate in granting bail to all the accused in a murder case just after 17 days creates suspicion about bona fide exercise of judicial powers by him. Section 167 Cr.P.C. does not empower him to grant bail to the accused of the offence exclusively triable by the Sessions Court. 4. Sub-section (2) of section 167 of the Cr.P.C., lays down that:- "The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to tiy the cases, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary,' he may order the accused to be forwarded to a Magistrate having such jurisdiction." In this connection reference may be made to Ghulam Muhammad v. State (AIR 1959 Madhya Pradesh 147), wherein it was observed as under:- "Under Section 167(2) Cr.P.C. if the Magistrate to whom the accused person is forwarded, has no jurisdiction to try the case or committed for trial and considers further detention of the person arrested unnecessary then he can only order the accused to be forwarded to a Magistrate having jurisdiction to try the case. He has no power under section 167 to admit the arrested person to bail. If a Magistrate has no jurisdiction to try the case, he has no power under section 497 to grant bail, to the person arrested. That section is limited to the jurisdiction of the Courts of trial in the matter of granting or refusing bail." The trial court in view of the afore-said judgment at absolutely no jurisdiction to grant bail to the accused on the ground of detention beyond period of 15 days. The order of the Magistrate on the face of it is illegal. Similarly in Ghulam Sarwar v. State (1984 P.Cr.L.J. 2588 Lahore) the scope of section 167(2) Cr.P.C. was dismissed in detail. In another judgment on the same issue reported as Muhammad Siddiq v. Province of Sindh through Home Secretary Karachi (P.L.D. 1992 Karachi 358), it was observed at page 370 as under:- "The Magistrate under that provision of law can authorise the detention of an accused person in such custody as he may think fit for a period not exceeding 15 days on the whole and in cases where a Magistrate considers further detention unnecessary, he has to order that, the accused be forwarded to a Magistrate having jurisdiction to try the case instead of granting further remand." The same point was also considered in detail by another Division bench of the karachi High Court in Asma Khatoon v. Shabbir Hussain Shah (P.L.D. 1996 Karachi 517), that the order of the Magistrate is wholly without jurisdiction if the detention of the accused was found by him illegal for want of non-submission of complete or incomplete challan. At the most he could send the accused to judicial custody and report the matter to the trial court i.e. the Sessions Judge. The Magistrate himself not being trial court had no jurisdiction to release them on bail although knowingly they had not submitted any application that he had no jurisdiction to release them on bail. He exercised suo motu powers of granting bail to them in a case not triable by him. 5. This petition for quashment of the proceedings initiated on application for cancellation of bail moved by the complainant on the ground that the same is an abuse of process of law, is wholly misconceived. In fact the prosecution has been seriously prejudiced by this order of the learned Magistrate who has released the accused while wrongly interpreted in the law. The complainant has rightly moved an application for cancellation of their bail which shall be decided by the learned Sessions Judge on merits. There is no valid ground for interference by this Court in the proceedings pending before the learned Sessions Judge. This petition is without any merit and is hereby dismissed in limine. 6. A notice shall be issued to Mr. Zulfiqar Khan Nasir, Magistrate Section 30, Alipur, district Muzaffargarh, to appear in this Court on D 20.1.1998 and to show cause as to why his judicial powers should not be withdrawn. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1340 (DB) Present: MIAN NAZIR AKHTAR AND IHSAN-UL-HAQ CHAUDHRY, JJ. MUHAMMAD YAQUB-Petitioner versus STATE-Respondent Or. Rev. No. 91 of 1994, dismissed on 4.11.1997. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 190(3)--Offence u/S. 302/324/428/34 PPC-Summoning of petitioner as an accused-Trial Court is not competent to take cognizance of offence in respect of accused whose name does not figure in Column No. 2 or 3 of challan without recording any evidence—Plea of—Petitioner was discharged by a Court-order but case against him was not cancelled-His name was mentioned in report prepared u/S. 173 of Cr.P.C. as one of assailants though it was mentioned that he was found to be innocent in investigation conducted by police-As Magistrate has not passed any order for cancellation of case against petitioner, police ought to have mentioned his name in Column No. 2 of challan—Omission on part of police or Investigating Agency cannot affect jurisdiction of Sessions Court to pass an appropriate order to summon accused, though found to be innocent by police-Making various columns in challan form is a device of convenience-It does not limit jurisdiction of Court to try only those accused persons whose names find mention in Column No. 2 or 3 of challan—Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of fact whether his name finds mention in Column No. 2 or 3 of challan or not-Held: Although name of petitioner was not placed by Investigating Agency under Column No. 2 ^of challan, Sessions Court was competent to summon him as an accused person without recording evidence-While passing an order to summon an accused found innocent during course of investigation or discharged from case, under an order passed by a agistrate, Sessions Court has to exercise its discretion/jurisdiction judiciously and not arbitrarily-Learned Additional Sessions Judge had noticed that petitioner's name figured in F.I.R. and although he was. Got discharged by police, it was necessary to summon all accused persons whose names figure in FIR-Impugned order appears to have been passed to secure ends of Justice and does not suffer from any legal infirmity- Petition dismissed. [Pp. 1345 & 1346] A, B, C, D, E, F & G Mr. Shaukat Raftq Bajwa, Advocate for Petitioner. Malik Muhammad Kabir, A.A.G. assisted by, Mrs. Tasnim Amer for State. Date of hearing: 4.11.1997. judgment Mian Nazir Akhtar, J.--This revision petition has been filed to set aside the impugned order passed by the learned Additional Sessions Judge, Faisalabad on 29.6.1993, summoning Muhammad Yaqoob, petitioner to stand trial in case FIR No. 179 dated 30.5.1991, registered at P.S. Thikriwala for offence under Section 302/324/428/34 PPG. 2. Briefly stated the facts of the case are that case FIR No. 179 dated 30.5.1991 for offence under Section 302/324/428/34 PPC at P.S. Thikriwala, District Faisalabad was registered on a report lodged by Muhammad Yaseen. He had named 4 persons as accused namely Muhammad Ayyub, Maqsood Ahmad, Abdur Rauf and Muhammad Yaqoob armed with .12 bore gun. The petitioner was alleged to have fired at Muhammad Amin, P.W., causing an injury on a finger of his right hand. The occurrence had taken place at 5.30 a.m. on 30.3.1991. The petitioner claims that on 26.5.1991 he was admitted in Civil Hospital Raja Jang and remained there till 1.6.1991. In the investigation conducted by the police it was proved that at the relevant time the petitioner was admitted in the hospital. Hence he was held to be innocent and a recommendation was made to discharge him from the case. Accordingly, the learned Ilaqa Magistrate vide his order dated 1.7.1991 discharged him from the case. After completing the investigation, the challan was submitted in the Court of learned Ilaqa Magistrate who forwarded it to Sessions Court. It was entrusted to Ikram-ul-Haq, Additional Sessions Judge, Faisalabad who proceeded with the trial against Muhammad Ayyub, Muhammad Yaqoob and Abdul Rauf. Another accused named Maqsood Ahmad was declared to be a proclaimed offender. On 17.6.1992, the case was transferred to the Court of Kh. Aurangzeb, Additional Sessions Judge and then to the court of Mr. Abdul Razzaq Bhatti on 7.12.1992. The copies of the statements of PWs were delivered to the accused on 13.1.1993. On 7.6.1993, the case was transferred to the court of Mr. Jalal-ud-Din Akbar, Additional Sessions Judge, who passed the impugned order dated 29.6.1993, whereby the petitioner was also summoned as an accused. • 3. The petitioner's learned counsel submits that the name of the petitioner did not figure in Column No. 2 or 3 of the challan, hence he could not have been summoned by the trial Court without recording any evidence that the petitioner was declared to be innocent on the basis of documentary evidence regarding his admission in the hospital and not on Qasam/Nayan alone; that the trial Court is not competent to take cognizance of the offence in respect of the accused whose name does not figure in Column No. 2 or 3 of the challan. He relies on the following judgments:- (a) Bahadur and another vs. The State (1985 SC 62). (b) Muhammad Alam etc. vs. Add!. Secretary Home and others (PLD 1987 SC 103). (c) Muhammad Shamim vs. Ali Gohar (1990 P.Cr.L.J. 1932). (d) S. Akhtar Sher vs. The State (1991 MLD 1977). (e) Damon etc. vs. The State (1992 MLD 1993). (f) Talib Hussain and another vs. Muhammad Aslam and another (1997 P.Cr.L.J. 56). (g) Nasarullah vs. The State (1997 MLD 1430). (h) Hameedullah Khan vs. The State (1997 MLD 1745). Referring to the judgment in the case of Talib Hussain supra he submits that the accused person in the reported case was summoned by the trial Court after recording the statement, of the complainant; that in the present case, the Court has passed a mechanical order without assigning any reason as to why he had differed with the view taken by the Magistrate regarding innocence of Muhammad Yaqoob petitioner; that the Court below has summoned the petitioner simply because his name had figured in the FIR; that the Court has not cared to adveit to the investigation and the report submitted before the Magistrate under Section 169 of the Cr.P.C. 4. On the other hand, learned A.A.G. submits that in the present case there were 4 accused namely Muhammad Ayyub, Maqsood Ahmad, Abdur Rauf and Muhammad Yaqoob, out of whom Muhammad Yaqoob was found to be innocent by the police during the investigation and discharged by the Magistrate vide order dated 1.7.1991. Referring to the judgment in the cases of Waqar-ul-Haq vs. The State (PLD 1988 Lahore 336) and Waqar-ul- Haq vs. The State (1988 SCMR 1428), he submits that the Court has to take cognizance of the offence and not accused persons, therefore, any person who appears to be involved, can be summoned notwithstanding the fact that he was found innocent during the investigation; that while summoning the accused person the trial court is not bound to record evidence or reasons as held in the cases of "Muhammad Hanif and another vs. The State" (1979 P.Cr.L.J. 1078) and "Waqar Ilias and another vs. The State through Federal Investigating Agency, Commercial Banking Cell, Quetta" (PLD 1993 Quetta 49); that an accused person discharged under the order of a Magistrate has to furnish a bond to appear in the Court and answer the charge leveled igainst him. 5. In reply, the petitioner's learned counsel submits that in all the udgments relied upon by the learned AAG, the name of the accused had igured in Column No. 2 or 3, therefore, it was held that he could be summoned without recording any evidence or reasons. However, the petitioner's name does not figure either in Column No. 2 or 3 of the challan and he could not have been legally summoned to face trial. 6. The question regarding the jurisdiction of the Sessions Court to summon an accused person who has been found to be innocent by the police during the course of investigation is not free from difficulty and has-been answered differently in various judgments, in view of the peculiar facts and circumstances of each case. I will first refer to the judgment relied upon by the petitioner's learned counsel. Bahadur's case relates to the discharge of an accused and cancellation of the criminal case against him. The question agitated before the Honourable Supreme Court was whether the Magistrate in cancelling the case acts as a criminal court. It was held that while concurring with a report submitted under Section 173 of the Cr.P.C. to discharge an accused, a Magistrate does not fiiriction as a criminal court and that the order passed by him is an administrative order, not amenable to revisional jurisdiction. The question of summoning an accused by the Sessions Court after his discharge by the Magistrate was not involved in Bahadur's case. In Muhammad Alam's case order for release and discharge of an accused was passed by the Additional Deputy Commissioner under the Provincially Administered Tribal Areas Criminal Laws (Special Provisions) Regulation 1 of 1975. Prior to that, he had taken cognizance of the offence on a report submitted by the police under Section 173 of the Cr.P.C. In this background it was held that the so-called discharge of the petitioners under Section 169 or for that matter the cancellation of the case against them under Section 173 of the Cr.P.C. by the Additional Deputy Commissioner, after taking cognizance under para 4 of the Regulation was without lawful authority and of no legal effect. In Muhammad Shamim's case it was held that the Magistrate while discharging the accused on police report does not act as a Court and that the discharge order even if not impeached, does not bar the remedy of filing a private complaint. This judgment is not relevant to the controversy involved in the present case. In the case of S. Akhtar Sher, it was held that without commencement of trial or recording the evidence, the Sessions Court had no jurisdiction to summon the accused mentioned in Column No. 2 or against whom evidence was found deficient during the inquiry or investigation. In the case of Dornan and others, it was held that the provisions of Sections 190 and 193 of the Cr.P.C. were mandatory and a Court of Sessions could not entertain any direct complaint, not being a Court of original jurisdiction, unless the same was forwarded to it by a Magistrate under Section 193(1) of the Cr.P.C. In the case of Talib Hussain and another it. was held that the Sessions Court would take cognizance of the offence in a case sent up by a Magistrate under Section 190(1) of the Cr.P.C. and that no investigation could be conducted by the police after cancellation of the FIR unless the order of cancellation was set aside. In Nasrullah's case it was held that the Court of Sessions had to take cognizance of that case which was sent to it for trial by a Magistrate after having taken cognizance under Section 190 of the Cr.P.C.; that the case of the accused person'released by the police after investigation under Section 169 of the Cr.P.C. was altogether different from that of other accused mentioned in Columns No. 2 and 3 of the report submitted under Section 173 of the Cr.P.C. and that the Sessions Court was not competent to pass an order for placing the accused in Column No. 2 of the challan. In Hameedullah Khan's case no discharge order was passed by the Laqa Magistrate but two accused persons were found innocent and their discharge was recommended. Before any discharge order could be passed by the Ilaqa Magistrate the case was investigated by another police officer who declared all the accused persons to be guilty, hence challan was submitted against all of them. The case was further investigated into by the S.P. Range Crime who declared two accused persons to be innocent but again in another investigation conducted by the DSP CIA all the accused were found to be guilty. The challan was submitted in the Court of learned Additional Sessions Judge Sargodha who summoned all the accused persons to face the trial. An application was submitted before him by two accused persons who were found to be innocent in two police investigations for their acquittal under Section 265-K of the Cr.P.C. The application was rejected. The said order was assailed before this Court in a Criminal Revision which was also dismissed. While dismissing the revision petition the Court had followed the dictum of the Hon'ble Supreme Court in the case of Raja Khush Bakhtur-Rehman vs. The State (1985 S.C.M.R. 1314) and the view of this Court expressed in the case of Waqar-ul-Haq alias Mithoo vs. The State (PLD 1988 Lahore 336) in which it was held that for summoning the accused persons whose names appeared in Column No. 2 of the challan it was not necessary for the learned trial Judge to record some evidence. 7. Now I may advert to the judgments relied upon by the respondent's learned counsel. In the case of Muhammad Hanif and another it was held that the Court took cognizance of the "offence" and not "offence" and that the Sessions Court was competent to summon the accused person whose name had been placed in Column No. 2 of the challan. In the case of Waqar-ul-Haq it was held that it was not necessary for the trial Judge to record some evidence for summoning the person whose name appeared in Column No. 2 of the challan. The view expressed in the case of Waqar-ul- Haq by this Court was affirmed by the Hon'ble Supreme Court which was pleased to dismiss the petition for leave to appeal. The judgment is reported as Waqar-ul-Haq alias Mithoo vs. The State (1988 S.C.M.R. 1428). The Hon'ble Supreme Court was pleased to hold that the case against the petitioners had not been cancelled by placing them in Column No. 2. therefore, they could be summoned by the trial Court without recording evidence. In the case of Waqar Ilyas it was held that the trial Court was not bound to record evidence and to assign reasons for issuing process against the accused persons placed in Column No. 2 of the challan. 8. From the above quoted judgments/authorities it can be gathered that, the Sessions Court has to try the case sent up by the Magistrate, after taking cognizance under Section 190(3) of the Cr.P.C.; that the Sessions Court takes cognizance of the offence and not merely the offence and that it is competent to summon the accused discharged by the Magistrate, whose name figures in Column No. 2 of the challan, without recording any evidence or reasons, hi the present case (he petitioner was discharged by a Courtorder but the case against him was not cancelled. His name was mentioned in the report prepared under Section 173 of the Cr.P.C. as one of the assailants though it was mentioned that he was found to be innocent in the investigation conducted by Sardar Muhammad and Muhammad Sadiq, Sub Inspectors. As the Magistrate has not, passed any order for cancellation of the case against the petitioner, the police ought to have mentioned his name in Column No. 2 of the challan. The police cannot allocate to itself the function of determining the guilt or innbcence of an accused finally. It may record its own opinion on the basis of the material produced before it during the course of investigation but even after finding an accused to be innocent, it must place his name in Column No. 2 of the report and leave the final determination of guilt or innocence of the accused to be made by the Court. The omission on the part of the police or the investigating agency cannot affect the jurisdiction of the Sessions Court to pass an appropriate order to summon the accused, though found to be innocent by the police. It is true that in all the judgments relied upon by the respondent's learned counsel the name of the accused person found innocent by the police had figured in Column No. 2 of the challan. However, it does not mean that where the police either carelessly omits to mention the name of the accused, found innocent during the investigation or deliberately chooses to do so, he cannot be summoned by the Sessions Court to face trial. Making of various columns in the challan form is a device of convenience. It does not limit the jurisdiction of the Court to try only those accused persons whose names find mention in Column No. 2 or 3 of the challan. If a case is sent up for trial to the Sessions Court with brief facts of the case stated under Column No. 7 of the challan, the Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his .name finds mention in Column ,No. 2 or 3 of the challan or not. In the case of •. Raja Khi'fih Bukht-iir-Relnnar? and another supra, the Honourable Supremi ("cant wat; pleased to hoid:- "Ilnder Section 190(3) Cr.P.C. the Magistrate takes cognizance of an offence and not of an offender. He takes cognizance of the case as a whole and not qua only some of the accused found by the police to be implicated in the case. Cognizance can be taken even if the offenders be imknown. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and__not_on}i_over • &^^gL_^tnn__th.e__chalIa.n is submitted," (underlining is mine) 9. It is evident from the above-quoted para that the jurisdiction of the Sessions Court is not limited to the persons against whom challan is submitted by the Magistrate. Respectfully following the dictum of the Hon'ble Supreme Court, I hold that although the name of the petitioner was not placed by the investigating agency under Column No. 2 of the challan, the Sessions Court was competent to summon him as an accused person without recording evidence. Of course while passing an order to summon an accused found innocent during the course of investigation or discharge from the case under an order passed by a Magistrate, the Sessions Court has to exercise its discretion/jurisdiction judiciously and not arbitrarily. In the present case despite the finding of innocence in favour of the petitioner, the case against him was not ordered to be cancelled and the question of his innocence or genuineness of his plea of alibi had to be determined by the Court in accordance with law. The learned Additional Sessions Judge had noticed that the petitioner's name figured in the FIR and although he was got discharged by the police, it was necessary to summon all the accused persons whose names figured in the FIR. Obviously, the Court below had perused the FIR in which it was mentioned that the petitioner was armed with a .12 bore gun and had effectively fired at Muhammad Ameen, real brother of the complainant. The Court would have done well by referring to the finding of innocence record in favour of the petitioner but this omission, per sc is not sufficient to make the order an arbitrary one. However, the correctness of finding of innocence recorded by the police in favour of the petitioner or merits of his plea of alibi could not have been discussed by the trial Court. In my view the impugned order appears to have been passed to secue the ends of justice and does not suffer from any legal infirmity to justify interference by this Court in exercise of the revisional jurisdiction. 10. For the foregoing discussion, I do not find any merit in this revision petition which is dismissed. ( A .S, i Petition dismissed .

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 1347 [DB] Present: IFTIKHAR MUHAMMAD CHAUDHARY AND RAJA FAYYAZ AHMAD, JJ. NASRULLAH-Appellant versus STATE-Respondent Crl. Appeal No. 79 of 98, dismissed on 18.06.1998. (i) Control of Narcotic Substances Act, 1997 (XXV of 1997)- —S. 2-P-"Opium baked" is covered by "controlled substances", as such is cognizable by Special Court constituted under Act of 1997. [P. 1356] C (ii) Control of Narcotic Substances Act, 1997 (XXV of 1997)-- —S. 29—Recovery of illicit article—If an accused/convict himself is not disputing recovery of illicit articles then prosecution has no obligation to prove that each bag contained illicit articles because in other words accused/convict has accepted recovery of controlled substance in his possession, therefore, in view of such peculiar situation Section 29 of Act 1997 conies into play according to which in trials under this Act, it may be presumed unless and until contrary is proved that accused has committed an offence under this Act-This Section in substance corresponds to Section 187 of Customs Act, 1969. [P. 1358] E (iii) Control of Narcotic Substances Act, 1997 (XXV of 1997)- —S. 21(2)-If law has identified consequences of doing a thing in particular manner then of course its compliance is mandatory, but if no consequences flow from non-adhering to do a thing like writing reports immediately u/S, 21 sub-section (2), it would not be fatal for prosecution unless it is shown that seizing agency had involved accused with mala fide intention or on account, of enmity. [P. 1363] G (iv) Control of Narcotic Substances Act, 1997 (XXV of 1997)-- —Narcotics, smuggling—Technicalities—Status—Case where offence relating to narcotics or smuggling are involved prosecution case should not be allowed to fail for any technical reason and Court in order to do substantial justice and in the largest interest of nation and country must over look to technicalities. [P. 1364] H 1993 SCMR 785 ref. (v) Criminal Procedure Code, 1898 (V of 1898)- —-Charge Sheet-Whethcr error in writing "Ordinance" in the charge instead of "Act 1 ' has caused any prejudice to appellant or not—Question of— If there is no prejudice or injustice to petitioner/accused it is immaterial because requirement of law is if substance of allegations with reference to commission of crime, day, time etc. has been put to accused and if charge on applying all tests under Criminal Procedure Code, can be held to be valid and correct in that case trial cannot be Sield illegal merely by writing provisions of a repealed Ordinance. [P. 1854] A PLD 1972 Lahore 177 and PLD 1984 Peshawar 51 ref] (vi) Criminal Law- -—In criminal law definition clause is to be construed strictly. [P. 1356J B (vii) Custom Act, 1969 (IV of 1969)-- ..... S. 187-In order to draw a presumption u/S. 187 of Customs Act, two ingredients must be proved, firstly that there is reasonable belief that goods are smuggled and secondly goods have been seized from accused. [P. 1358] F (viii)Samples­ '—Samples not drawn from each packet at the time of recovery-Status-- Contention that opium was recovered from house of appellant/accused, but it does not belong to him as at that time he was in house of a DW from where he was arrested and reason of his arrest was rivalry with Dafedar (Levies) and even samples were not drawn from each packet- Held: Plea was introduced at a highly belated stage when statement of accused was being recorded u/S. 342 Cr.P.C. and 340(2) Cr.P.C. therefore, examining samples by 1.0. from each packet was not mandatory. [P. 1356] D Mr. Muhammad Aslam Chishti, Advocate for Appellant. Mr. Tanq Mahmood, S.P.P. for State. Date of hearing: 3.6.1998. judgment Iftikhar Muhammad Chaudhary, J.-This appeal has been, filed under Section 45 of Control of Narcotic Substances Ordinance read with Section 410 Cr.P.C. against, the judgment dated 28.2.1998 passed by learned Special Judge Noushki whereby appellant, Nasrullah sou of Muhammad, caste Muhammad Hassni has been convicted/sentenced under Seciioa 9 of the Ordinance to life imprisonment The prosecution case is that on 13.10.1997 PW-Major Rehmat All Shah lodged FIR Ex P/'l-B bearing No. 54/1997 with Tehsildar Nokuncii under .Sections 6, 7 of Narcotic Substances Control Act, against, appellant Nasrullah alleging that on said date in pursuance of a secret information io the effect that during the preceding night at 1,00 a.m a vehicle brought narcotics and unloaded it in the hon.se of appellant. He alongwith hi? s>rai v as well as Dafedar Levies Abdul Sattar son of Jangi Khan raided the hr.use of convjict and recovered 16 bags of opium (16 x 10 = 160 Kg, total). Each bag had 10 Kg and in this 160 Kg of opium besides ou personal search of appellant Iranian currency, i.e., 2150 tummons were also recovered. Inventory of recovery was made in presence of appellant who as a token of accepting the recovery put his signatures on it. Accused was arrested on the spot, therefore, Murasala prepared at the spot was sent through Dafedar Abdul Sattar alongwith accused and recovered currency for registration of the case. It may be noted that PW-Mir Zahir .Khan instead of incorporating contents of the Murasala in FIR as a whole only recorded its substance. On completion of investigation vide final report Ex. P/5-B he forwarded the case to Special Judge Noushki. Learned trial court on having gone through the material so placed before him read out charge to appellant on 29.12.1997 u/Ss. 6, 7, 8, 9 under Control of Narcotic Substances Ordinance r/w Sections 3 and 4 Prohibition (Enforcement of Hadood) Order, 1979. Appellant did not plead guilty, therefore prosecution to substantiate the accusations examined: (i) PW-Major Rehmat Ali Shah; (ii) PW-Nadir Khan Lance Nike; (iii) PW-Abdul Sattar, Dafedar Levies; (iv) PW-Syed Abdullah, Chemical Expert. He produced report Ex. P/4-A: (v) PW-Mir Zahir Khan son of Sardar Mehrullah Khan Tehsildar Noukimdi/i.O.; Appellant denied the prosecution case in his statement u/S. 342 Cr.P.C. stating therein that, Dafedar Abdul Sattar in his rival, therefore, the prosecution witnesses deposed against him. In the statement on oath plea of appellant was that be was called through a child by Malitia people when he was present in the house of Agrha Muhammad and when he came out of his house and went towards them; an Officer of Malitia and Dafedar Abdur Sattar called him and he was made to sit in the vehicle and then they took him alongwith them. The place from where he was arrested by the Malitia people is situated at 500-600 paces from his house. He also deposed that, no opium was recovered from his house. He iiad worked as labourer with Dafedar Abdul Sattar on his land and he demanded Rs 1,300/- as his labour charges from him, but he was not paying the same and due to this he has developed rivalry a.gainst him. In defence he also produced to Agha Muhammad. Learned trial court, on completion of trial found the appellant guilty for the offence under Section 9 of Control of Narcotic Substances Ordinance and sentenced him to life imprisonment, as such instant appeal has been filed. Mr. M.A. Chishti learned counsel appeared on behalf of appellant; whereas Mr. Tariq Mehmood Advocate represented to State through Anti Narcotics Force. Learned counsel for appellant contended that the trial court took cognizance of the offence under Sections 6, 7, 8 of Narcotic Control Substances Ordinance (NCSO) and had drawn proceedings under the Ordinance, although it had been repealed by the Control of Narcotic Substances Act, 1997 published in the Gazette of Pakistan Extraordinary Part-1 on 11.7.1997, therefore, the repealed law had rendered the whole proceedings illegal, as defect is not durable under Section 537 Cr.P.C. On the other hand learned counsel for the State argued that error being pointed out, by appellant's counsel is curable under Section 225 read with Section 537 Cr.P.C. He relied on PLD 1972 Lahore 177 and PLD 1984 Peshawar 51. In instant case admittedly offence was allegedly committed by appellant on 13.10.1997 when Control of Narcotic Substances Ordinance, 1997 published on 7.3.1997 (Ordinance XLIII of 1997) had already been repealed/replaced by the Control of Narcotic Substances Act, 1997 (Act XXV of 1997) (hereinafter referred to as the 'Act of 1997'). As it has been mentioned hereinabove that vide Murasala Ex. P/l-B PW-Major Rehmat All Shah (complainant) 75-Wing Commander Kharan Rifles requested to Tehsildar Noukundi for registration of the case u/Ss. 6, 7, 9 of Narcotics Control Act-Ordinance, 1995. But PW-Mir Zahir Khan did not incorporate Sections 6, 7, 8 of the Act in the FIR and just mentioned therein '4 Hadd Prohibition Drugs'. Similarly challan was forwarded by Assistant. District Attorney, for trial of the accused u/Ss. 3, 4 Hadd Ordinance. On receipt of challan alongwith evidence recorded during investigation learned Special Judge framed charge dated 29.9.1997 against the appellant u/Ss. 6, 7, 8, 9 CNSO r/w Section 3, 4 Prohibition (Enforcement of Hadood) Order, 1979. The accused was duly represented by the counsel who did not point out that Ordinance has been replaced by the Act of Parliament, therefore, instead of mentioning the word 'Ordinance , it may be written as the Act of 1997. It may be noted at this stage that notwithstanding the fact that under which provisions of Jaw challan had been submitted by the Investigating Agency, the court, seized with the matter is not bound t-> depend on the opinion of the Investigating Agency as it. has independent. jurisdiction to decide that under which provision of law cognizance of the offence has to be taken. There could be cases where Investigating Agency rightly or wrongly had mentioned particular provisions under which the accused sent up to face trial has been found prima fade guilty for the commission of crime, but. the court on its independent application of judicial mind can take cognizance of the offence under the provisions other than incorporated in the FIR or in the final report by the Investigating Agency. Instant case has been tried by the Special Court, appointed under the Act of 1997, therefore, the question for consideration would be that by mentioning NCSO inso »d of "Act. of 1997" whether the court has committed error on account of Wt ' f> h prejudice has been caused to appellant. It may be noted that in view of background referred to hereinabove particularly the contents of Murasala Ex. P/l-B disclosed that from ab initio request so made by PW- 1 for registration of the case against convict under the Act of 1997 and when charge was read over to him no objection of whatsoever nature was raised in this behalf till completion of the trial which culminated in the impugned order. Now the question would be whether error in writing "Ordinance" in the charge instead of "Act" has caused any prejudice to appellant or not ? To determine this question comparative study of Sections 6, 7, 8 of the repealed Ordinance of 1997 and the same sections of the Act, revealed that they are identical in substance in both the statues. However, there is beneficial difference in Section 9 of the Ordinance and the Act of 1997 respectively. For the sake of convenience comparative table of Sections 6, 7, 8 in both the statutes is re-produced hereinbelow:- ORD1NANCE SEC 6: PROHIBITION OF POSS­ ESSION OF NARCOTICS DRUGSETC." No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, despatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such condition as may be specified by or under this Ordinance or any other law for the rime being in force; SEC. 7: PROHIBITION OF IMPORT OR EXPORT OF NARCOTICS DRUGS, ETC.- (1) Nooneshallimport into Pakistan; export, from Pakistan; AC! SEC 6: PROHIBITION OF POSSE­ SSION OF NARCOTIC DRUGS ETC.- No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, despatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Ordinance or any other law for the time being in force; SEC.7PRQHIBITION OF IMPORT OR EXPORT OF NARCOTIC DRUGS, ETC.- (1) No one shallimport into Pakistan; export from Pakistan; (c) transport within Pakistan; or (d) tranship any narcotic drug, psychotropic substance or controlled substance, save in accordance with the rules made under sub-ection (2) and with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules. (2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transhipment of narcotic drugs, psychotropic substances or controlled substances and such rules may prescribe the ports or places af which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transhipment; SEC. 8: PROHIBITION ON TRA­FFICKING OR FINANC­ ING THE TRAFFICKING OF NARCOTIC DRUGS ETC.» (c) transport within Pakistan; or (d) tranship; any narcotic drug, psychotropic substance or controlled substance, save in accordance with rules made under sub-section (2) and with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules. (2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transhipment of narcotic drugs, psychotropic substances or controlled siibstances and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transhipped the form and conditions of licence, permit or authorities by which such licences, permits or authorisation may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transhipment; SEC. 8: PROHIBITION ON TRA FFICKING OR FINANC­ ING THE TRAFFICKING OF NARCOTIC DRUGS. ETC.- No one shall-- No one shall-- (a) organise, manage, traffic in, or finance the import, transport, manufactur­ ing or trafficking of, narcotic drugs, psychotropic substances or controlled ubstances; or (b) use violence or arms for committing or attempt to commit an offence punishable under this Ordinance: (a) organise, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic sub­ stances or controlled substances; or (b) use violence or arms for committing or attempt to commit an offence punish­ ment under this Act: Perusal of Section 9 of the Ordinance indicates that previously as per terms of its Sub-section (b) imprisonment to the extent, of 7 years was provided, but with minimum sentence of 3 years with fine, if 100 grams in case of heroin, cocain, opium derivatives and coca derivates whatsoever name or composition or 200 grams in case of opium, coca leave or psychotropic substance with whatever name or composition and 1 Kg or equivalent in case of any other narcotics, drug or controlled substance not specified in Sub Clauses (i) and (ii) are recovered; whereas in Section 9 of the Act of 1997 no minimum sentence has been provided and it was left to the discretion of the court to award imprisonment which may extend to seven years and shall also be liable to fine if the quantity of narcotics, drugs, psychotropic substance or controlled substance exceeds 100 grams, but does not exceed 1 Kg. In other words in Sub-section (b) of Section 9 beneficial change was recorded, therefore, accused instead of c!aiming its benefit cannot argue that he has been wrongly tried. In addition to it as far as change/amendment in Sub-section (b) of Section 9 is concerned it. is not applicable on the fact of the case in hand because appellant's ease is covered under Section 9(c) where a proviso has been enacted casting a mandatory duty upon the court that if the quantity exceeds ] 0 Kg the punishment shall not be less than life; whereas under its repealed provision, i.e., Section (c) of the Ordinance the punishment was death or imprisonment for life and shall also be liable to fine which shall not be less than Rs. 10,00,0007-, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limit specified in clause (b). Now turning towards Section 225 Criminal Procedure Code it. is to be seen that this section speaks that no error to stating either offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be, at any stage of the case, material unless the accused was in fact misled by such error or omission and it has caused failure of justice. At this stage reference to Section 537 Cr.P.C. would be beneficial which deals in respect of findings or sentence reversable by reason ot error or omission in charge or other proceedings. According to this section as well the orders/sentence can be reversed if the error, omission or irregularity in the mode of trial etc., in fact, has occasioned a failure of justice and in terms of explanation attached thereto the court shall have regard to the fact, where the objection could and should have heen raised at any earlier stage in the proceedings. Learned counsel for the appellant has failed to point out that what prejudice or injustice has been caused to convict by mentioning Ordinance' in the charge instead of 'Act' of 1997, particularly when there is no substantial difference in the charging sections namely, Sections 6, 7, 8 of the Ordinance as well as Act of 1997 respectively and as far as Section 9 in the Ordinance is concerned it only deals with the punishment. It may be noted that as far as mentioning of the section in the charge sheet is concerned, it is not material because requirement is as to whether substance of allegations with reference to the commission of crime, day, time etc. has been put to the accused and if the charge on applying all the tests under the Criminal Procedure Code, can be held to be valid and correct in that case trial cannot be held illegal merely by writing provisions of a repealed Ordinance, In forming this view we are fortified with the judgment reported in 'Merajuddin & 3 rth°.rs vs. The State (PLD 1972 Lahore 177), PLD 1984 Peshawar 51. Mr. M.A. Chishti learned Advocate then argued that as per report of Chemical Analyser Ex. P/4-A the material so sent for examination falls within the category of 'Opium baked/, therefore, according to the definitions of controlled substance, narcotics, drug, psychotropic substance under Sections 2-K, 2-S, 2-Z read with the Schedule is not cognizable by the Special Cotirt under the Act of 1997 and expressions employed in criminal law by the law givers has to be construed strictly and no extending meaning can be given to them. He further stated that, although the word 'opium' has been defined u/S. 2-T of the Act, but it does not cover to "opium baked" as for it a separate definition has been given by Section 2(U) under the heading 'Opium derivatives' Learned counsel to substantiate his contentions made reference to Interpretation of Statutes by Bindra, 7th Edition page-48. Mr. Tariq Mehmood controverting to the stand of appellant's counsel stated that Sections 6, 7. 8 of the Ordinance as well as the 'Act' have commonly used three expressions namely, narcotics, drug, psychotropic substances and controlled substances. According to him the definition of Controlled Substances under Section 2-K covers to 'opium baked' as it defines any substance which may be used for production or manufacture of narcotics, drugs or psychotropic substances. He further stated that to understand the process of manufacture reliance has to be placed on Section 2(P) as well. There is no cavil that all the three charging sections namely, Sections 6, 7, 8 of the Act of 1997 which deals with prohibition of possession of narcotics, drugs etc., prohibition of import, or export, of narcotics, drugs etc, and prohibition on trafficking of financing of narcotics, drugs etc. respectively have in their folds following three important expressions:- (i) narcotic drug; (ii) psychotropic substances; Uii) controlled substances, except for medical, scientific or industrial purposes; Sections 2-S and 2-K have defined to narcotic drugs and controlled substances. As they are relevant for disposal of instant appeal, therefore, definitions of these two expressions are re-produced hereinbelow:- Section2:- .................................... (K) "Controlled substance" means any substance which may be used for the production or manufacture of narcotic drugs or psychotropic substances; (S) "Narcotic drug" means leaf, cannabis, heroin, opium, poppy straw and all manufactured drugs; As far as definition of psychotropic substance is concerned it is not relevant, therefore, the same is not being discussed. The definition of narcotic drugs defines to 'Opium' only and it has not defined to the 'Opium derivatives'. As far as 'Opium means' is concerned it is defined. u/S. 2-T which does not speak in respect of prepared opium (baked opium); whereas definition of 'controlled substances' means any substance which may be used for production or manufacture of narcotic drug or psychotropic substances. The word 'manufacture' used under this expression attracts to Section 2(P) which is also re-produced hereinbelow for the sake of convenience:- "Section 2(r):~-"Manufacture", in relation to narcotic drugs or psychotropic substances, includes— (i) all processes by which such drugs or substances may be obtained; (ii) refining of such drugs or substances; (iii) transformation of such drugs or substances; and (iv? making or piepanng such drugs or substances; A careful perusal of above definition leads us to hold that in relation to narcotic drugs, opmui dorivativefa also falls under the- definition of 'manufacture'. Thus to define the 'Oniuiii derivatives' we have to refer to Section 2(U), according to which opium derivative includes prepared opium, i.e., any product of opium obtained by any series of operations designed to transform opium into an extract suitable for smoking and gross or other residue remaining after opium as smoked. We are in agreement with the learned counsel that in criminal law definition clause is to be construed strictly as it has been stated in the Interpretation of Statutes by Bindra, 7th Edition, 1984. In the same edition under the heading 'definition' commentator has discussed following principle:- "The definition given in an Act must be substituted for the word 'defined' wherever it occurs in the Act, but there is a well known canon of construction that in certain circumstances when a strict adherence to the rule would lead to an anomaly or repugnance the rule will apply only when there is nothing repugnant to it in the context". Applying the above principle on the case in hand while making reference to "controlled substances" definition of "opium derivatives" which is ordinarily obtained after the process of manufacturing as defined u/S. 2-P can be applied, therefore, it. would also include prepared opium. Thus for these reasons we are of the opinion that 'opium baked' is covered by the 'controlled substances', as such is cognizable by the Special Court constituted under the Act of 1997. Learned counsel for appellant then contended that PW-1 admittedly had taken out six grams sample oul of only one packet containing 10 Kg instead of drawing sample;-; from each packet, therefore, without prejudice to his any other plea it would be deemed that, only 10 Kg opium has been recovered from the possession of appellant, therefore, he was not liable for life imprisonment under the provisions of Section f) of the Act of .1997 and the trial conn could have not awarded him sentence more than 14 years. Learned counsel for the State contended that it is not the case of .appellant before the trial court that opium was not; recovered at. all by PW-1 Major Rehmat Ali hah. Actually his ca.se was as it flows from the trend of cross examination that opium was recovered, but it does not belong to him as at that time he was in the house of W-gha Muhammad from where he was arrested and the reason of his arrest; was rivally with Dafedar AbdulSattar though this plea was introduced at a ighly belated stage when the statement of accused was being recorded u/S. 342 Cr.P.C. and 340(2) Cr.P.C. herefore, examining samples by the Investigating Officer rom ach packet not mandatory. Had his plea been vice versa, the argument so advanced by appellant's counsel might have carried some weight. He further tated (that under Section 29 of the Act of 1997, once it is established that the 'accused had possession of Illicit, articles then burden shifts upon im establish before the court that he was not found in possession of narcotic drugs or controlled substances. Learned counsel further stated that, once in the instant case prosecution has established possession from the house of accused and if he had doubt about the contents of the bags he could have made request to the trial court for examination of all the remaining bags to show that contents thereof are not narcotic drugs or controlled substances particularly when the plea of appellant's counsel is that as per the contents of final report submitted by PW-Mir Zahir Khan Ex P/5-B that it was not the accused, but some one else had thrown narcotics/controlled substances in his house during night by deceiving to his wife on the pretext that the bundles contained clothes. Learned counsel made reference to 1988 SCMR 1899, PLD 1990 SC 1038, 1176 and 1186. There is no doubt that PW-Rehmat Ali had taken out samples only from the packet of 10 Kg to determine whether it, contained 'opium' or not. As far as remaining 15 packets are concerned no sample was taken from them. In respect of the recovered samples PW-Syed Abdullah produced report Ex. P/4-A. In examination in chief he stated thai, the material sent to him for analysis was found to be 'baked opium'. His statement in cross examination was not challenged at, all because he was not questioned by the learned counsel for appellants appearing during trial. So in view of his un­ challenged statement there is no doubt that one bundle out of which the sample was taken contained opium baked. Now the question is that what were the contents of remaining In bundles and whether the appellant during cross examination on the witnesses or his own statement had denied that contents of the bundles were not, opium 9 In this behalf reference may be made to the statement of PW-Major Rehmattillah who deposed that from the house of accused Nasmllah 16 bags of opium were recovered. Each bag contained lOKg of opium. The total quantity of opium on weighing was 160 Kg. Recovered opium was taken into possession vide recovery Memo Ex. P/'l-A. It. may be noted that the recovery memo bears thumb impression of appellant besides the signatures of PW Abdul Sattar Dafedar Levies and Lance Nike Nawab Khan. Nadu Khan as well as signatures of Major Rehniat Aii Shah. The witness further stated that 16 bags wore kept into a parcel which were sealed by him under his signatures. lie produced these parcels as Articles P-I to P-16 and on opening them produced opium as Articles P-17 to P-32. He further deposed that before sealing the opium out of one bag some material for the purpose of chemical analysis was taken out which was sent, for chemical analysis through Commandant. It is hnpona.'it to note Uiat ii> cn.s-s examination on behalf cf the aceuaeri it was brought oil record that ac the time of raid besides appellant, b^ wife and children no one else \<-;jft present. It, was su.ggeFt.ed that, the house was ik>' inhabited from whim, the recovery was affected. The witness denied this suggestion. The witness further agreed that the recovered opium was weighed at Nokundi and seals on parcels were also applied at Nokundi. Similarly PW-Nadir Khan Lance Nike stated that raid was conducted at the house of appellant in Killi Raj ay during course whereof 16 bags of opium were recovered. Each bag had 10 Kg opium and in this way total 160 Kg opium was recovered. In cross examination it was asked to the witness that he had not put his signatures or mark of identification on the bags of opium which he replied in affirmative. In the same context PW- Abdul Sattar stated that 16 hags of opium were recovered from the house of accused which was taken into possession and alongwith the recovered opium appellant was also arrested and was taken to Nokandi where the bags were weighed and total 160 Kg opium was found in them. In cross examination no suggestion was put to this witness that, on account of rivalry he got the accused involved in the case. The evidence of these three witnesses suggest to draw irresistable conclusions that it is not the case of appellant that from all 16 bags including the one from which the samples were drawn the contents were other than opium. So when convict himself is riot disputing the recovery of illicit articles then the prosecution has no obligation to prove that each bag contained opium because in other words appellant, has accepted the recovery of the I controlled substance in his possession, therefore, in view of such peculiar i situation Section 29 of the Act of 1997 comes into play according to which in j trials under this Act, it may be presumed unless and until the contrary is I proved that accused has committed an offence under this Act. This Section in substance corresponds to Section 187 of the Customs Act. In this behalf honourable Supreme Court in the judgment reported in PLD 1992 SC 393 (State vfi. Muhammad Hayyat) has held that it: is in an elementary principle of jurisprudence that the burden is on the person who asserts the affirmative of any issue. It is for the prosecution to prove the allegations against, the accused and the onus is never shifted during trial but the departure from general rule has been made from these provisions. The prosecution has to establish only that the goods are seized under this Act, in reasonable belief that they are smuggled. In order to draw a presumption u/S. 187 of the Customs Act, two ingredients must be proved; firstly that there is reasonable belief that the goods are smuggled, and secondly the goods have been seized from the accused. In this behalf with benefit reference can also be made in C tlit 1 judgment in the case of 'S'o/c through D.A.G. Peshawar us. Banda Gill <t 2 of liar';' (1993 SCMR 311). . Applying these principles on the ca?;e in hand we feel no hesitation in cojic'iu'iinq thai, once the accused h^ \wi denied specifically the recovery of opium, burden was upon him to dislodge the presumption that whatever is recovered other than the material sample of which was sent for chemical analyser was not illicit article and to shift this burden he could have made request to the trial court or even before us for examination of the remaining recovered articles. In this behalf observations of honourable Supreme Court in the case of Tasleem Khan vs. The State (PLD 1990 SC 1088) are highly instructive, thus relevant para therefrom is re-produced, hereinbelow:- . The State (PLD 1990 SC 1766). It is well settled principle of law that when a criminal court is pursuaded by the accused to take a lenient view for inflicting punishment then at the same time he also remains under a legal obligation to first of all confess the guilt, But if the accused contests the case on merits, raises number of objections on the prosecution case and then applies for the lenient view the court is not bound to entertain such request as it has been held in the case of Muhammad Ishaq vs. Ghulam Muhammad (1988 SCMR 1899). Thus we are of the considered opinion that non-examining the contents of 16 recovered hags tinder the circumstances discussed hereinabove lias not proved fatal for the prosecution and no leniency in reducing the sentence can be shown to appellant. Learned counsel for appellant then contended that in final report Ex. P/5-B appellant has been shown innocent by PW-Zalur Ali Khan Tehsildar/I.O. as according to the result of his property the appellant is not involved in this business for the reasons mentioned in the chailan, it would be appropriate to re-produce hereinbelow the reasons prevailed upon the Investigating Officer for exonerating; the appellant, from the commission of offence :- According to him in view of above report the Special Judge could have not taken cognizance of the offence under Section 190 Cr.P.C. Learned counsel for the State contended that the report of Investigating Officer will not be relevant at. the final stage of the case, but once the trial has been concluded it has got no relevancy as held in 1995 SCMR 1333; secondly it would not; be fair to say that appellant has wrongly been tried because the Investigating Officer had not. shown his name in Column-II of the challan; thirdly the reasons mentioned therein of exonerating him from the charge are not supported by any evidence and evtu if it is presumed for the sake of arguments that the story put forth in the challan by the 1,0. is true them to prove the same appellant could have produced at. least his wife; fourthly the story being relied upon from the contents of the final report/challan by the appellant's counsel was not put to the witnesses of the prosecution including Mir Zahir Khan Tehsildar/I.O during his cross examination as during trial a different story on rivality in between the appellant and Abdul Sattar Dafedar was introduced thai too at a belated stage, therefore, ac cording to him daspite of the fact, that, appellant has been shown innocent by the Investigating Officer the court, is still competent to take the cognizance of offence if material is available on record as it has been held in 1969 SCMR 271, 1984 SCMR 129. With reference to the arguments put up by both the sides and also keeping in view the relevant contents of the challan Ex. P/5-B we have gone through the case diary maintained by the Investigating Officer available in the original file contents whereof reveal that PW-Mir Zahir Khan Tehsildar/I.O had never visited Killi Rajay where the house of appellant is situated nor he examined any witness from the vicinity including the wife of convict, therefore, conclusion drawn by him in favour of appellant is based on surmises just to favour the accused for extraneous reasons. As tar as challan/final report submitted by Investigating Agency indicating that accused is innocent, is concerned it cannot be accepted because the guilt or innocence of accused can only be established after recording the evidence by the court seized with the matter. In forming this opinion are fortified with the judgment reported in the case of Nasir Abbas us. The Mate (1995 SCMR 1333). Besides it the trial court is not precluded from taking cognizance of the case even if the Investigating Agency has recommended in its final report under Section 173 Cr.P.C. that accused is innocent as it has been held in the case of Noor Muhammad & others vs. Muhammad Nawaz & another (1969 SCMR 271) and in the case of Muhammad Abbass & another vs. The State (1984 SCMR 129). Yet there could be another case in which the Investigating Officer had shown the name of accused in Column-II of the report u/S. 173 but the court seized with the matter on having taken cognizance of the offence ifprima facie comes to the conclusions that sufficient material is available against the accused then process for summoning him can be issued as it has been held in the case of Waqar-ul-Haq alias Nithoo vs. The State 1988 SCMR 1428), Sana Khan vs. The State (1990 P.Cr.L.J. 1190), Naubat Khan vs. The State, (1991 MLD 186), Riasat Ali vs. The State (PLD 1993 Lahore 105), Waqar Ilyas & another vs. The. State through Federal Investigating Agency (PLD 1993 Quetta 49). It. may be seen that appellant had abandoned the plea he got incorporated in challan Ex P/5-B re-produced hereinabove as during trial he did not, produced any witness to substantiate the portion of said plea. In as much as he failed to produce his wife who could have proved to be the best witness in his favour to establish that accused had no knowledge about contents of these articles as they were thrown in his house during the night time. Moreover PW-Mir Zahir Khan Tehsildar had also not stated a single word in his court statement to support the contents of the report nor he deposed that from whom he received information that appellant is not involved in this case etc,, therefore, convict indeed cannot take benefit of the recommendations made l:y the Investigating Officer concerning his innocence in challan Ex. P/5-B. Learned counsel for appellant also contended that PW-Major Rehmat Ali was not authorised to conduct the raid under Sub Section (1) of Section 20 of the Control of Narcotic Substances Act, 1997 nor after conducting raid without warrants he wrote reasons. Moreover he had no territorial jurisdiction to conduct the raid. Learned counsel for the State to controvert the stand of appellant's counsel referred to the notification dated 7.8.1997 issued by the Federal Government authorizing the members not below the rank of Sub Inspector, or equivalent of Anti Narcotics Force, Provincial Excise and Police Department, Inspector are equivalent of the Customs Department and Subedar of the Frontier Corps in the Province of Balochistan and NWFP to exercise the powers and perform the functions under this Section and Sections 22/23/37(2) and 38 of the said Act and also stated that explanation has also been offered that Killi Rajay falls within his territorial jurisdiction and according to him non recording the reasons after trial is not irregularity as has been held in PLfr 1990 SC 1088. We have attended to the arguments put forth by both the learned counsel for parties carefully. To examine the authority of PW-Major Rehmat to conduct raid on the house of appellant for recovery of narcotics drugs/controlled substances the notification dated 7.8.1997 is re-produced hereinbelow:- "S.R.O. 597(I)/97, dated 7.7.1997.-In exercise of the powers conferred by Sub-section (1) of Section 21 of Control of Narcotic Substances Act, 1997 (XXV of 1997) the Federal Government is pleased to authorise the members not below the rank of Sub Inspector or equivalent of the Anti Narcotics Force, Provincial Excise and Police Departments, Inspector or equivalent of the Customs Department and Subedar in the Frontier Corps in the Provinces of Balochistan and the North West Frontier to exercise the powers and perform the functions under aforesaid Section and Sections 22, 23, 37(2) and 38 of the said Act within the areas of their respective jurisdiction.' A perusal of above notification indicates that PW-Major Rehmat ASi Shah being above the rank of Subedar was competent under Section 21(1) of the Act of 1997 to raid the house of appellant. It is also to be noted that Section 21 of the Act of 1991 empowers any Officer of Frontier Corps above the rank of Subedar to conduct raid on the basis of information given to him by any person that any narcotics, drugs, psychotropic or controlled substances in respect of which offence punishable under the Act, has been committed is kept or concealed in any building, .place premises or conveyance. The wai rani, for arrest are such eaunot be obtained against such person without affording him an opportunity for concealment of evidence of facility of escape, such Officer may enter into any such' building place, premises or conveyance, break open any door any remove ally other obstacle to such entry, in case of resistance seize such narcotics, drugs, psychptropic substances and controlled substances and other materials used in the manufacture thereof and in other article which he has reason to believe to be liable to confiscation under this Act, any document and other article which he has reason to believe may furnish the evidence of the commission of offence punishable under this Act and detained, searched and if he thinks proper arrest any person whom he has reason to believe to have committed an offence punishable under this Act. Sub-section (2) to Section 21, however, casts a duty upon such Officer that before or immediately after taking any action under Sub Section (1) he would record the grounds and basis of his information and proposed action and forthwith send a copy thereof to the immediate superior Officer. Although in the instant case no such report was immediately sent by PW-1 to his superior Officer as per available report, but in substance this provision also stands complied with because immediately he wrote a report to Tehsildar for registration of case vide Ex. P/l-A. It may be noted that if the law has identified the consequences of doing a thing in a particular manner then of course its compliance is mandatory, but if no consequence flow from non adhering to do a thing like writing reports immediately u/S. 21 Sub-section (2), it would not be fatal for the prosecution case unless it is shown that the Seizing Agency had involved thevBjecused with mala fide intention or on account of enmity because PW-1 being Major in Frontier Corps was competent to raid the house of appellant which was falling within his territorial jurisdiction, therefore, in our opinion non recording of the reasons in the circumstances of the case are not fatal to the prosecution case. Mr. M.A. Chishti was also of the opinion that recovery memo of the recovered articles was prepared in Noukundi instead of in Killi Rajay, therefore, it is fatal for the prosecution case. Suffice to observe that as far as the recovery itself is concerned it has not been disputed because the case of defence is that opium was found in 16 bags but he is not responsible for keeping the same as at that time he was present in the house of Agha Muhammad. Similarly learned counsel contended that recovery was affected on 13.10.1997; whereas recovered articles were sent for examination on 28.10.1997. This question is also not fatal because the appellant himself has not disputed the Chemical Analyser's report. A single question was not put to him that whatever was received by him, it was not the opium. Learned counsel further contended that so far Ex. P/l-B is concerned it was sent to Tehsildiar Noukundi in which complete information of the recovery of narcotics drugs, controlled substances was mentioned, but in the FIR instead of re-produeuig its contents in extenso the I.O. had written only the substance of the report. The object of lodging FIR u/S. 154 Cr.P.C. is to set into motion the machinery of law. There could be a case where even on oral information the investigation of the case can commence. However, for such technicality no benefit can be extended to the accused because the Agencies of the Levies had no accurate experience for • registration of the cases like it is done so by the police, therefore, no benefit for such defect can be extended to the accused. Mr. M.A. Chishti learned counsel also contended that despite of repeated demands by PW-Mir Zahir Khan to Frontier Corps authorities for handing over recovered articles to him, they did not do so and after considerable time had sent a sample taking it out from one bag to the Chemical Analyser. Mr. Tariq Mehmood learned counsel contended that contents of challan sufficiently indicate that the conduct of Investigating Officer was not above board, therefore, if the recovered articles had been given to him by Frontier Corps authorities it is not known that in what manner he had dealt with them. In our opinion this objection of non handing over the recovered articles to PW-Mir Zahir Khan is not material because for such minor technicality trial would not vitiate. On having gone through the entire evidence available on record as , well as for the discussion made hereinabove we are of the opinion that in the cases where offence of smuggling or relating to narcotics are involve the prosecution case should not he allowed to fail for any technical reason and the court in order to do substantial justice and in the largest interest of nation and country must over look to the technicalities as if has also been j held by honourable Supreme Cm.nt in the case of Munawar Hussain alias 1 Bohi & 2 others vs. The State (1993 SCMR 785). Thus for the above reasons we see no merit in the appeal as such it is dismissed and the conviction/semencc; recorded by the trial court against appellant aid? jutlgmeuf dated. ii8.i!,3;M)8 is niaiut.umed. (K K,F.) Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1365 Present: sajjad ahmad sipra, J. ZULFIQAR AHMAD and 3 others-Appellants versus STATE-Respondent Crl. A. No, 221 of 1993, decided on 27.3.1998. Pakistan Pena! Code, 1860 (Act XLV of 1860)- —-Ss. 302/34, 337-A(i) & (ii)--Conviction/senteiice--Challenge to- Prosecuiton had failed to prove motive as alleged and immediate cause of occurrence is shrouded in mystery--Possibility of occurrence having taken place on spur of moment; pursuant to an altercation resulting from exchange of hot. words between parties cannot be ruled out, therefore, every accused shall be liable for his own act only--In absence of report of serologist it cannot be accepted that hatchets in question were stained with human blood and extremely iate recoveries thereof ruies out any possibility of recoveries being helpful in supporting case af prosecution as charged--Weapon of offence could not retain blood stains on it for nearly two months—Appellant No. 4 in his statement u/S. 34z Cr.P.C., had claimed that he had acted in his self defence and in defence of his women folk but he had not provided uny specific details regarding as to how he alone had caused injuries to deceased and three injured PWs-His statement, can only be accepted to extent of his admission to have participated, in occurrence that had led to death of deceased and injuries to prosecution witnesses-Injured PV/s had specifically named appellants Nos. 1 & 2 to have caused specific injuries kg their respective persons and their testimony is consistent and confidence inspiring except in case of appellant No. 3--All three eye-witnesses had made improvements in their testimony before learned trial Court which liaises serious doubt about their testimony against appellant No. 3-Held; Appellant No. 3 is acquitted of offences charged-Conviction of appellants Nos. 1 & 2 are maintained—Ocular evidence of three injured PWs, medical evidence and statement of appellant No. 4 fully support that he is guilty of having caused death of deceased, however, under facts & circumstances of case in respect of him punishment of imprisonment for life awarded to him is converted into punishment under provision of Sub-S. (c) of S. 302 PPC--Appeal partly accepted. [Pp. 1373, 1374, 1375 &• 1376] A, B. C, D, E, F, G, H. I & J Kh. Sultan Ahmad, Advocate for Appellants. Mr. Shabbir Hussain Shad, Advocate of Respondent. Mr. Muhammad Sharif Chohan, Advocate for Complainant. Dates of hearing: 25.3.1998 to 27.3.1998.

judgment The present criminal appeal has been directed against the judgment dated 28.3.1993, whereby the learned Additional Sessions Judge, Sialkot, had convicted and sentenced the appellants as follows:- Rafaqat AH and Liaqat Ali appellants Nos. 3 and 4 under Section 302/34 PPC to life imprisonment and a fine of Rs. 20,000/- each or in default thereof to further R.I. for two years each. Half of the fine, if realized, was directed to be paid to the legal heirs of the deceased; Zulfiqar Ahmad and Liaqat Ali appellants Nos. 1 and 4 under Section 337-A(i) PPC to R.I. for one year and a fine of Rs. 10,000/- each or in default thereof to further suffer R.I. for six months each, for having caused injuries to Rashid and Muhammad Arif PWs respectively; Muhammad Khalid appellant No. 2 under Section 337-A(iii) PPC to R.I. for two years and a fine of Rs. 10,000/- or in default thereof to undergo further R.I, for six months, for having caused injury to Muhammad Waris PW, and under Section 337-A(i) PPC to R.I. for one year and a fine of Rs. 10.000/- or in default thereof to suffer R.I. for further six months (on two counts) for having caused injuries to Rashid and Muhammad Arif PWs. Half of the fine, if realized, was directed to be paid to the injured PWs, and the sentences imposed on Zulfiqar Ahmad, Muhammad Khalid and Liaqat Ali-appellants Nos. 1, 2 and 4 were directed to run concurrently. Criminal Revision No. 257 of 1993 filed by the complainant for enhancement of the sentences awarded to the appellants and directed to be heard alongwith the present criminal appeal, shall also be disposed of by this judgment. 2. Brief facts of the prosecution case, registered on the statement Exh. PD of Muhammad Waris-complainant. made before Muhammad Ashraf ASI, Police Station Cantt. Sialkot on 4.1.1991 at 1.35 p.m. are that his uncle Muhammad Siddiq had died 2/3 years hack, whose widow Mst. Maqsooda Begum was residing in the adjacent house. 6/7 months back, Hanif son of Muhammad Din and his wife Mst. Zubaida Begum enticed away Mst. Farida Kausar daughter of Muhammad Siddiq and Muhammad Khalid son of Rafiq to their house on the pretext of getting them married. Mst. Maqsooda Begum asked Hanif and his wife for the return of her daughter Farida Kausar, whereupon they abused her. She complained about it to Abdur Rashid PW (father of the complainant), who Reprimanded them, whereupon Muhammad Hanif felt seriously annoyed and chalked out a programme to take revenge, in pursuance whereof Khalid accused came to the house of Mst. Maqsooda Begum at about 9.30 a.m. on the day of occurrence and tried to take away rice from there, but at the instance of Mst. Maqsooda Begum, he was checked by Abdul Rashid (father of the complainant) and he went away. At 10.30 a.m. on the same day, Zulfiqar alias Bichhu accused armed with chhuri, Muhammad Khalid armed with dang, Liaqat and Rafaqat accused armed with hatchets, while coming to the house of the complainant, reached in front of the house of Muhammad Aslam, they came across Muhammad Malik (deceased), and Zulfiqar accused raised lalkara saying that first the son be put to death and thereafter the father will he dealt with, whereupon Liaqat accused gave hatchet blow on the head of Muhammad Malik and Rafaqat accused also gave hatchet blow on his head, as a result of which he fell down. When the complainant stepped forward to rescue him, Muhammad Khalid accused inflicted a dang blow on his right hand. Thereafter, the complainant warded off all the dang blows at his hand. In the meanwhilej Rashid and Muhammad Arif (father and brother respectively of the^complainant) came to the spot. Muhammad Khalid inflicted a dang blow on the head of Rashid and Zulfiqar accused inflicted a chhuri blow on his mouth as a result of which he also fell down. Muhammad Khalid inflicted a dang blow on the head of Muhammad Arif and Liaqat Ali accused a hatchet blow on his head, who also fell down, Muhammad Khalid accused also inflicted dang blows to him while he was in falling position. Besides the complainant, the occurrence was also witnessed by Muhammad Akbar, Muhammad Arshad and Mst. Allah Rakhi PWs, who rescued the victims from the assailants. Muhammad Malik and other injured PWs were taken to the hospital, where Muhammad Malik succumbed to the injuries. According to the complainant, the occurrence took place at the instance of Muhammad Hanif. 3. Muhammad Ashraf AS1, having received the information about the occurrence, reaefeed the hospital, recorded the statement Exh. PD of the complainant-Muhammad Waris, sent the same to the police station through Asghar AM constable for registration of the case, collected the medico legal reports of the complainant, the deceased and the other injured PWs, prepared the injury statement Exh. PK and inquest report Exh. PL of the deceased and despatched the dead body to the mortuary for post mortem examination under the escort of Muhammad Ilyas and Muhammad Sarwar constables. He made query through applications Exh. PM and Exh. PN, whereupon Muhammad Arif PW was reported to be fit to make statement, but Rashid was reported to be not fit. He again inquired through application Exh. PO about his condition and he was declared fit to make his statement by the doctor. Thereafter he went to the spot, inspected the spot and prepared rough site plan of the place of occurrence Exh. PP. He recorded the statements of the PWs, collected blood stained earth from the spot, vide memo Exh. PB and handed over the sealed parcel of the blood stained earth to the Moharrir for keeping in the malkhana for safe custody. On 5.1.1991, he took into possession the last worn clothes of the deceased i.e. shirt P. 1, Jarsi P. 2, another jarsi P. 3, Banyan P. 4, Pajama P. 5 and shalwar P. 6, vide memo Exh. PA. He had also made search for the accused, but could not trace out them, and in the meanwhile investigation was transferred. 4. On 19.2.1991 Shaukat AM SI (PW. 16) was entrusted with the investigation of this case, who arrested all the accused and obtained their physical remand. On 28.2.1991 he got recovered blood stained chhuri P. 7 on pointing out of Zulfiqar accused from underneath the chaff in the north eastern room of his house, vide memo Exh. PQ. On the same day, he got recovered blood stained dang P. 8 on pointing out of Muhammad Khalid accused from the room of house of Zulfiqar accused, vide memo Exh. PR. On the same day, he also got recovered blood stained hatchets P. 9 and P. 10 on pointing out of Rafaqat and Liaqat accused from the residential room of the house of Zulfiqar accused, vide memos Exh. PS and Exh. PT respectively. He prepared the site plan of the place of recovery Exh. PU. He recorded the statements of the PWs under Section 161 Cr.P.C. He handed over all the sealed parcels to the Moharrir for keeping them in the malkhana for safe custody. After the investigation, he challaned all the accused. 5. This case was also investigated partly by Waqar Javaid SI (PW. 13) and Tasnim Ghani SI (PW. 15). Waqar Javaid SI had got. prepared the site plan of the place of occurrence Exh. PJ and its duplicate Exh. PJ/1 and recorded his notes in red ink thereon and signed the same. He also recorded the statement of Akhtar Naqash Draftsman under Section 161 Cr.P.C. Tasnim Ghani SI had recorded the statements of Muhammad Dyas constable and Mahmood Khan Moharrir ASI xinder Section 161 Cr.P.C. and verified the investigation already conducted. 6. At the trial, the prosecution produced as many as. Seventeen witnesses to prove its case. PW. 1 Muhammad Sarwar constable had escorted the dead body of Muhammad Malik deceased to the mortuary and after the postmortem examination, had transmitted the last worn blood stained clothes P. 1 to P. 6 to Muhammad Ashraf ASI, who took them into possession vide memo Exh. PA. PW. 2 Muhammad Ashraf had identified the dead body of Muhammad Malik deceased at the time of autopsy and also attested the memo Exh. PA with regard to the last worn clothes of the deceased P. 1 to P. 6. 7. PW. 3 Muhammad Ilyas constable 12.1.1991 was handed over a sealed parcel, which he delivered in the office of Chemical Examiner and on 13.1.1991 he brought back the said parcel alongwith the report of the Chemical Examiner and handed it over to the Moharrir. PW. 4 Munawar Hussain was the witness of the recovery of blood stained earth vide memo Exh. PB. 8. PW. 5 Dr, Muzaffar Masud, on 5.1.1991 had conducted the post mortem on the dead body of Muhammad Malik and found the following injuries on it:- 1. An incised wound 8 x 2 cm x depth not probed on the top of the head to the right temporal region and the brain matter had bulged out. through the bone. 2. An incised wound 9 cm x 1% cm on the top of the head extending towards the right parietal region. Small quantity of brain matter had bulged out from the wound. On dissection, he found that under injuries Nos. 1 and 2, skin and connective tissues were cut and there were complete fractures of the skull bone extending to the right temporal region to right parietal region. Except the injuries mentioned above, rest of the organs were found healthy and normal. In his opinion, injuries Nos. 1 and 2, caused by sharp edged weapon, were grievous and dangerous to life. Both the injuries were ante mortem and were sufficient to cause severe haemorrhage and shock leading to sudden cardio-respiratory arrest which was sufficient to cause death in the ordinary course of nature. Duration between injuries and death was 2 to 4 hours and between death and post mortem examination about 22/23 hours. Exh. PC was the carbon copy of his post mortem report, whereas Exh. PC/1 was the diagram showing the location of the injuries. 9. PW. 6 Muhammad Khan Moharrir/ASI had recorded the formal FIR Exh. PD/1 on the basis of the statement Exh. PD of the complainant on 4.1.1991 and kept the sealed parcel containing blood stained earth in the safe custody of malkhana, which was handed over to him by Muhammad Ashraf ASI. On 5.1.1901 he was also handed over the sealed parcel of blood stained last worn clothes of the deceased for safe custody in the malkhana. On 12.1.1991 he handed over the sealed parcel containing blood stained earth to Muhammad Ilyas constable for taking to the office of Chemical Examiner, which was received back on 13.1.1991 with the relevant report. On 28,2.1991 Investigating Officer had given him four sealed parcels containing two blood stained hatchets, one dang and one chhuri, for safe custody in the malkhana, out of which two were sent to the office of Chemical Examiner, Lahore on 11.3.1991, but, were received back with some objection on 12.3.1991 and were again delivered in the office of Chemical Examiner on 26.3.1991 intact. 10. PW. 7 Dr. Muhammad Ayub on 4.1.1991 had medically examined Muhammad Malik and found the following injuries on his person:- 1. An incised wound 8 cm x 2 cm x DNP on middle of head extending from midline to right, temporal region. Brain matter was coming out of the wound. Wound was bleeding. 2. An incised wound 9 em x 1^ cm x DNP on middle of head extending from midline to right parietal region. Brain matter was coming out of the wound and it was bleeding. According to him both the injuries were grievous having been caused by sharp edged weapon within a duration of 2 to 2% hours. Exh. PE is the carbon copy of his medico legal report. On the same day, he medically examined Rashid PW and found the following injuries on his person:- 1. Lacerated wound which was V-shape. 4 cm x 1 cm x DNP on occipital region of head. 2. An incised wound 2 cm x 1 cm x muscle cutting left upper lip. 3. An incised wound 1 cm x 1^ cm x muscle cutting inner side of left upper lip. 4. An incised wound 1 cm x % cm x DNP on gums of left side of upper jaw between second incisors and canine. The patient was admitted and X-rays of skull from AP and lateral view were advised. According to him injury No. 1 was kept under observation while rest were simple. Injuries Nos. 2, 3 and 4 were caused by a sharp edged weapon while injury No. 1 by blunt weapon. The duration of the injuries was within five hours. On the same day, he medically examined Muhammad Arif injured PW and found the following injuries on his person:- 1. An incised wound 5 cm x 1 cm x DNP on temporal region of right side of head. 2. Swelling on top of head measuring 3 cm x 3 cm. 3. An abrasion 4 cm x 3 cm on left shoulder. X-rays of sk\ill and left shoulder from AP and lateral views were advised. All the injuries were kept under observation. Injury No.. 1 was caused by sharp edged weapon and rest by blunt weapon within a duration of 6 hours. On the same day, he medically examined Muhammad Waris injured PW and found the following injury on his person:- 1. A swelling on whole of right hand. X-rays of right hand from AP and lateral view was advised. The injury was kept under observation, having been caused by blunt weapon within a duration of 6 hours and on the basis of the report of Radiologist on X-rays, the same was declared grievous. Exh. PB was the carbon copy of his-medico legal report. 11. PW. 8 Akhtar Naqash Draftsman on 7.1.1991 inspected the spot and prepared the site plan Exh. PJ and Exh. PJ/1 in the scale of 20 feet to an inch on the directions of the police and pointing out of the PWs and handed over the same to the police on 13.1.1991. 12. PW. 9 Muhammad Waris-complainant had reiterated the contents of his statement Exh. PD, whereas PW. 10 Muhammad Rashid and PW. 11 Muhammad Arif had corroborated his statement in all material details. 13. PW. 14 Muhammad Sharif had witnessed the recoveries of blood stained chhuri P. 7, dang P. 8, two hatchets P. 9 and P. 10, on the pointing out, of Zulfiqar, Muhammad Khalid, Rafaqat and Liaqat accused/appellants, vide memos Exh. PQ, Exh. PR, Exh. PS and Exh. PT, respectively. 14. PW. 17 Amjad Hussain constable on 11.3.1991 was handed over two sealed parcels by the Moharrir for their onward transmission to the office of Chemical Examiner, which he delivered there on the same day, but on 12.3.1991 the said parcels were returned to him under some objection and he delivered them back to the Moharrir. On 26.3.1991, the sealed parcels were again handed over to him for their delivery in the office of the Chemical Examiner and he delivered the same intact on the same day. 15. The prosecution had given up Muhammad Akbar PW as being won over, whereas Muhammad Arshad and Mst. Allah Rakhi PWs as being unnecessary and while tendering in evidence reports of the Chemical Examiner Exh. PV and PX and report of the Serologist Exh, PY, closed its case. 16. In their statements, recorded under the provisions of Section 342 Cr.P.C. the appellants had denied the allegations levelled against them in the FIR and also denied the recovery of weapons of offence at their instance, by deposing that Mst. Farida Kausar and Muhammad Khalid were living with Muhammad Hanif and as a matter of fact, the complainant party launched attack to forcibly take back Farida Kausar as a result of which Liaqat Ali-appellant, his mother namely Mst. Sardaran Bibi and Zubaida Bibi had sustained large number of injuries in front of the house of Muhammad Hanif at the hands of Rashid Ahmad, Muhammad Arif and Muhammad Waris and that Liaqat Ali accused had acted in the exercise of his right of self defence. They had deposed that the injured persons from their side were medically examined at Daska, as the complainant party was bent upon committing violence in the District Headquarters Hospital, Sialkot. The appellants had examined Dr. Saadat Uilah Cheema as BW. 1, who had medically examined Mst. Zubaida Bibi, Mst. Sardaran Bibi and Liaqat Ali and found 14, 8 and 8 injuries on their persons respectively. He had also testified the medico legal reports Exh. DD, Exh. DE and Exh. DF in respect of the said injured persons, to be in his hand. Liaqat Ali appellant had tendered in evidence copies of FIR No. 45/92 dated 28.1.1992, CrI. Misc. No. 4002-B/91, and an application addressed to the Inspector General of Police Punjab Lahore, alongwith its postal receipt, as Exh. DG, Exh. DH. Exh. DJ respectively and closed his defence. All the appellants however, did not get recorded their statements under the provisions of Section 340(2) Cr.P.C. 17. The learned trial Court taking into consideration the facts and circumstances of the case convicted and sentenced the appellants as stated above. 18. The learned counsel for the appellants, the State and the complainant were heard and the record of the case perused with their assistance. 19. The learned counsel for the appellants argued that the motive as set up has not been proved, whereas the explanation provided by the defence through the statement of Liaqat appellant under Section 342 Cr.P.C. to the effect that immediate cause of the occurrence in question was Mst. Farida Kausar and pursuant to the murderous assault by the complainant party against him and his women folk, he was forced to retaliate in self defence that had resulted in injuries to the prosecution witnesses in question. Further argued, as the entire facts and circumstances of the case fully support the version of the said appellant Liaqat, therefore, his case should be decided within the ambit of self defence, as provided by law, whereas rest of the appellants deserve to be acquitted. Fuitber submitted that the recoveries are of no consequence, as dang P. 8 recovered from Muhammad Khalid appellant, vide memo Exh. PR, was not, blood stained, whereas chhuri P. 7, hatchet P. 9 and hatchet P. 10 recovered from Zulfiqar, Rafaqat and Liaqat appellants, vide niemos Exh. PQ. Exh. PS and Exh. PT, respectively, were allegedly blood stained, bnt there is no report of the Serologist exhibited to the effect that the said three recoveries were stained with human blood; and further impugned the said recoveries by pointing out that as the recoveries had beea effected on 28.2,1991 Lc. one month a»d 24 days after the occurrence in question that had taken place on 4.1.1991 and thereafter had been received by the Chemical Examiner on 26.3.1991, as recorded i» Exh. PX i.e. report of Chemical Examiner, therefore, the same could not be relied upon as persistently held by the- superior Courts, in this respect, reliance was placed on The Slate vx. Mat. Mukhtaran and others (PLJ 1981 Cr.C. (Lahore) 459) and Khandoo etc, vs. The State (PLJ 1975 Cr.C. (B.J.) 44). Further contended that as the prosecution had falsely implicated Muhammad Hanif in the instant case by naming him in the FIR as the instigator of the occurrence in question, therefore, further false involvement of the three appellants i.e. other than Liaqat appellant, cannot be ruled out. Argued that the two sharp edged injuries suffered by the deceased i.e. injuries Nos. 1 and 2. are so close to each other as is evident from the post mortem report Exh. PC and being on the same side of the head, the said injuries having been caused by the same person, cannot be ruled out and the benefit thereof should go to Rafaqat appellant, who had denied the charge, whereas Liaqat appellant had admitted to have acted in self-defence. 20. On the other hand, the learned cousisel for the State supported the impugned judgment and argued for sustaining the conviction and sentences awarded to the appellants by emphasising that the occurrence stands admitted, whereas the plea of self-defence taken up by Liaqat appellant has not been proved, as the defence had failed to discharge the onus of proof thus placed on it. Further submitted that according to the site plan Exh. PJ and the recovery of blood stained earth it is duly proved that the occurrence had taken place in open space and not in the house of the appellant Liaqat as implied by him in his statement under Section 342 Cr.P.C. Further argued that as the alleged injured family members of the accused party, namely, Mst. Zubaida Bibi and Mst. Sardaran Bibi had not appeared before the learned trial Court to support the version of Liaqat appellant, therefore, his statement to that effect needs to be totally ignored. 21. The learned counsel for the complainant has adopted the arguments advanced by the learned counsel for the State and further submitted thai the motive was not essential to prove the charge in the presence of direct evidence by the injured prosecution witnesses, as was the case in the instant occurrence, which had taken place during the day time between the parties known to each other and that had resulted in brutal murder of the deceased Muhammad Malik. 22. The Court has given its anxious consideration to the arguments advanced for and against the present criminal appeal. The motive as alleged by the prosecution shall be dealt with at. first. In that respect, it has been taken notice of that whereas the prosecution version itself refers to Mst. Farida Kausar and her step brother Muhammad Khalid had been given shelter by the accused party that had caused an altercation to take place between the accused party and Abdul Rashid PW. 10, yet the immediate cause is stated to be an attempt by appellant Khalid to lift some rice from the house of bis mother Mst. Maqsooda Begum, but without producing the said lady to support the said version and, such, a failure on the part of the prosecution raises serious doubts in respect thereof. Furthermore, the complainant PW. 9 Muhammad Waris had admitted during his crossexamination that immediately a day after the present occurrence the said Mst. Farida Kausar had been forcibly abducted by the complainant party and that pursuant to the filing of a habeas corpus petition, she was recovered and FIR Exh. DG had been lodged against some members of the complainant party named therein. Therefore, it is hereby held that the prosecution had failed to prove the motive as alleged, but the explanation of the accused in that respect is more plausible and needs to be relied upon for the reasons recorded above. The Court is further constrained to observe that immediate cause of f.be oefuiren.ee in question is shrouded in mystery and the nossibUiiy of tht ir.Mani occurrence having tukyn place on the spur of moment, pursuant. the legal heirs of the deceased Muhammad Malik, or to suffer S.I. for 6 months in default thereof. His conviction under the provisions of Section 337-A (i) PPC to R.I. for one year with a fine of Rs. 5000/ or in default, thereof R.I. for 6 months, for having caused injuries to Arif PW, is hereby maintained, with the further direction that he shall also pay Rs. 10 ; 000/- to be paid as compensation to the injured PW Arif, or shall suffer S.I. for six months in default thereof. The sentences awarded to Liaqat-appellant shall run concurrently and he shall he entitled to the benefit of the provisions of Section 382-B Cr.P.C. 28. In accordance with the modifications stated above, the present criminal appeal is partly allowed and disposed of accordingly. 29. For the reasons recorded above, Criminal Revision No. 257 of 1993, directed to be heard alongwith the present criminal appeal, stands dismissed. (A.S.) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1377 (DB) [ Bahawalpur Bench] Present: falak sher and muhammad asif jan, JJ. MUHAMMAD SHAH DIN etc.-Appellants versus STATE-Respondent . Cr. Appeal No. 85 and M. Ref. No. 27 of 1992, partly accepted on 5.2.1998. (a) Criminal Trial— —Murder case-Evidence-Appreciation of-Defence Version-It is now settled law that if on examination of case of prosecution and defence, there is a reasonable possibility that defence version may be true then that version has to be accepted as against prosecution version which must be proved by prosecution beyond all reasonable doubts. [P. 1386] A (ii) Criminal Trial-- —Murder case-Evidence-Appreciation of-Defence version-Crucial question is as to where did occurrence take place-Prosecution version is that occurrence took place on a path carved out by complainant party from their own land in order to be used as a thoroughfare—Site plan prepared by a patwari who admitted in cross-examination that path in question is not shown in Khasra and record of rights and that said passage where occurrence took place is land of appellant/accused-This evidence actually cuts across entire prosecution version and supports version of appellant—Seen in juxtaposition, High Court is inclined to reject case of rosecution and accept defence version-However, appellant who was admittedly armed with a double barrel shot gun fired four shots which means that he necessarily eloaded his gun-Four crime empties were recovered from place of occurrence and all four were found to have been fired from same gun-High Court maintain conviction f appellant recorded under Section 302 P.P.C. but do not confirm sentence of death and instead reduce it to imprisonment for life-High Court extend benefit of doubt to ppellant K, set aside his conviction and sentence and acquit him. [Pp. 1386 & 1387] B & C Ch. Aitzaz Ahsan, Advocate for Appellants. Mr. Salah-ud-Din Zafar, Advocate for State. Malik M. Farrukh Mehmood, Advocate for Complainant. Date of hearing: 5.3.1998. judgment Muhammad Asif Jan, J.-Muhammad Shah Din, aged 37 years, alongwith his brother Khuda Bakhsh, aged about 27 years were convicted Tinder Sections 302/307/326/34 of the Pakistan Penal Code by Mr. Zulfiqar Ali Khan, Sessions Judge, Bahawalnagar, vide judgment dated the 17th of October 1992. Both Muhammad Shah Din and Khuda Bakhsh appellants were convicted under Sections 302/34 PPC for having murdered Muhammad Amir deceased in furtherance of their common intention. Muhammad Shah Din accused/appellant was sentenced to death while Khuda Bakhsh accused/appellant was sentenced to imprisonment for life. A fine of Rs. 50,000/- has been imposed upon Muhammad Shah Din while a fine of Rs. 30,000/- has been imposed upon Khuda Bakhsh. In case of default in the payment of both convicts were awarded further R.I. for one year. Both convicts were also ordered to pay compensation under Section 544-A Cr.P.C. of Rs. 50,000/- each to the legal heirs of Muhammad Amir deceased. In case of default, the amount would be recoverable as arrears of land revenue and in case of no recovery, both convicts were ordered to undergo further R.I. for six months each. Both the appellants were also convicted under Section 307 (Part II)/34 PPC and sentenced to imprisonment for life for having attempted to commit the murder of Ghulam Hassan PW. Both the accused/appellants were also directed to pay a fine of Rs. 15,000/- each and in case of default in the payment of fine, to undergo further R.I. for one year each. Both of them were also ordered to pay compensation under Section 544-A Cr.P.C. of Rs. 30.000/- each to the injured Ghulam Hassan. Ghulam Hassan PW who was since dead, therefore, the amount of compensation will be received by his legal heirs, if any. In case of default, the amount of compensation was ordered to be recovered as arrears of land revenue and in case of no recovery, both convicts were ordered to undergo further R.I. for six months each. Both the accused/appellants were also convicted and sentenced to imprisonment for life for having attempted to commit the murder of Muhammad Sultan (PW 3). Both of them were ordered to pay a fine of Rs. 15,000/- each and in case of default in the payment of fine, to undergo further R.I. for one year each. Accused/appellants were also directed to pay compensation under Section 544-A Cr.P.C. of Rs. 30,000/- each to the injured Muhammad Sultan (PW"3). In case of default, the amount would be recoverable as arrears of land revenue and in case of no recovery, both convicts were ordered to undergo further R.I. for six months each. Both the accused/appellants were also convicted and sentenced under Section 307 (Part ID/34 PPC to imprisonment for life for having attempted to commit the murder of Muhammad Ismail (PW 5). They were directed to pay fine of Rs. 15,000/- each and in case of default to suffer further R.I. for one year each, both the convicts/appellants were also ordered to pay compensation under Section 544-A Cr.P.C. to Muhammad Ismail injured P.W. of Rs. 30,000/- each. In case of default, the amount of compensation would be recoverable as arrears of land revenue and in case of no recovery, both of them to suffer further R.I. for six months each. Both the accused/appellants were, also convicted under Section 307/34 Part-II PPC and sentenced to imprisonment for life each for having attempted to commit murder of Hakim Ali (PW 4). They were directed to pay a fine of Rs. 15,000/- each and in case of default in the payment of fine, to suffer further R.I. for one year each. Both of them were also ordered to pay compensation to Hakim Ali PW under Section 544-A Cr.P.C. of Rs. 30,000/- each and in default of the same the amount would be recoverable as arrears of land revenue and in case of no recovery, both the accused/appellants were ordered to suffer further R.I. for six months each. Both Muhammad Shah Din and Khuda Bakhsh accused/appellants were also convicted under Section 307 (Part II)/34 PPC and sentenced to imprisonment for life plus a fine of Rs. 15,000/- each and in case of default in the payment of fine, to suffer further R.I. for one year each for having attempted to commit murder of Mst. Meherun Nisa. They were also directed to pay compensation under Section 544-A Cr.P.C. of Rs. 30,000/- each and in case of defaxilt, it would be recoverable as arrears of land revenue and in case of no recovery, both of them were ordered to undergo further R.I. for six months each. All the sentences were ordered to run concurrently and both the accused/appellants were also given the benefit of Section 382-B Cr.P.C. 2. Muhammad Shah Din and Khuda Bakhsh accused/appellants ave appealed against their conviction and sentence of way of Criminal Appeal No. 85/92/BWP. The trial Court has referred the matter to this Court for confirmation of the sentence to death awarded to Muhammad Shah Din under Section 374 Cr.P.C. Complainant Muhammad Sultan (PW 3) moved this Court by way of Criminal Revision No. 97/92/BWP praying, inter alia, that the sentence of imprisonment for life awarded to Khuda Bakhsh accused/appellant be enhanced to a sentence of death The said revision petition was not admitted to a regular hearing by this Court but it was ordered to be heard alongwith Criminal Appeal No. 85/92/BWP. 3. We have heard ail these matters together and are deciding them together by this judgment. 4. The occurrence took place on 21st of December, 1989, at 11 a.m in the area of mauza Arranwala at a distance of 8 .Kilometers from Police Station Mecleodganj of District Bahawainagar. 5. The matter was reported, by complainant Muhammad Sultan (PW 3). whose statement (fix, PH> was recorded by ASI Muhammad Ibrahim (PW 11) on the 21st of December, 1983, at the Civil Hospital of Minchanabad of District Bahawainagar. The statement (Ex. PH) of Muhammad Sultan (PW '6> was then sent by ASI Muhammad Ibrahim (PW 11) to Police Station Medeodganj. where the- formal FIR (Ex. PH/1) was drawn by Head Constable Masood Ahmad i?W 2). 6. According to Muhammad Sultan (PW 3), he is a resident of Chah Rehmunka Dakhli, Mauza Anamvala. Haji Ghulam Hussain is also a resident of the same area, Both Muhammad Shah Din and his brother Khuda Bakhsh are their co-villagers and have their agricultural land adjacent to the residential quarters of complainant Muhammad Sultan (PW 3} claims to have left au open passage from his own agricultural land. Muhammad Shah Din and Khuda Bakhsh ppellants/accused encroached upon this passage which was mea&t to be a thoroughfare and included a part of it in- their own agricultural land. Complainant Muhammad Sultan (PW 3) alongwith Haji Ghulam Hassan protested about this act of Muhammad shah Din and Khuda Bakhsh and asked them to desist from it but they would not listen and would turn a deaf ear. On the day of occurrence, at about 8 or 9 a.m. complainant Muhammad Sultan (PW 3) was bringing fire-wood on his bullocks to his residence and when he passed from near the agricultural land of Muhammad Shah Din and Khuda Bakhsh accused/appellants, the said fire-wood fell into their fields on account of the thoroughfare having been narrowed by Muhammad Shah Din and Khuda Bakhsh. On account of the damage to the crops of Muhammad Shah Din and Khuda Bakhsh, complainant Muhammad Sultan (PW 3) was abused by Khuda Bakhsb and Muhammad Shah Din resulting in an exchange of abuses. Finally, Muhammad Shah Din appellant left the place threatening to lull complainant Muhammad Sultan (PW 3) and his supporters and thus, put an end to this irritant about the thoroughfare. This incident which took place in the morning at about S or 9 a.m. was mentioned by complainant Muhammad Sultan (PW 3) to Haji Ghulam Hassan; his sons Muhammad Amir deceased, and Muhammad Ismail (PW-5). On the same day, i.e. tbe 21st of December, 1989, at about 11 a.m. complainant Muhammad Sultan (PW 3) alongwith Elaji Ghulam Hassan, his son Muhammad Amir deceased. Muhammad Ismail (PW 5) and Hakim Ali (PW 4) were having some consf.nnetior;. came-i out for one Mst. Mehenm Nisa and Haji Ghulam Hassan. Muhammad Shah Din appellant armed with .12-bore gun and his brother Kjnwiii Bakswfb appellant armed with a wooden Club ( &>"> ) arrived there ra;s?ag slogans flalkara), they would now settled accounts for r.he insult fn'^e,'' \n the morning by killing every body. Khuda Bakhsh appellant wrlui".!.! his drier brother Muhammad Shah Din appellant to open fire, whereupon. Mur.&ra.mad Shah Din fired the first shot which hit Muhamroad A.roir fJecea,-^ on the front side of the chest and some pellets also hit Haji Ghularo Hassan -.»n the 'eft arm. Thereafter, Muhammad Shah Din, appellant fired the sei:et:d. .ihot which hit Muhammad Amir on the left thigh some peiJets hit: convp)&iiiHixr Muhammad Sultan (PW 3) on the right arm and right thigh. 'The 3rd shot: fired by Muhammad Shah Din appellant hit Muhammad Ismail 'PW 5> on the ieft hand and some pellets hitMsf. Mehrun Nisa on the left leg. The 4th. shot fired by Muhammad Shah Din appellant hit Hakim Ali on the right arm and the right buttock. Throughout the occurrence, Khuda Bakbsh appellant kept inciting his elder brother Muhammad Shah Din to keep firing Muhammad Amir deceased fell down on the ground on account of injuries received by him. The occurrence was also v/itnessed by Noor Ahmad and Ghulam Muhammad (PW 6). Complainant Muhammad Sultan (PW 3) carried the injured persons to the Civil Hospital of Minchanabad where his statement was recorded by ASI Muhammad Ibrahim (PW 11). 7. Dr. Muhammad Nadeem Zia (PW 1), Medical Officer Tehsil Head Quarter Hospital, Minchanabad, medically examined complainant Muhammad Sultan (PW 3) on the 21st of December, 1989, at 12,58 p.m. and found the following injuries on his person:- 1. An enterance wound 1/2 x 1/2 cm on right side of upper part of right thigh, edges of wound inverted and lacerated and not burnt. Track was going medially and transversely corresponding part of chaddar was having a hole and wound was bleeding. 2. An exit wound measuring 1 x 1 cm rounded on front of upper part of right thigh, edges of wound were everted and lacerated and were not burnt. Wound was bleeding profusely. It was the exit wound of injury No. 1. 3. 'An enterance wound 1/2 x 1/2 cm rounded at medial aspect of right inguinal area, edges of the wound were not burnt, lacerated. Track was going posteriorly. Corresponding area of chaddar was having hole. 4. An enterance wound 1/2 x 1/2 cm on middle of right cubital fossa, a hard metallic substance was palpable at outer aspect of the elbow. Track of the wound was going transversely outward. All the injuries were kept under observation. For injuries Nos. 1, 2 and 3, X-ray was advised. Vide X-ray No. 224, dated 21.12.1989, report issued by M.S. THQ Hospital, Minchanabad, chip fracture of greater trochanter with one rounded radio opaque foreign body seen in this area, so injuries Nos. 1, 2 and 3 were declared simple in nature. For injury No. 4, X-ray No. 223/MLC dated the 21st of December 1989, according to the report of the M.S. chip fracture of right ulna bone at its upper part with one rounded radio opaque foreign body seen in this area. On the basis of X-ray, injury No. 4 was declared simple in nature. All the injuries were caused by fire arm weapon within the duration of 12 hours. On the same day at 1.15 p.m. the same Doctor medically examined Hakim Ali (PW 4) and found the following injuries on his person:- 1. An enterance wound 1/2 x 1/2 cm rounded on posterial surface of right wrist 5 cm above the joint. Edges of were not burnt, inverted and track was going anteriorly. No exit wound was seen. 2. A rounded enterance wound 1/2 x 1/2 cm on right buttock. Edges of wound were not burnt, inverted, going anteriorly. No exit wound was seen. 3. An entrance wound 1/2 x 1/2 cm rounded at inner aspect of right ankle. Edges of wound were inverted, not burnt, and the track was going outward. No exit wound was observed. All the injuries were not self inflected or self suffered. All the injuries were kept under observation. For injuries were kept under observation. For injury No. 1, X-ray was advised. After X-ray, report issued by M.S. THQ Hospital this injury was declared as grievous as there was fracture of right radius bone, at its lower part with a rounded radio opaque foreign body seen. While other injuries after X-ray were declared as simple. All the injuries were caused by fire arm weapon within the duration of 12 hours. On the same day at 1.30 p.m. the same Doctor medically examined Ghulam Hassan and found the following injuries on his person:- 1. A rounded 1/2 x 1/2 cm lacerated wound on medial aspect of left elbow, the track was going outward, edges of wound were not burnt, rather inverted. 2. A rounded 1/2 x 1/2 cm wound on posterior surface of left fore arm at its upper part, edges were irregular, not burnt. All the injuries were not self suffered or self inflected. Both the injuries were kept under observation and after X-ray report of the M.S. these injuries were declared simple in nature, caused by fire arm weapon the duration of 12 hours. On the same day, the same Doctor at 1.40 p.m. medically examined Mst. Meherun Nisa found the following injuries on her person:- 1. An entrance wound 1/2 x 1/2 cm rounded at outer aspect of middle of left leg edges of wounds were not burnt, inverted. Track of wound was going inward transversely shalwar was having tear at this area. 2. An exit wound 1 x 1 cm at inner aspect of middle of left leg edges of wound were not burnt, everted and lacerated and bleeding profusely. It was an exit wound of injury No. 1. Both the injuries were not self suffered or self inflicted. Both were declared as simple in nature and were caused by fire arm weapon with the duration of 12 hours. On the same day, the same Doctor at 1.50 p.m. medically examined Muhammad Ismail and found the following injuries on his person:- 1. An entrance wound 1/2 x 1/2 cm at palmer aspect of left little finger at metacarpo phalangeal area. The wound was going on dorsal surface of the hand. Edges were not burnt and were inverted. 2. An exit wound 1/2 x 1/2 cm at dorsal aspect of the left little finger at middle phalangeal area. Edges of wound were everted, tendons were crushed and coming out through the wound. The wound was bleeding profusely. It was the exit wound of injury No. 1. 3. An entrance wound 1/2 x 1/2 cm at palmer aspect of left ring finger, at its base. Track was going posteriorly. Edges were not burnt and were inverted. 4. An exit wound of third injury 1 x 1 cm at dorsal surface of left ring finger at proximal inter phalangeal area. The edges were everted. 5. An entrance wound 1/2 x 1/2 cm at dorsal surface of left thumh at metacarpo phulangeal area. The wound was going transversely. Edges were not burnt and were inverted. 6. An entrance wound 1/2 x 1/2 cm at middle of left palm, edges were inverted and not burnt. Track was going posteriorly. 7. An exit wound 1 x 1/2 cm at dorsum of left hand at middle. Whole of left hand was swollen in 12 x 10 cm area. ovements of fingers were painful. It was exit wound injury No. 6. All the injuries were not self suffered or self inflicted. All the injuries were kept under observation. For the injuries X-rays were advised. After Xray Report of the MS. Injuries Nos. 1, 3, 5 and 6 were declared as grievous in nature while the other injuries were declared as simple in nature. All the injuries were caused by fire arm within the duration of 12 hours. On the same day at 12.40 p.m. the same Doctor medically examined Muhammad Amir son of Ghulam Hassan and found the following injuries on his person:- 1. An entrance wound 1/2 x 1/2 cm rounded, on the left anterior surface of chest, at inter-costal space of 6th and 7th rib at its medial end. Edges of wound were lacerated and inverted, area was not burnt. Track of wound was going to right side and slightly posteriorly transversely, corresponding part of shirt and bunian was having hole at that area. 2. An exit wound 1 x 1 cm rounded on right side of chest at intercostal space of 7th and 8th ribs on right side. Edges of wound were lacerated and everted and were not burnt. Wound was oozing blood. Corresponding area of shirt and bunian were having breach. It was an exit wound of Injury No. 1. 3. An entrance wound 1/2 x 1/2 cm at middle of front of left thigh rounded and edges were inverted and not burnt. Track was going transversely to right side. Corresponding part ofshalwar was having breach. 4. An entrance wound 1^ x 1% cm rounded at front of lower part of thigh. There was compound fracture of left femur at its lower part. Crepitus was palpable and wound was very much bleeding. Edges of the wound were irregular and no burning of wound was observed. Corresponding part of shalwar was having breach. Track was going posteriorly. No exit wound was observed. 5. An exit wound 1x1 cm rounded at inner aspect of middle of left thigh. Edges of the wound were everted and bleeding and were not burnt. Shalwar was having a breach. It was exit wound of Injury No. 3. After emergency treatment, Muhammad Amir was referred to DHQ Hospital, Bahawalnagar for specialist treatment, but, he expired in the DHQ Hospital, Bahawalnagar, on the 22nd of December, 1989, at 10.40 p.m. The postmortem examination on the dead body of Muhammad Amir was conducted by the same Doctor on the 23rd of December 1989 at 7.30 p.m. It was the dead body of a young man with moderate built. In the opinion of the doctor, death occurred due to injuries to fatal organs leading to shock and haemorrhage, which were sufficient to cause death in the ordinary course of nature. All the injuries were anti mortem and caused by a fire arm. The time between injuries and death was 24 to 28 hours, and, between death and post mortem examination was 2 to 24 hours. 8. ASI Muhammad Ibrahim (PW 11) was posted as an ASI at Police Station Mecleodganj on the 21st of December, 1989. He reached Civil Hospital of Minchanabad, where he recorded the statement (Ex. PH) of complainant Muhammad Sultan (PW 3). Thereafter, he proceeded to the place of occurrence where he examined the prosecution witnesses Noor Ahmad and Ghulam Muhammad; inspected the spot; recorded the inspection note; prepared a site-plan of the place of occurrence (Ex. PS); took into possession blood-stained earth from the place of occurrence vide recovery memo (Ex. PK); and took into possession four crime empties from near the place of occurrence vide recovery memo (Ex. PJ). 9. Sub-Inspector Hashmat Ali (P.W. 14) arrested Muhammad Shah Din and Khuda Bakhsh accused/appellants on the 14th of January, 1990. Muhammad Shah Din accused/appellant led to the recovery of a licenced .12 bore double barrel gun which was taken into possession vide recovery memorandum Ex. P.P. alongwith its licence on the 21st of January, 1990. On the same day Khuda Bakhsh accused/appellant led to the recovery of 'Sota' which was taken into possession vide recovery memorandum Ex. P.Q. These recoveries were witnessed by Muhammad Arif (P.W. 9) and Muhammad Zubair who was given up by the prosecution as being unnecessary. 10. According to the report of the Chemical Examiner (Ex. P.U.) the earth which was recovered from the place of occurrence and sent to him was found to be stained with blood and according to the report of the Serologist (Ex. P.V.) the blood in question was of human origin. 11. Four crime empties of .12 bore which were recovered from the place of occurrence and were sent to the Technical Services of the Crime Branch, Punjab, Lahore, were received there on the 21st of January, 1990. While the .12 bore double barrel shot gun recovered from the place of occurrence was sent to the Technical Services and was recivered there on the 4th of February, 1990. In the opinion of the Examiner of the Fire Arms all 4 empties had been fired from the gun in question. 12. Muhammad Shah Din appellant did not deny the occurrence but pleaded the exercise of the right of private defence of body and of property. While Khuda Bakhsh accused/appellant pleaded total denial and false implication on account of being a brother of Muhammad Shah Din. In his statement recorded under Section 342 Cr.P.C. Muhammad Shah Din in answer to the question if he had any thing else to say, said that:- "On the day of occurrence P.Ws. M. Sultan with the help of oxes was bringing tree branches ( ei_X«f.) and destroyed my crop by entering and tresspassing in my field. On my objection he abused me and insisted to pass through my crop with oxes and ( fJ_ \£t ). In retaliation I also abused him and told me that I would not permit him to destroy my crop. He on that went toward the house of Amir, his brother-inlaw and with his help and other P.Ws. started firing at me. I in defence of my person and property also fired with my gun then with me which I generally carry with me. The deceased P.Ws. injured in the cross firing. My co-accused was then not with me." 13. Muhammad Shah Din also gave a statement under Section 342(2) Cr.P.C. on oath and was subjected to cross-examination. 14. The occurrence itself having been admitted by Muhammad Shah Din appellant, the case of the prosecution has to be seen in juxtaposition with the case of the defence. It is now settled law since the decision rendered in the case of SafdarAli v. The Crown reported in P.L.D. 1953 Federal Court page 93 that if on examination of the case of the prosecution and the defence, there is a reasonable possibility that the defence version may be true then that version has to be accepted as against the prosecution version which must be proved by the prosecution beyond all reasonable doubts. 15. The crucial question in the present case is as to where did the occurrence take place? The prosecution would have us believe that the occurrence took place on a path carved out by the complainant party from their own land in order to be used as a thoroughfare. This stance is actually belied by the evidence of Muhammad Munir, Patwari (P.W. 10) who prepared the site plan (Ex. P.R.) and admitted in cross-examination that the path in question is not shown in the Khasra and record of rights and that the said passage where the occurrence took place and is shown as Point No. 9 in the site plan is the land of Muhammad Shah Din appellant/accused. This evidence actually cuts across the entire prosecution version and supports the version of Muhammad Shah Din appellant. 16. Seen in juxtaposition, we are inclined to reject the case of the prosecution and accept the defence version. However, Muhammad Shah Din appellant who was admittedly armed with a double barrel shot gun fired four shots which means that he necessarily reloaded his gun. Four crime empties were recovered from the place of occurrence and all four were found to have been fired from this particular gun. We, therefore, maintain the conviction of Muhammad Shah Din appellant recorded under Section 302 P.P.C. but do ot confirm the sentence of death and instead reduce it to imprisonment for life. We extend the benefit of doubt to Khuda Bakhsh appellant, set aside his conviction and sentence and acquit him. Resultantly, this appeal is partly accepted. Khuda Bakhsh appellant is acquitted and is set at liberty forthwith if not required in any other case. Th£ conviction of Muhammad Shah Din appellant under Section 302 P.P.C. is maintained. However, the sentence of death awarded to Muhammad Shah Din is not confirmed and is reduced to imprisonment for life. The conviction and sentence of Muhammad Shah Din appellant under Section 307 P.P.C. is also maintained. The compensation and fine imposed upon Muhammad Shah Din appellant is also maintained. However, both sentences shall run concurrently granting the benefit of Section 382-B Cr.P.C. 17. The criminal revision seeking enhancement of the sentence awarded to Khuda Bakhsh is dismissed. (T.A.F.) Appeal partly accepted

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1388 (DB) Present: muhammad nawaz abbasi and zafar pasha chaudhry, JJ. HASSAN BAKHSH and another-Appellants versus STATE-Respondent Criminal Appeal No, 200 and M.R. No, 202 of 1993, decided on 2.10,1997. Pakistan Penal Code. 1860 (XLV of 1861))-- —Ss. 302/337-A/34--Murder-Offence of-Conviction for--Appeal against- Elemcnt of sudden provocation heiug not traceable-Defence plea of sudden quarrel between appellant and deceased in the nature of admission produced a corroborative circumstance in support of prosecution version—Possibility of provocation occurrence on account of loosing self control must be supported through positive circumstances and not on basis of presumptive assumptions--Prosecution story do not properly represent correct state of affairs regarding immediate reason for taking action by empty handed appellants -If it had been a pre-consulted and pre-arranged occurrence, appellants must not be empty handed and deceased must not, be only dealt with fist and kick blows- -Consequently transaction would not. be constituted an offence of Qatl-e-Amd definable under Section 302(a) or (h) PPC and rhe same would fall within ambit of Section 302 (c) PPC for purpose of determination of quantum of sentence as plainly act of appellants would be result of provocative conduct of deceased—Conviction of appellants converted from Section 302(b) PPC into Clause (c) of S. 302 PPC sentencing them to 15 years' R.I.-Orders accordingly. [Pp. 1392, 1393 & 1394] A to F Sardar LatifKhan Khosa, Advocate for Appellants. Mr. Bashir Khan. Advocate for Complainant. Mr. Ibrahim Farooq, Advocate for State. Date of hearing: 2,10.1997. judgment Muhammad Nawaz Abbasi, J.- -Hassan BaJkhsh and Muhammad Ramzan sons of Jan Muhammad alongwith their real brother Jindwada and father Jan Muhammad (both acquitted) were tried upon the charge under Section 302/337-A/34 P.P.C. for the allegation of committing the murder of Muhammad Musa, brother" of Haji Muhammad complainant, by the Additional Sessions Judge, Lodhran, who aide judgment dated 15.6.1993 convicting Hassan Bakhsh and Muhammad Ramzan appellants sentenced them to death and life imprisonment, respectively, and acquitted them from the charge under Section 337-A P.P.C. Learned trial Judge giving benefit of doubt to the remaining two accused, namely, Jan Muhammad and Jindwada, acqufUeu them from all the charges. The appellants have challenged their conviction and sentence through Criminal Appeal No. 200 of 1993 arid Haji Muhammad complainant through Criminal Revision No. 174 of 1993 has sought enhancement of sentence of Muhammad Ramzan appellant. The trial Court has sent Murder Reference No. 202 of 1993 under Section. 874 Cr.P.C. to this Court for confirmation of death sentence awarded to Hassan Bakhsh. Ali these matters are disposed of together through this single judgment. 2 A.ccoiding to tb.e prosecution., the occurrence in the present case took place -it 200/2,30 t'.rn, on 4] 0.1990 in the cotton Held in the village Rounds within iiharea of Police rfiacic City, Louirran The report was lodged by Haji Muha.Winj&d (P.W. 3} through F.I.R. (fixh, PB) on the same day at about 3 30 p.m -vitb Polks Station City Lodhran situated at 5 k.m, from the place of occurrence. As per fa^ts narrated therein, the appellants and thair c;)-.icoitised having suspicion of illicit relations of Muhammad Musa deceased with Afsr Bashiraa dtkitghcer of Jan Muhammad (acquitted accused) and sister «' cht spfifiilanr^ suddenly on the day of occurrence emerging from ti;fc cottow crop attacked upoa the decta-std. Jan Muhammad (acquitted aceuse-i) aOfcgetily mfueted a blow on the forehead of the deceased with a brick, wh.e fell down whereupon Jindwada, the other acquitted accused, caught hold of him from his feet ami Muhammad Ramzan while sitting on his chest strangulated him. Hassan Bakhstt appellant was assigned the role of squeesmg the testicles of the deceased. Jan Muhammad and Jindwada acquitted accused upon intervention of complainant statedly caused him fist and kick blows. The occurrence was witnessed by Sadiq Muhammad and Mukntar Hussain in addition to the complainant. 3. Hassan Bakhsh appellant in his statement under Section 342 Cr.P.C. has admitted the occurrence with his participation in the following manner:- "On tilt; day of occurrence about 2.30 p.m. buffalo of deceased Muhammad Musa tres-passed into my crop and damaged the same, rounded up buffalo of deceased and started taking the same to cattle pound, when i started taking buffalo to cattle pound deceased Muhammad Musa reached there and he tried to snatch away buffalo from me. Muhammad Musa started grappling with me. He caught hold of me from my neck and started pressing. I fell down. Because of pressing my throat. I felt that death will take place f have a kick blow to deceased in order to save myself. My kick blow however hit the testicles. After receiving kick blow on the testicles Muhammad Musa fell down on the ground and he died there and then. Such occurrence was witnessed by Sahibyar and Muhammad Ramzan. Neither complainant Haji Muhammad nor PWs Muhammad Mukhtar and Muhammad Sadiq were present at the spot. My co-accused Jan Muhammad, Jindwada and Muhammad Ramzan were not present at the spot. They had not participated in the occurrence. My self and my co-accused have falsely been implicated in this case by the police under the influence of Muhammad Saddique Baluch, MPA as we were supporting P.P.P. and had opposed Muhammad Saddique MPA. Self suffered injury were made on the person of Haji Muhammad in order to show his presence at the spot. The allegation that deceased was suspected of having illicit connection with my sister Mst. Bashiran is totally false. My sister was married about 15/16 years before. She is mother of four children and is residing about one and half mile away from our house." He in support of his version produced Sahib Yar as defence witness. The remaining accused denying their presence and participation in the occurrence pleaded false implication. 4. The defence version having disbelieved, the learned trial Judge giving weight to the prosecution story of the F.I.R. supported by eye witnesses and also seeking corroboration from medical evidence found Hassan Bakhsh and Muhammad Ramzan appellants guilty of the charge. They were accordingly convicted and sentenced under Section 302/34 P.P.C. 5. The post-mortem examination of Muhammad Musa conducted by Dr. Muhammad Ismail revealed the injuries of the following description on the dead body:- "1. A contusion 3 cm x 1 c.m. on the right side of forehead. 2. Multiple abrasions of various sizes on right side of neck. On dissection slight congestion of the underlying tissue hyoid bone fractured. 3. Testicles were swollen on dissection congestion and haemorrhage spots were present." Injury No. 3 on testicles was declared the cause of instantaneous death. The Medical examination of Haji Muhammad complainant revealed five simple injuries of the nature of contusion and lacerated wounds. 6. Haji Muhammad (P.W. 3), complainant and real brother of Muhammad Musa deceased giving the detailed narration of the occurrence as disclosed in the F.I.R. deposed that all the accused emerging from the cotton field and suddenly catching the deceased, attached on him. Jan Muhammad striking brick on the head of the deceased, fell him down on the ground Jindwada, acquitted accused, caught hold of him from the feet, whereas Muhammad Ramzan while sitting on his chest strangulated him and Hassan Bakhsh pressed his testicles. The reason in the background for the occurrence as stated was the suspicion of illicit relations of Muhammad Musa with Mst. Bashiran, daughter of Jan Muhammad, acquitted accused and real sister of appellants. Mukhtar Hussain (P.W. 4) giving ocular account of the incident has fully supported the prosecution version. The defence despite lengthy crossexamination to the eye witness has not heen able to bring anything on record contradictory or in confrontation to the story pleaded by the prosecution and create doubt in favour of defence. The trial Court while judging the counter story introduced by the defence found no plausibility therein to accept the same. 7. The material facts of the case pertaining to the place and the time of happening the occurrence and the manner of receiving the injuries by the deceased on testicles except that the presence of Muhammad Ramzan appellant and two acquitted accused at the spot and that the occurrence was the result of quarrel between Hussain Bakhsh appellant and the complainant upon causing damage to the crop of the appellant by the cattle of complainant are admitted. As per defence plea, the occurrence was not premeditated, which took place suddenly and during the quarrel, the deceased as a result of receiving kicks blows on his testicles died. 8. Learned counsel for the appellants contended that admittedly the ccused w re empty handed and the circumstance under which the occurrence happened and the manner of causing injuries with fists and kicks and use of brick strongly suggested it a sudden occurrence with no element of premeditation. He forcefully argued that visualizing the situation in the normal course, the possibility of having seen the deceased by the appellants in the company of Mst. Bashiran being not ruled out, they loosing self control under grave and sudden provocation caused him kick and fist blows and Hussain Bakhsh picking brick-bat struck on his head and during the course of quarrel, the deceased receiving injuries on testicles, a sensitive part of body could not survive. He placing reliance on Ali Muhammad son ofNoor Muhammad v. Ali Muhammad son of Wali Muhammad and another (PLJ 1996 SC 831) and The State v. Muhammad Hanif and 5 others (1992 P.S.C. (Crl.) 748) argued that there being no intention to kill, the offence being not definable an act of murder falling within the purview of Section 302(b) PPC and that the same being confined only to the extent of knowledge would be covered under Section 302 (c) PPC which contains all exceptions to Section 302(a),and (b) P.P.C. and consequently in such cases the nominal sentence of imprisonment for a term not more than ten years is awarded and prayed for reduction of sentence equal to the period of more than seven years already spent by the appellants in jail as convicts arid under trial prisoners by giving them benefit of Section 382-B Cr.P.C. 9. Conversely, learned counsel for the complainant argued that keeping in view the background of motive of suspicion of illicit relations and the nature of injuries of squeezing the testicles and strangulation commonly known as dangerous to life would prove the intention fixing the liability of Qatl-e-Amd punishable under Section 302(b) P.P.C. and no exception having created or pleaded as such, the provisions of Section 302(c) P.P.C. are not attracted for the purpose of sentence. 10. Learned State counsel adopting the arguments advanced by the learned counsel for the complainant supported the conviction and sentence awarded to the appellants by the learned trial Judge. 11. We have examined the evidence in detail and perused the record with the help of the learned counsel for the parties and also heard them at length. 12. The totality of the facts under examination with the background of illicit liaison of the deceased with Mst. Bashiran a lady of the family of appellant couid plead provocation due to the family honour but even in case of visualizing such possibility, the element of sudden and grave provocation being not traceable, the same cannot be sound in favour of the appellants. The defence having denied the motive has excluded even the plea of simple provocation as a result of injury to their honour and dignity. The defence plea of sudden quarrel between Hussain Bakhsh and the deceased in the nature of admission produced a corroborating circumstance in s'upport of prosecution version of the case as the occurrence might be result of provocation due to unjustifiable conduct of the deceased which having developed hatred and grudge in the mind of the appellants furnished motive for the occurrence, but there being no allegation or evidence of having seen the deceased committing any objectionable act on the fateful day or at any time before that day, the element of grave and sudden provocation being missing, the same cannot be pleaded on the basis of presumption. The defence version despite running counter to the prosecution does not bring a distinctive story to dislodge the prosecution version. The possibility of provocative occurrence on account of loosing self control must be supported through the positive circumstances and not on the basis of presumptive assumptions. The mere fact that the accused were unarmed by itself is not nough to bring the case from the purview of murder. However, the material fact relating to the immediate cause for the occurrence having withheld is not known, therefore, the possibility of happening something suddenly leading to the occurrence is not ruled out to exclude the application of Section 302(c) P.P.C. The explanation to the Section 300 PPC (Old) being no more available on the statute book as such is embodied in clause (c) of Section 302 PPC providing sentence which may extend to 25 years. The normal punishment of Qatl-e-Amd as Qisas under Section 302(a) and as Ta'zir under Section 302(b) P.P.C. provided therein is the death penalty, whereas the cases with some exceptions not strictly falling within the definition of Qatl-e-Amd are punishable under Section 302(c) P.P.C. with sentence of either term as provided therein on the facts of an individual case. The implied inclusion of exceptions to Section 302(a) and (b) PPC in Section 302(c) P.P.C. will definitely distinguish the cases vis-a-viz the quantum of sentence, which depends upon the nature of transaction and gravity of offence relating to the mental state of affair of the wrong doer and the mens rea to commit a criminal act. The gravity of provocation would definitely reduced and cooled down to the normal condition with the interval of some time and if a wrong doer still persists to go for a criminal act, the same would be the result of development of element of revenge and not the state of affairs of only grave provocation. The illicit liaison of the deceased with Mst. Bashiran was not in the direct knowledge of the complainant, rather the same suspiciously being in the mind of appellant, could compel him to take revenge in consequence thereof. Therefore, the prosecution story do not properly represent the correct state of affairs regarding the immediate reason for taking the action by the empty handed appellants, at the relevant time. If it had been a preconsulted and pre-arranged occurrence, the appellants must not be empty handed and the deceased must not be only dealt with fist and kick blows. Thus, keeping in view the circumstances, under which the occurrence took place, it can conveniently be visualized that the possibility of happening something unnatural suddenly concurring with the alleged objectionable and immoral conduct of the deceased is not ruled out. Consequently, the transaction would not be constituted an offence of Qatl-e-Amd definable under Section 302(a) or (b) P.P.C. liable to be punished as Ta'zir, as the case may be, and the same would fall within the ambit of Section 302(c) P.P.C. The actual disgracing and insult and the correspondence duty of the male members of the family to protect and gent their ladies for preservation of their dignity and honour and not to allow any excess to them being distinguishable cannot be equally a source of provocation of the nature justifiably conferring the exercise of right of taking life of a wrong doer. 13. We, therefore, will not be wrong in saying that plainly the act of appellants would be the result of provocative conduct of the deceased. Thus, excluding the possibility of grave and sudden provocation, the case against the appellants shall be covered by clause (c) of Section 302 P.P.C. for the purpose of determination of quantum of sentence. The classification of the cases under clauses (a) (b) and (c) of Section 302 P.P.C. is made on the basis of nature of transaction and the circumstances under which the act not definable as Qatl-e-Amd is committed. 14. Learned counsel with reference to Federation of Pakistan vs. Gul Hasan Khan (PLD 1989 S.C. 633) argued that the appellant in normal course could have no justification to take the life of deceased, but he having developed strong suspicion and feeling of illicit liaison of his sister with the deceased wanted to punish him by pressing his testicles, an organ to be used to enjoy such relations, and also strangulated his neck to the extent of causing death due to the insult caused to him. The appellants in the present case over-powering the deceased caused him injuries through squeezing his testicles and strangulation, therefore, it would not be a case punishable under Section 302(b) P.P.C. We accordingly converting the conviction of the appellants from Section 302(b) PPC into the clause (c) of Section 302 P.P.C., sentenced them to 15 years R.I. each with benefit of Section 382-B Cr.P.C. The trial Court having not given effect to the mandatory provision of Section 544-A Cr.P.C. has not burdened the appellants with payment of compensation to the legal heirs of the deceased. Learned counsel for the appellants unhesitantiy accepting notice on behalf of the appellant voluntarily offered payment of Rs. 50,000/- as compensation by each of the appellants to the legal heirs of the deceased. Order accordingly with direction that in case of default in payment of compensation, the appellants will suffer simple imprisonment for six months each and the amount of compensation shall be recovered from them as arrears of land revenue. Crl. Appeal No. 200 of 1993 filed by the appellants with the aboVe modification in conviction and sentence is dismissed. Crl. Revision No. 174 of 1993 filed by the complainant with awarding of compensation is disposed of. Murder Reference is answered in the negative. (MYF) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1388 (DB) Present: muhammad nawaz abbasi and zafar pasha chaudhry, JJ. HASSAN BAKHSH and another-Appellants versus STATE-Respondent Criminal Appeal No, 200 and M.R. No, 202 of 1993, decided on 2.10,1997. Pakistan Penal Code. 1860 (XLV of 1861))-- —Ss. 302/337-A/34--Murder-Offence of-Conviction for--Appeal against- Elemcnt of sudden provocation heiug not traceable-Defence plea of sudden quarrel between appellant and deceased in the nature of admission produced a corroborative circumstance in support of prosecution version—Possibility of provocation occurrence on account of loosing self control must be supported through positive circumstances and not on basis of presumptive assumptions--Prosecution story do not properly represent correct state of affairs regarding immediate reason for taking action by empty handed appellants -If it had been a pre-consulted and pre-arranged occurrence, appellants must not be empty handed and deceased must not, be only dealt with fist and kick blows- -Consequently transaction would not. be constituted an offence of Qatl-e-Amd definable under Section 302(a) or (h) PPC and rhe same would fall within ambit of Section 302 (c) PPC for purpose of determination of quantum of sentence as plainly act of appellants would be result of provocative conduct of deceased—Conviction of appellants converted from Section 302(b) PPC into Clause (c) of S. 302 PPC sentencing them to 15 years' R.I.-Orders accordingly. [Pp. 1392, 1393 & 1394] A to F Sardar LatifKhan Khosa, Advocate for Appellants. Mr. Bashir Khan. Advocate for Complainant. Mr. Ibrahim Farooq, Advocate for State. Date of hearing: 2,10.1997. judgment Muhammad Nawaz Abbasi, J.- -Hassan BaJkhsh and Muhammad Ramzan sons of Jan Muhammad alongwith their real brother Jindwada and father Jan Muhammad (both acquitted) were tried upon the charge under Section 302/337-A/34 P.P.C. for the allegation of committing the murder of Muhammad Musa, brother" of Haji Muhammad complainant, by the Additional Sessions Judge, Lodhran, who aide judgment dated 15.6.1993 convicting Hassan Bakhsh and Muhammad Ramzan appellants sentenced them to death and life imprisonment, respectively, and acquitted them from the charge under Section 337-A P.P.C. Learned trial Judge giving benefit of doubt to the remaining two accused, namely, Jan Muhammad and Jindwada, acqufUeu them from all the charges. The appellants have challenged their conviction and sentence through Criminal Appeal No. 200 of 1993 arid Haji Muhammad complainant through Criminal Revision No. 174 of 1993 has sought enhancement of sentence of Muhammad Ramzan appellant. The trial Court has sent Murder Reference No. 202 of 1993 under Section. 874 Cr.P.C. to this Court for confirmation of death sentence awarded to Hassan Bakhsh. Ali these matters are disposed of together through this single judgment. 2 A.ccoiding to tb.e prosecution., the occurrence in the present case took place -it 200/2,30 t'.rn, on 4] 0.1990 in the cotton Held in the village Rounds within iiharea of Police rfiacic City, Louirran The report was lodged by Haji Muha.Winj&d (P.W. 3} through F.I.R. (fixh, PB) on the same day at about 3 30 p.m -vitb Polks Station City Lodhran situated at 5 k.m, from the place of occurrence. As per fa^ts narrated therein, the appellants and thair c;)-.icoitised having suspicion of illicit relations of Muhammad Musa deceased with Afsr Bashiraa dtkitghcer of Jan Muhammad (acquitted accused) and sister «' cht spfifiilanr^ suddenly on the day of occurrence emerging from ti;fc cottow crop attacked upoa the decta-std. Jan Muhammad (acquitted aceuse-i) aOfcgetily mfueted a blow on the forehead of the deceased with a brick, wh.e fell down whereupon Jindwada, the other acquitted accused, caught hold of him from his feet ami Muhammad Ramzan while sitting on his chest strangulated him. Hassan Bakhstt appellant was assigned the role of squeesmg the testicles of the deceased. Jan Muhammad and Jindwada acquitted accused upon intervention of complainant statedly caused him fist and kick blows. The occurrence was witnessed by Sadiq Muhammad and Mukntar Hussain in addition to the complainant. 3. Hassan Bakhsh appellant in his statement under Section 342 Cr.P.C. has admitted the occurrence with his participation in the following manner:- "On tilt; day of occurrence about 2.30 p.m. buffalo of deceased Muhammad Musa tres-passed into my crop and damaged the same, rounded up buffalo of deceased and started taking the same to cattle pound, when i started taking buffalo to cattle pound deceased Muhammad Musa reached there and he tried to snatch away buffalo from me. Muhammad Musa started grappling with me. He caught hold of me from my neck and started pressing. I fell down. Because of pressing my throat. I felt that death will take place f have a kick blow to deceased in order to save myself. My kick blow however hit the testicles. After receiving kick blow on the testicles Muhammad Musa fell down on the ground and he died there and then. Such occurrence was witnessed by Sahibyar and Muhammad Ramzan. Neither complainant Haji Muhammad nor PWs Muhammad Mukhtar and Muhammad Sadiq were present at the spot. My co-accused Jan Muhammad, Jindwada and Muhammad Ramzan were not present at the spot. They had not participated in the occurrence. My self and my co-accused have falsely been implicated in this case by the police under the influence of Muhammad Saddique Baluch, MPA as we were supporting P.P.P. and had opposed Muhammad Saddique MPA. Self suffered injury were made on the person of Haji Muhammad in order to show his presence at the spot. The allegation that deceased was suspected of having illicit connection with my sister Mst. Bashiran is totally false. My sister was married about 15/16 years before. She is mother of four children and is residing about one and half mile away from our house." He in support of his version produced Sahib Yar as defence witness. The remaining accused denying their presence and participation in the occurrence pleaded false implication. 4. The defence version having disbelieved, the learned trial Judge giving weight to the prosecution story of the F.I.R. supported by eye witnesses and also seeking corroboration from medical evidence found Hassan Bakhsh and Muhammad Ramzan appellants guilty of the charge. They were accordingly convicted and sentenced under Section 302/34 P.P.C. 5. The post-mortem examination of Muhammad Musa conducted by Dr. Muhammad Ismail revealed the injuries of the following description on the dead body:- "1. A contusion 3 cm x 1 c.m. on the right side of forehead. 2. Multiple abrasions of various sizes on right side of neck. On dissection slight congestion of the underlying tissue hyoid bone fractured. 3. Testicles were swollen on dissection congestion and haemorrhage spots were present." Injury No. 3 on testicles was declared the cause of instantaneous death. The Medical examination of Haji Muhammad complainant revealed five simple injuries of the nature of contusion and lacerated wounds. 6. Haji Muhammad (P.W. 3), complainant and real brother of Muhammad Musa deceased giving the detailed narration of the occurrence as disclosed in the F.I.R. deposed that all the accused emerging from the cotton field and suddenly catching the deceased, attached on him. Jan Muhammad striking brick on the head of the deceased, fell him down on the ground Jindwada, acquitted accused, caught hold of him from the feet, whereas Muhammad Ramzan while sitting on his chest strangulated him and Hassan Bakhsh pressed his testicles. The reason in the background for the occurrence as stated was the suspicion of illicit relations of Muhammad Musa with Mst. Bashiran, daughter of Jan Muhammad, acquitted accused and real sister of appellants. Mukhtar Hussain (P.W. 4) giving ocular account of the incident has fully supported the prosecution version. The defence despite lengthy crossexamination to the eye witness has not heen able to bring anything on record contradictory or in confrontation to the story pleaded by the prosecution and create doubt in favour of defence. The trial Court while judging the counter story introduced by the defence found no plausibility therein to accept the same. 7. The material facts of the case pertaining to the place and the time of happening the occurrence and the manner of receiving the injuries by the deceased on testicles except that the presence of Muhammad Ramzan appellant and two acquitted accused at the spot and that the occurrence was the result of quarrel between Hussain Bakhsh appellant and the complainant upon causing damage to the crop of the appellant by the cattle of complainant are admitted. As per defence plea, the occurrence was not premeditated, which took place suddenly and during the quarrel, the deceased as a result of receiving kicks blows on his testicles died. 8. Learned counsel for the appellants contended that admittedly the ccused w re empty handed and the circumstance under which the occurrence happened and the manner of causing injuries with fists and kicks and use of brick strongly suggested it a sudden occurrence with no element of premeditation. He forcefully argued that visualizing the situation in the normal course, the possibility of having seen the deceased by the appellants in the company of Mst. Bashiran being not ruled out, they loosing self control under grave and sudden provocation caused him kick and fist blows and Hussain Bakhsh picking brick-bat struck on his head and during the course of quarrel, the deceased receiving injuries on testicles, a sensitive part of body could not survive. He placing reliance on Ali Muhammad son ofNoor Muhammad v. Ali Muhammad son of Wali Muhammad and another (PLJ 1996 SC 831) and The State v. Muhammad Hanif and 5 others (1992 P.S.C. (Crl.) 748) argued that there being no intention to kill, the offence being not definable an act of murder falling within the purview of Section 302(b) PPC and that the same being confined only to the extent of knowledge would be covered under Section 302 (c) PPC which contains all exceptions to Section 302(a),and (b) P.P.C. and consequently in such cases the nominal sentence of imprisonment for a term not more than ten years is awarded and prayed for reduction of sentence equal to the period of more than seven years already spent by the appellants in jail as convicts arid under trial prisoners by giving them benefit of Section 382-B Cr.P.C. 9. Conversely, learned counsel for the complainant argued that keeping in view the background of motive of suspicion of illicit relations and the nature of injuries of squeezing the testicles and strangulation commonly known as dangerous to life would prove the intention fixing the liability of Qatl-e-Amd punishable under Section 302(b) P.P.C. and no exception having created or pleaded as such, the provisions of Section 302(c) P.P.C. are not attracted for the purpose of sentence. 10. Learned State counsel adopting the arguments advanced by the learned counsel for the complainant supported the conviction and sentence awarded to the appellants by the learned trial Judge. 11. We have examined the evidence in detail and perused the record with the help of the learned counsel for the parties and also heard them at length. 12. The totality of the facts under examination with the background of illicit liaison of the deceased with Mst. Bashiran a lady of the family of appellant couid plead provocation due to the family honour but even in case of visualizing such possibility, the element of sudden and grave provocation being not traceable, the same cannot be sound in favour of the appellants. The defence having denied the motive has excluded even the plea of simple provocation as a result of injury to their honour and dignity. The defence plea of sudden quarrel between Hussain Bakhsh and the deceased in the nature of admission produced a corroborating circumstance in s'upport of prosecution version of the case as the occurrence might be result of provocation due to unjustifiable conduct of the deceased which having developed hatred and grudge in the mind of the appellants furnished motive for the occurrence, but there being no allegation or evidence of having seen the deceased committing any objectionable act on the fateful day or at any time before that day, the element of grave and sudden provocation being missing, the same cannot be pleaded on the basis of presumption. The defence version despite running counter to the prosecution does not bring a distinctive story to dislodge the prosecution version. The possibility of provocative occurrence on account of loosing self control must be supported through the positive circumstances and not on the basis of presumptive assumptions. The mere fact that the accused were unarmed by itself is not nough to bring the case from the purview of murder. However, the material fact relating to the immediate cause for the occurrence having withheld is not known, therefore, the possibility of happening something suddenly leading to the occurrence is not ruled out to exclude the application of Section 302(c) P.P.C. The explanation to the Section 300 PPC (Old) being no more available on the statute book as such is embodied in clause (c) of Section 302 PPC providing sentence which may extend to 25 years. The normal punishment of Qatl-e-Amd as Qisas under Section 302(a) and as Ta'zir under Section 302(b) P.P.C. provided therein is the death penalty, whereas the cases with some exceptions not strictly falling within the definition of Qatl-e-Amd are punishable under Section 302(c) P.P.C. with sentence of either term as provided therein on the facts of an individual case. The implied inclusion of exceptions to Section 302(a) and (b) PPC in Section 302(c) P.P.C. will definitely distinguish the cases vis-a-viz the quantum of sentence, which depends upon the nature of transaction and gravity of offence relating to the mental state of affair of the wrong doer and the mens rea to commit a criminal act. The gravity of provocation would definitely reduced and cooled down to the normal condition with the interval of some time and if a wrong doer still persists to go for a criminal act, the same would be the result of development of element of revenge and not the state of affairs of only grave provocation. The illicit liaison of the deceased with Mst. Bashiran was not in the direct knowledge of the complainant, rather the same suspiciously being in the mind of appellant, could compel him to take revenge in consequence thereof. Therefore, the prosecution story do not properly represent the correct state of affairs regarding the immediate reason for taking the action by the empty handed appellants, at the relevant time. If it had been a preconsulted and pre-arranged occurrence, the appellants must not be empty handed and the deceased must not be only dealt with fist and kick blows. Thus, keeping in view the circumstances, under which the occurrence took place, it can conveniently be visualized that the possibility of happening something unnatural suddenly concurring with the alleged objectionable and immoral conduct of the deceased is not ruled out. Consequently, the transaction would not be constituted an offence of Qatl-e-Amd definable under Section 302(a) or (b) P.P.C. liable to be punished as Ta'zir, as the case may be, and the same would fall within the ambit of Section 302(c) P.P.C. The actual disgracing and insult and the correspondence duty of the male members of the family to protect and gent their ladies for preservation of their dignity and honour and not to allow any excess to them being distinguishable cannot be equally a source of provocation of the nature justifiably conferring the exercise of right of taking life of a wrong doer. 13. We, therefore, will not be wrong in saying that plainly the act of appellants would be the result of provocative conduct of the deceased. Thus, excluding the possibility of grave and sudden provocation, the case against the appellants shall be covered by clause (c) of Section 302 P.P.C. for the purpose of determination of quantum of sentence. The classification of the cases under clauses (a) (b) and (c) of Section 302 P.P.C. is made on the basis of nature of transaction and the circumstances under which the act not definable as Qatl-e-Amd is committed. 14. Learned counsel with reference to Federation of Pakistan vs. Gul Hasan Khan (PLD 1989 S.C. 633) argued that the appellant in normal course could have no justification to take the life of deceased, but he having developed strong suspicion and feeling of illicit liaison of his sister with the deceased wanted to punish him by pressing his testicles, an organ to be used to enjoy such relations, and also strangulated his neck to the extent of causing death due to the insult caused to him. The appellants in the present case over-powering the deceased caused him injuries through squeezing his testicles and strangulation, therefore, it would not be a case punishable under Section 302(b) P.P.C. We accordingly converting the conviction of the appellants from Section 302(b) PPC into the clause (c) of Section 302 P.P.C., sentenced them to 15 years R.I. each with benefit of Section 382-B Cr.P.C. The trial Court having not given effect to the mandatory provision of Section 544-A Cr.P.C. has not burdened the appellants with payment of compensation to the legal heirs of the deceased. Learned counsel for the appellants unhesitantiy accepting notice on behalf of the appellant voluntarily offered payment of Rs. 50,000/- as compensation by each of the appellants to the legal heirs of the deceased. Order accordingly with direction that in case of default in payment of compensation, the appellants will suffer simple imprisonment for six months each and the amount of compensation shall be recovered from them as arrears of land revenue. Crl. Appeal No. 200 of 1993 filed by the appellants with the aboVe modification in conviction and sentence is dismissed. Crl. Revision No. 174 of 1993 filed by the complainant with awarding of compensation is disposed of. Murder Reference is answered in the negative. (MYF) Orders accordingly. PLJ 1998 Cr.C. (Karachi) 1394 (DB) Present rasheed ahmad rizvi and sabihuddin ahmad, JJ. STATE-Appellant versus SHAHBAZ KHAN-Respondent Crl. Acquittal Appeal No. 193 of 1995 decided on 20.11.1997. Prohibition (Enforcement of Hadd) Order, 1979 (P.O 4 of 1979)-- ----Arts. 27 & 3/4 read with Criminal Procedure Code 1898-Acquittal order passed by Judicial Magistrate-Appeal against-Whether appeal is maintainable before High Court or not-Question of-High Court concludes as to the import of Article 27(i) of Order 1979 in the following terms:- (i) The provisions relating to appeals stipulated in the Code of Criminal Procedure apply to cases tried under the aforesaid order subject to specified stipulations contained in the second proviso. (iii Appeals against all orders whether of conviction or acquittal relating to offences under Article 8 can only be preferred before Federal Shari'at Court. (iii) Appeals against order of conviction leading to a sentence of more than 2 years under any other provision of the order will also lie to Federal Shariat Court. (iv) Appeals against the judgment not covered by number (ii) or (iii) above, will lie before fora provided for entertainment of such appeals by the Criminal Procedure Code. [Pp. 1400 & 1401] A Mr. Amanullah Qureshi, A.A.G. for State. Mr. Syed Madad All Shah, Advocate as Amicus Curiae.. Dates of hearing: 13.11.1997 and 20.11.1997. judgment Sabihuddin Ahmad, J.-This is an appal against the acquittal of the respondent charged with offences under Section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 dated 8.1.1995 passed by the Judicial Magistrate, Kotri. The appeal has been preferred by the Advocate General, Sind on behalf of the State. Since the law did not appear very clear as to the forum before which this appeal could be entertained, we decided to consider this issue first. We requested the Assistant Advocate General on 13.11.1997 to satisfy us whether such appeal was maintainable before us and since he was not in a position to do so, we adjourned the matter to 20.11.1997 and requested that Mr. S. Madad Ali Shah, Senior Advocate, to assist us on this legal question. 2. S. Madad Ali Shah, in a well researched address, did not specifically commit, to any particular point of view but placed the relevant law and precedents before us, showing that reported decisions indicated divergence of opinion on the issue. At the out-set he took us through the provisions of Article 27 of the Prohibition (Enforcement of Hadd) Order, 1979 and similar provisions in other Orders, pertaining to enforcement of Hudood, pointing out the extent to which the provisions of the Code apply to proceedings relating to offences under such laws and the extent of the appellate jurisdiction of the Federal Shariat Court in such matters. He pointed out that the question before us has not been pronounced upon by this Court or the Hon'ble Supreme court in any reported judgment. At the same time, he candidly brought to our notice certain judgments of the Federal Shariat Court and the High Courts of Peshawar and Baluchistan relating to appeals against acquittal in Hudood Offences, where different views appear to have been taken. 3. Before considering these judgments it may be observed that under the Criminal Procedure Code, appeals against order of conviction passed by the Assistant Sessions Judge or judicial Magistrate (subject to certain special exceptions not relevant in the present context) lie to a Court of Sessions while an appeal against the conviction recorded hy the Sessions Judge or Additional Sessions Judge is to be preferred before this Court. Under Section 417 Cr.P.C. an appeal against an order of acquittal, whether original or appellate, passed by any Court lies to this Court. On the other hand, however, the special law under which the respondent was charged i.e. Prohibition (Enforcement of Hadd.) Order, specific dispensation relating applicability of the Criminal Procedure Code as well as provisions for appeal is made. It may be pertinent to reproduce Section 27(1) of the Order which has a direct bearing on this case. "27(1). Unless otherwise expressly provided in this Order, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the said Code, shall apply, mutatis mutandis in respect of cases under this Order: Provided that if it appears in evidence that the offender has committed a different offence under any other law, he may. if the Court is competent to try that offence and to award punishment therefore, be convicted and punished for that offence: Provided further that an offence punishable under Article 8 shall be triable by a Court of Sessions and not by a Magistrate authorised under Section 30 of the said Code and an appeal from an order under that Article or from an order under any other provision of this Order which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court : (Underlining ours). Provided further that a trial by a Court of Session under this Order shall ordinarily be held at the headquarters of the Tehsil in which the offence is alleged to have been committed." 4. In the case of State vs. Rafmllah (t Gul (1992 Pak. Cr.L.J. 435), an appeal against an order of acquittal recorded by a Magistrate under An.idt\s 3 and 4 of the Prohibition Order 1979, was entertained by the Peshawar High Court but dismissed on merits by Muhammad Bashir Jehangiri, J, (presently Judge Supreme Court). On the other hand in the case of State through Advocate General N.W.F.P. vs. Iqbal Bibi (1994 Pak. Cr.L.J. 403) a similar appeal was decided by the Federal Shariat Court. In none of these cases, however, the question as to the correct forum of the appeal was raised or discussed, though the observation of Jehangiri, J. (as his lordship then was) in the case of State vs. Rafiullah on the merits were cited with approval by the Bench of the Shariat Court. 5. Nevertheless, S. Madad Ally Shah also referred to two recent decisions where the question of forum of appeal against acquittal was directly raised and decided. In a subsequent Peshawar case, reported as State vs. Muhammad Yakoob (1997 Pak. Cr.L.J. 528) Nasirul Mulk. J. repelled an objection as to the maintainability of an appeal against an order of acquittal y Advocate General in an offence under Section 3/4 of the Prohibition (Enforcement of Hadd) Order 1979 and proceeded to hold that such an appeal was maintainable before the High Court, interpreting the above quoted Section 27(1) it was observed:- "Thus. but for the exception provided under the aforementioned proviso, appeal against orders passed under the Order shall be regulated by the Criminal Procedure Code and will, therefore, he made to forums prescribed under the Code The said proviso has made only two exceptions where appeals are to he made to Courts other than the ones specified under the Criminal Procedure Code and to in both cases the appeal would lie to the Federal Shariat Court. The first exception is where the offence is tried under Article 8 of the Prohibition Order, and the second where the sentence imposed by the trial Court exceeds two years. The result is that appeals against the orders of the trial Court under the order would he regulated by the provisions of the Criminal Procedure Code if on conviction sentence imposed does not exceed two years or the accused is acquitted, in cases other than the one trie' 4 under Article 8 of the Order. Appeals against orders ctf acquittal lie to the High Court under Section 437 of the Code. As the accused were charged under Article 3/4 of the Order and not under its Article 8, the present appeal was competently filed in the High Court." 6. Syed Madad AH Shah also brought to our attention a recent judgment of a Division Bench of the High Court of Baluchistan in the case of Haji Pir Jan v. Muhammad Yaqoab and 9 others (1997 P.Cr.L.J. 1236) wherein a different view was taken. While interpreting almost identical provision contained in Section 24 of the Offences Against Property (Enforcement of Hudood) Ordinance their Lordships declined to entertain an appeal against acquittal and returned the memo of appeal for presentation before the Federal Shariat Court. In the judgment authored by Raja Fayaz Ahmed, J. It was held:- "9. We feel inclined to hold that even for the offences other than those defined and made punishable under the Ordinance or punishable under any other law for the time being in force within the ambit of the Ordinance, whether it result into conviction of imprisonment for a term exceeding two years or into an order of acquittal passed by a competent Court appeal would lie to the Federal Shariat Court only due to the jurisdiction having been so conferred to the Federal Shariat Court." 7. Having carefully read the aforesaid judgments and considered the import of the applicable statutory provisions, we are inclined to subscribe to the view taken by the Peshawar High Court. The observations quoted in para 5 above, in our humble view are unexceptionable. It is a settled principle of interpretation that a proviso to a statutory provision contains an exception to the general rule. The general rule in the above context is laid down in the main Article 27(1) which stipulates that the provisions of the Criminal Procedure Code unless otherwise expressly provided shall apply in respect of cases under this Order. This obviously includes provisions relating to appeals contained in Part VII Chapter XXXI. The second proviso commits two kinds of orders to the appellate jurisdiction of the Federal Shariat Court namely, (i) all Orders relating to Hadd offence under Article 8; and (ii) Orders imposing sentence of imprisonment for a term exceeding two years under other provisions. Appeals against Orders not covered by this proviso could only be preferred before a forum stipulated under the Code in terms of ~ the main Article 27(1). 8. A cursory glance at the history of this legislation also fortifies our view. When this Order was promulgated in 1979 the main provision of Article 27(1) appeared in its present form but the second proviso did not exist. Offences would be triable by ordinary Criminal Courts and appeals were to be heard and decided by fora provided for in the Code by virtue of the aforesaid Article 27(1). In 1980 the Federal Shariat Court was established and vide P.O. V of 1980 the second proviso was inserted in the aforesaid Article 27(1) making Hadd offences under Article 8 triable exclusively by a Sessions Court and stipulating. Orders passed therein appealable before the Shariat Court. Similar amendments were made in other statutes relating to Hudood. Through a subsequent amendment vide P.O. VI of 1982 the ppellate jurisdiction of the Federal Shariat Court was extended to cover appeals against convictions entailing punishment of more than two years imprisonment. The urisdiction of the Shariat Court was enlarged progressively and even now it is confined to a certain category of cases mentioned in the second proviso. The jurisdiction to hear appeals against other judgments i.e. convictions entailing less than two years imprisonment or acquittal must necessarily be covered by the provisions of the Code. 9. The view contrary to the above taken by the High Court of Balochistan appears to be mainly founded upon two considerations. It may be pointed out that the provision of Section 24(1) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, including its proviso, are almost identical to Article 27(1) of the Prohibition Order with the difference that the Hadd Offences of theft and Haraba under Sections 9 and 17 (like the Hadd offence of drinking under Section 8 of the Prohibition Order) are exclusively triable by Sessions Courts and appeals against their orders lie to the Federal Shariat Court. In holding that an appeal against a judgment, of acquittal even for offences other than those covered by Sections 9 and 17 could only lie to the Federal Shariat Court, their Lordships were persuaded by the consideration that second proviso controls the main proviso and came to the following conclusion:- "Under the second proviso to Section 24 of the Ordinance, Federal Shariat Court has been expressly termed and specified to be the Court of appeal, whereas; for limited purpose of a case where the sentence of imprisonment not exceeding two years has been passed an appeal shall lie to High Court except against an order under Section 9 or 17 of the Ordinance. Thus, the principal Court of appeal is the Federal Shariat Court and not a High Court." 10. Indeed there can be no cavil with the provision that in the event of a conflict the provision of the second proviso, being express stipulation to the contrary, would prevail over those of the Code made applicable through the main provision. Nevertheless it may be stated with profound respects that their Lordships omitted to consider that the second proviso neither stipulates that the Federal Shariat Court would be "the principal Court of appeal" nor provides that an appeal against a sentence of imprisonment not exceeding 2 years would lie to the High Court. It only provides that appeals in certain specific cases would lie to the Shariat Court. In fact there was no other provision in the Ordinance describing a forum of appeal against sentences of less than two years imprisonment. Such appeals could only be preferred through the application of the main Section 24(1) whereby the provisions of the Code relating to fora of appeals were made applicable, subject to an express provision to the contrary. When appeals against the orders of conviction could be preferred on the basis of the provisions of the Code their could be no conceivable reasons for not giving effect to the provisions concerning appeals against acquittal. 11. Secondly, their Lordships appear to be persuaded by the argument that an element of incongruity would arise if appeals against the orders of conviction and those acquittal pronounced by the same Court are preferred before different fora. With profound respect we area unable to share this view. Long before the enactment of Hadood laws our legal system has provided for appeals against the judgment of conviction and acquittal rendered by one Court before different fora. Under Section 408 of the Code only an appeal against the conviction ordered by Magistrate can be preferred to a Court of Session. On the other hand only a High Court is competent to entertain an appeal against the acquittal form a judgment of any Court Le. whether a Magistrate or a Court of Session. Even in a joint trial of more than one person, finding of conviction against one and acquittal in favour of another are necessarily separate and distinct findings and can be called in questioned on .entirely different grounds. No anomaly, in our view, would arise if they are reconsidered by different appellate authorities. 12. In view of the above we would sum of our conclusion as to the import of Article 27(1) of the Prohibition (Enforcement of Hadd) Orders in the following terms: - (i) The provisions relating to appeals stipulated in the Code of Criminal Procedure apply to cases tried under the aforesaid order subject to specified stipulations contained in the second proviso. (ii) Appeals against all orders whether of conviction or acquittal relating to offences under Article 8 can only be preferred before the Federal Shariat Court. (iii) Appeals against order of conviction leading to a sentence of more than 2 years under any other provision of the order will also lie to the Federal Shariat Court (iv) Appeals against the judgment not covered by number (ii) or (iii) above, will lie before fora provided for entertainment of such appeals by the Criminal Procedure Code. 13. For the foregoing reasons we are of the opinion that the above appeal is maintainable before this Court. However since we have not had the benefit of hearing the learned A.A.G. on merits, we would order that the matter be listed for Katcha Peshi at an early date. We must express our gratitudee to Syed Madad Ali Shah Advocate for his invaluable assistance particularly in placing the relevant case law before us. (K.A.B.) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. (Karachi) 1401 (DB) Present: rana bhagwan das and amanullah abbasi, JJ. SHAKIR ALI-Appellant versus STATE-Respondent Criminal Appeal No. 1 of 1997, dismissed on 29.12.1997. Anti-Terrorism Act, 1997- —S. 26 read with S. 164 Cr.P.C. and Articles 38 and 39 of Qanun-e- Shahadat Order 1984-Confession before Police Officer-Whether can be proved against accused or not-Question of-Ordinarily under provisions of Section 164 Cr.P.C. a judicial confession is recorded by a First Class Magistrate and under Article 38 of Qanun-e-Shahadat confession made to a police officer shall not be permissible against a person accused of any offence while Article 39 postulates that confession by accused while in police custody shall not be proved against him unless it be made in immediate presence of a Magistrate in exception has been provided in Section 26 of Anti-Terrosim Act, 1997 which postulates that notwithstanding anything contained in Qanun-e-Shahadat, Order 1984 a confession made by a person accused of an offence punishable under Section 7 or Section 8 of Act or an offence covered by sub-paragraph (a) of paragraph 2, or paragraph 3 of Schedule to Act, or robbery or decoity with murder or rape before a police officer not below rank of a Deputy Superintendent of Police may be proved against such person-This provision of a special law which is extraordinary in nature and a departure from general rale is qualified by a proviso laying down that special court, may, for admission of confession in evidence, require police to produce a video tape together with devices used for recording confession-A bald and general suggestion that appellant, was maltreated or that his confession was recorded while he was in hand-cuffs does not materially affect value of confessional statement, [Pp. 1407, 1408 £ 1409] A, B & C Mr. Sardar Muhammad Ishaq, Advocate, for Appellant. Mr, S. Shaukat H. Zubaidi, A.G. and S. Akhtarul Haq Iqbal Qadri, A.A.G. for State. Date of hearing: 22.12.97. judgment • Rana Bhagwan Das, J.-This appeal under Section 25 of the Anti- Terrorism Act, 1997 (hereinafter referred to as the Act, 1997) is directed against the judgment and conviction recorded by Special Court for Anti- Terrorism Karachi Division convicting and sentencing the appellant as under:- (i) Section 364-A PPC: Death and fine of Rs. 50.000/- and in default R.I, for two years. (ii) Section 302 PPC: Death and fine of Rs. 50,000/- and in default R.I. for two years. Ciii) Section 377 PPC: Life imprisonment and fine of Rs. 25,000/- and in default R.I. for one year. 2. Unfortunate episode leading to this appeal may be briefly stated that the victim, Azhar Aftab aged about 6-7 years was a student in Fauji Foundation School, Model Colony in Nursery class. On 22.8.1997 at about 1.2,30 p.m. he was returning .home in his school uniform with his class-mate PW Baby Bushra Hassan when the appellant called the victim on the pretext "that he was called by Moulvi Sahib in the Madressa. Appellant took the victim to the Madressa-e~Gi»lzar-ul-Quran and Jamia Masjid where the victim had a glass of water. Thereafter appellant took him to a compound behind the Mazar and after committing sodomy upon him strangulated him by means of belt of his school bag. As a result of this act there was bleeding from the ears and anus of the boy who 'went unconscious while the appellant leaving the corpse slipped away. Incident was reported at, 3.00 p.m. by Azhar Hussain, father of the victim at Police Station Model Colony who was informed on telephone by his wife that his son who left for the school in early morning was missing. He was further informed that his son alongwith his landlord's daughter Baby Bushra Hassan were returning from school when at about 12.30 p.m. a bearded person with sky blue colour Shalwar & Qameez had kidnapped his son on the pretext that he was called by Moulvi Sahib of the Madressa. Indeed this information was divulged by baby Bushra Hassan when she reached home. After lodging FIR Ex. 3/A first informant in company of PW Sikandar Hayat searched for his missing son when at about 3.30 p.m. he reached a building under construction near Jinnah Garden and heard commotion of boys. He alongwith the witness went into the building and found the deadbody of his son with string bag around his neck. Leaving the school bag, tie and cap of the boy at his house he took the corpse to Sheeraz Medical Centre where Dr. examined the boy and declared him dead. In the meanwhile SIP Muhammad Naeera Sajid arrived over there and prepared inquest report as well as memo of inspection of deadbody. He referred the deabdody to Jinnah Post Graduate Medical Centre for the post mortem examination where autopsy was performed by Dr. Karar Ahmed Abbasi. On external examination Medico Legal Officer found ligature mark around the neck above the hyoid bone 1.5 c.m. wide and multiple abrasions on both ears, cheeks, neck, buttocks and legs in different size. He noted congestion around the anus and one tear on it in 12'0 clock position. There was no bleeding but clothing of blood was seen around the anus and genital organs. While injuries on neck and anus were ante-mortem multiple abrasions were found to be post mortem. According to the witness, cause of death was cardio respiratory failure due to asphaxia resulting from strangulation. MLO further certified that the deceased had been subjected to the act of sodomy. 3. Remaining investigation was taken in hand by S. Abdul Majeed Abbas, Inspector SHO Model Colony Police Station who received copy of the FIR while he was on patrolling duty. He inspected the place of incident, verified the investigation conducted by SIP, recovered school bag, blood stained tie, school cap, nylon string on roduction by PW Sikandar Hayat, sealed such articles and prepared a memo. Ha inspected the place of incident at the pointation by PW Sikandar Hayat and prepared sketch of the place of kidnapping as well as the place of commission of sodomy and murder. He arranged the production of sketch map by tapedar concerned. On 24.8.1997 he recorded the statement of PW Huraayoon. On 26.8 1997 at 6.00 p.m. he arrested the appellant from the place known as main gate of Janaza-e-Gah adjacent to Jamia Masjid Gulshan-e-Jami. Appellant was wearing clothes with visible marks of blood. He was made to change his dress and directed to conceal his face. After his arrest appellant pointed the places from where he had kidnapped the victim and the place where he committed unnatural act upon him and caused his death by strangulation. On the next, day, appellant was produced before Dr. Ahmed AM Memon, Medico Legal Officer, Civil Hospital, Karachi for examination and finding whether he was capable of performing sexual intercourse who after examining the appellant issued a medico legal certificate with, the opinion that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Identification parade in respect <# the appellant was arranged on 30.8.1997 through the prosecution witnesses viz. Baby Bushra Hassan and Humayoan under the supervision of Judicial Magistrate Karachi (East) PW Erum Jehangir in which both the witnesses correctly picked out the appellant. Statements of both these witnesses under Section 164 Cr.P.C. were recorded by the abovenamed Judicial Magistrate on 4.9.1997 while on 5.9.1997 appellant was produced before PW Bashir Ahmed Kiyani, Dy. S.P. Shahra-e-Faisal for recording his confession. 4. At the trial appellant pleaded not guilty to the charge while prosecution examined first informant Azhar Hnssain PW 1, Baby Bushra Hassan PW 2, Sikandar Hayat, PW 3, Muhammad Iqbal Mashir PW 4, Humayoori PW 5, Haji. Talha Muhammad, Mashir PW 6, Erum Jehangir, Judicial Magistrate PW 7, Bashir Ahmed Kiyani, Dy, S.P. PW 8, SIP Muhammad Naeem Sajiri PW 9. Dr. Karar Ahmed Abbasi PW 10, Dr. Ahmed Ali Memo PW 11 and S. .Abdul Majecd. Abbas, Inspector SHO, PW 12. 5. In his statement under Section 342 Cr.P.C. appellant denied all allegations against him and in defence appeared as his own witness on oath besides examining Muhammad Faya? DW 1 and Muhammad Karim Abid DW2 to establish his plea with regard to alibi. On assessment of the evidence, learned trial court found the appellant, guilty of the charge and convicted and sentenced him as stated above. 6. At the hearing, we have had fhe privilege of hearing valuable arguments advanced by learned counsel for the appellant and the learned Advocate General who was assisted by Assistant Advocate General. Evidence against the appellant consists of firstly last seen in company of the victim, secondly evidence with regard to identification of the appellant, thirdly edico legal evidence confirming and corroborating the commission of unnatural offence on the victim followed by unnatural death as a result of strangulation and lastly voluntary confession of the appellant before DSP Bashir Ahmed Kiyani. 7. With regard to the last, seen evidence, prosecution case rests on the natural, straight-forward and direct evidence furnished by Baby Bushra Hassan who was the co-student with the victim in Fauji Foundation School. This witness is aged about seven years and in fact and in law presumed to be innocent with the least motive and desire to implicate the appellant falsely. In order to assess the intelligence of this witness of tender age, the trial court had put certain questions to her and certified that he was satisfied of her intelligent replies before recording her evidence: on oath. The fact that this witness was studying in the same school with the victim and that she had been to the school on the day of incident has tint been questioned throughout the evidence. She deposed in straight-forward manner to the effect that the ppellant was present on the day of incident who took deceased Aftab Azhar with him whereafter she returned home and on being asked by mother of the deceased told her that Aftab Azhar was taken away by the appellant. According to her she had even pointed out the place from where the deceased was kidnapped to police in presence uf witnesses. She identified the appellant in the lower court in addition to hei statement that she had identified him in the identification parade held under the supervision of a Judicial Magistrate. From The trend of cross examination there is nothing to suggest that the witness had any ulterior motive to support the prosecution case unnecessarily or to involve innocent person falsely. Sole exception taken to her evidence by the counsel for appellant is that, she had seen the appellant at the Police Station when he was arrested and that the appellant was without any beard on the day of her evidence whereas he was with beard on the day of incident. The admission that this witness had an opportunity to see the appellant at the Police Station after his arrest does not have the effect of demolishing i.he truth of her statement and rather reflects upon her honest and innocent behaviour as she did not think it fit to withhold this reply or to twist the tacts. Likewise the fact that the appellant had no beard on the day of her examination is without any consequence because if the appellant had shaved his beard after his arrest there is nothing wrong with it. Learned counsel for the appellant also referred to the admission by the witness than, she had been to the trial court a day earlier but again this circumstance does noi make any sense. This admission was not followed by any subsequent question to elaborate the situation and in all probability the witness being of tender age completely unaware of court building, the Presiding Officer arid the court room may have been taken to the building to remove her fear or doubt if at all any. To our mind merely taking the witness to the court buiid'.ng in order to familiarize her with the court affairs and the environment obtaining over there is without, any material consequence and does nut negate the prosecution case or the truth of her statement. 8. There is further corroborative and supporting evidence by PW Humayoon as well who seems to he an independent and unconcerned witness. This witness had an opportunity of having seen the appellant taking away a boy aged about 6/7 years to Jinnah Garden at the material point of time. This witness at about: 6.00 p.m. came io know that the deadbody of a child had been recovered therefore he alongwith Mohalla people went to Sheeraz Medical Centre. After seeing the deadbody he found that it was of the same boy whom he had seen in company of the appellant. This witness was put to identification parade held in respect of the appellant after his arrest in which he successfully identified him Learned counsel for the appellant attempted to assail the evidence of this witness for the reasons firstly that his statement was recorded two days after the incident and that he had not narrated incident of having seen lb.e appellant taking away the victim with him to Jinnah Garden. The point raised is devoid of any force and without any substance. In ease the witness way examined two days after the occurrence, it does not necessarily mean that he was a set-up witness. There may be a number of factors eaiw-ing such delay in present day mechanical life when citizens are faced with a large number of activities and every person is not, available for his examination by an Investigating Officer who generally remains preoccupied with multifarious duties in the discharge of his functions. Learned counsel referred to the cases reported as Wazir & others v. The State (PLD 1960 Karachi 674) and Muhammad Sadiq v. State (PLD 1960 SC 223) but both the cases are completely distinguishable on facts and hardly relevant in the circumstances of the present case. Even otherwise much water has flown under the bridge with the passage of long time as there is a drastic change in social set up and the life is not as peaceful and normal as thirty years ago. As to the circumstance that, the witness did not narrate the incident to any Police Officer, he has rightly explained that Sheeraz Medical Centre is situated in front of Model Colony Police Station and he had been over there but SHO was not available. Likewise the circumstance that the witness did not, disclose the name of the appellant to the parents of the deceased on the first day or that he did not give his name in his statement under Section 161 Cr.P.C. tends to show that the appellant was not, known to him before and the witness had no animus or motive against the appellant to grind the axe. In all probability appellant was not known to him and for this reason he was unable to divulge his name in his statement recorded by the Investigating Officer. It is pertinent to note that. the appellant was arrested four days after the occurrence i.e. on 26.8.1997 whereas the witness had seen him well as the deadbody of the victim on the first day i.e. 22.8,1997. We are impressed by the evidence of this witness which has remained unimpeachable and inspires our confidence. The evidence of the witness is in line with the testimony of PW Baby Bushra Hassan and it does not suffer from any inherent infirmity. 9. Evidence with regard to the last seen discussed hereinabove finds further support and corroboration from the evidence leading to identification arade in respect f he appellant. Obviously identification parade was arranged under the supervision of Judicial Magistrate who stated in her evidence that on the request of the HO Model Colony Police Station she arranged identification parade in her court. According to the Magistrate eight dummies were mixed up with the appellant and the itnesses were called one after the other and in the interval appellant directed to change his position. Both the witnesses correctly picked out the appellant and there is nothing to suggest that there was any irregularity or illegality in holding such parade. The circumstance that the parade was arranged after about five days of the rrest of the appellant is inconsequential as in city life like Karachi it is highly difficult to procure the attendance of the witnesses immediately after the arrest of a riminal or to persuade such witnesses to make themselves present for the purpose of investigation at the choice of the Investigating Officer. At any event no efect, lacuna or inconsistency has been shown to exist to brush aside this piece of circumstantial evidence which tends to connect the appellant directly with he commission of crime. 10, With regard to the commission of unnatural act on the victim followed by his culpable homicide by means of strangulation, there is adequate and convincing evidence furnished by Dr. Karar Ahmed Abbasi who performed post mortem examination on the deadbody. The factum with regard to the commission of offenses has indeed not been disputed before us, Medico Legal evidence on the face of it conclusively proves unnatural death of the deceased preceded by commission of sexual intercourse. There is strong circumstantial evidence in the shape of blood stains on grey pant, white shirt, white banyan, brown colour school bag, navy blue cap, navy blue white and maroon colour tie of the deceased recovered by police on the date of incident on which human blood was detected by the Chemical Examiner to the Government of Sindh vide report Ex. 15/D. These articles were recovered by the Investigating Officer on production by PW Sikandar Hayat and sealed on the spot the same day. It. is true that Chemical Examiner did not detect human blood on the clothes of the appellant but the fact of the matter is that he was arrested four days after the incident and on his own showing he had washed his clothes after the occurrence. A reference was made to the admission by the Investigating Officer that he did not secure semen stains and blood stains from the earth from where the deadbody was found but we are of the considered view that the absence of semen stains and blood stains at the place of incident does not by itself negate the prosecution case otherwise tending to show that blood stains were found on the uniform of the deceased as well as the school bag including its stringe. Should the Investigating Officer manipulate the evidence he could have easily arranged blood stained earth and sent, it to Chemical Examiner for analysis, Likewise it is not absolutely necessary that semen must be found on the place of incident which was an under construction building on a piece of land. Suffice to say evidence relating to the appellant being last seen in company of the deceased coupled with expert medical evidence is enough to conclude that it was the appellant alone who committed sexual intercourse with the deceased and none else. Again with regard to the capability of the appellant, to perform sexual intercourse he was referred to Dr. Ahmad Ali Memon, Medico Legal Officer, Civil Hospital Karachi on the next day of his arrest who after detailed examination of the appellant, opined that there was nothing to suggest that he was incapable of performing sexual intercourse. It is pertinent to point out that the evidence of this expert medical witness was not questioned during the cross examination and in law the appellant is deemed to have accepted the correctness of the opinion. 11. Lastly we find from the evidence of DSP Bashir Ahmad Kiyani who recorded the confession of the appellant on 5.9.1997. Ordinarily under the provisions of Section 164 Cr.P.C. a judicial confession is recorded by a First Class Magistrate and under Article 38 of Qanoon-e-Shahadat confession made to a police officer shall not he permissible against a person accused of any offence while Article 39 postulates that confession by accused "'h 51 ,? in police custody shall not be proved against him unless it be made in the immediate prebence of a Magistrate. An exception has been provided in Section 26 of the Act, 1997 which postulates that notwithstanding anything contained in the Qanoon-e-Shahadat, 1984 a confession made by a person accused of an offence punishable under Section 7 or Section 8 of the Act or an offence covered by sub-paragraph (a) of paragraph 2, or paragraph 3 of the Schedule to the Act, or robber or dacoity with murder or rape before a police officer not below the rank of a Deputy Superintendent of Police may be proved against such person. This provision of special law which is extra­ ordinary in nature and a departure from the general rule is qualified by a proviso laying down that special court may, for admission of the confession in evidence, require the police to produce a video tape together with the devices used for recording the confession. From the evidence of DSP Bashir Ahmed Kiyani, it transpires that the appellant was produced before him. at about 10.00 a.m. when he cautioned him that his confession will be used against him as a piece of evidence. He further assured the appellant that after recording his confession he shall not be sent to police custody and gave him two hours time for recollecting his memory. During this interval appellant was made to sit in his office where none else was present. Appellant was called again at 12.30 p.m. when the witness repeated aforesaid instructions and re-assured the appellant that he will not be sent to the police custody but remanded to judicial custody whereafter his confession was recorded verbatim which was sealed at the spot and exhibited before the trial court Ex. 14/A. The witness also prepared a video relating to the recording of the confession of the appellant which was produced before the trial court Ex. I4/B. We would have perhaps not given much importance to the confession recorded by a police officer but as a video film by latest electronic device was prepared we decided to watch it for four complete satisfaction. After the display of the video film and our minute observations with regard to the manner, style and conduct of the appellant during the course of recording his confession we are fully satisfied that the appellant made a true and voluntary disclosure of the facts leading to his direct complicity with the commission of the« crime. Notwithstanding the circumstance that a police officer may not be equated with the a judicial officer and it is for this reason that he did not incorporate various warnings and assurances administered to the appellant in the text of the confession recorded in Urdu by him, we are clearly of the view that there is nothing wrong in the manner of recording of the confession and indeed all such warnings appeared to have been administered to the appellant who was neither under any pressure, threat, coercion nor inducement for making a confession. Irrespective of the consideration that the appellant retracted the confession at the conclusion of the evidence in his statement under Section 342 Cr.P.C. as well as his statement on oath under Section 340 Cr.P.C. we hold that the confession has been proved to the satisfaction of a conscious mind and the trial court was right in relying upon it. Learned counsel for the appellant invited our attention to the circumstance that at the commencement of the statement appellant was asked to make a statement realising the presence of Almighty Allah and without any fear but this circumstance per se does not vitiate the making of a true and voluntary admission of guilt. At any event it does not amount to the statement being recorded on oath as canvassed by the counsel. Likewise repentance by the appellant at the conclusion of Ms statement that he was swayed away by Satan and that he would not repeat such sin in future does not reflect that he was greatly induced to make an admission of his guilt. Counsel also took an exception to the circumstance that the police officer recording the confession did not verify the period of detention in police custody but we are least impressed by this contention as well, as admittedly appellant was arrested on 26.8.1997; identification parade was arranged on 30.8,1997; statement of two witnesses under Section 164 Gr.P.C. recorded on 4.9.1997 and he was produced before DSP on 5.9.1997. Suffice to observe the fact that the appellant made a voluntary confession before the police officer was not questioned during the course of cross examination. A bald and general suggestion that the appellant was maltreated or that his confession was recorded while he was in hand-cuffs does not materially affect the value of confessional statement. Needless to observe that the appellant did not complain of any sort of maltreatment before the Judicial Magistrate at the time of his remand to police custody; before the Medico Legal Officer at the time of his physical examination; again before the Judicial Magistrate at the time of identification parade or again before the DSP when produced for recording confession and lastly before the Judicial Magistrate on 5.9.1997 when produced for remand to judicial custody. 12. Adverting to the plea of alibi, it may be observed that the appellant did not take this plea during the cross examination of the witnesses. He did not explain this position in his statement under Section 342 Cr.P.C. For the first time he took this stand in his statement on oath before the trial court on 11.10.1997 to the effect that on the day of incident from 8.00 a.m. to 6.00 p.m. he was employed with mason Muhammad Fayyaz at the house of DW Abid Karim. Both the witnesses were examined in his defence who attempted to show that the appellant was employed as a labour with mason Muhammad Fayyaz and physically at work from 8.00 a.m. to 7.00 p.m. at the under construction bungalow of Muhammad Karim Abid. On a minute analysis of the defence evidence and highly belated version of the appellant tending to make out a case of alibi we are least impressed. The plea appears to have been set up just to screen the appellant frota the clutches of law and it does not have the impact of demolishing overwhelming, strong and unimpeachable prosecution evidence. 14. Lastly judging the case of the appellant, from every angle we are satisfied with the quality of evidence which is most probable plausible and confidence inspiring on the face of it. In the absence of any specific and convincing material to the contrary we are inclined to uphold the conviction and sentence awarded to the appellant which does not suffer from any legal infirmity. We would, therefore, dismiss the appeal, and uphold and confirm the sentence. (K.A.B.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Karachi) 1410 (DB) [Hyderabad Bench] Present: RASHEED ahmad RAZVi and muhammad roshan essani, JJ. ARIF KHAN-Appellant versus STATE-Respondent Cr. Appeal No. 12 of 1996, allowed on 2.1.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 103 read with S. 13-D Arms Ordinance 1965--Search--How to make-­ Mandatory provisions-Non-compliance of—Effect of-Prosecution witnesses are Police officials, who have admitted in their evidence that place of arrest of appellant was a thickly populated area and there were some shops at the spot, prosecution evidence does not show that any efforts were made by Police to arrange for private mashirs, alleged recovery, therefore, becomes doubtful--As such High Court is not inclined to uphold conviction on weak piece of evidence not corroborated with any other reliable evidence. [P. 1414] C PLJ 1996 SC 396 nf. (ii) Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- —-S. 8 read with S. 13-D of Arms Ordinance 1965-Innocence--Burdon of proof-When could be shifted to accused-Question of-Though S. 8 lays down that burden of proof of his innocence is on accused but it is shifted to accused only when prosecution has first established pre-requisite condition as provided in first part of said section-Prosecution has not proved alleged recovery and same is doubtful, as such burden of proof has not shifted to accused and he is not required to prove his innocence. [P. 1414] D OH) West Pakistan Arms Ordinance, 1985- —-Offence u/S, 13-D-Rcovery of weapon--Evidence--Appreeiaticm of- Discrepancies-Neither weapon was sent te ballistic expert nor was reached at the spot-Effect of--Prosecution has not proved its case against appellant beyond any reasonable doubt for several reasons-Firstiy, prosecution has not produced copy of daily diary to prove that police party headed by complainant or P.W. had actually left Police Station for patrolling on the date of incident-Secondly, evidence of description of alleged weapon is also contradictory which makes not only alleged recovery as not proved but entire case as doubtful-It would be seen that F.I.R. discloses weapon as being mouzer whereas evidence of both prosecution witnesses show that T.T. Pistol was recovered from accused-­ List of property also shows that weapon as T.T. Pistol-Charge discloses alleged weapon as big mouzer~-In the statement of accused u/S. 342 Cr.P.C, question put to appellant/accused was with regard to mouzer and not about T.T. Pistol-Prosecution has not clarified this discrepancy about the description of actual weapon nor it has been proved as to what weapon was actually recovered from appellant-Weapon produced in Court, therefore, appears to be different than weapon shown in F.I.R. and mashirnama of recovery-Weapon has not been sent to ballistic expert to prove that it was automatic or semi-automatic in order to bring prosecution case within schedule offence-F.I.R. and mashirnama of arrest and recovery do not show that alleged weapon was sealed at spot-­ As such contradictory evidence makes alleged recovery doubtful. [Pp. 1413 & 1414] A & B , Muhammad Aslam Bhatti, Advocate for Appellant. Bahadur AH Baloch, Advocate for State. Date of hearing: 28.11.97. judgment Muhammad Roshan Essani, J.-This is an appeal filed by the appellant Arif Khan S/o Hidayat Khan Akozai, whereby he has challenged the impugned judgment dated 04.01.1996 of the Special Court No. 1, S.T.A. Hyderabad and his conviction under Section 13-D, Arms Ordinance through which he was sentenced for four years R.I. and fine of Rs. 4,000/- or in default further imprisonment for six months. 2. The prosecution case as alleged in the F.I.R. is that complainant A.S.I. Rao Amir Iqbal of Section 'A', Latifabad, Hyderabad on 29.6.1995 at 10.15 p.m. accompanied by A.S.I. Rao Nazim, P.C. Atique Rehinan and P.C. Mazhar Hussain proceeded from the police station in a private vehicle vide daily diary entry No. 54 for patrolling; that during patrolling, when the police party reached main road of Unit No. 11 near Fodder Cutting Machine at 11.00 P.M. they saw a person in suspicious manner who seeing the police party started running towards the street of Unit No. 11; that he was encircled and apprehended on the spot; that on enquiry he disclosed his name as Arif Khan S/o Hidayat Khan by caste Akozai, resident of House No. 229/6" Unit No. 9, Latifabad; that on his personal search, a big Mouser alongwilh a magazine containing there live bullets were recovered from left side fold of his shalwar; that he had no licence for the recovered weapon and the bullets. As further alleged in the F.I.R. the complainant then brought the appellant at the said police station where he lodged the F.I.R. on behalf of the State on the same day at 11.30 P.M. as Crime No. 70 of 1995, 3. During trial, the prosecution examined A.S.I. Rao Nazim (Ex, 4) who produced mashirnama of arrest of appellant and recovery as Ex. 4-A and the complainant Rao Amir Iqbal (Ex. 5) who produced the F.I.R. (Ex. 5-A). The appellant in his statement, under Section 342 Cr.P.C. (Ex, 7) claimed innocence and denied the Prosecution case, his arrest on 29.6.1995 and the alleged recoveries. His defence was that he is a motor cycle mechanic; that he and his three brothers were arrested by the police oa 7.06.1995 from his house; that police released his brothers in the evening but detained him at the Police Station until 29.6.1995, when the instant F.I.R. was lodged against him. He further stated that the news of his arrest as well as of his brothers on 7.6.1995 was published in Daily "Qaumi Akhbar" in its issue dated 8.6.1995 and also in other newspapers. Appellant had produced cutting of the said news items as Ex. 8. He examined himself on oath under Section 340(2) Cr.P.C. as Ex. 9, and also one witness Jaleel Ahmed in defence as Ex. 11. 4. The learned trial Court, however, by the impugned judgment dated 4.1.1996 convicted the appellant and sentenced him as stated above. Following charge was framed by the trial Court:- "I, Abdul Majeed Bhatti, Judge, Special Court No. !, Suppression of terrorist Activities, Hyderabad, do hereby charge you^ Arif Khan S/o Hidayat Khan Akozai Pathan as foDows: That on or about 28.6.1995 at about 11.00 P.M. at Main Road, near Kutur Machine Unit No. 11, Latifabad, Hyderabad, you were going armed with one big Mouzer and one magazine containing three live bullets without licence in contravention of Section 8 of the Arms Ordinance and thereby committed an offence punishable u/S. 18-D of the Arms Ordinance and within the cognizance of this Court. And I hereby direct that you be tried by this Court on the above said charge." 5. We have heard Mr. Muhammad Aslam Bhatti, learned counsel for the appellant and Mr. Bahadur Ali Baloch, Advocate for the State who has not supported the impugned judgment and the conviction of the appellant. With the assistance of both the learned counsel we have gone through the evidence and material brought on record before the trial Court 6. The learned counsel for the appellant has submitted that the appellant is innocent and he has been falsely involved in the case and that the appellant was arrested on 7.6.1995 and after illegal detention for about 22 days, he was challenged in the present case. In support of his contention the learned counsel has referred to Ex. 8 which is a news item showing the arrest of some persons. The learned counsel further submitted that the place of arrest of the appellant is a thickly populated area but no independent mash.ir was made. It was thus argued that the alleged recovery is in contravention of Section 103 Cr.P.C. The learned counsel further stressed that the weapon was not sealed at the spot and that there are material contradictions in the prosecution evidence regarding the actual description of the weapon, which has made the alleged recovery as doubtful. The learned counsel in support of his contentions has relied upon case of Nazar Muhammad vs. The State (1996 P.Cr.LJ. 1410). Learned counsel appearing for the State has supported the submissions made by the advocate for the appellant. 7. Perusal of record indicates that P.W. Rao Nazim has stated iu evidence that on 29th June, 1995 he alongwith A.SJ. Rao Amir Iqbal and other police officials left the police station at 10.00 p.m. in a private vehicle for patrolling duty when they found a person in suspicious condition. He was apprehended and from Ms personal search, one T.T. Mauzer and three live bullets were recovered from left side of fold of his shalwar. It was further stated that the person apprehended he could not produce licence of such weapon and bullets. In cross examination, he admitted that the accused was apprehended from a populated locality and there were some shops. He, however, denied that suggestion, that the appellant was arrested on 7.6.1995. The evidence of the complainant Rao Amir is also to the same ffect. The appellant in his statement on oath stated that he was picked up from his ouse on 7th Muharram last year with Ms two brothers, who were released on the same day but the appellant, was seat to Jail after 23 days and that police implicated him in a false case by foisting a pistol. D.W. Jaleel Ahmed (Ex. 11) stated that he heard some commotion and woke up; his wife sent Mm out to enquire about the cause of commotion; that he went outside and found policy party standing in a street; that police arrested accused Arif and his two brothers. In the evening he came to know that the police had detained Arif and released Ms other two brothers, 8. We have considered the evidence on record and we are of the view that the prosecution has not proved its case against the appellant beyond any reasonable doubt for several reasons. Firstly the prosecution has not roduced the copy of daily diary bearing entry No. 54 dated 29.6.1995 to prove that the police party headed by the complainant or P.W. Nazim Rao had actually left the police station for patrolling on the date of alleged incident. Secondly, the evidence of subscription of the alleged weapon is also contradictory which makes not only the alleged recovery as not proved but the entire ease as doubtful. It would be sees that the F.I.R. (Ex. 5-A) discloses the weapon as being mouzer whereas the evidence of both the prosecution witnesses show that T.T. pistol was recovered from the accused. The list of property also shows the weapon as T.T. Pistol. The charge (Ex. 2) discloses the alleged weapon as big mouzer. In the statement of the accused under Section 342 Cr.P.C. the question put to him was with regard to Mauzer and not about T.T. pistol. The prosecution has not clarified this discrepancy about the description of the actual weapon nor it has been proved as to what weapon was actually recovered from the appellant. The weapon produced in the Court, therefore, appears to be different than the weapon shown in the F.I.R. and mashirnama of recovery. The weapon has not been sent to ballistic expert to prove that it was automatic or semi­ automatic in order to bring the prosecution case within the scheduled offence. 9. The other weakness apparent in the prosecution case is that the F.I.R. and mashirnama of arrest and recovery do not show that the alleged weapon was sealed at the spot. As such, the contradictory evidence makes the alleged recovery doubtful. In the case of Nazar Muhammad vs. State (1996 P.Cr.L.J. 1410) this Court considered the consequence of non-sealing of the recovered weapon at the spot and not sending it to the ballistic expert for examination and held inter alia, that "the prosecution had miserably failed to prove their case against the appellants and the scanty evidence of two police officers was not, sufficient to bring home the guilt of the accused. We consider the evidence of recovery and arrest to be highly doubtful particularly when there is material contradiction as pointed out earlier. The conviction in these circumstances cannot be sustained." 10. Beside the fact that both the prosecution witnesses are police officials, who have admitted in their evidence that the place of arrest of the appellant was a thickly populated area and there were some shops at the spot, the prosecution evidence does not shows that any efforts were made by the police to arrange for the private mashir, the alleged recovery, therefore, becomes doubtful. As such, we are not inclined to un hold conviction on such weak piece of evidence not corroborated with any other reliable evidence. We are fortified in our view by the case Muhammad Azam vs. The State (PLD 1996 SC 67) = (PLD 1996 SC 396) 11. The defence plea that appellant was arrested on 7.6.1995 in any my view, does not stand proved. The evidence of cutting of newspaper (Ex. 8) without examination of its author/reporter is inadmissible and is not acceptable in view of the law reported in Muhammad Ashraf Khan Tareen and another versus The State and another (1996 SCMR 1747). Similarly, the evidence of defence witness Jaleel Ahmed is also of no help to the appellant, as the witness has not deposed that as to on what date or month and time, the appellant was arrested by the police from his house. Though Section 8 of Suppression of Terrorist Activities, Act, 1975 lays down that burden of proof of his innocence is on the accused but it. is shifted to the accused only when the prosecution has first established the pre-requisite condition as provided in the first part of the said section. We have held above that the prosecution has not proved the alleged recovery and the same is doubtful; as such, the burden of proof has not shifted to the accused and he is not required to prove his innocence. In this respect, we are fortified by the case Abdul Rasheed versus The State (PLD 1995 Karachi 16) and Abdul Zahir Khan versus The State (1994 P.Cr.L.J. 2500). 12. Considering the entire evidence on the record and the case law discussed above, we are of the considered view that the case against the appellant is not free from doubt. As such, we extended the benefit of doubt to the appellant and acquit him of the charge of Section 13-D of the Arms Ordinance, 1965. The appeal is allowed and the conviction of the appellant is set aside. 13. By the short order dated 27.11.1997, we had allowed the above appeal and ordered release of the appellant from the custody, if he was not required in other case. The above are the reasons of our short order. Rasheed A. Razvi, J.--1 have had the privilege of going through the reasons, as proposed by my learned brother Muhammad Roshan Essani, J., to which I fully subscribe except to the extent of his finding that the Exhibit 8 was not proved by the defence. In my considered view, rule laid down by the Pull Bench of Hon'ble Supreme Court in the case of Muhammad Ashraf Khan Tareen and another (Supra) is not attracted in the circumstances of the present case as in the reported case the newspaper cutting was not brought on record, as required by the rule of evidence, while in the instant case it was produced by the appellant during his examination and was brought on record as Exhibit 8. The prosecution was not able to deny this newspaper cutting. Even suggestions were not made by the counsel appearing for the prosecution before the trial Court that such newspaper cutting is either fabricated or concocted. In this view of the matter, Exhibit 8, which could not be termed to be a disputed document, stands proved. Under such circumstances, burden was shifted upon the prosecution to prove that the appellant was not arrested on the day when such news item appeared. No suggestion was put forward by the prosecution even to insinuate that such news item was published at the behest of the appellant. Nevertheless, I may further add that it is humanly impossible for a person to corne to know seven days earlier to his arrest that he would be arrested by a particular police station and for a specific offence. All these facts were not present in the case of Muhammad Ashraf Khan Tareen (ibid) and, therefore, in my view once this document (Exhibit 8) was not controverted, there was no need of examining any Reporter or Editor of the said newspaper. With this view, I fully concur with the other findings of my learned brother Muhammad Roshan Essani, J. (K.A.B.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1416 Present: raja muhammad khurshid, J. MUHAMMAD YOUSAF-Appellant versus THE STATE-Respondent Crl. Appeal No. 35 of 1990, decided on 3.3,1998. Pakistan Penal Code, 1860 (Act XI,V of 1860)-- —-S, 302--Conviction/Sentence-Challenge to-Self defence-Plea of- -Defence version in which appellant has contended that he was attacked while he was present at the field of Ms father by complainant side-Deceased was armed with a sword which he wielded to cause injuries and while apprehending danger he raised hue and cry which attracted his mother to spot who brought licenced gun from house and gave it to him and in order to save life he fired a shot at deceased, which unfortunately proved fatal-Defence version given by appellant appears to be non-convincing as it could not be physically possible for appellant to fire at deceased from his gun after he had received 7 or 8 injuries out of which injury No. 1 was profusely bleeding and Ms thumb was attached with Ms hand only through a thin tag of skin-After receiving such grievous injuries including vital parts of body it would have not been possible in ordinary course of nature for appellant to shoot at deceased as alleged by him- Parties have played a game of hide and seek to bring oh record true facts leading to fight between them—Evidence on record shows that both parties were not telling whole truth-It is thus obvious that in such a melee it is not to be seen as to which out, of two sides was being responsible for first assault during fight-It was an occurrence without premeditation on spur of moment followed by a quarrel in which none of offenders had taken undue advantage or acted in a cruel or unusual manner-Both parties were injured and were armed with deadly weapons-Hence case would fall within ambit of Exception 4 of S. 300 PPC as it stood before introduction of Qisas and Diyat Law-Case of appellant would fall within part 1 of S. 304 PPC as appellant intended to cause death of deceased as he had fired from his 12 bore guii on his chest- Conviction U/s 302 PPC is set aside and -altered into conviction under part-1 of S. 304 PPC~-Appeal partly accepted. [Pp. 1419 & 1420] A, B, C, D, E & F Sardar Faiz Muhammad Kkosa, Advocate for Appellant. Malik Abdul Salam, Advocate for A.G. Date of hearing: 3.3.1998. judgment The appellant was convicted under Section 302 PPC for committing the murder of Ghnlam Akbar deceased and was sentenced to imprisonment for life and a fine of Rs, 10,000/- or in default to undergo III for two years. He was also directed to pay Rs. 10,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. vide judgment dated 18.2.1990 passed by Mr. Akhtar Mahmood Khan, the then learned Sessions Judge, D.G. Khan. 2. The facts leading to the aforesaid conviction are that on 6.11.1987 at about 4.00 PM Sobha complainant lodged a report Ex. PJ with the police that he alongwith the deceased Glralam Akbar were present, in their house situate at Chah Jalwala (Mama Chhurata) P.S. Sadat, D.G. Khan. The appellant passed near their house and peeped therein from the outer wall. He was seen by Ghulam Akbar who got offended and asked the appellant to be ashamed. It led to an altercation as the appellant told the deceased that he had done the peeping in the house and that the latter may do anything he wanted to do. On hearing these remarks from the appellant the deceased went out of the house empty handed followed by the complainant who apprehending danger picked up a sword. On coming out of the house the complainant saw the appellant Muhammad Yousaf and his brother Muhammad Umar (acquitted accused). The appellant was armed with a 12 bore gun whereas his brother was carrying a sword. Both of them abused the complainant and the deceased. They were however, reprimanded by the deceased that first they had infringed the privacy of thsir house and now they were abusing them. The appellant thereupon fired at the deceased hitting him in the chest, who fell on the ground. On hearing the noise Ibrahim and Muhammad (given-up PW) reached the spot. Ibrahim and Muhammad inflicted sofa blows to the appellant to prevent his assault. The gun allegedly fell on the ground. Meanwhile Umar acquitted accused inflicted sword blows to Sobha complainant and Mst. Jindo Mai PW, During the commotion Mst Shahro mother of the appellant, also reached the spot and sustained injuries while trying to intervene to save her son. The deceased succumbed to his injuries on reaching the hospital. All the injured persons from both sides were taken to the hospital where the police reached and registered the case upon the statement of the complainant. S. The prosecution examined oral evidence of the injured PWs to bring home the guilt against both the assailants. The medical evidence and the witnesses of the recovery of weapons of offence were also examined at the trial. 4. The learned trial court recorded conviction against, the appellant as aforesaid whereas acquitted t.h« co-accused Muhammad Umar after giving him the benefit of doubt. 5. The learned counsel for the appellant has submitted that in tact the complainant side was aggressor as would be clear from the defence version disclosed by the appellant in Ms statement under Section 342 Cr.P.C. and his statement upon oath under Section 340 Cr.P.C. In fact the appellant was allegedly assaulted with a sword by the deceased and his accomplices including the complainant and his two relatives namely Ibrahim and Muhammad which led to a melee in which her mother Mst. Shahro also joined after fetching his licenced gun from the house, which she handed over to him in order to save his own life and the life of his mother. He allegedly fired at the deceased after he was assaulted and had received 8 injuries on his person while his mother Mst. Shahro received 4 injuries during the occurrence. 6. The learned counsel for the appellant referred to Sections 96, 97, 100 and 102 PPC to show that it was a case of private defence of person during which Ghulam Akbar unfortunately died and persons from both sides were injured; that the story of the prosecution does not ring true as disclosed in the FIR because the occurrence took place in the land owned by the father of the appellant, which was towards the south of the house of the deceased at the distance of 50 karams. It means that complainant' side was aggressor as they had gone to assault the appellant which resulted into melee in which persons from both sides had received number of injuries; that anything done in self defence was not an offence provided this right was exercised within the reasonable limits without acting in a cruel or un-usual manner; that the right of private defence was invoked by the appellant at the earliest stage during the investigation of this case and hence it would be considered to be a trumfttl story qua the story given by the complainant side; that one of the coaccused has been given the benefit of doubt and acquitted on the basis of same evidence upon which the appellant has been convicted although the acquitted accused had been attributed a specific role of causing injuries to the PWs while armed with a sword. Hence the conviction against the appellant was also not sustainable as the whole case of the prosecution would become doubtful. 7. Lastly it was contended by the learned counsel for the appellant that the Investigating Officer had also supported the plea of self defence on the basis of the statements of some witnesses examined during the investigation who had stated that the complainant side was aggressor and that the appellant had acted in self defence. 8. The learned counsel for the State however, supported the judgment on the ground that the truthfulness of the witnesses cannot be doubted as they were injured during the occurrence and their evidence was corroborated by the medical evidence and the recovery of weapons of offence. The presence of the appellant cannot be doubted as he also sustained injuries at the hands of the complainant side after he had fired at the deceased with his gun; that the story about the self defence would not be credible because after receiving the injuries as alleged in the defence version, it would not have been possible for the appellant to use the gun against the deceased. In this regard it was contended that the injuries on the person of the appellant were of such a nature that it would not have been possible for him to wield the gun in response to the injuries he had received on his person. Injury No. 1 was so serious that the thumb of his hand was only attached with a tag of skin and was profusely bleeding. The injuries on his head were of such a nature that it would render him incapable to exercise the right of self defence by shooting at the deceased with his gun. As such the story of self defence was without any substance and that the prosecution had proved its case beyond any reasonable doubt, against the appellant as held by the learned trial court. 9. I have considered the foregoing submissions made at the Bar. There are two versions about the same occurrence. The first version is given by the complainant side. According to it the deceased was done to death by the appellant/convict who while armed with a 12 bore gun had given fatal injury to the deceased, after the incident of peeping in latter s house leading to some sort of altercation between the two sides. The other story is given by the defence in which the appellant has contended that he was attacked while he was present at the field of his father by the complainant side. The deceased Ghulam Akbar was armed with a sword which he wielded to cause him injuries and while apprehending danger he raised hue and cry which attracted his mother Mist Shahro to the spot who brought his licenced gun from his house and gave it to him and in order to save his life he fired a shot at the deceased, which unfortunately proved fatal. In the light of the above facts, it is to be seen as to which one of the two stories is more truthful and credible. It is in evidence that both the parties were not on speaking terms with each other since the time of their forefathers. They had stopped coming to each other's house even to share the occasions of joy and sorrow. There appears to be some tussle between the parties as according to the complainant on the fateful day the appellant, had peeped over the outer wall into the house of the deceased, which led to the occurrence as aforesaid. On the contrary, the appellant contended in his statement under Sections 342 and 340 Cr.P.C. that the complainant Sobha had peeped in his house on 1.11.1987, of which he complained to complaint's father but without any effect. On the following day, appellant stopped the complainant, who in return abused him and threatened with dire consequences which resulted in the unfortunate tragic occurrence. The deeper analysis of the evidence brought on record shows that both the parties were not telling the whole truth. It is true that they were not on good terms but they were living in the same village despite of bad blood. They were however, suspecting each other for peeping into their houses of which they allegedly felt aggrieved. The outer wall of the house of the deceased was of shoulder height and any body passing by the side of the house could look into the house without making any special effort, whereas the boundary wall of the house of the appellant was higher than the mans height and as such his house could not be easily peeped in. It therefore, appears that something had abruptly and suddenly happened which led to a fight between the two sides resulting into the melee. This impression is supported by the evidence brought on record because according to the statement, of complainant (PW 7) the women folk of both sides were parda observing and would not appear in public. According to the complainant if a man passes through the land where the occurrence took place, his head will be visible from his hevali because the walls were less than shoulder height. He also added that none of the women folk from Ms family had ever complained against the conduct of any of the accused which shows that the infringement of privacy was a superficial story probably based on suspicion but without any firm foundation, Likewise the defence version given by the appellant also appears to be non convincing. It could not be physically possible for the appellant to fire at the deceased from his gun after he had received 7 or 8 injuries out of which injury No. 1 was profusely bleeding and his thumb was attached with Ms hand only through a thin tag of skin. After receiving such grievous injuries including vital parts of the body it would have not been possible in tfae ordinary course of natare for the appellant to shoot at the deceased as alleged by Mm. It therefore, opens up a possibility of third version stemming out of the facts of the case that there was something else which led to an open fight between the parties instead of infringement of privacy. The parties have played a game of hide and seek to bring on record the true facts leading to the fight between them. Keeping in view the chequered history between the two {amities something happened immediately on the spur of the moment which ignited both the parties and involved them in a free fight, resulting into a melee ie which lethal weapons like swords, a gun and the lathis were used from both the sides resulting into two fire arm injuries on the person, of Sobha PW and two incised wounds on the person of Mst. Jindwadi PW, From the other side the appellant suffered 7 injuries including injuries on the vital parts of his body such as chest and head, etc. His mother received 4 injuries out of which one injury was caused with sharp edged weapon and other 3 injuries were caused with blunt weapon. In tils melee not only the injured persons were involved, but Ibrahim a brother-in-law of Sobha PW and Muhammad another close relative of Sobha had also joined as they wielded lathi blows during the unfortunate occurrence. It is thus obvious that in such a melee it is not to be seea as to which out of the two sides was being responsible for the first assault (luring the fight It is enough to say that it was an occurrence without, premeditation leading to a sudden fight in the heat of passions upon a sudden quarrel without the offenders having taken undue advantage or 1998 . takki moosa khan v. state Cr.C. 1421 (Javed Iqbal, J.) acted in a cruel or unusual manner. In the instant case after having discarded the version of the complainant and cross version of the defence, one is led to the conclusion that it was an occurrence without premediation on the spur of the moment followed by a quarrel in which none of the offenders had taken undue advantage or acted in a cruel or unusual manner. Both the parties were injured and were armed with deadly weapons. Hence the case would fall within the ambit of Exception 4 of Section 300 PPC as it stood before the introduction of Qisas and Diyat law. Resultantly the case of the appellant would fall within Part I of Section 304 PPC as the appellant intended to cause death of the deceased as he had fired from his 12 bore gun on his chest. In the situation, the appeal of the appellant is partly accepted and Ms conviction under Section 302 PPC is set aside and altered into conviction under Part I of Section 304 PPC as it stood before the promulgation of Qisas and Diyat law. The sentence of imprisonment for life awarded under Section 302 PPC is therefore, altered to 10 years R.I. under Section 304 PPC, but the sentence of fine and compensation as awarded by the learned trial court are up-held with the consequential sentences of imprisonment in case of default of payment of fine and compensation. The appellant is on bail and shall surrender to his bail bond. He shall be taken into custody to undergo his remaining un-expired sentence. Since the appellant is not present, therefore, non-bailable warrants of arrest shall be issued.and sent to the District Magistrate, D.G. Khan for execution under intimation to this court. The benefit of Section 382-B Cr.P.C. shall be given to the appellant. (AAJS) Appeal partly accepted.

Present: JAVED IQBAL, J, TAKEI MOOSA KHAN-Petffioner Present: JAVED IQBAL, J, TAKEI MOOSA KHAN-Petffioner versus STATE and anotker-Respondents Crl. Revision No, 79/97, accepted on 12.1.1998. (i) Pakistan Penal C0de» 1860 (Act XLV of 1860)-- —S. 420 & 42?~Offence of-Conviction/Sentence-Chalieage to—Dispute pertains to lands and therefore, it should have been decided by Civil Court having competent Jurisdiction but on contrary criminal proceedings were initiated and petitioner was convicted without any lawful justification as no incriminating material whatsoever was available to infer that any offence has been committed U/s 420 & 427 PPC- Contention of-Learned Sessions Judge did not bother to mention as to how provisions as contained in Ss. 420 and 427 can be made applicable to a case of civil nature-Sale of land was made under bonafide impression and essential ingredient of an offence which is commonly known as mens rea is lacking as such question of conviction does not arise—Petition accepted and impugned judgment set aside. [Pp. 1424, 1426] A, B, D & E (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 44i--Criminal tresspass -Every unlawful entry does not amount to criminal trespass-Essence of S. 441, PPG which defines criminal trespass is intent with which entry is made and in every case intent must be either to commit an offence or to intimidate, insult or annoy person in possession of such property-Section does not penalise unlawful entry with any other intent, such as mere intent to take possession-Court must come to a clear finding that entry was with one or more of intents mentioned in S. 441, PPC-Failure to come to such finding amounts to a failure to decide a vital point in case. [Pp. 1425 & 1426] C Mr. Sallahuddin Mengal, Advocate for Petitioner. Raja M. Afsar, Advocate for Respondent No. 2. Abdul Karim Khan Yousafzai, Advocate for State, Date of hearing: 12.1.1998. judgment This is a Criminal Revision preferred on behalf of Takri Moosa Khan under Section 435/439 Cr.P.C. against the impugned judgment passed by learned Sessions Judge Kalat at Mastung whereby the order dated 7.9.97 passed by Assistant Commissioner/MFC Soorab has been up-held whereby petitioner was convicted and sentenced to undergo R.I. for two years and fine of Rs. 10,000/- under Sections 427 and 420 PPC. 2. Briefly stated the facts of the case are that Muhammad Ibrahim (complainant) filed a complaint in the court of Assistant Commissioner Soorab alleging therein that the petitioner sold his lands located in Mouza Rodini. An enquiry was conducted by Naib Tehsildar Soorab and subsequently after completion of trial the petitioner was convicted and sentenced to underto R.I for two years and fine of Rs. 10.000/- by Assistant Commissioner/MFC Soorab. An appeal preferred before learned Sessions Judge Kalat at Mastung was rejected, hence this revision. 3. It is mainly contended by Mr. Sallahuddin Mengal Advocate that both the co rts below not appreciated the legal and factual position in its true perspective which resulted in serious mis-carriage of justice. It is next contended that initially the dispute pertains to lands and therefore, it should have been decided by Civil Court having competent jurisdiction but on the contrary criminal proceedings were initiated and petitioner was convicted without any lawful justification as no incriminating material whatsoever was available to infer that any offence has been committed under Sections 420 and 427 .PPG. It is next contended that initially the complainant being an influential person moved an application to worthy Chief Minister and without completion of legal formalities District Magistrate handed over the land in dispute to the complainant who subsequently filed complaint in the court of Assistant Commissioner Soorab and succeeded in getting the conviction of petitioner so that he could harass the petitioner and refrain him from taking any legal action against him. It is urged with vehemence that the judgment of learned Sessions Judge is neither speaking nor contains any reason and without discussing the evidence which has come on record the appeal filed by the petitioner has been dismissed which resulted in serious mis-carriage of justice. It is also pointed out that learned Sessions Judge even failed to formulate the points for determination and the record of the case was never perused thoi-oughly. It is further contended that the provisions as contained in Sections 420 and 427 PPC are not applicable in this case and as such the question of conviction does not arise. It is pointed out that petitioner is lawful owner of the land in question which can only be got vacated in accordance with law and the question of ownership can only be determined by a competent court of law having civil jurisdiction to decide such controversies and the land in question cannot be handed over to the complainant by adopting unlawful tactics. 4. Raja M. Afsar Advocate appeared on behalf of Respondent No. 2 and argued that no illegality of infirmity whatsoever has been committed by the learned trial court and each and every aspect of the matter was taken areof properly as such there is no justification for any interference. He conceded frankly that the judgment passed by learned Sessions Judge is not exhaustive one but supported the same on the ground that the matter was initially decided by the court of A.C/MFC and as such it was not obligatory for the learned Sessions Judge to reproduce and discuss the entire evidence in impugned judgment. It is also contended by Raja M. Afsar Advocate that land in question was mutated in the name of complainant and as such it could not have been sold by the petitioner and thus he has committed offence under Sections 420 arid 427 PPC and besides that petitioner failed to establish any illegality. Mr. Abdul Karim Khan Yousafzai appeared on behalf of State and followed the arguments of Raja M, Afsar Advocate with further submission that conviction could have been awarded under Section 447 PPC and therefore, the case may be remanded for re-writing of judgment. He, however, admitted that the learned Sessions Judge has not appreciated the evidence which has come on record and the impugned judgment is not in accordance with provisions as contained in Section 367 Cr.P.C. 5. I have carefully examined the respective contentions as adduced on behalf of parties in the light of record of the case and relevant provisions of law. I have also perused with care and caution judgment of A.C/MFC Soorab dated 10.9.97 and judgment of learned Sessions Judge Kalat at Mastung dated 6.10.97. The evidence as led by the parties has been thrashed out. The statement, of Mohammad Ibrahim (complainant) revolves around the fact that the land in question was mutated in his name and he also obtained loan from Apiculture Bank. The statement of Abdul Samad (P.W. 1) has stated that one piece of land was purchased from petitioner and a house was build wherein he is residing but expressed bis ignorance as to whether Muhammad Ibrahim was the owner of the land in question. Muhammad Alam (P.W. 2) has deposed that he purchased a piece of land from petitioner and showed his willingness to vacate the land subject to re­payment of the amount paid for it. Syed Jamal Shah (Naib Tehsildar) has conducted investigation and got recorded the statements of complainant, petitioner and witnesses. The revenue record was also called which showed that the land in question was mutated in name of Muhammad Ibrahim. The statement of petitioner was also got recorded which is indicative of the fact that he was owner of the land in question and complainant namely Muhammad Ibrahim was having no concern whatsoever with it. He also deposed that land in dispute remained in his possession for the last so many years which was given to him by Sardar Moosa Khan son of Sardar Muhammad Akram. A careful scrutiny of the evidence would show that a dispute easts in between the parties regarding the land in dispute and mutation itself cannot be considered as a sole proof of ownership. In this regard, I am fortified by the dictum laid down in 1993 MLD 763. A careful scrutiny of the record would show that Assistant Commissioner/MFC failed to frame a proper charge and manner of deception was never stated and on this score alone the entire proceedings are null and void. In this regard PLD 1957 SC 25? can be referred. I have not been persuaded to agree with Mr. Abdul Karim Khan Yousafzai that conviction could have been awarded under Section 447 Cr.P.C. It is well settled by bow that "To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or, at any rate, constituted not more than a subsidiary intent. (1951) A.C 83). The existence of bona fide claim of right is not irrefutable evidence of the absence of a criminal intent (1881) 1 Weir 520. See (188) 7 Cal. 26 (1906) 11 C.W.N. 467, 5 Cr.L.J. 278). But where the accused acts on a belief of his own right, he cannot be held guilty of criminal trespass. (1907) 7 C.L.J. 238, 7 Cr.L.J. 312; 15 Cr.L.J. 725, (1915) AIR (C) 236; (1916) 43 Cal. 1143; 19 Cr.L.J. 704, (1918) AIR (A) 365; (1936) 38 Cr.L.J. 759 (1937) AIR (R) 132). It should be found distinctly whether the entry of the accused upon the land was in the exercise of a bonafide claim of right, or with one of the intents requisite to constitute a trespass riminal within the meaning of this section. If the accused entertained the belief in good faith that he was entitled to the possession of the land, his entry and continuance on it would constitute a trespass on the land for which he would, if he failed to prove his title, be answerable in a civil suit, but would not be liable to a criminal charge. If, on the other hand, the circumstances are such that he could not have entertained such a belief in good faith, it, would he a fair inference that he intended the annoyance which his action must have caused to the complainant, and the conviction would be proper" (19231 24 Cr.L.J. 929, (1923) AIR (R) 157; (1938) 40 P.L.R. 757, 40 Cr.L.J. 180, (1938) AIR (L) 848). "In the case of Sumasamy Sdvanayagatn v. The, King (52 Cr.L.J. 73) which case has been referred to by this High Court in a number of reported cases under Sections 441 and 448, P.P.C. the Privy Council held that:- "To establish criminal trespass the prosecution must prove that the real or dominant intent of the entiy was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent." In this every case their Lordships of the Privy Council also stated that:- "Entry upon land, made under a bnnafide claim of it, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry in annoyance to the occupant." On the touchstone of the criteria as laid down in the above mentioned cases it can be said with certainty that no trespass has been committed and as such the question of conviction under Section 447 PPC as suggested by state counsel cannot be awarded. It appears that controversy was that of a civil nature which has been converted into criminal proceedings without examining the crux of the matter by learned trial court which resulted in grave mis-carriage of justice on the one hand and petitioner suffered igony of protracted trial on the other and in such view of the matter re-writing of judgment or remand of the case would not serve any useful purpose. It was held in case titled Arjad AH and another v. The. Crown 3 D.L.R. ISasfollows:- "Eveiy unlawful entry does not amount to criminal trespass. The essence of Section 441, Pakistan Penal Code which defines criminal trespass is the intent with which the entry is made and in every case the intent must be either to commit an offence or to intimidate, insult or annoy person in possession of such property. The section does not penalise unlawful entry with any other intent, such as mere intent to take possession. The Court must come to a clear finding that the entry was with one or more of the intents mentioned in Section 441, Pakistan Penal Code. Failure to come to such finding amounts to a failure to decide a vital point in the case". (PLD 1952 Dacca 261)". I have observed with grave concern that learned Sessions Judge had acted quite arbitrary as before passing the impugned judgment, he did not care to have gone through the record of the ease with such prudence as his judicial office demanded of him. He has simply toed the line so ill-foundedly drawn by the Assistant Commissioner/MFC. The judgment passed by learned Sessions Judge is violative of the provisions as contained in Section 367 Cr.P.C. It is well settled by now that "normally minor omissions and commissions were curable and could be ignored on finding deficiency by appellate court, but on account of failure to specify points of determination, absence of decisions about contentions raised in the matter and total lack of reasonings clearly constituted a material defect of judgment which could not be conveniently overlooked". (PLD 1987 Qta 174 + 1986 P.Cr.L.J. 2535). In appeal it is bounden duty of appellate court to examine the entire record with care and caution, thrashed out. the evidence and peruse the relevant provisions of law to see whether it can be made applicable or otherwise. The learned Sessions Judge has reproduced the provisions as contained in Sections 420 and 427 PPC but did not bother to mention as to how the provisions as contained in Section 420 PPC and Section 427 PPC can be made applicable to this case in view of its peculiar history. In so far as the sale of land is concerned that was certainly made under the bonafide impression and the essential ingredient of an offence which is commonly known as rncns rea is lacking in this case and as such the question of conviction does not arise. In this regard I am fortified by the dictum laid down in SCMR 1982-786. The upshot of the above discussion would be that the judgment dated 6.10.97 passed by learned Sessions Judge Kalat at Mastung and order dated 10.9.97 passed by Assistant Commissioner/MFC Soorab respectively are hereby set-aside and the appeal is accepted. These are the reasons for my short order dated 12.1.98. (A.S.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1427 Present: zafar pasha chaudhry, J. JAVAID IQBAL and another-Petitioners Versus STATE-Respondent Crl. Misc. No. 240/8/98 treated as Criminal Revision No. 60 of 1998, accepted on 4.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- .-S. 497-Bail-Grant, of-Prayer for-Offences u/S. 324/34 P.P.C.- Complainant did not stop car even at, the caution given by police-­ Prevailing condition of law and order-Petitioners (police) opened firing on suspicion and injured driver-Held : May be act of petitioners (police) can be considered as rash or negligent but there is no material at all to infer that petitioners (police) intended to commit murder or they resorted to firing to kill complainant-Bail granted. [Pp. 1428 & 1429] A & B M/s Sycd Imdad Hussain Shah and Haroon Rashid Chcerna, Advocates for Petitioners. Malik Muhammad Aslam, Advocate for State assisted by Ch. All Muhammad, Advocate for Complainant. Date of hearing : 4.3.1998. judgment This revision petition is directed against the order dated 6.01.1998 passed by learned Additional Sessions Judge, Lahore whereby the application u/S. 497(5) Cr.P.C. moved by Dr. Aftab Ahmad complainant was accepted and the post arrest bail allowed to Javaid Iqbal and Muntazir Hussain petitioners by the learned Judicial Magistrate Sec. 30 Lahore vide order dated 30.6.1997 was cancelled. 2. The present petition was initially moved u/S. 498 Cr.P.C. for grant of pre-arrest bail but after hearing preliminary arguments, my learned brother Sajjad Ahmad Sipra, J. in view of the dictum laid down in the case reported as "Muhammad Malik Pervaiz v. State" (1968 P.Cr.L.J. 196) held that the remedy of the petitioners lies under revisional jurisdiction and accordingly the present petition was treated as Criminal Revision and registered accordingly. 3. Briefly the facts of the case are that a case FIR No. 408/97 dated 13.6.1997. under Section 324/34 PPG stands registered with Police Station Shahdara. Lahore at the instance of Ikram-ul-Haq. It was stated, inter alia, that the complainant alongwith Dr. Aftab Ahmad while crossing Ravi Brdige near Saggian were cautioned to halt the car by the police officials on duty including the petitioners. The doctor who was on the wheel instead of stopping the car returned the same. They heard reports of firing and the complainant saw that the doctor started bleeding. They got down of the vehicle and saw that two of the tyres had been burst. In the meanwhile a police car approached them entreating that out of misconception firing was opened for which they should be forgiven. It has also been stated that the complainant had asked the doctor to stop the car but. he did not accede to the same. The petitioners were arrested in this case but were admitted to bail by the learned Magistrate vide order dated 30.6.1997. Against the said order, the complainant moved an application under Section 497 (5) Cr.P.C. which was accepted by learned Additional Sessions Judge, Lahore vide order dated 6.1.1998 and the bail granted to the petitioners was recalled and cancelled. 4. Learned counsel for the petitioner has argued that the learned Magistrate has exercised his discretion validly and assigned cogent reasons for the same. It has been observed by the learned Magistrate that there was no prinm facie case made out against the petitioners under Section 324 PPC; that there was no intention with the petitioners to have attacked or killed Dr. Aftab. the injured P.W. Since the said order did not suffer from any illegality or material irregularity the learned Additional Sessions Judge was not justified in recalling the bail under Section 497 Cr.P.C. It has further been argued that the observation made by the learned Additional Sessions Judge that the petitioners exceeded their right and as such their action of resorting to tiring amounted to an offence under Section 324 PPC is wholly untenable and cannot be sustained under the law. The petitioners in their best judgment were justified in presuming that the complainant and his companion were suspicious persons when at, mid night the car was not stopped and turned back by disobeying the caution of halt given to them by the police party who were in uniform and had been posted there to check the suspicious vehicles. The conduct of the injured P.W, inter alia, created an impression that there were some desperados sitting in the car who were avoiding checking intentionally. The intention of the police party or for that matter the petitioners was to hurst the tyres to stop the vehicle which in fact had been burst but incidentally the bullet hit the driver i.e. Dr. Aftab. No offence as such is, therefore, made out under Section 324 PPC. 5. Learned counsel for the complainant has contested and refuted the pleas raised by learned counsel for the petitioners. According to him there was no justification whatsoever to start firing. The polke party at the best could have chased the car and apprehended the persons travelling in the car. Their action is not protected by Section 46 Cr.P.C., as such, the learned dditional Sessions Judge was justified in cancelling the bail allowed to them by the learned Magistrate. fi. I have considered the arguments and also gone through the orders passed by the learned courts below as well as other relevant material. It. is an admitted fact that the police contingent had been deployed at the Ravi Bridge to check the vehicles. If at night a vehicle is not stopped even on the caution given by the police party, then naturally the apprehension would be that the riders of the vehicle were avoiding checking. Not only that the car in the instant case took a 'U Turn' and tried to escape from the checking but also keeping in view the prevailing condition of law and order and frequent incidents of terrorism it could be genuinely apprehended by the police party that some desperados were trying to escape. They chased the vehicle, burst the tyres and incidentally hit the complainant, May be the act, of the petitioners can be considered as rash or negligent but, there is no material at all to infer that the petitioners intended to commit murder or they resorted to firing to kill the complainant or the driver i.e. the injured P.W. 7. Without expressing any opinion on the merits, lest it may prejudice the case of either party, I am of the view that the order granting bail to the petitioners did not suffer from any such illegality which called for interference by the learned Additional Sessions Judge. The revision petition is, therefore, accepted, the order dated 6.1.1998 passed by learned ASJ Lahore is set aside on account, of suffering from illegality and consequently the order dated 30.6.1997 passed by the learned Magistrate stands revived. (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Karachi) 1429 (DB) Present: rana bhag\yan das and amanullah abbasi, JJ. GUI, SHER and another-Appellants versus STATE-Respondent Spl. Anti- Terrorism Appeals Nos. 2 and ;i of 1997, accepted on 29.12.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34-Murder-Offence of-Coaviction tor-Challenge to-Quality of evidence is such that reliance cannot be placed on it without independent cor r 'oboration which is lacking-Judicial confession of accused G is ex­ culpatory-Prosecution witnesses are not consistent as to whether culprits had one Pistol or two Pistols-Ownership of motorcycle on which accused are alleged to have come lias not been established and it is not known whether this motorcycle was in their use—Prosecution witnesses are not reliable because they have made contradictory and inconsistent statements-Medical opinion does not support ocular version-Source of light at time of offence has not been established by prosecution- Judgment of trial Court is silent as to whether visibility was such that persons could have been identified-Prosecutiori has not brought on record as to what was date of lunar month on night of incident-­ Subsequent identification cannot be accepted because identification at time of incident appears to be improbable-Mere report of Ballistic Expert will be of no value because appellant Q had not fired fatal shot according to P.Ws-Prosecution has failed to prove case against appellants beyond all reasonable doubt-Appeal accepted. [P. 1434] A Mr. RiiKOol Bux Palejo, Advocate for Appellant in Spl. Anti- Terrorism Appeal No. 2/97. Mr. Ahmad All Sheikh, Advocate, for Appellant in Spl. Anti- Terrorism Appeal No. 5/97. Mr. Iqbal Qadri, A.A.G. for State. Date of hearing: 29.12.97 judgment Amanullah Abbasi, J.--Both these appeals are being disposed of through this single judgment as these appeals have arisen out of same judgment of Special Court Anti-Terrorism, Hyderabad and Mirpur Khas Division, at. Hyderabad. The facts leading to the present appeals are as under:- On 16.09.1997 at 2130 hours Lakhano lodged FIR at PS Banoo for offence under Section 302-34 PPG. Complainant Lakha Dino stated in the FIR as under:- "I cultivate the land on 'Harap' basis. Today, in the evening of 16.9.97, I accompanied by my maternal cousin Ishaque S/O Allah Dino Mirbahar, father Arab S/O Essa Mirbahar and cousin Mir Miihammad S/O Gul Mirbahar went to Banoo town for some work. Following disposing of the work we left for the village on foot along Banoo-Shah Karim Road at sun set time. At about 8.30 p.m., when we reached at Chhandan Mori to the west of AH Bahar at about % K.M., we witnessed that three (3) unidentified persons were beating Mohd. Qassim S/O Muhammad Saleh Palijo r/o Yameen Palijo village, Deh Pad, Taluka Bathoro who is acquainted by us and he was raising cries. Seeing so my maternal cousin Ishaque intervened. Thereupon two out of the said three (3) persons said to the person having pistol that he should bump him off by opening fire with pistol. Then the said person having pistol opened straight fire with pistol at my maternal cousin with intention to commit its murder within our sight which hit him and he fell down. Thereafter two (2) persons leaving Muhammad Qassim Palijo moved away towards east along the road hy riding on their motorcycle-70 without number plate which was parked there, while the third one ran away towards 'bund' northwards on foot. Approaching there we witnessed that Ishaque had sustained pellet injuries of the cartridge of pistol on front of his neck from which blood was oozing and he had died on the .spot. Then Muhammad Qassim Palijo narrated on enquiry. "I was on the way to Banoo from my village by my motorcycle. These three (.3^ persons followed me by their motorcycle from Oagh Mori. When I reached Chhandan Mori they intercepted and made me get down and started saying that they would not spare me and they will bump off me on that day. As a result I raised cries and you have reached upon my cries. Upon intervention of Ishaque they have committed murder of him by opening fire with pistol and they have fled." Following such narration made by Muhammad Qassim leaving the said persons over the dead body of Ishaque now I have appeared and lodged complaint that three (3) unidentified accused persons aforesaid witnesses and I have witnessed thoroughly in moonlight, they were unmasked, we can identify them on seeing again. They were beating Muhammad Qassim Palijo. We approached there upon his cries. My maternal cousin Ishaque intervened. Thereupon one out of three persons has shot dead Ishaque by opening straight fire with pistol. All of three (3) accused persons have fled. I am the complainant. Investigation be made." On 16.9.1997 Ghulam Rasool Sial was posted as SHO P.S Banoo. The complainant Lakha Dino came to the Police Station and lodged his FIR which was read over to the complainant, and he signed it. The SHO proceeded to place of incident and prepared mashirnama of vardat in presence of mashirs Khair Muhammad and Muhammad Bux. He recorded statement of P.Ws and thereafter prepared mashirnama of recovery of motorcycle in presence of same mashirs. He prepared inquest report of deadbody of deceased Muhammad Ishaque and, thereafter, the deadbody was sent to hospital for postmortem report. On 25.9.1997 he arrested accused Gul Sher in presence of same mashirs. On 26.9.1997 he produced accused Gul Sher before F.C.M. Mirpur Bathoro for recording of his judicial confession. On 29.9.1997 he arrested accused Qassim Dhammach and Ghulam Ali (a Karo in presence of same mashirs. He recovered .12 bore pistol; 2 live cartridges and one motorcycle which belonged to accused Qassim. He came back to P.S Banoo where he lodged FIR against accused Muhammad Qassim for offences U/S 13 (d) Arms Ordinance. On 30.9.1997 he brought accused to Mirpur Bathoro for identification parade where accused were identified by the P.Ws. Then he sent the case property for Ballistic Report and from thare he obtained the Ballistic Report subsequently. He challaned the accused on 01.10.1997 in Special Court Anti- Terrorism, Hyderabad. During trial proceedings charge Ex. 2 was read over to the accused on 15.10.1997 but the accused did not plead guilty. The prosecution examined complainant Lakhano Ex. 6, he produced FIR as Ex. 6-A, P.W Ghulam All, Civil Judge and F.C.M. Bathoro District Thatta as Ex. 7, he produced judicial confession of accused Gul Slier as Ex. 7-A, P.W. Mir Muhammad as Ex. 8, P.W Muhammad Qassim as Ex. 9, Tapedar Karim Dino as Ex. 10, Dr. Sher Muhammad as Ex. 11, he produced postmortem as Ex. 11-A, mashir Khair Muhammad was examined as Ex. 12, he produced rnashifnama of scene of offence as Ex. 12-A. rnashirnama of recovery of motorcycle as Ex, 12-C, mashirnama of recovery of cloths as Ex. 12-D, mashirnama of arrest of accused Gul Sher as Ex. 12-E, mashirnama of arrest of accused Qassim and Ghulam Ali (a Karo as Ex. 12-F, Investigating Officer Ghulam Rasool Sial. SHO P.S. Banco was examined as Ex. 13, he produced report of Ballistic Expert as Ex. 13-A, and Chemical Examiner's report as Ex. 13-B. The S.P.P gave up P.Ws ASI Abdul Aziz Soomro, DSP Muhammad Yousif and P.W Arab vide, statement Ex. 14 and closed side of the prosecution vide statement Ex. 15. The accused in their statement U/S 342 Cr.P.C. denied the allegations of prosecution. Accused Ghulam Ali stated that the case has been foisted on him due to enmity. Accused Qassim further stated that the case has foisted on him on account, of enmity with Yar Muhammad Dhammach and Master Mir Muhammad Dhammach who are nearest to complainant party and at, whose instance he had been implicated in this case. Accused Gul Sher also stated that he had been falsely implicated due to enmity. The learned Judge Special Court Anti-Terrorism Hyderabad and Mii-pur Khas Division at Hyderabad convicted the accused and sentenced each of them to suffer R.I. for life and also to pay fine of Rs. 1,00,000/- (Rupees One Lac) each and in case of default in payment of fine they were ordered to suffer R.I. for five (5) years more each. They were also separately convicted for offence punishable u/Ss. 393, 397 & 398 and sentenced each of them to suffer R.I for seven (7) years. The accused were given benefit of Section 382-B Cr.P.C. The learned advocate for appellants Gul Sher and Ghulam Ali submitted that the prosecution failed to prove case against, the accused/appellants. The evidence on record has not been examined properly. There are material contradictions. The burden of proof is on the prosecution to prove the case beyond reasonable doubt. The mashirs Khair Muhammad and Muhammad Bux were close relatives of complainant and they acted as mashirs throughout the investigation. No independent witness was associated as mashir. The incident had taken place during night time and according to FIR the identification was- on moonlight but the judgment is silent as to whether it was first of lunar month or fourteenth of lunar month. The date of lunar month is not mentioned in the entire judgment. The evidence has been accepted as gospel truth. The learned advocate for the appellants pointedout the contradictions and improbabilities. He also submitted that the medical evidence contradicted the ocular version as according to prosecution case shot was fired from close range but the Medical Officer's view is that the pellets of fatal shot had spread and this fact suggested that the shot was fired from a distance, therefore, the ocular version is not being supported by medical version. The witnesses are not truthful as there was no source of light, judicial confession of Gul Sher is ex­ culpatory and according to him accused Qassim had fired the fatal-shot but according to prosecution witnesses it was shot of Ghulam All (a Karo. He submits that no weapon was recovered form Ghulam Ali. The weapon was recovered from Qassim but the P.Ws do not attribute fatal shot to him. So, according to him the prosecution case is inconsistent and it has not been established as to whether it was shot, of Ghulam Ali or Qassim which proved fatal. Similar are the arguments advanced on behalf of appellant Qassim. The confession of co-accused cannot be treated as evidence against appellant Qassim. The eye witnesses do not implicate applicant Qassim, The identification during night time was not possible and, therefore, subsequent identification at the time of identification parade is on account of enmity which has been suggested in cross-examination of complainant. Learned A.A.G. supported the conviction stating that the eye witnesses have identified and implicated the accused/appellants in their evidence. There is judicial confession of accused Gul Sher and it is a valid piece of evidence. Weapon was recovered from accused Qassim and the crime empty has matched the weapon recovered accused Qassim. There is something unusual about the prosecution case. According to P.W Qassim Ex. 9 on 16.9.1997 at about 8.00 p.m. he went to Banoo Town to bring his brother on motor bike. On the way he was light behind him. He was caught and he fell down from motorcycle. There were three culprits who started beating him when he started cries. He had thrown key of the motorcycle and in the meanwhile he grappled with one of the culprits. He also stated that identification test was held before a Magistrate in Bathoro and he identified the accused in Court. He has not mentioned or pointed out the accused with whom he had grappled although he identified them at the time of identification parade. According to him he was on one motorcycle and the accused had come on another motorcycle. He has also stated that out of them two went on motorcycle towards eastern side and the third one went towards jungle side. It is difficult to understand as all the three of them had come on one motorcycle but after they offence two went on motorcycle and third went on foot. P.W. Qassim has not given the number of his motorcycle. SHO Ghulam Rasool Sial Ex. 13 has stated that he prepared mashirnama of recovery of motorcycle which is Ex. 12-C. According to this mashirnama this motorcycle was owned by Muhammad -Qassim S/0 Muhammad Saleh Palijo. It is CD-70 motorcycle with Chassis No. AE-1362 and Engine No. 1636592. According to SHO on 29.9.1997 he arrested accused Qassim Dhammach and Ghulam All (a Kara in presence of -mashirs and this mashirnama is Ex. 12-F. The mashirnama Ex. 12-F gives description of motorcycle CD-70 with Chassi No. AE-083320 and Engine No. 1583393. The ownership of this motorcycle has not been established. In whose name this motorcycle was registered is not known. The learned Judge, Special Court, while passing property order has shown this, motorcycle as unclaimed property and has confiscated it to the government. As already stated the ownership of this motorcycle has not been established. Whether it is owned by any of the accused/appellant or registered in name of either of the appellant is not known. It is also not known whether it is a stolen or robbed property. Therefore it creates doubt as regards use of this motorcycle at the time of commission of the offence. Three persons on this motorcycle were following a motorcycle of similar make on which there was only one person. How he was stopped is not known because Qassim does not give description as to how he was stopped. He also does not say that he made any attempt to escape seeing a motorcycle following him. According to him he was beaten but there is not mark of injury on his person. He has not pointed out the person with whom he had grappled out of the three accused/appellants. P.W. Muhammad Qassim in his cross-examination has stated that P.Ws are known to him being his friends. P.W. Mir Muhammad has stated in cross-examination that two of the culprits were armed with Pistols. He has also stated in cross-examination that the culprits fired on Ishaque from distance of two/three feet. This statement is not consistent with medical version. According to Medical Officer Dr. Sher Muhammad Ex. 11 he had found following injuries on person of deceased Muhammad Ishaque. "Multiple circular red colour hole measure 1-1/2 c.m. deep into skin muscle and other structures. There is no any exit wound all around both side of neck. Small pellets taken out and handed over to ASI Abdul Aziz Soomro for chemical examination." He stated in cross-examination that if distance is more than 10 yards then the penetration would be skin deep. The pellets were skin deep and muscle deep. He took out nine (9) pellets from the deadbody. So the statement of P.Ws that the shot fired from distance of two or three feet cannot be accepted in view of statement of Medical Officer that pellets were skin deep and muscle deep. There was no exit wound. The quality of evidence is such that reliance cannot be placed on it without independent corroboration which is lacking. The judicial confession of accused Gul Sher is ex-culpatory. According to him it was Qassim who had fired abut according to P.Ws it was Ghulam Ali (« Kara who had fired. No weapon has been recovered from Ghulam Ali (ft-. Kara. The prosecution witnesses are not consistent, as to whether culprits had one Pistol or two Pistols. The ownership of the motorcycle on which the accused are alleged to have come has not been established and it is not known whether this motorcycle was in their use. The prosecution witnesses are not reliable because they have made contradictory and inconsistent statements. Medical opinion does not support the ocular version. The source of light at the time of offence has not been established by the prosecution. The judgment of trial Court is silent as to whether the visibility was such that the persons could have been identified. The prosecution has not brought on record as to what was the date of lunar month on the night of incident. Siibsequent identification cannot be accepted because the identification at the time of incident appears to be improbable. Which of the accused had grappled with P.W. Qassim is not known. P.W. Qassim does not give exact facts as to how he was stopped by the persons on the other motorcycle who according to him were following him. Pie claims to have suffered beating at the hands of culprits but there is no injury to this effect. Mere report of Ballistic Expert will be of no value because appellant Qassim had not fired the fatal shot according to P.Ws. The prosecution has failed to prove the case against the appellants beyond all reasonable doubt. The resxilt of this discussion is that we will have to give benefit of do\ibt to the accused. Accordingly we set-aside the judgment and sentence awarded by trial Court to the appellants. The appellants may be released forthwith if not required in any other case. Rana Bhagwan Das, J.--I am in respectful agreement with the conclusion drawn by my learned brother Amanullah Abbasi, J. but I would like to add a few lines of my own. 2. Admittedly assailants were not known to the party of the first informant. Identification of the assailants by the witnesses is said to be effected on moon-light but actual date of the lunar month has not been brought on record. On a reference to the official diaiy for the year 1997 it appears that on 16th September, 1997 it was 13th Jamadi-ul-Awal according to Hijra calendar. Now the source of light as compared to the first of lunar month would be greater but reference to the distance from which the witnesses had the occasion to see the culprits is of paramount importance. It appears from the evidence of first informant Lakhano, PWs Mir Muhammad and Muhammad Qassim that in fact Muhammad Qassim was being maltreated by some of the assailants and he was raising cries for assistance on which Lakhano, Mir Muhammad and Muhammad Ishaque (since dead) were attracted. It further appears that the witnesses responded to the alarm riased by Muhammad Qassim for assistance but there was a counter alarm raised by the assailants not to proceed further whereupon the witnesses did not budge of from their place. It is in the evidence that approximately there was a distance of 100 paces between the two places. It is thus highly improbable and very difficult to have an accurate glimpses of the criminals who were involved in beating one of the witnesses namely PW Muhammad Qassim. It is in this back-ground that appellant Muhammad Qassim instigated appellant Gul Sher to do away with deceased Muhammad Ishaque in consequence whereof Gul Sher fired from his .12 bore pistol at the deceased who died at the spot as a result of fire arm injuries. To quote PW Lakhano in his evidence stated that he was 100 paces away when he heard the cries while denying that he was at, a distance of 2M furlong from the place of incident. On further probe as to the source of light during the cross examination the witness stated that in the kind of night of incident it would be possible to differentiate between a tree and an animal at a distance of 10-12 feet. He further stated that on such night one will be able to differentiate from the distance of 10-11 feet between a man and a woman. Likewise he claimed that from the distance of 10-11 feet it would be possible to differentiate between the features of persons at that, kind of night. Interestingly he was able to assert that the assailants were wearing dark colour clothes including the person who fired at the deceased. Surprisingly he stated that the accused who fired at the deceased was bare headed while the person who instigated the assault, was also bare headed. 3. The situation is not better with the second ocular witness namely Mir Muhammad who states that, "we heard the cries at a distance of 20-25 paces from the place of incident". He admitted that "we had seen the persons available at the scene of vardat and immediately shouted back that we were coining to his rescue". He conceded that "when we replied to the shout we were warned by the culprits not to come near otherwise we will be killed. Due to warning of culprits we stopped there". As to the moon-light on which the witnesses were able to see the culprits, the witness claimed that if he was put to situation in the moon-light to identify from a distance of 30 paces he could not identify exactly. Apart from the fact that the evidence of this witness does not materially corroborate or strengthen the case made out by the first informant, it may be pertinent to note that he is real cousin of Lakhano as well as deceased Ishaque. The third witness who was allegedly in company of the first informant namely PW Amb is also his uncle but for the reasons best known to the prosecution, this witness was not examined at the trial. 4. Even from the evidence of PW Muhammad Qassim, who allegedly received beating at the hands of the culprits, I am unable to find any material circumstance to improve the quality of evidence which by its nature is weak, infirm and not capable of being safely relied upon. 5. With regard to the use of pistol there are divergent views in the evidence. While the witnesses consistently claimed that appellant Gul Sher fired from his pistol at the instigation of co-appellant Muhammad Qassim, self-exculpatory confession made by Gul Sher tends to show that on the material day he was approached by appellant Muhammad Qassim at hotel of Juman Palejo who also asked the third appellant namely Ghulam Ali to accompany him whereafter they left on the motor-cycle of appellant Muhammad Qassim. A perusal of the confession tends to show that in fact these persons noted a person going on a motor-cycle ahead of them who was cautioned to halt but while crossing the said motor-cycle driver turned his vehicle with the consequence that the appellants fell down on the road. It is said that there ensued scuffle between appellant Muhammad Qassim and Ghulam Ali on the one hand and motor-cycle owner on the other hand. The alarm raised by said motor-cycle owner attracted two persons whereupon appellant Muhammad Qassim fired a pistol shot at one of those persons which hit the latter. At any rate the confessional statement runs counter to the prosecution case in as much as instead of corroborating the prosecution version that the fatal shot was fired by Gul Sher, it gives an impression as if the fatal shot was fired by appellant Muhammad Qassim. Obviously both the statements cannot be reconciled as these are completely incompatible with each other. It may be pertinent to point out that under Article 43 of Qamme-Shahadat, 1984 a confession of an accused may be proved against the person making it and in suitable cases court may take into consideration such confession as circumstantial evidence against another person concerned in the commission of a crime but in the facts of the present case since the accused who made the confession did not inculpate himself and thereby falsified the prosecution case, it is hardly possible to attach any importance to it as against a co-accused. It is well settled that a confession must be accepted in toto or not at all. Indeed law does not permit the use of a confessional statement in part. In the case of Mr. Zulfiqar Ali Bhutto u. The State. (PLD 1979 SC 53) Anwarul Haq, CJ. (as he then was) while referring to the case of Bhuboni Sahu decided by their Lordships of the Privy Council quoted with approval as under:- "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of evidence contained in Section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross examination. Section 30 (Evidence Act 1872) however provides that the coxirt may take the confession into consideration and thereby no doubt makes it evidence on which the court may act: but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction." 6. For the aforesaid reasons and in the face of authoritative case law conviction of the appellants cannot be sustained on the basis of retracted exculpatory confession by appellant Gulsher dishonestly implicating appellant Muhammad Qassim. In any event in the absence of strong corroborative evidence connecting the appellants with the commission of murder conviction cannot be founded on such confessional statement which is hardly of any significance. 7. There seems to be a glaring conflict between the ocular and medical evidence. Where as Dr. Sher Muhammad who performed post mortem examination 011 the dead body of deceased Muhammad Ishaque stated that there were no blackening, scorching or tattooing marks on the dead bpdy and there were only wounds of entry without any wound of exist, P.W. Mir Muhammad stated at the trial that deceased Muhammad Ishaque was fired from a veiy close distance. On further questioning he claimed that the culprits fired upon him from a distance of 2-3 feet which cannot be possibly reconciled with the medical evidence. For this vital contradiction in the evidence prosecution owes an explanation but unfortunately the same is not forth-coming. In fact first informant Lakhano's evidence is not very clear on this point except that two assailants were armed with pistols and standing where as one of them fired at the deceased. In law and according to Modi if a fire is shot from a close range of 4 to 6 yards ordinarily it causes lackening and scorching around the wounds. In the present case as no such marks were noted by the expert medical witness it is therefore difficult to accept the ocular version that the deceased was fired from a close range. 8. In the fact and circumstances of the case, in which the assailants were not known to the witnesses before the incident; their identification from a long range at odd night time in the back ground of fear and terror and lack of other independent and strong evidence tending to create a nexus between the appellants and the commission of the crime conviction cannot be sustained. It is, therefore a fit case for allowing the appeal which is accordingly allowed. Appellants shall stand acquitted of the charge and are directed to be released forth-with unless required to be detained in connection with any other case. (T.A.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1439 Present: muhammad nassem chaudhry, J. UMAR HAYAT-Appellant versus STATE-Respondent Crl. Misc. No. 3228-B and Revision Petition No. 270 of 1998, accepted on 9.7.1998. Medical Certificate- -—Medical certificate produced by appellant/accused-Validity-If a medical certificate is to be issued by a medical expert and if he is competent, his position cannot be brushed aside by expressing that same is not satis­ factory-Some reason must be incorporated in the order for ignoring medical certificate-Held : Medical certificate produced by appellant/ accused is entitled to weight and his absence was justified. [P. 1440], A, B & C Mr. Muhammad Saleem Shahnazi, Advocate for the Petitioner/Accused. Miss Raeesa Sarwat, Advocate for the State. Date of hearing: 9.7.1998. judgment Urnar Hayat petitioner is the accused of crime case No. ,111 dated 23.3.1996 registered at Police Station Kot Moman, District Sargodha under Sections 302/201/34 Pakistan Penal Code. He was admitted to bail by this Court on 10.9.1996 with the condition to appear before the learned trial Court on eveiy date of hearing failing which his bail may be cancelled by the learned trial Court. The aforesaid order dated 10.9.1996 was got executed by Umar Hayat petitioner who was released on bail. 2. Umar Hayat petitioner could not appear before Mian Jalal-ud- Din Akbar Additional Sessions Judge, Sargodha on 22.5.1998. His bail was cancelled and the proceedings under Section 514 of the Code of Criminal Procedure were initiated. He moved the learned trial Court for condoning his absence and restoration of his bail. His petition was supported by a Medical Certificate issued by a qualified Physician and Surgeon. The learned Additional Sessions Judge, Sargodha dismissed his petition on 5.6.1998 by expressing that "the Medical Certificate is not satisfactoiy and that his absence was intentional". He was got arrested and sent to the Judicial Lock­ up. He has filed this petition for his admission to bail. 3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the judicial file containing the Medical Certificate. My view is that the Medical Certificate has to steal the eminence and has to be given the paTamoiuH^consideration for the purpose of the disposal of this bail application. The Medical Certificate has been issued by Dr. M. Akhtar Nawaz Lak MBBS, MCPS Physician and Surgeon Chest Specialist, Muslim Bazar Kot Mornan. A perusal of the same has made out that Umar Hayat petitioner was admitted on 22.5.1998 and was discharged on 24.5.1998. He was examined by the medical expert who was suffering from diarrhoea, vomiting and dehyderation. I do not agree with the learned Additional Sessions Judge, Sargodha who simply made the passing remark that the Medical Certificate is not satisfactoiy. I am tempted to express that a Medical Certificate is to be issued by a medical expert and if he is competent in the matter his opinion cannot be brushed aside by expressing that the same is not satisfactory. There are water tight compartments of jurisdiction of pillars of the State. A Medical Certificate has to be issued by a medical expert having the requisite qualifications. I would exemplify that an ex parte decree cannot be ignored and held -to be inexecutable on the ground that the adverse party has not been heard unless the ex parte decree is set aside. Some reason must be incorporated in the order if a Medical Certificate which is to be issued by a Medical Officer has to be ignored by not granting the weight to the same. In the instant matter Dr.' Muhammad Akhtar Nawaz Lak is having the qualification of MBBS MCPS. If the learned trial Court, felt that the Medical Certificate was issued without any sufficient medical reason, a summary inquiry could be conducted by summoning the aforesaid medical expert. However, without proceeding in the aforesaid manner the Medical Certificate could not be brushed aside and ignored in the aforesaid manner. I would express that any type of supremacy cannot be claimed or expected by the other Department including the Judiciary unless the Medical Certificate is dissected in accordance with law. 4. In view of what has been said above, I hold that the Medical Certificate submitted by Umar Hayat petitioner is entitled to weight and his absence on 22.5.1998 was justified. 5. For what has been said above, I treat this bail application as a Criminal Revision Petition, set-aside the order dated 5.6.1998 passed by the learned trial Court and restore the bail. The bail bond etc. submitted by him already shall remain operative. Consequently the proceedings initiated under Section 514 of the Code of Criminal Procedure and dropped. 6. Learned Sessions Judge, Sargodha shall immediately issue the release warrant of the petitioner as it has been intimated that Mr. Jalal-ud- Din Akbar Additional Sessions Judge, Sargodha stands transferred without substitute for the present. 7. Copy dasti subject to payment of usual charges. (AAJS) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1441 [DB] Present: ghulam sarwar shaikh and dr. khalid ranjha, JJ. MUHAMMAD AZEEM-Appellant Versus STATE-Respondent Criminal Appeal No. 99-J of 1992 and Criminal Revision No. 484 of 1992, decided 10.3.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Murder-Offenee of-Conviction tor-Challenge to-An un-armed person is attacked with formidable weapon and injuries are repeated-No case for awarding lesser punishment is made out-Motive is connected with third person who was neither associated with investigation of case nor any step was taken to probe truth or falsity of same-Data on record regarding motive is neither sufficient or convicting nor cogent to un-veil the same—Occurrence can. in no way, be taken to be result of pre­ meditation and arranged affair—Sentence of life imprisonment awarded to appellant is not, only justified, but also apt as imposition of extreme penalty in wake thereof is hardly called for-Appeal and revision dismissed. [P. 1444] A, B & C Ch. Iqbal Ahmad, Advocate for Appellant. Sh. Khalid Ahmad, Advocate on behalf of State. Sher Afghan Asadi, Advocate for Kh. Sultan Ahmed, Council for Complainant. Date of hearing: 10.03.1998. judgment Ghulam Sarwar Sheikh, J.--Story of woe, as narrated and unfolded in statement Ex. PA made by PW-2 Ghulam Nabi complainant, before PW 13 Muhammad Saleem. Rub Inspector Police Station Shad-Bagh, Lahore, in Emergency Ward, Mayo Hospital, Lahore; where he had gone on receipt of report No. 10 Ex, PG, while on patrol duty at chowk Tokay-Wala, at about 4.00 p.m. on llth September, 1990, is to the effect, that on eventful and fateful day at 2.00 P.M., when he (complainant) reached near the shop of "Curd and Milk" being run by his sons Muhammad Suleman alias Sahib and Nazir Ahmad situated in Madina Chowk Chohan Colony, Bhaghatpura, Lahore, Nazir Ahmad came running to him and spurted out news of quarrel between Muhammad Suleman alias Sahib and Azeem alias Babbi appellant in the adjoining shop of Muhammad Javed Butt. He rushed there and saw that Azeem alias Babbi was causing c.hhuri blows to Muhammad Suleman alias Sahib his son. Within view and sight, of complainant and his son, Nazir Ahmad, two blows were inflicted on right and left side of chest of Muhammad Suleman, who, then fell down on the ground, and two n,)ie blows were caused on back side of his chest. Appellant then decamped randishing his chhuri. Besides the complainant and his son Nazir Ahmad, occurrence was witnessed by Javed s/o Muhammad Sarwar and Muhammad Suleman S/o Muhammad Ali. 2. Injured was removed to Mayo Hospital by his brother, Nazir Ahmad, where, he was apprised of sad demise of his son Muhammad Suleman, who, by then, had succumbed to his injuries. 3. Motive behind the commission of heinous crime was removal of obstacle in the course of illicit liaison and amatorial ties between appellant and daughter of Muhammad Din Hotel-Wala and for which, he had been forbidden and objected to by Muhammad Suleman alias Sahib, deceased, who. too was on visiting terms with Muhammad Din Hotel-Wala. 4. After recording statement Ex.PA, upon which formal FIR Ex. PA/1 was drawn by PW. 10 Muhammad Ashraf Head Constable No. 7527, Investigating Officer, prepared injury statement Ex. PI and inquest report Ex. PF and despatched the dead body to morgue for autopsy. Then he proceeded to place of occurrence inspected the spot, prepared rough site-plan Ex. PJ. thereof, collected blood stained earth, made it into sealed parcel and took the same into possession by means of recovery memo. Ex. PD; recorded statements under Section 161 Cr.P.C. of witnesses. He searched for the accused, but, could not find him. 5. On 12.9.1990, last worn clothes Shalwar P2 Shirt P3 and Vest P4, all blood-stained, of deceased were produced before him by PW 8 Muhammad Afzal and Muhammad Amjad Constable. Same were taken into possession vide recovery Memo Ex. PE. Statements under Section 161 Cr.P.C. of witnesses were also taken down. 6. After about a week, on 21.9.1990, appellant, taken into custody on 17.9.1990, led to the recovery of chhuri Pi, which, was taken into possession through memo. Ex. PB, duly attested by PW 12 Jaffar Hussain a witness of recovery. Separate complaint under Section 13 of Arms Ordinance was drafted against, the appellant. Rougli Site plan Ex. PB/1 of place of recovery of chhuri Pi was also prepared. Statement of witnesses were also recorded and upon completion of investigation, during which site plans Ex. PC and Ex. PC/1 were also got prepared from Syed Abdur Rehman PW. 4 and sealed parcels were transmitted to the office of Chemical Examiner, final report under Section 173 Cr.P.C. was submitted against the appellant, who, pleaded not guilty to the charge under Section 302 PPC and claimed trial. 7. As PW 2 Ghulam Nabi complainant/father of deceased re­ iterated and re-affirmed his version embodied in Ex. PA. Ocular account stands furnished by PW5 Muhammad Javed and Muhammad Suleman PW 7. PW ;3 Muhammad Nasir alias Nasir and PW 6 Muhammad Nazar Dar are witnesses of recovery of chhuri PI, at the instance of appellant/accused and of securing blood stained earth respectively, PW-9 Rashid Ahmad identified trie dead body at the time of post mortem examination, which, was conducted by Dr. Misbah-ul-Islam Farooqi, who, having proceeded abroad on r.vo years Ex-Pakistan leave, such report Ex. PK and pictorial diagram Ex. PK1 and Ex. PK II were proved by Muhammad Shah Record Keeper PW. 15 being well conversant with the signatures and hand-writing of the Medical Officer. PW 13 Muhammad Saleem enumerated various steps of investigation carried out by him. PW 14 Dr. Abbas Ali had issued death certificate Ex PH. Rest are formal witnesses. Reports of Chemical Examiner and that of Serologist find a mention on file as Ex. PL, Ex. PM, Ex.PN and Ex. PO. 8. In his statement under Section 342 Cr.P.C. appellant denied all the incriminatory circumstances figuring against him in prosecution evidence profession innocence and alleged false implication due to enmity with Muhammad Din Hotel-Wala and relations of prosecution witnesses with the complainant. Neither he opted to appear as his own witness to disprove the allegations levelled against him as envisaged by Section 340(2) Cr.P.C. nor led any evidence in defence. 9. Upon culmination of trial, appellant was found and adjudged guilty of the offence, with which he was charged, convicted and sentenced to imprisonment for life with fine of Rs. 50,000/-, in default whereof, to suffer R.I. for a further term of five years. It was further directed that if fine is recovered and realized, half of it shall he paid to legal heirs of deceased as compensation under Section 544-A Cr.P.C. Benefit of provisions of Section 382-B Cr.P.C. stands extended to him. 10. Such verdict delivered on 17.3.1992 by Mr. Gulshad Hassan Alvi, Additional Sessions Judge, Lahore, has been challenged and assailed in instant Crl. Appeal No. 99/J/92 while Crl. Revision No. 484/92 resorted to by complainant seeks enhancement of sentence, describing the incident to be gruesome and cold blooded murder. 11. We propose to dispose, both of it, together by this single judgment. 12. Conviction and sentence to appellant has not been hotly disputed by learned counsel representing the appellant. However, prayer for enhancement of sentence has been opposed and resisted tooth and nail. 13. Scanning of record reveals that no animosity or rancour of prosecution witnesses with the appellant has even been suggested or hinted at. Mere fact that deceased was tenant of PW 5, and the other belongs to Baradri of complainant, are by itself, totally un-sufficient to discredit their testimony, which, not only inspires confidence, but also, has not been shaken any way. One of them being shopkeeper of venue of incident and the other a customer are manifestly natural witnesses and in no way, can be termed to be interested witnesses. It was broad day light occurrence and question of mistaken identity does not arise at, all. As regards substitution, suffice it to say. that screening of real culprit, particularly by the father, cannot even he imagined in the circumstances of instant case. Not a single factor to impair prosecution case, is borne or spelled out. Rather it stands proved to the hilt, by ocular account, duly corroborated by Medical Evidence, and other attending circumstances. Even investigation cannot be taken to be faulty or perfunctory on any count, 14. Through connected revision, enhancement of sentence has been urged on the plea that motive cannot be taken to be shrouded in mystery and the same stands proved in an unambiguous terms on the basis of testimony of PW 2, PW 7 and PW 13, incident was one sided affair; deceased, suffered as many as four injuries, out of which, injuries Nos. 1 and 2 were sufficient to cause death individually as well as collectively, and when an un-armed person is attacked with formidable weapon and injuries are repeated, no case for awarding lesser punishment is made out. 15. But, there can he no cavil with the proposition that motive is connected with third person namely, Muhammad Din Hotel-Wala, who. was neither associated with the investigation of this case nor any step was seemingly taken to probe truth or falsity of the same, inasmuch as neither Muhammad Din Hotel-Wala was produced nor his daughter, the bone of contention, was brought forth In these circumstances, there can be no escape from the conclusion that, the data on record, regarding motive is neither sufficient or convicting nor cogent to tin-veil the same. Even otherwise, it is not, clear as to how the deceased happened to go to the shop, where, the dispute had taken place. Even no material is available to un-earth the origin of the brawl. Seemingly the deceased had gone to the shop where the appellant happened to be present, and an altercation leading to the incident at the moment, cannot be ruled out. 16. Be that as it may. occurrence can, in no way, be taken to be result of pre-meditation ami arranged affair. In these circumstances, sentence awarded to the appellant is not only justified, but also, apt as imposition of extreme penalty in wake thereof is hardly called for. Hence the claim put forth by the petitioner is not only devoid of force and substance but also pales into significance in the circumstances and aspects enumerated above. 17. As a sequel thereto, both appeal and revision merit, dismissal and are here by dismissed. (T.A.F.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1445 Present: ZAFAR pasha CHAUDHRY, J. TAJ MUHAMMAD and another-Appellants versus STATE-Respondent Criminal Appeal No. 486 of 1991 and Criminal Revision No. 495 of 1991, decided on 16.3.1998. Pakistan Penal Code, 1860 (XLV of I860)-- —-Ss. 302/201/364/34-Murder and abduction-Offence of-Conviction for- Appreciation of evidence-Two witnesses of recovery did not support prosecution and were declared hostile-One witness of prosecution testified recovery of watch and photograph but this recovery cannot be accepted as a incriminating evidence against appellants-Recovery of articles of wife from husband or photograph of alleged deceased with her husband does not in any manner prove that he had committed offence-­ Suspicion, however, strong may be cannot be accepted as a substitute of evidence—Circumstantial evidence can be accepted sufficient to warrant conviction if in a case only one view can be taken and that should be sufficient to give rise to a belief—This does not lead to inference that appellants alone were responsible for disappearance or disposal of deceased--Benefit of doubt invariably goes to accused-Accxised persons are acquitted. [P. 1448] A, B & C Khawaja Sultan Ahmed, Advocate for Appellants. Mr. Faiz Muhammad Bhatti, Advocate for State. Date of hearing: 16.03.1998. judgment This appeal is directed against the judgment dated 7.5.1991 passed by Mehr Muhammad Altaf Hussain, Acldl. Sessions Judge, Faisalabad. whereby appellants Taj Muhammad and Allah Ditta were convicted under Sections 364/34 PPC and sentenced to ten years R.I. each with a fine of Rs. 5,000/- in default, thereof to undergo two years R.I. further. Both the appellants were, however, acquitted of the charge under Sections 302/2011/34 P.P.C. 2. Crl. Rev. 495/91 has been preferred by complainant Mst. Akbar Bibi praying therein that the sentence of appellants e enhanced from ten years R.I. to imprisonment for life. It was further prayed in the said revision that appropriate orders may be passed against Iftikhar co-accused who was acquitted by the trial Court. 3. This judgment shall dispose of both the appeal as well as the revision. 4. Briefly stated the prosecution case is that on the statement of Mst. Akbar All sister of Mst. Sardaran (« Rehana alleged ahductee/deceased, case FIR No. 403 was registered with Police Station Jaranwala District Faisalabad on 25.6.1990 for the offence under Section 364 P.P.C. She alleged inter alia that her sister Mst. Sardaran (o> Rehana had married Allah Ditta appellant. About one year prior to the occurrence, Allah Ditta visited the house of the complainant and took away alongwith him his wife Mst. Sardaran (a> Rehana with the promise that they will come back and visit the complainant and her family residing in Chak No. 108/GB, but Ms?. Sardaran did not visit her house, whereupon, the complainant visited the village of the appellants to enquire about her sister. Allah Ditta appellant, however, informed that he had left Mst Sardaran alias Rehana in the house of his uncle Taj Muhammad. On enquiry from Taj Muhammad's house, it was revealed that Mst. Sardaran had not visited that house. The complainant insisted upon Allah Ditta to apprise the whereabouts of her sister but he kept on avoiding the same on one pretext or the other. Ultimately he threatened that he was not aware of her whereabouts and the complainant may resort to any proceeding or action against him. It was, therefore, apprehended that Mst. Sardaran had been done away with. Ali Hussain, S.I. after recording statement of complainant Ex. PA got registered formal FIR Ex. PA/1. He inspected the spot, prepared plan without scale Ex. PB/1. He also recorded the statements of PWs and arrested Taj Muhammad and Iftikhar his co-accused, on 4.8.1990. Both of them pointed out the place where they had thrown the dead-body of Mst. Sardaran (a Rehana alongwith her infant daughter in the canal. Memo of pointation Ex. P.E and Ex. P.F at the instance of Taj Muahmmad and Iftikhar were prepared. On 13.8.1990, Taj Muhammad, accused got recovered wrist watch Ex. P. 1 and photo of Mst. Sardaran (deceased) as Ex. P. 2 which were taken into possession. Scaled site plan Ex. P.C. and Ex. P/l. were prepared by the Revenue Patwari. During investigation, Allah Ditta was found to but innocent as such was placed in Column No. 2 of the challan. Three persons including Allah Ditta, Taj Muhammad and Iftikhar were sent up to face trial in the Court of Mehr Muhammad Altaf Hussain, Addl. Sessions Judge, Faisalabad. 5. The prosecution in order to prove its case at the trial examined nine witnesses. PW 1 Afzal is a formal witness, PW 2 Asmat Ullah Niazi, Advocate although admitted that Rehana had contacted him as she intended to institute a suit for dissolution of marriage against her husband but when he came back after attending his cases, she was not present in his chamber. He was declared hostile and was subjected to cross-examination. He, however, did not accept the suggestion that he made a false statement as he had been won over. PW 3 Bashir did not support the prosecution and denied the recovery of watch and photograph in his presence. PW 4 Khizar Hayat also did not support the prosecution case and denied the recovery of watch and photograph in his presence. PW 5 Bashir son of Rajay Khan is a witness f recovery of wrist watch P.I and photograph P. 2 on the pointation of Taj Muhammad. PW 6 is Mst. Akbar Bibi, she made statement similar to that of her statement made in the FIR. relevant contents of which have been noted above. In cro^s-exammation. she admitted that Mst. Sardaran alias Rehana had married one Ashfaq prior to her marriage with Allah Ditta and admitted that a daughter in fact was born out of her wedlock with Ashfaq Ahmad. This statement, however, subsequently contradicted by her during the same cross-examination. Number of suggestions had been put to her to show that she was aware of case of dissolution of marriage against Ashfaq and also that proceedings had been initiated against Ashfaq before various Police Officers, PW 7 AH Akbar is brother of Akbar Bibi PW and Mst. Sardaran (a- Rehana. He made statement in line with that of her sister. Some suggestions were put to him with regard to filing a suit for dissolution of marriage and award of maintenance against Ashfaq Ahmad, her sister Mst. Sardaran's previous husband. PW 8 Muhammad Saleem Girdawar is a formal witness who prepared scaled site plan. PW 9 Ali Hussain, S.I. is the Investigating Officer. Various steps taken by him during investigation and the evidence collected by him has been described above. On conclusion of the prosecution evidence, the learned DDA closed his evidence. 6. Both the appellants were examined under Section 342 Cr.P.C. They denied the allegations levelled against them. Allah Ditta. however, made a detailed statement stating therein that be had been falsely implicated in the criminal case in order to blackmail him and to receive share out of his property. He said that he had divorced Mst. Sardaran his wife. He produced in defence certified copy of a notice of Talaq dated 18.7.1989 Ex. DC and copy of certificate issued by the concerned Chairman dated 3.9.1989 Ex. DD dissolving the marriage in between Allah Ditta and Mst. Sardaran. He also produced copy of the proceedings in between Mst. Sardaran and Ashfaq Ahmad, her previous husband Ex. DE and also Ex. DG copy of suit filed by Akbar Ah against Ashfaq Ahmad and certified copy of the suit for maintenance and execution of decree Ex. DH was produced. He, however, did not opt to appear as his own witness as envisaged by Section 340(2) Cr.P.C. 7. The learned trial Judge while relying upon the evidence of last seen, circumstantial evidence and the evidence of recovery i.e.. wrist watch and photograph, convicted the appellants under Section 364/34 PPC. However, he acquitted both of them of the charge order Section 302/34 PPC as no evidence had come on record to prove that Mst. Sardaran had, in fact been murdered. Learned counsel has argued that the appellants had neither any motive to commit the murder nor there is evidence available on record to connect them with the commission of alleged crime. 8. I have heard the arguments and perused the record. As regards the evidence of last seen, the main witness cited by the prosecution was Mr. Asmat Ullah Niazi, Advocate but he unfortunately did not, support the prosecution case. Admission by him during cross-examination that he had made statement to police is not admissible in evidence and hit by Section 162 of the Criminal Procedure Code. The two witnesses of recovery, i.e. PW 4 Khizar Hayat and PW 3 Bashir did not support the prosecution and were declared hostile. PW 5 Bashir son of Raj ay Khan although, had testified the recovery of watch and photograph at the instance of Taj Muhammad but this recovery cannot be accepted as a incriminating evidence against the appellants. Recovery of articles of wife from her husband or photograph of the alleged abductee or the deceased alongwith her husband does not in any manner prove that he had committed the offence. Appellant Allah Ditta admitted that he was married to Mst. Sardaran (a Rehana and so is the case of the prosecution that Mst. Rehana was the wife of Allah Ditta. Any photograph of the wife with the husband does not in any manner lead to an inference that he had killed or disposed her in such a manner that she could be eliminated. Of course, the case would be different where the accused person does not even admit the abduction and has no connection whatsoever with the alleged abductee or the deceased. In that case, recovery of photograph of the alleged abductor or killer alongwith the abductee would give rise to an apprehension that the accused person remained in the company of the abductee or deceased, and that would provide corroboration to the prosecution evidence. The same is not relevant in the instant case. As observed by the learned trial Judge that she has been taken away from the custody of Mst. Akbar Bibi complainant and her taking away has been proved by Mst. Akbar Bibi complainant as well as his brother Akbar AH, PW 6 and PW 7 respectively. Their evidence cannot be accepted as evidence of last seen as according to them, deceased had been taken away one year prior to making their statement before tiie police. During the interregnum of one year, it is not known where the abductee had been taken or with whom she remained. The evidence may reveal suspicion that appellant Allah Ditta who was husband and taken away his wife, therefore, he should be held responsible for her disappearance. But suspicion, however, strong may be cannot be accepted as a substitute of evidence. 9. The learned trial Judge lias, although, referred to various other circumstance of the case indicating that, the appellants are responsible for disappearance of Mst. Rehana, Of course, a view can be taken that Mst. Rehana remained in the company of the appellants and subsequently disappeared but that is not the only view possible from the facts and circumstances. Circumstantial evidence can be accepted sufficient to warrant conviction if in a case only one view can be taken and that should be sufficient to give rise to a belief that the alleged abductor is responsible for the disappearance of the abductee. Circumstances in this case are not of the nature or type wherefrom it. can irresistably be inferred that the appellants alone were responsible for the disappearance or disposal of Mst. Rehana. The benefit of doubt invariably has to be extended to the accused persons. As such, the prosecution has not been able to prove the case beyond any shadow of doubt that the appellants are guilty of abduction or murder of Mst. Sardaran (?/•• Rehana. 1 therefore, accept the appeal, set aside their conviction under Section 364/34 and as such acquit them of the charge. The appellants are on bail, they are discharged from the hail bonds executed by them. Resultantly, the Crl. Rev. No. 495/91 filed by the complainant seeking for the enhancement of sentence from ten years to life imprisonment is dismissed. (K.K.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1449 [DB] Present: GnuLAM sarwar shaikh and dr. khalid ranjha, JJ. NAFEES AHMED-Appellant Versus STATE-Respondent Criminal appeal No. 135-J of 1992 and Murder Reference No. 441 of 1992, decided on 10.3.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/324--Murder--Offence of-Conviction for-Challenge to~ Occurrence, venue and even its day and time are not disputed-Only mode and manner are at variance-Prosecution version is not only plausible but also rings true by testing of injured witness—Story advanced by appellant in statement u/S. 342 Cr.P.C. manifestly appears to be an afterthought-Broad day light, occurrence and question of mistaken identity does not arise at ail-Not a single factor on record to impair prosecution case rather it stands proved by ocular account duly corroborated by medical evidence—Occurrence cannot be taken result of pre-meditation-Incident took place at spur of moment-Imposition of extreme penalty is unjustified and uncalled for, therefore, same is converted into imprisonment for life-Appeal partly accepted. [P. 1452] A, B & C Sardar Nazar Muhammad Dogar, Advocate for Appellant. S.D. Qure.shi, Advocate on behalf of State. Sh. Nazir Ahmed Shami, Advocate for Complaint. Date of hearing: 10.3.1998. judgment Ghulam Sarwar Sheikh, J.--Resume of prosecution story as un­ folded in FIR Ex. PJ, in brief, is that on 27.3.1991 at about 12.30 P.M. complainant Shahbaz Alam, his nephew Faheem aged 10/11 years and his daughter Sidra Shahbaz 6/7 years old were standing at the outer gate of their house, situated in street No. 3, Mohallah Muhammad Pura, Faisalabad. All of a sudden appellant Nafees Ahmad S/o Muhammad Rafique emerged from his house, in the same street, with a .30 bore pistol and raised lalkara to avenge non-payment of "Jagga Tax" by the complainant and would not spare his children. He them fired, which, hit Faheem on his temporal region and part of right side of his ear and he fell down on the ground. Second shot hit Sidra on her left jaw and she too fell down. The third shot, however, aimed at the complainant, missed the target. Alarm raised by the complainant attracted Zahid Pervaiz and Muhammad Shamim, who witnessed the occurrence and tried to apprehend Nafees Ahmad appellant, who, however, de-camped hurling threats of dire consequences. 2. Both the injured were removed to Civil Hospital, Faisalabad, where, Faheem expired on 28.3.1991 and provisions of Section 302 PPC were accordingly added. 3. Motive behind occurrence succinctly was the quarrel of 5/6 days ago over demand of "Jagga Tax" from the complainant, by the appellant. 4. After recording FIR Ex. PJ, which, of course, set the law into motion, Muhammad Razzaq, Sub Inspector proceeded to the place of occurrence prepared rough site plan Ex. PL, collected blood-stained earth from there, made it into a sealed parcel and took the same into possession vide memo. Ex. PK. Statements under Section 161 Cr.P.C. of P.Ws Zahid Pervaiz and Muhammad Shamim were Taken down. 5. On information of expiry/demise of Faheem in the hospital on next day i.e. 28.3.1991, he amended the offence into Section 302 PPC. On the same day, he went to hospital where dead body of Faheem was despatched to morgue for autopsy under the escort of Shaukat Ali Constable after preparing injury statement Ex. PC/1, and inquest report Ex. PH. Last worn clothes, blood-stained shirt Pi, Shalwar P2 and one sealed phial containing led, produced by Shaukat Ali Constable, were secured by means of memo, Ex. PB duly attested by Ghafoor, Ramzan and Shaukat Ali PWs. Site plans Ex. PA and Ex. PA/1 were got prepared from Aurangzeb Draftsman. Statement of Sidra Shahbaz was also recorded. Sealed parcel containing blood-stained earth was duly deposited with Khalid Akhtar Moharrir on 27.3.1991 for onward transmission to the office of Chemical Examiner. 6. Muhammad Sadiq PW. 12, Inspector/SHO arrested Nafees Ahmad appellant from Narwala Chowk on 31.7.1991, recovered . 30 bore pistol P3 alongwith 8 cartridges P. 4/1-8 and 50 packets of heroin P. 5/1-50 on his search and took the same into possession vide memo. Ex. PE. He also prepared site plan Ex. PE/1 of place of recovery. 7. Upon completion of investigation, final report under Section 173 Cr.P.C. was submitted against the appellant, who pleaded not guilty to the charge under Section 302/324 PPC and claimed trial. 8. PW 1 Aurangzeb Draftsman prepared site plans Ex. PA and Ex. PA/1 of place of occurrence. Sealed parcel containing blood-stained earth was deposited with Khalid Akhtar Moharrir Head Constable on 27.3.1991. Besides producing last worn clothes of deceased, Shaukat Ali Constable PW. 3, transmitted said parcel to the office of Chemical Examiner. Muhammad Ramzan PW 4 and Ghulam Hussain PW 6 are recoveiy witnesses. Dead body of Faheem was also identified by Muhammad Ramzan PW 4. at the time of postmortem examination. PW 5, Dr. Tariq Saleem and PW 7 7. Dr. Altaf Pervaiz Qassim, provided Medical evidence. As PW 8, Shahbaz Alam complainant reiterated and affirmed his version embodied in Ex. PJ. PW. 9. Sidra Shahbaz and PW\ 10 Muhammad Shamim furnished ocular account of occurrence. Various steps of investigation were enumerated by PW. 11 and PW r . 12. 9. While examined under Section 342 Cr.P.C., appellant denied all the incriminating circumstances figuring against him in prosecution evidence and described and explained the happening of the occurrence in the following way:- "I did not make any demand nor did I make any fire on Faheem and Sidra or Shahbaz Alam. As a matter of fact on the day of occurrence, I was standing in the street near the chowk and Zahid Parvaiz PW came in a car rashly and negligently driving it. The car was about to hit me whereupon I asked Pervaiz not to chive in such a way. Zahid Pervaiz took it ill and started abusing me. I also abused in return. There upon Zahid Pervaiz brought out a pistol from his car and tried to hit me. In order to save myself, I grappled with him and caught hold of the pistol which was in his hand. Zahid Pervaiz pulled the trigger and the fires accidently hit, Faheem deceased and Mst. Sidra injured. I did not fire any shot on them nor I was in possession of such a pistol. The case is false." Neither he opted to appear as his own witness to disprove the allegations as envisaged by Section 340(2) Cr.P.C. nor led any evidence in defence. 10. Upon culmination of trial, appellant was found and adjudged guilty of the offences, with which he was charged, convicted and sentenced to death with a fine of Rs. 20,000/- and in default whereof to suffer R.I. for further period of three years. He was directed to pay compensation in the tune of Rs. 10,000/- to legal heirs of deceased and in default to undergo R.I. for a term of six months. He was? also convicted under Section 324 PPC for causing injuries to Mst. Sidra and sentenced to three years' R.I. and a fine of Rs. 20.000/- and in default, thereof, to undergo six months R.I. Payment of sum of Rs. 2,000/- to suffer R.I. for three months was also directed. 11. Such conviction and sentence awarded to the appellant stands challenged and assailed in instant appeal. Reference under Section 374 Cr.P.C. for confirmation of sentence of death is also before us and we propose to dispose both of it together by this single judgment. 12. Occurrence/incident, vemie, thereof, and even its day and time are not, denied and disputed. However, parties are at variance with regard to the mode and manner thereof. As such it is a "two version" case. When both are juxta-position, prosecution version turns out to be not only plausible but also rings true by the testimony of injured child witness namely Sidra PW. 9) and over-whelming evidence data and material on record. In no way, one, advanced by the appellant, undoubtedly in his statement under Section 342 Cr.P.C. can be taken to be "first version" and manifestly appears to be an after thought affair and figment of his imagination. Viewed from any angle, same is not worth implicit reliance and is exposed to frivolity. 12. Scanning of record reveals that no previous enmity or rancour of prosecution witnesses with the appellant has been suggested or even hinted at. Mere aspect that 5/6 days ago a quarrel ensued between the complainant and the appellant over demand of "Jagg:a Tax" is by itself not sufficient to discredit his testimony which not only inspire confidence but also has not been shaken any way. Rather it lends full .support to the cause of prosecution and serves as a strong motive for the commission of offence. It was broad day light occurrence and question of mistaken identity does not arise at all. As regards substitution, suffice it to say, that screening out of real culprit, particularly by the father and uncle/complainant, cannot even be imagined in the circumstances of instant case. Not a si ngle factor to impair prosecution case, is borne or spelled out. Rather it stands proved to the hilt by ocular account duly corroborated by Medical Evidence, recoveries and also attending circumstances. Even investigation cannot be taken to be faulty or perfunctory on any count. 13. Be that as it may, occurrence am not be taken to be result of pre-meditation lurking in the mind of appellant that he would find the complainant and the children standing at the .outer-gate. Seemingly incident took place at the spur of moment and facts, which, ultimately led to firing are hidden and un-veiled. These aspects do not warrant imposition of extreme penalty which render it to be unjufitified and uncalled for. 14. As a sequel thereto, appeal is ] sartly accepted, sentence of death is NOT confirmed and the same is altered and converted into imprisonment for life. Rest of sentence are, however, m aintained and upheld. Benefit of provisions of Section 382-B Cr.P.C. shall, however, be extended to the appellant, while, computing the period i of his sentence on both counts. Murder Reference No. 441/92 is according] y answered in the negative. (K.K.F.) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1453 Present: zafar pasha chaudhry, J. SAJJAD HAIDER-Petitioner versus IMAM BAKHSH and others-Respondents Cr. Misc. No. 266/H of 1998, decided on 31.03.1998. <i) Constitution of Pakistan , 1973-- —Arts. 10 & 15-Right of freedom and movement guaranteed by Constitutior and detention is prohibited-Detenu was set at liberty. [P. 1454] C & E (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491-Recoveiy of detenue-Where a person attained majority and vehemently refused to join guardian apprehending danger to his or her life-He or she cannot be handed over to guardian against his/her will- Right of liberty is guaranteed by Constitution. [P. 1454] A (iii) Muslims Family Laws Ordinance, 1961-- — Nikahnama-Validity of-Challenge to-Validity of Nikahnama cannot be answered or determined dtiring proceedings in a writ petition or in petition u/S. 491 Cr.P.C. [P. 1454] B Mrs. Nasira Igbal, Advocate for Petitioner. Mr. Muhammad Aslam Zar, Advocate for Respondents. Malik Muhammad Khokhar, A.A.G. with Mr. Abdul Rauf Farooqi, Advocate for State. Date of hearing: 31.03.1998. order This habeas corpus petition had been moved and a bailiff was deputed to recover Mst. Kalsoom Akhtar. She was produced in Court and stated that she did not want to go back, either to Imam Bakhsh Respondent No. 1 nor to Muhammad Saeed Respondent No. 2 or for that matter any of the respondents, and thus she was sent to Darul Aman. Learned counsel for the Respondents 2 to 11 has submitted with vehemence that in fact petitioner Sajjad Haider is an acciised person in case FIR No. 17 of 1998 registered with Police Station Massan District Jhang and also submitted that he is not validly married to Mst. Kalsoom Akhtar and he could not have the custody of Mst. Kalsoom Akhtar, thus, she may not be allowed to go with him. In support of his contention, he has placed reliance upon Shah Din v. State (PLD 1984 Lah. 137) and Farman All v. Abid All and others (PLD 1995 Lah. 364). The main thrust of his argument is that no young girl may be permitted to join a person whom she has married without the consent of her elders and that where Nikah Nama is in dispute, a girl may not be allowed to join her husband because this would mean encouraging the immorality which is opposed by our social and religious dictates. I fully understand that as far as our social and religious heritage is concerned, no girl is supposed to many of her own. It is always appropriate and desirable that she should be married with the consent of her parents or any other guardian to whom her custody has been entrusted But, difficulty arises where a person who may be male or female has attained majority and vehemently refuses to join the guardian apprehending danger to his or her life. In such circumstances, he or she as the case may be, cannot be handed over to the guardian against his/her will especially when no more remains minor. The right of liberty has been conferred and guaranteed by the Constitution not only to the males but also to the females. It is very unfortunate that in our society, some of the females, may be on account of lack of proper upbringing or lack of love and affection revolt against their parents or elders. They prefer to choose their own companions and on refusal or non acceptance, they desert the house of their parents and elders. This growing tendency needs to be discouraged being violative of our social system and prevailing customs. But, at the same time, a balance has to be maintained. Right of liberty is guaranteed by the Constitution without any discrimination and it cannot be taken away or denied when claimed through Court of Law. The question of validity or otherwise of the Nikah Nama in between Sajjad Haider and Mst. Kalsoom Akhtar cannot validly be answered or determined during the proceedings in a writ of habeas corpus or in petition under Section 491 Cr.P.C. in the nature of habeas corpus. If a person is major brought before the Court and states that he or she has been illegally or improperly detained by another person then he or she has to be dealt according to law. Articles 10 and 15 of the Constitution of Islamic Republic of Pakistan guarantees the right of freedom of movement and prohibits detention of any person against his will. In the instant case, Mst. Kalsoom Akhtar has not only alleged that she has been detained by the respondents rather has expressed her genuine apprehension of physical harm to her in case she is forced to join any one against her will. She has given her age as 18 years as such she has attained majority. It may be mentioned here that with a view to ascertain her age, I got her medically examined. According to the medical report, she has been found to be aged between 18/19 years. She was lodged in Darul Aman so that she could compose herself and make a statement without being influenced and pressurised by anyone. Today her statement has been recorded wherein she stated that she does not want to go back to Darul Aman. However, I am not inclined to make an order to entrust her custody to the petitioner. She beme major is set at liberty. This petition, as such, stands disposed of. (T.A.F.) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1455 (DB) Present: muhammad naseem chaudhri and asif saeed khan khosa, JJ. SHAHAMAND alias SHAMMA-Appellant versus STATE-Respondent Crl. Appeal No. 1048 of 1992 and Murder Reference No. 60 of 1993, accepted on 15.6.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- -—S. 302/148/149-Murder-Offence of-Conviction for-Challenge to-In FIR there is no mention of the fact that electric bulb was on and accused persons were identified—It was 3rd or 4th of lunar month which means that, it was dark at 1.45 a.in.-Features of accused persons were neither got entered in FIR nor in statement of PWs recorded u/s 161 Cr.P.C.-Improvements made during trial-Original document of identification lost and photo copy used without prior permission of court, it means identification has not legal sanctity-One of PWs admitted that accused had muffled his face at the time of crime, how accused could be identified during identification parade—In report of identification parade no role was ascribed to accused during occurrence—Even instructions relating to Identification Parades mentioned in Chapter XI-C of Lahore High Court Rules and Orders Volume-II wherein under caption Note about Identification by witnesses are not strictly observed— Held: Prosecution has not been able to connect accused/appellant with occurrence and charge framed against him has not been proved-Appeal accepted. [Pp. 1459, 1460 & 1461] A to C Mr Mehdi Ilyas Akhtar Cheema, Advocate for Appellant. Rana Muhammad Akrarn Khan, Advocate for State. Date of hearing: 15.6.1998. judgment Muhammad Naseem Chaudhri, J.-Criminal Appeal No. 1048 of stands preferred against judgment dated 12.12.1992 passed by the earned Additional Sessions udge, Okara whereby he convicted and sentenced Shahamand alias Shamma son of Gohar Ali, Caste Oad, resident of Chak No. 23/2-L, presently Chak No. 5/GD Police Station Choochak, District Okara to face death penalty under Section 302(b) Pakistan Penal Code. The Court of Session at Okara has sent Murder Reference No. 60 of as contemplated under Section 374 of the Code of Criminal Procedure for the confirmation of the death sentence awarded to Shahamand alias Shamma appellant-convict. 2. Both the aforesaid appeal and the aforesaid Murder Reference are being disposed of through this consolidated judgment, 3. An occurrence took place in the bazar of Chak No. 7/1-AL within the area of Police Station Saddar Renala Khurd, District Okara at about 1.45 a.m. on the night falling between 13/14.9.1991 wherein Hassan Ali son of Din Muhammad nephew of Mxihammad Ali complainant son of Allah Ditta lost his life. About the occurrence aforesaid Muhammad Ali complainant PW-3 son of Allah Ditta got recorded FIR Exh. PA before Ghulam Nabi SI PW-10 posted in Police Station Saddar Renala Khurd wherein he alleged that at 1.45 a.m. on the night falling between 13/14.9.1991 he was sleeping in his shop alongwith his nephew Muhammad Siddique PW (not produced). He heard the alarm in the bazar. Both of them went out of the shop. In the meanwhile Javed Iqbal PW-4 arrived. They saw that three unknown ersons, out of whom one was armed with a carbine, were grappling with Ali Muhammad PW-5 son of Chiragh and Mxihammad Ali PW son of Muhammad Rafique (not produced) who were performing the duties of watchman. In the meanwhile his nephew Hassan Ali (deceased of this case) arrived who was fired at by that person who was armed with a carbine. The fire-shot hit the mouth of Hassan Ali who fell down and expired at the spot. The fire shot attracted other villagers. The three accused made good their scape. He prayed for taking the legal action. 4. Ghulam Nabi SI PW-10 reached the place of occurrence who took into possession the dead body of Hassan Ali. He prepared injury statement Exh. PF and inquest report Exh. PG regarding the dead body of Hassan Ali. He handed over the dead body to Abdus Sattar Constable PW-7 for taking the same to DHQ Hospital, Okara for post-mortem. He made the spot inspection and prepared the spot inspection note. He took into possession blood-stained earth from the spot vide memo Exh. PB attested by Ali Muhammad PW-5 son of Chiragh Din and sealed the same in a parcel. He prepared rough site-plan Exh. PH of the place of occurrence. He recorded the statements of the PWs. After the post-mortem examination Abdus Sattar Constable PW-7 handed over to him last worn blood-stained clothes P-1 and P-2 of the deceased and one phial containing the pellets which were taken into possession vide memo Exh. PD. He got prepared site-plans Exh. PE and Exh. PE/1 form Abdul Ishaque Nasir Draftsman PW-8 on which the notes and drawings with black ink were in the hand of the said Draftsman while those in red ink were in his hand. He handed over the case property to Sh. Abdur Razzaq ASI PW-1 on 14.9.1991 who on 19.10.1991 handed over the sealed parcel containing the blood-stained earth to Jafar Ali Constable PW-9 and he delivered the same in the office of the Chemical Examiner, Lahore. 5. Dr. Saeed Ahmad Medical Officer, DHQ Hospital, Okara PW-6 conducted the post-mortem examination on the dead body of Hassan Ali at 12.15 p.m. on 14.9.1991. The dead body of Hassan Ali was identified by his brother Muhammad Sharif PW-2. The Medical Officer found there injuries on the person of the deceased caused during the occurrence. Injury No. 2, viz. an abrasion on the right side of fore-head was declared to be caused by a blunt weapon while the remaining injuries were, caused with fire-arm. In his opinion the cause of death was due to haemorrhage and shock caused by Ijury No. 1 which was sufficient in ordinary course of nature to cause the death. He issued carbon copy Exh. PC of the post-mortem report and carbon copy Exh. PC/1 of the diagram showing the location of injuries. Muhammad Yaqub Inspector/SHO Police Station Saddar Renala Khurd (PW-11) took into his hands the investigation of the case on 28.9.1991 from Ghulam Nabi SI PW-10. He arrested Muhammad Siddique and Amanat acquitted accused on 28.9.1991 and caused them to be looked in the judicial lock-up, Central Jail, Sahiwal as their Identification Parade had to be arranged. He arrested Shera, Nazra and Ranjha acquitted accused as well as Shahamand alias Shamma appellant-convict on 9.10.1991 and sent them to the judicial lock-up Central Jail, Sahiwal as their Identification Parade had to be got conducted. 6. Mr. Muhammad Ashraf Magistrate 1st Class, Renala Khurd PW-12 supervised the Identification Parade pertaining to Muhammad Siddique and Amanat All acquitted accused on 9.10.1991 in Central Jail, Sahiwal when the aforesaid PWs identified the aforesaid acquitted accused. He prepared his report Exh. P-l/3 containing his certificate Exh. P-l/4. This PW-12 supervised the identification parade pertaining to Nazra, Ranjha and Shera acquitted accused and Shahamand alias Shamma convict-appellant on 15.10.1991 on the basis of the application Exh. PJ submitted before him. He prepared the Report of Identification Parade containing his certificate (original not produced). The aforesaid PWs correctly identified the acquitted accused as well as Shahamand alias Shamma appellant. The report Exh. PL of the Chemical Examiner and report Exh. PM of the Serologist were collected according to which earth was stained with blood and also with human blood. After completing the investigation Muhammad Yaqub SHO PW-11 submitted the challan in the Court of the Area Magistrate who sent up the same to the Court of Session. 7. Shahamand alias Shamma appellant-convict as well as acquitted accused namely Muhammad Siddique, Amanat Ali, Shera, Nazra and Ranjha were charged under Sections 301/148/149 PPC who pleaded not guilty thereto and claimed to be tried. 8. During the trial the eye-witnesses namely Muhammad Ali complainant son of Allah Ditta PW-3, Javed Iqbal PW-4 and Ali Muhammad PW-5 son of Chiragh Din" stated by ascribing the specific roles to the aforesaid under-trials. They deposed that they saw the occurrence in the electric bulb, that Shera and Muhammad Siddique grappled with Ali Muhammad PW-5 and Muhammad Ali (given up) when on the arrival of Hassan Ali deceased Shamma convict fired at him. They continued that Amanat, Ranjha and Nazra accused remained standing at some distance. They took-up the stand that during the Identification Parade, conducted twice, they identified the aforesaid accused persons. When cross-examined by the learned defence counsel Muhammad Ali complainant PW-3 stated that he did not get incorporated in FIR Exh. PA the fact of the electric bulb being on. He was confronted with the facts that Shera and Siddique accused grappled with Ali Muhammad and Muhammad Ali PWs, that Shahamand convict fired at Hassan Ali, that Amanat, Ranjha and Nazra remained present at some distance, that he got inserted the grappling by Siddiq and Shera accused and that he got incorporated the description of the accused persons in the FIR. However, these facts were not mentioned in the FIR. He stated that the accused persons and their addresses were not known to him before the occurrence. Javed Iqbal PW-4 stated that the occurrence took place on 3rd or 4th of the lunar month. He stated that he did not state before the police that the fire-shot was effected by a person aged 50 years: This fact was mentioned in his statement Exh. DA. He admitted, that except Shera, accused all the remaining accused persons were aged 30 to 32 years. He stated that the accused persons were not known to him before the occurrence. Ali Muhammad PW-5 son of Chiragh Din stated that the two persons had muffled their faces while the remaining three persons stood at a distance of seven Karams, that due to darkness he could not see the features of the accused persons, that during grappling his clothes were torn, that after the arrest of all the accused he alongwith Muhammad Ali complainant, Javed Iqbal, Ali Muhammad, Muhammad Ali son of Rafique and Muhammad Siddique was called in Police Station Saddar Renala Khurd to verify the arrest of the accused who were identified by them in the Police Station. He added that after the Identification Parade the SI told them that six persons have been found responsible for the occurrence and that he directed them that they should make out the story implicating six culprits. 9. The statement of Ch. Muhammad Ashraf, Magistrate 1st Class PW-12 was recorded on 12.12.1992 when he proved Exh. PK, photostat of the report of the Identification Parade containing the certificate Exh. PK/1 which was signed by him. Learned defence counsel raised the objection that the document could not be exhibited. On the same date statement of Muhammad Saleem Ablmad working in the Court of the said learned Magistrate at Renala Khurd was recorded as CW-1 who stated that he made his report Exh. CW-1/A on the back of the summons whereby he was summoned by the learned trial Court to appear alongwith the report of the Identification Parade. According to him he mentioned report CW-l/A to the effect that he took the summons to the Court of the learned Special Judge for Speedy Trials Court No. 2, Lahore when the Deputy Registrar of the said Court intimated that the same could not be handed over as the same was exhibited in some other case. He denied the suggestion that without going to t the aforesaid learned Speedy Trial Court he gave his aforesaid report on the ; summons. 10. When examined by the learned trial Court under section 342 of the Code of Criminal Procedure Shahamand .alias Shamma convict-appellant as well as the acquitted accused stated about their non-participation in the occurrence. They took up the plea that they were shown to the PWs by the police after their arrest, but before the holding of the Identification Parades. The appellant denied having fired at Hassan Ali deceased. All the accused did not produce the defence evidence and did not choose to appear in their own defence on oath under Section 340(2) of the Code of Criminal Procedure. 11. After hearing the parties learned trial Court gave the weight to the statements of the eye-witnesses (who appeared as PW-3 to PW-5) as well as the report of the Identification Parade, the photostats of which have been produced as Exh. PI and Exh. PK. Holding that Shahamand alias Shamma fired at Hassan Ali, he was convicted and sentenced as stated above. However, the remaining accused were acquitted. 12. Shahamand alias Shamma appellant has preferred the criminal appeal while the Court of Session at Okara has sent the murder Reference. 13. We have heard the learned counsel for Shahamand alias Shamma appellant as well as the learned State Counsel and gone through the record before us. Learned counsel for the appellant argued that the PWs made the improvements when they figured in the witness-box who were confronted with their statements, viz: Exh. PA, Exh. DA and Exh. DB. He added that even the number of the accused persons was added during the trial from that mentioned in FIR Exh. PA and that the improvements have shattered the prosecution case form its very root. According to the learned counsel for the appellant-convict photostat Exh. PK of the report of Identification Parade pertaining to Shahamand alias Shamma appellant was inadmissible in evidence because no effort was made to locate the original report within the purview of Section Article 76-C of the Qanun-e-Shahadat Order, 1984 to enable the prosecution to produce the secondary evidence under Article 74 of the Qanun-e-Shahadat Order, 1984 especially when the objection was raised by the learned defence counsel during the trial in this regard. He added that the appearance of Muhammad Saleem Ahlmad CW-1 would not justify the production of the secondary evidence as he did not obtain any report from any official posted in the learned Court for Speedy Trials at Lahore whose own report Exh. CW-l/A was nothing enough. He stressed that it was the duty of the learned trial Court to have sent the letter to the aforesaid learned Court at Lahore and in case of non-production of the original report of Identification Parade thereafter, there was the justification to produce the photostat Exh. PK in the secondary evidence. He maintained that as provided in Chapter 11-C of the Rules and orders of the Lahore High Court, Lahore Volume-Ill that when "any witness identifies the member of the parade, the Magistrate should note in what connection he is identified" and that the general type of identification in the matter has no legal force. On the contrary learned Counsel for the State laid the emphasis that no improvements have been made by the PWs uring the trial and that photostat Exh. PK of the report of the Identification Parade, wherein Shahamand alias Shamma was identified, is enough to connect him with the occurrence who cannot escape his criminal liability in the matter. 14. We are, however, of the view that the reasoning adopted by the learned counsel for Shahamand alias Shamma appellant has to prevail. In FIR Exh. PA there is no mention of the fact that the electric bulb was on and the accused persons were identified. It was the 3rd or the 4th of lunar month which means that it was dark at 1.45 a.m. The features of the accused persons were not got entered in the FIR and in the statements of the PWs recorded under Section 161 of the Code of Criminal Procedure. In the FIR their number was mentioned as three while the same was enhanced to six hereafter. The specific role attributed to the acquitted accused as well as to this appellant during the trial has made out the falsehood of the prosecution case as the said type of improvement has no blessing form the law of the land. We, therefore, express the view that the improvements effected during the trial, which have been projected supra, are enough to make out that the impugned judgment is based on surmises and conjectures to connect Shahamand alias Shamma with the occurrence and we hold that he did not fire at Hassan Ali deceased. 15. Now we take-up the ingredient of Identification Parade. With respect, to Shahamand alias Shamma appellant the photostat Exh. PK containing certificate Exh. PK/1 of Identification Parade Report verified by Ch. Muhammad Ashraf, Magistrate 1st Class, Renala Khurd cannot form the basis of the conviction of Shahamand alias Shamma appellant. Learned trial Court did not send any letter to the learned Special Judge Speedy Trial Court No. 2, Lahore making the request to send the original report of the Identification Parade. Muhammad Saleem Ahlmad CW-1 was summoned by the learned trial Court alongwith the report of Identification Parade. He claimed that he went from Okara to Lahore to collect the same, but he was not handed over the Report. It, is pertinent to mention that he did not secure .any writing from any official of the learned Judge Speedy Trial Court No. 2, Lahore. His own report CW-1/A is nothing enough in the matter to justify the attraction of Article 76(c) of the Qanun-e-Shahadat Order, 1984 for the purpose of production of secondary evidence in terms of Article 74 of the Qanun-e-Shahadat Order, 1984. It is pertinent to mention that the learned trial Court did not pass any order to allow the prosecution to produce the secondary evidence with respect to the report of Identification Parade whereby Shahamand alias Shamma appellant was put to the test of Identification Parade. On this ground the photostat Exh. PK of the Report of Identification Parade has no legal weight which is liable to be ignored and we pass an order accordingly. Even otherwise the report of Identification Parade cannot be relied upon because it is in the statement of Ali Muhammad PW-5 son of Chiragh Din that he alongwith Muhammad Ali complainant, Javed Iqbal, Muhammad Siddique and Muhammad Ali son of Rafique was summoned by the police, Police Station Saddar Renala Khurd at the Police Station to verify whether the persons arrested by the police were the real culprits and that they identified them at the Police Station. It means that Shahamand alias Shamma appellant was shown to the PWs before the Identification Parade and the report of the learned Magistrate 1st Class in the matter is of no legal value which is ignored. It is in the statement of Javed Iqbal PW-4 that the person who tired was 50 years old while Shahamand alias Shamma appellant was aged 35 years on the day he was examined under Section 342 of the Code of Criminal Procedure on 12.12.1992. Ali Muhammad PW-5 stated that two accused who grappled had muffled their faces. Shahamand alias Shamma appellant was one of them. When he had muffled his face how he could be identified during the Identification Parade. Last of all we have to refer to the Instructions relating to Identification Parades mentioned in Chapter XI-C of the Lahore High Court Rules and Orders Volume-Ill wherein under the caption Note about Identification by witnesses it is provided that "when any witness identifies a member of the Parade the Magistrate should note in what connection he is identified". It has been held in Khadim Hussain vs. The State (1985 Supreme Court Monthly Review 721) and Ghulam Rasool and three others vs. The State (1988 Supreme Court monthly Review 557) that the PW has to describe the role at the time of the commission of the offence by each of the accused being identified by him during the Identification Parade and that the non-description of the relevant role by the witness in such Identification Parade makes the evidence of the witness devoid of efficacy which cannot be relied upon. Consequently on this ground as well as the Identification Parade has to be ignored. In photostat Exh. PK of Report of Identification Parade no role was ascribed to Shahamand alias Shamma appellant when he was identified by the PWs during the Identification Parade and Ch. Muhammad Ashraf Magistrate 1st Class, Renala Khurd PW-12 did not note in what connection Shahamand alias Shamma was identified i.e. what role was ascribed to him during the occurrence. Such type of report of the Identification Parade is also liable to be ignored. The weight to the Identification Parade shall have to be given in the aforesaid legal perspective. As such this part of the prosecution evidence has failed to muster the desired effect. 16, For what has been said above, we hold that the prosecution has not been able to connect Shahamand alias Shamma appellant with the occurrence and the charge framed against him has not been proved. As such he is held :o be innocent who is entitled to be acquitted. We, therefore, accept this appeal, set-aside the impugned judgment and acquit Shahamand alias Shamma appellant. He is undergoing Ms sentence and shall be set at liberty forthwith, if not required in any other case, 17. The Murder Reference is, accordingly, answered in the negative and the death sentence is Not Confirmed. (T.A.F.) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1462 Present: jawaid nawaz khan gandapur, J. RIZWAN ULLAH and another-Petitioners versus STATE and another-Respondents Cr. Misc ./ B.A. No.-195 of 1998, dismissed on 8.6.1998. Criminal Procedure Code, 1898 (V of 1898)— S. 497--Murder case-Bail-Grant of-Prayer for--A/z6z--Plea of-Whether can be considered at bail stage-Question of-Petitioners were not present on the spot he time of occurrence and opinion of Enquiry Officer/DSP hat petitioners-accused were innocent and falsely charged shall be looked at the trial-Impugned rder s neither arbitrary nor perverse because reasonable grounds do not exist for believing that petitioners are not connected with commission of offence-ccordingly here is no justification to interfere with discretion exercised by Sessions Judge,judicially-Petition dismissed. [P. 1463] A & B Assadullah Khan Chamkani, Advocate for Petitioners. Khawaja Muhammad Khan, Advocate for Complainant. Khawaja Azhar Rasheed, A.A.G. for State. Date of hearing :: 8.6.1998. judgment One of the petitioners i.e. Saeedullah S/o Mir Azam was granted interim bail so as to enable him to accompany his mother who was to go to Saudi Arabia for performing Hajj. After performing the Hajj Saeedullah has come back and has surrendered before this Court. He shall be taken into custody forthwith and sent to the Jail. 2. Mr. Assadullah Khan Chamkani Advocate learned counsel for the petitioners, Khawaja Muhammad Khan Advocate assisted by Mr. Muhammad Arif Khan, Advocate learned counsel for the complainant and Kh. Azhar Rashid, learned Asst. Advocate General for the State present and heard. Record of the case perused. 3. Admittedly, the petitioners have been charged, by their aunt for having killed their real uncle, in the promptly lodged F.I.R. The motive for the commission of the crime, as given, in the F.I.R. is that the complainant's son was charged for killing the brother of the accused some times back. 4. Besides the recovery of empties from the spot, blood stained earth was also recovered. The question of alibi that the petitioners were not present on the spot at the time of occurrence and the opinion of the Enquiry Officer/D.S.P. that the petitioners-accused were innocent and falsely charged shall be looked into by the trial Court at the trial. 5. The Sessions Judge, Charsadda (Mr. Muhammad Ibrahim Khan) while recalling the concession of bail granted to the petitioners by the Judl. Magistrate (Mr. Muhammad Azam Khan) has taken into his consideration all the ingredients laid down in Section 497 Cr.P.C. and has given valid reasons for his conclusions by recording a speaking order. The impugned order is neither arbitrary nor perverse because reasonable grounds do not exist for believing that the petitioners are not connected with the commission of the offence charged with. Accordingly there is no justification to interfere with the discretion exercised by the Sessions Judge Charsadda judicially. In holding so I am fully supported by a case titled Ijaz Alt Khan vs. The State, reported as 1968 Supreme Court (M.R.) 1168. It was held by the Supreme Court:- "Muhammad Yaqub Ali, J.-The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in Section 497 Cr.P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." 6. This bail petition is devoid of any substance and is accordingly dismissed. (K.A.B.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. (Qiietta) 1463 Present: amanullah khan yasinzai, J. MANZOOR ALJ--Appellant versus STATE-Respondent Crl. Appeal No. 87 of 1998, accepted on 22.5.1998. Pakistan Penal Code, 1860 (XLV of 1860)— —-Section 409 read with Section 5(2) of Prevention of Corruption Act, 1947- Misappropriation of Govt. wheat-Whether to establish offence u/S. mere entnistment of property to accused and its shortage would be nough or not-Question of-There is no cavil to proposition that to establish ffence of criminal breach of trust under Section 409 PPC mere entnistment of property to accused and its shortage would not be enough-Onus is lways on prosecution to prove that accused had dishonesty misappropriated property or used same to his benefit- Further it is cardinal principle of riminal justice that any admission or confession made by accused has to be taken into consideration in entirety and if accused had given any xplanation, prosecution was bound to prove same as wrong and further it was incumbent upon court to have taken explanation into consideration-ailure to discharge responsibility for safe custody of property would not per se amount to establish an offence within meaning of Section 409 PPC or an offence under Section 5(2) of Prevention of Corruption Act, 1947--Mere entnistment of property to appellant and its shortage would not be nough to establish guilt of dishonest misappropriation and mere existence of adverse presumptioncannot be equated with establishment of guilt-nus as on prosecution to prove its case-Appellant had given cogent explanation with documentary evidence i.e. bank challans in respect of wheat bags; amewere neither rebutted nor disproved by prosecution and learned SpecialJudge did not consider said explanation offered by appellant-herefore, appellant is entitled to benefit of doubt-Thus appeal is accepted andimpugned judgment is set aside-Appellant be released forthwith if not required in any other case. [Pp. 1467 & 1473] A, B & C Mr. Tariq Mehmood, Advocate for Appellant. Mr. Nasarullah Khan Achakzai, Advocate for State. Date of hearing: 15.5.1998. judgment This appeal is directed against the judgment dated 6.4.1998 passed by Special Judge Anti-corruption Balochistan, Quetta whereby appellant has been convicted under Section 409 PPC to further undergo RI for five years and a fine of Rs. 100,000/- in default thereof to further undergo RI for six months and U/S 5(2) Act E of 1947 to suffer RI for two years. 2. Briefly stated the facts of the case are that PW-4 Muhammad Ikhtiar Bangulzai, SDM Usta Muhammad lodged report on 10.3.1997 with Police Station Usta Muhammad being FIR No. 30/97, U/S. 409 PPC alleging therein that he had made surprise visit of wheat go-downs at Usta Muhammad and found that 8965 bags of wheat were missing and appellant being incharge of the center did not maintain any record of the said wheat. On this report, investigation of the case was started. After completion of investigation, challan was submitted before Special Judge Anti-corruption Balochistan at Quetta. Charge was framed on 30.7.1997 to which the appellant did not plead guilty. 3. To substantiate its prosecution produced PW-1 Muhammad Ramzan Head-constable, PW-2 Muhammad Ishaaque, constable, PW-3 Ghulam Hussain constable, PW-4 Muhammad Ikhtiar, SDM PW-5 Hakim All constable PW-6 Kalimullah SI. Appellant was examined under Section 2 Cr.P.C. and also U/S. 340(2) O.P.C.. After assessing the evidence on record, the learned Special Judge convicted the appellant as mentioned hereinabove thus this appeal. 4. PW-1 Muhammad Ramzan deposed that on 10.3.1997 appellant was brought to Police Station by SDH Usta Muhammad who presented two stock registers, one attendance register of employees, 87 challans, two challans of National Bank and certificates of National Bank of Pakistan. Certificates were taken into possession by SI Kalimullah vide recovery Memo Ex P/l-A and were tendered in evidence as Articles A/1 and A/2 bank challans were taken into possession vide recovery Memo Exp/l-B and the same were tendered as Articles A/3 to A/89. Attendance Register was taken into pbssession vide Ex. P/l-C and was tendered as Article A/90 and two stock registers were taken into possession vide Ex. P/l-D and were tendered as Articles A/91 to 92. He further stated that during custody the appellant produced 12 challans which were taken into possession vide recovery memo Ex. P/l-E and the said challans were tendered as Article A/93 to Article A/104. 5. PW-2 Muhammad Ishaaque stated that on 10.3.1997 in his presence I.O. Kalimullah visited the food-godowns and prepared site inspection report vide Ex. P/2-A and also prepared site plan of the said godown vide Ex. P/2-B. " 6. PW-3 Ghulam Hussain stated that on 20.3.1997 appellant presented three bank challans to the I.O. which where taken into possession vide Ex. P/3-A and the said challans were tendered as Articles A/105 to A/107. 7. PW-4 Muhammad Ikhtiar SDM Usta Muhammad. He deposed that on 8.3.1997 he was performing his duties as Assistant Commissioner Usta Muhammad and Commissioner and D.C. informed him that there was cute shortage of wheat throughout the country and also in his own district and further that he was directed to go and check the food godowns. He went to the godown where appellant was present and he found that there was no wheat in the godown. After checking the record it was revealed that 8965 bags of wheat were short. He enquired about the said shortage and appellant informed him that he had already issued the same to different mill-owners who will be depositing the amount in the bank and further stated that if he is given ten days time the said amount will be deposited. Commissioner refused to allow time; therefore, on Commissioner's directions he lodged compliant with Usta Muhammad Police Station. The complaint was produced as Ex. P/4-A on the basis of which the FIR No. 30/97 was lodged I U/S.409PPC. 8. PW-5 Hakim All narrated that on 21.3.1997 while in custody I.O. was interrogating the appellant he produced four copies of challan which were taken into possession vide Ex. P/5-A and challans were presented as Articles A/108 to A/112. . 9. PW-6 Kalimullah stated that on 10.3.1997 SDM Ikhtiar lodged report that 8965 bags of wheat were missing on which Crime No. 30/97 was lodged under Section 409 PPC. He further stated that he investigated the case, took record into custody and further deposed that from checking of the stock registers there was shortage of 6462 bags and during the month of .February, 1997 1156 bags had been disposed of whereas there was no entry in the Stock Registers and further stated that regarding 1156 bags three challans were produced on 16.3.1997 and 12 Railway vouchers were also produced showing therein that 28800 bags of wheat had been transferred for Usta Muhammad from Port Qasim Karachi but there was no entry in the Stock-Register regarding the same whereas 26191 bags were shown to have been issued and further it was revealed from the record that 2347 bags had been taken out of the go-downs whereas the total number of bags ought to have been 35262 and after receipts and disbursement 7915 bags were found missing. He further stated that on 20.3.1997 three challans of 5500 bags were produced and on 21.3.1997 four challans of 2415 bags were produced by the appellant and stated that on 24.3.1997 appellant was sent to judicial custody. He prepared challan Ex. P/6-A. Appellant was examined under Section 342 Cr.P.C. wherein he admitted that on 8.3.1997 upon checking no wheat was found in food godowns at Usta Muhammad and further admitted that no proper record of the wheat godown was maintained and also recorded his statement under Section 340(2) Cr.P.C. in which he gave account of the shortage of wheat bags. He stated that a specific quota has been fixed for small grinding mills and further stated that wheat is issued to different mill-owners against challans which have four copies, one is kept by Food department and three challan are given to persons to whom wheat is issued and thereafter they deposit the amount in National Bank on said challans. These challans are counter signed by Assistant Food Controller and mill-owners and when wheat has been issued, after depositing the amount the mill-owners deposit two copies of the challans with the A.F.C. He further deposed that in March, 1997 he produced challan copies issued to various mill-owners as Articles A/112 to A/118 and in the month of February A/119 to A/121 and stated that stocks for the month of December 1996 to January, 1997 were 6462 bags and further that from Port Qasim 28800 bags were transferred, likewise a total number of bags was 35262 and in the month of January he issued 26191 bags to different mill-owners and 9071 bags were left in -the stock. In the Month of February he issued 1156 bags and challans of the same were produced as Article A/118 to Article A/120 and besides the above mentioned bags, 7915 bags of wheat were issued in the month of March to different mill-owners and in the Month of March he did not receive any wheat from outside as there was acute shortage of wheat throughout the countiy and further deposed that on 6th or seventh March 7915 bags of wheat were issued against challans to different mill-owners and the said mill-owners had apprised the SDM about the issuance of 7915 bags and had also shown the challans to the A.C. He further stated that at the time of raid, the Assistant Commissioner wrongly detected shortage of 8965 bags of wheat but in fact 9071 bags were missing as the same had been issued to different mill-owners and the amount had been duly deposited against challans in the National Bank of Pakistan and further that he is innocent and had not misappropriated the alleged bags of wheat. 10. I have heard Mr. Tariq Mehmood Advocate for the appellant and Mr. Nasrullah Khan Achakzai Advocate for the State. 11. Mr. Tariq Mehmood Advocate contended that the learned Trial Court-had convicted the appellant on a wrong assumption of law. The learned counsel further contended that U/S 409 PPC and 5(2) Act II of 1947 mere entrustment of property to the accused and its shortage would not be enough to establish guilt of dishonest misappropriation. It was incumbent upon the prosecution to prove that the accused had actually misappropriated the wheat. The learned counsel further contended that explanation was given by the accused regrading shortage of wheat. It was for the prosecution to prove that the explanation given by the accused appellant was wrong, imaginary and contrary to record. The learned counsel further contended that the prosecution had failed to prove misappropriation of the wheat bags. On the contrary appellant had given explanation for the said shortage and had produced documentary evidence in this regard which was discarded by the learned court causing prejudice to the case of the appellant. 12. Mr. Nasrullah Khan Achakzai Advocate for the State supported the judgment and stated that the explanation given by the appellant was after-thought and he had been rightly convicted and the appellant had failed to account for the shortage of wheat bags. . 13. I have heard the arguments of he learned counsel for the parties and have also perused the record available. 14. It may be observed here that there is no cavil to the proposition that to establish offence of criminal breach of trust under Section 409 PPC mere entrustment of property to the accused and its shortage would not be nough. The onus is always on the prosecution to prove that accused had dishonestly misappropriated the property or used the same to his benefit. urther it is cardinal principal of criminal justice that any admission or confession made by the accused has to be taken into consideration in entirety and if the accused had given any explanation, the prosecution was bound to prove the same as wrong and further it was incumbent upon the court to have taken the explanation into consideration. 15. In the case in hand the moot question to be determined is whether the appellant was entrusted with wheat bags and whether he misappropriated or misused the same for his own benefit. Prosecution case is that on checking of the godown by the Assistant Commissioner Usta Muhammad about 8965 bags of wheat were found missing. As far as shortage of wheat is concerned the same has not been denied by the appellant rather the appellant in his statement stated that in fact 9071 bags of wheat had been issued to various mill-owners which had not been entered in the Stock Registers. As far as entrustment of wheat to the appellant is concerned, the same is not disputed by the appellant. Thus the prosecution has proved that the wheat has been entrusted to the appellant while he was posted as A.F.C. at Usta Muhammad. 16. Now adverting to the main question whether the appellant had misappropriated the bags of wheat, found short in the godown; from the evidence produced on record as discussed above it is revealed that only at the time of checking 8965 bags of wheat were found short. The prosecution has failed to further substantiate that the said wheat was misappropriated by the appellant, though the appellant has given explanation about the said shortage. It is further to be determined that while passing the Order the learned Trial Court has rightly discarded the explanation given by the appellant. 17. The plea of the appellant right from registration of the case to date has been that he had issued wheat bags to different mill-owners and further that receipts were not recorded in the stock registers due to the negligence of the clerk who was supposed to do the needful. In this regard statement of PW-4 Muhammad Ikhtiar SDM is very much important for prosecution and defence both. In his examination-in-chief he stated that during checking 8965 bags of wheat were found missing. However, in his cross-examination he stated that the mill-owners came to him and showed him challans and stated that the wheat had been issued to him and the amount had also been deposited by them in the National Bank of Pakistan. 18. Reverting to the arguments of Mr. Tariq Mehmood, learned counsel that the Trial Court had not taken into consideration the explanation offered by the appellant, it is appropriate to refer to the judgment of the Trial Court while considering the explanation given by the appellant. The relevant portion of the judgment is reproduced below: - "In his statement on oath, too, the accused has stated that mill-owners had deposited the cost of wheat issued to them. This means that accused has tried to blow hot and cold in one breath. Thus it is proved that at the time of inspection of go-down there was no wheat in the godown whereas as per record, 8965 bags of wheat should have been in the stock, similarly it is proved that accused was responsible for this shortage/missing of wheat from the godown. Now in view of defence plea of the accused that he had issued wheat to millowners as per their quota. Who had to deposit the cost of wheat in due course of time, it is to be seen whether, accused actually issued wheat to the mill-owners as per their quota. As discussed hereinabove there is no record available to show that accused issued wheat to mill-owners because the official record is silent on this point. Similarly accused has not produced a single mill-owner in his defence who could testify that the wheat had been issued to him as per quota. Rather as per version of all the PWs, challans were presented by the accused himself and not by any mill-owner. Reference can be made to the statement of PW-1, 3 and 5. As observed hereinabove the accused has taken two selfcontradictory defence pleas Le., at some stage he states that mill-owners had deposited the cost of wheat and at some stage he states that cost of wheat was to be deposited by the mill-owners. The accused has further failed to show that he was authorized to issue wheat to mill owners in such large quantity without making nay entry in the relevant register. In failed to show that he was authorized to issue wheat to mill-owners, in such larger quantity without making entry in the relevant register. In his statement on oath, he has admitted that there was cutting/over-writing in the challans pertaining to the month of February. He has further admitted that as per record in the challans pertaining to the Months of December, 1996 and January 1997 only three days time had been given to the mill-owners for making payment but he has failed to furnish any plausible explanation as to why he allowed more time,to the mill owners in March, 1997 for payment of cost of wheat. He has gone to the extent of admitting in his cross-examination during his statement on oath that even 28800 bags of wheat received from Bin Qasim through train were not entered in the stock registers, All these facts prove nothing except that accused miserably failed to maintain stock register about receipt and issue of wheat received in the godown from time to time. He has also failed to prove that he has issued wheat to mill-owners who had to pay the cost of the wheat. It is proved beyond shadow of any doubt that accused was entrusted with the proper maintenance of record and wheat in the godown in the capacity of Assistant Food Controller but he committed criminal breach to trust in his behalf. Even otherwise if for the sake of arguments it is presumed that accused had issued wheat to mill owners who had to deposit, the cost, thereof, even then it has come to light that he intentional allowed more time to the mill-owners for deposit, of cost as compared to previous prevailing practice just to gain/give undue advantage at a time when there was acute shortage of wheat throughout the country. He by illegal means and by using his possession as ublic servant has obtained pecuniary advantage for himself as well as for mill-owners and his this act comes within the meaning of "criminal misconduct" as contained in Section 5(l)(d) of Act II of 1947." 19. From the perusal of the aforementioned portion of the impugned judgment it is revealed that the learned Special Judge Anticorruption has taken contradictory stands while convicting the appellant. In the first place the learned Trial Court has disbelieved the appellant and discarded his explanation that he issued wheat bags to the mill-owners and further held that none of the mill-owners was produced and has further held that even if such huge quantity of wheat was given to the mill-owners, whether the appellant was authorized to do so and has held that in the month of January, 1997 while issuing challans, appellant had given only three days time to the mill-owners to deposit the amount but in the month of March appellant had allowed more time to the mill-owners for depositing the amount. The Learned Judge has held that the appellant has miserably failed to maintain stock register while issuing wheat from time to time and has further held that the appellant has failed to prove issuance of wheat to the mill-owners; thus came to the conclusion that actually appellant had committed criminal breach to trust and thus convicted him. 20. It may be seen that the statement of the Investigation Officer is also very important who has given an account of the receipts of wheat from December, 1996 to March 1997 and issuance of wheat to different millowners by the appellant. The LO. stated that the total receipts of wheat from Port Qasim and other purchase centers from December, 1996 to March, 1997 was 35262 bags and in the stock registers 26191 bags were issued. Difference would come to 9071 bags of wheat which was not entered in the stock register. As far statement of appellant is concerned, the same corroborates the statement of Investigation Officer to the extent of shortage of 9071 bags ut, the appellant has given explanation and further tendered challan in his statement pertaining to issuance of wheat in the month of March, 1997. From the perusal of Articles A/1 to A/121 produced by the appellant in his statement total number of bags issued to various mill- owners comes to 9071 bags. Said Articles A/1 to A/121 are bank challans in which amount is shown to have been deposited in the National Bank by various mill-owners. From the perusal of the above challan it has come on record that the mill owners have deposited the entire amount of 9071 bags in National Bank of Pakistan. Prosecution has not disputed or rebutted the said challans. There is nothing on record to show that the said challans were f rged or were manipulated by the appellant. It may be seen that challans Articles A/112 to /121 pertain to the deposit of amount made from February 1997 to March, 1997 and most of the amount was deposited on or before 1.3.1997 and have been duly signed by the mill owners. It has come on record that the appellant was sent to judicial custody on 24.3.1997. Prosecution has even failed to prove as to how the said documents were manipulated when the appellant was in custody. Production of the challans further corroborates the statements of the appellant that he had issued 9071 bags of wheat to various mill oxvners against challans amount of which has been deposited in the National Bank of Pakistan. 21. It was argued by the state counsel that, the Bank Challans have been fraudulantly prepared; after giving an explanation regarding shortage of wheat, it was for the prosecution to disprove the same and show that, the explanation offered by the appellant was imaginary or contrary to record and challans produced were fraudulantly managed by the appellant. Further it was incumbent upon the learned Special Judge to have taken into considera­ tion the explanation offered by the appellant. The arguments of Mr. Tariq Mehmood. learned counsel have force and are well founded that the prosecu­ tion had failed to prove any misappropriation of the wheat bags by the appellant. Explanation given by the appellant was rather used against him by the Trial Court. In this regard I am fortified with the following case law> (i) Shakir Hussain vs. The State, PLD 1965 SC 417. In this case following observations were inade:- "Subject to certain exceptions, the most important of which is to be found in Section 105, evidence Act. the admitted and otherwise firmly established principle being that before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredient of the offence beyond a reasonable doubt, it is obvious that where the charge against an accused person is that of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he willfully suffered some other persons to do so." (ii) Mir Ahmad vs. The State, PLD 1982 SC 489. In similar circumstances as in the case in hand, it was observed:- "The case raises a similar question namely, the question of the correct, treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances. This matter received careful consideration by the Federal Court in the case of Safdar Alt vs. The State (1) where it was held that the decision in such cases must not be taken in relation to the accused's special pleading but must rest on examination of the entire evidence and if thereafter the court is of he opinion that there is a reasonable possibility that the defence put forward by , the accused might be true, this opinion reacts upon the whole case and the accused is entitled to benefit of such doubt on the ground that the prosecution has not proved its case beyond reasonable doubt." (iii) Abdul Qayyum vs. The State, 1989 P.Cr.LJ 2439. It was held: "In order to bring home the charge it is sufficient if it is established by the prosecution that the property was entrusted to an accused as a public servant and that public servant has either not returned that property or used it for the purpose other than for which it was entrusted. If the prosecution discharges the initial burden of proving that the property was entrusted to the accused then the burden shifts to the accused to establish that he has not misappropriated the government property. It is not at all necessary for the prosecution to prove that in what manner the properly of the government had been misappropriat­ ed. In the present case the prosecution has been able to prove that the goods were entrusted to the appellant. In such circumstances the further requirement that the prosecution should have also established misappropriation is not at all necessary but. while lying the burden on defence the explanation if any furnished by an accused must be considered. If a reasonable explanation has been given by the accused then again it is the duty of the prosecution to prove that the explanation given by the accused is incorrect, and contrary to facts on record. At this stage the burden again lies on the prosecution to show that misappropriation has been committed by the accused. In the present case though the entrustment has been established but there is not an iota of evidence about the misappropriation. The accused was charge-sheeted by the department and he given an explanation that there were heavy rains and the rain water came inside the go-down and about 200 to 400 cloth bags were affected and the matter was reported to the District Food Controller who visited the site and ordered to arrange for shifting of the stock. There was no misappropriation. The same explanation was given by the appellant before the Trial Court and this explanation was not properly considered by the court. It was incumbent upon the court to have considered the explanation of the accused particularly in view of the fact that prosecution has absolutely failed to prove the misappropriation. The explanation furnished by the appellant was considered against him. It is cardinal principle of criminal jurisprudence that an admission or confession of the accused must be accepted as a whole. The prosecution witnesses have not disputed the contention of the appellant that there were heavy rains and goods were shifted from one godown to another godown." (iv) Muhammad Yaqub vs. The State, 1994 P.Cr.LJ. 1116. While interpreting the provisions of Section 409 PPC it was observed as under:- "Failure to discharge responsibility for safe custody of property would not per ,sr» amount to establish an offence within the meaning of Section 409 PPC nor an offence under Section 5(2) of the Prevention of Corruption Act, 1947. The mere entrustment of property to the appellant, and its shortage would not be enough to establish guilt of dishonest misappropriation and mere existence of adverse presumption cannot: be equated with the establishment of guilt. The onus was on the prosecution to prove its case. No convincing evidence as produced by the prosecution about dishonest misappropriation of birds or conversion of the same to his own use by the appellant or their disposal, the mere entrustment and shortage would not be good enough to establish his guilt. It is well-settled that despite existence of circumstances giving rise to adverse presumption, the onus probandi still rests squarely on the shoulders of the prosecution." 21. As a result of the above discussion, in my considered opinion the appellant had given cogent explanation with documentary evidence i.e. bank challans in respect of the wheat bags; the same were neither rebutted yior disproved by the prosecution and the learned Special Judge did not consider the said explanation offered by the appellant. Therefore the appellant is entitled to benefit of doubt. Thus the appeal is accepted and the impugned judgment dated 6.4.1998 is set aside Appellant be released forthwith it" not required in any other case. (T.A.F.) Appeal accepted,

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1474 Present: asif saeed khan khosa, J. MUHAMMAD ARIF HUSSAIN-Petitioner versus STATE-Respondent Crl. Misc. No. 1963-B-1998, accepted on 26.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/Ss. 302/324/148/149/395 PPC--Bail--Grant of-Prayer for~Further inquiry-Case of-Whether hail can he refused on the ground that trial is either likely to commence shortly or has already commenced- Question of-It is settled law that in a case calling for further inquiiy within scope of provisions of Section 497(2) Cr.P.C. an accused person is entitled to bail as a matter of right and such a right cannot he denied on the ground that his trial is either likely to commence shortly or has already commenced-Case of petitioner requires further inquiry attracting provisions of Section 497 (2) Cr.P.C.-Petition accepted. [P. 1476J A PLJ 1989 SC 455 ref. Mian Saecd-ud-Din Ahmad, Advocate for Petitioner. Mian Liaquat Ali, Advocate for State. Mr. Mazhar Iqbal Sadhu, Advocate for Complainant. Date of hearing: 26.6.1998. order . Muhammad Arif Hussain petitioner alongwith his ten co-accused is facing trial in case FIR No. 1093 dated 23.8.1997 registered at Police Station Sadar, Sheikhupura for offences under Sections 302/324/395/148/149, PPC lodged by Muhammad Anwaar complainant. The occurrence in this case took place on 23.8.1997 at about. 6.15 p.m at an open place in village Kalokey within the area of Police Station Sadar, Sheikhupura and allegedly on the basis of an assault launched by the nominated accused persons Imtiaz Ahmad lost his life and Zulfiqar Ali P.W. sustained injuries during the same. The role attributed to the petitioner in the said FIR is that he, while armed with a shot-gun, fired at Zulfiqar Ali P.W. hitting him on his left leg. The Doctor who Medically Examined the said injured P.W. had declared the said injury attributed to the petitioner to be simple in nature. The petitioner was arrested by the local police in connection with this case on 4.11.1997 whereafter the petitioner applied for his bail after arrest before the learned trial Court but the same was dismissed vide order dated 6.4.1998 passed by the learned Additional Sessions Judge, Sheikhupura. Hence, the present petition before this Court. 2. It has been contended by the learned counsel for the petitioner that tne petitioner is not attributed any injury to the deceased and only a simply injury to a prosecution witness has been attributed to him. He has further argued that the petitioner was not involved in the motive incident — taking place in the morning of the day of occurrence. It has further been argued that D.S.P. Shahid Ahmad has given a finding that the petitioner was present at the spot during the incident but he had not fired at anybody. He has further maintained that the challan in this case has already been submitted and the petitioner is no longer required for the purposes of investigation. It has, therefore, been argued by him that the case of the petitioner calls for further inquiiy and the petitioner is entitled to be admitted to bail on that score. As against that the learned counsel for the State has maintained that the petitioner has been nominated in the FIR and a specific role has been attributed to him during the occurrence. He has argued that the petitioner was a member of an unlawful assembly and that his involvement during the occurrence has been established during the investigation conducted by the local police. He has further argued that in the challan submitted before the learned trial Court the petitioner has been placed in column No. 3. The learned counsel for he State has been very ably assisted by the learned counsel for the complainant in this case who has submitted before me that the FIR in this case was lodged promptly; that three eye-witnesses have consistently implicated the petitioner in the incident in question; that the assault mounted by the accused party was a premeditated one and, therefore, apart from his own role during the incident the petitioner is also vicariously liable for all the acts of his co-accused during the incident. 3. The learned counsel for the complainant has also vehemently argued that the offence allegedly committed by the petitioner attracts theprohibitory clause of Sub-section (1) of Section 497, Cr.P.C. and in such cases refusal of bail is a rule and its grant is an exception. It has further beenpointed out by the learned counsel for the complainant that the trial is about to commence and a date for recording the evidence of prosecution witnesses has already been fixed before the learned trial Court in that regard. The learned counsel for the State and the learned counsel for the complainant have thus, seriously opposed the grant of bail to the petitioner. 4. After hearing the learned counsel for the parties and going through the record I find that certain facts in this case stand out to e noticed. It is not disputed that the petitioner did not take part in the incident. - of motive in the morning of the day of occurrence. It is also the prosecution's own ase that the petitioner did not cause any injury to the deceased during the incident in question. It is again undeniably the prosecution's own case that the petitioner aused one injury on the leg of Zulfiqar Ali P.W. which injury was declared to be simple in nature by the Doctor. The learned counsel for the petitioner maintains that the said injury attracts the provisions of Section 337-A(i), PPC cariying a maximum sentence of two years R.I. whereas the learned counsel for the complainant has submitted that the said injury attracts the provisions of Section 337-F(ii), PPC cariying a maximum sentence of 3 years R.I. It is also not disputed before me that in the last investigation conducted by D.S.P. Shahid Ahmad it was concluded by the said Investigating Officer that the petitioner was present at the spot during the incident but he had not fired at anybody during the entire incident. In the present case on the one hand there are three eye-witnesses who stand by the allegations contained in the FIR whereas on the other hand the Investigating Agency has concluded otherwise, especially to the extent of the petitioner. In the wake of the opinion of the Investigating Officer being adverse to the prosecution case a question whether the petitioner is to he held vicariously liable for the injury caused to the deceased by his co-accused will be a question to be ultimately decided by the learned trial Court after recording the evidence produced before it. It will not be out of place to mention here that the challan in this case has already been submitted and the trial of the petitioner has already been set down for commencement. It is settled iaw that in a case calling for further inquiry within the scope of the provisions of Section 497(2), Cr.P.C. an accused person is entitled to bail as a matter of right and such a right cannot be denied to him on the ground that his trial is either likely to commence shortly or has already commenced. Reliance in this respect is placed on Muhammad Ismail v. Muhammad Rafique and another (PLJ 1989 SC 455) = (PLD 1989 SC 585). For what has been observed above I am satisfied that the case of the petitioner requires further inquiry attracting the provisions of Section 497(2), Cr.P.C. and, therefore, the present petition is accepted and the petitioner is admitted to bail in the sum of Rs. 50,000/- (rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the learned trial Court. (K.A.B.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1476 Present: asif saeed khan khosa, J. S.C. SUBJALLY, CHIEF EXECUTIVE MUSLIM INSURANCE COMPANY LTD., KARACHI-Petitioner Versus Mr. A. HAMID KHAN and another-Respondents Crl. Misc. No. 248-Q-97, dismissed on 2.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A—Application u/S. 249-A—Filing of—Dismissal of— Proceedings-- Ouashment of—Prayer for—Case is on its last stage--Application whether maintainable or not-Question of-Section 249-A Cr.P.C. covers both such situations i.e. where charge against an accused person is groundless or where there is no probability of accused person being convicted at the conclusion of his trial-In Section 561-A Cr.P.C. use of words "charge" and "probability" show an intention of legislature that a relief was sought to be made available to an accused person placed in such a situation to seek his pre-mature acquittal without undergoing ordeal of a full-dr ssed trial-But in a case where trial of an accused person is already at its last stages or is already knocking at its final stage invocation of Section 249-A Cr.P.C. for seeking a pre-mature cquittal appears to be incentivencompatible-At such a stage of trial spirit of Section 249-A Cr.P.C. i.e.. to save an accused from rigours of a full trial, is not ttracted—Therefore, it s not only inappropriate for an accused person to file an application under Section 249-A Cr.P.C. at such an advanced stage of the trial but also quite justified for a trial court not to entertain or decide the same on the merits. [P. 1480] A Mr. Haris Ahmad Khawaja and Ibrar Hussain, Advocates for Petitioner. Mr. Tariq Salim Advocate, for Respondents. Date of hearing: 2.7.1998. judgment After hearing the learned counsel for the petitioner I am inclined to admit this petition to regular hearing. 2. As all the relevant parties to this petition are already represented before this court today and the record of the learned trial court is also available, therefore, the parties have agreed to address their arguments in the main petition today. 3. The facts giving rise to the present petition are that on 7.12.1994 Respondent No. 1 had filed a private complaint before the learned Magistrate Section 30, Model Town, Lahore alleging commission of offences under Sections 415, 418 and 420, PPC by the present petitioner and Respondent No. 2. After recording preliminary evidence of Respondent No. 1 the learned trial court summoned the petitioner and Respondent No. 2 for 11.12 1994 to face a trial in that regard. On 30.9.1996 a charge with two heads under Sections 418 and 420, PPC was framed against the petitioner and Resp jndent No. 2 to which they pleaded not guilty and claimed a trial. On 2.11.1996 Respondent No. 1 got his statement recorded as PW. 1 and produced Abdul Qayyum as PW. 2 before the learned trial court in support of his case. The petitioner filed an application under Section 249-A, Cr.P.C. before the learned trial court on 31.12.1996 praying for his acquittal at that stage of the case. The learned trial court issued a notice to the opposite party in respect of that application. That application remained dormant for some time and in the meanwhile the prosecution closed its evidence and on 5.5.1997 statements of the petitioner and Respondent No. 2 were recorded under Section 342, Cr.P.C. wherein they controverted the allegations levelled against them by the prosecution and professed their innocence. Both of them also expressed their willingness to make statements on oath under Section 340(2), Cr.P.C. and also their readiness to produce their evidence in defence. 1 have been informed today that the present stage of that trial is that the case is now fixed for recording of the defence evidence. On 17.6.1997 the learned Magistrate Section 30, Model Town, Lahore dismissed the petitioner's application under Section 249-A, Cr.P.C. a revision petition filed by the petitioner against that order was also subsequently dismissed by the learned Additional Sessions Judge, Lahore vide his order dated 9.9.1997. Hence, the present petition before this court. 4. It is noticeable that the present stage of the trial of the petitioner is that the prosecution evidence has completely been recorded and closed, the accused persons therein have already got their statements under Section 342, Cr.P.C. recorded and according to the learned counsel for the petitioner only certain documents are to be produced by the accused persons in their defence before final arguments are addressed in the main case. 5. It has been argued by the learned counsel for the petitioner that the petitioner's application under Section 249-A Cr.P.C. had been dismissed by the learned trial court, and that dismissal was upheld by the learned revisional court on the wrong premise that the said application had been filed at a late stage. In this context he has pointed out that the petitioner had in fact submitted his application under Section 249-A, Cr.P.C. at the earliest opportunity available to him. According to him both the prosecution witnesses had made their statements before the learned trial court on 2.11.1996 and after the recording of those statements the petitioner felt that to his extent the statements of those witnesses were not incriminatory in any manner. Therefore, at that stage he had filed the said application under Section 249-A, Cr.P.C. as no witness remained to be produced by the prosecution. He has vehemently argued that if the trial court had failed to adjudicate on the said application expeditiously then the petitioner should not be allowed to suffer on that account as the blame in that respect could not be laid at his door. He has further argued that the provisions of Section 249-A, Cr.P.C. themselves show that an application in that respect can be filed at any stage of the case and merely because such an application has been filed after the conclusion of the prosecution evidence is no ground for its dismissal. In this context he has referred to The State vs. AsifAli Zardari and another (1994 SCMR 798) and Barak Ullah vs. The State (1997 SCMR 274). He has, therefore, argued that this was a fit case wherein the learned trial court or the learned revisional court ought to have acquit the petitioner without much ado saving the petitioner from any further anguish, agony and expense of the further stages of this trial. He has also maintained that further proceedings in this case against the petitioner amount to an abuse of the process of law and an abuse of the process of court. As against that the learned counsel for Respondent No. 1 (complainant in the present case) has submitted that the petitioner had not seriously pursued his application under Section 249-A Cr.P.C. at the initial stages of the same and it was pressed only after the entire evidence of the prosecution had been conchided and the statements of accused persons under Section 342, Cr.P.C. had also been recorded. According to him the only thing remaining in the trial was production of certain documents by the accused persons in their defence and then the final arguments had to be addressed. He has, therefore, maintained that the learned courts below were quite justified in dismissing the petitioner's application under Section 249-A, Cr.P.C. at that late stage of the case. In this context he has also referred to the case of Yaqub Alt vs. The State (NLR 1981 Criminal 234). As regards Respondent No. 2 he has not entered appearance today despite issuance of notice of this petition to him by this court on 16.9.1997. Therefore, this petition has been heard in his absence. Even otherwise Respondent No. 2 had not applied for his acquittal under Section 249-A, Cr.P.C. and, therefore, his interest in the present petition appears to be minimal. 6. After hearing the learned counsel for the parties and going through the record of this case I have noticed that the petitioner's application under Section 249-A, Cr.P.C. had been dismissed by the learned trial court and such dismissal was upheld by the learned revisional court mainly on the ground that it was too late in the day for decision of that application on merits as the prosecution evidence had already been completely recorded, statements of the accused persons under Section 342, Cr.P.C. had also been recorded and the only step remaining to be taken after recording the defence evidence was to hear the final arguments in the main case. So the main issue before,me is whether the learned courts below were justified in declining to decide the petitioner's application under Section 249-A, Cr.P.C. on its merits at such a stage of the case. In this context I am not unmindful of the spirit underlying the introduction of Section 249-A in the Code of Criminal Procedure. The essence of that spirit is to save an accused person the botheration of going through a full trial if otherwise he can convince the court at an early stage of the case that either the legal provisions invoked against him are not attracted to the facts alleged against him or even if the prosecution evidence is allowed to be fully recorded and the same is admitted as correct there is no likelihood of its acceptance by the trial court so as to convict :he accused person. In a criminal trial there are different satges, i.e. framing of a charge, recording of statements of prosecution witnesses, recording of statements of accused persons under Section 342, Cr.P.C., recording of defence evidence including the statements of accused persons on oath and hearing of final arguments to be followed by writing of a judgment If an offence invoked against an accused person is not even attracted to the facts alleged against his then it can be said that the charge or the allegation against that accused person is groundless or without any basis but in a case where.although the legal provisions invoked against an accused person do in fact flow from the allegations alleged against an accused person then the matter of his culpability rests on the evidence to be produced by the prosecution. There may be cases where there is no sufficient evidence available with the prosecution to connect an accused person with the offence alleged. In such a case there may not be any likelihood or probability of the accused persons getting convicted at the end of the trial. Section 249-A, Cr.P.C. covers both such situations i.e. where the charge against an accused person is groundless or where there is no probability of the accused person being convicted at the conclusion of his trial. It is also noticed that the use of the words "charge" and "probability" show an intention of the legislature that a relief was sought to be made available to an accused person placed in such a situation to seek his pre-mature acquittal without undergoing the ordeal of a full-dressed trial. But in a case where the trial of an accused person is already at its last stages or is already knocking at its final stage invocation of Section 249-A, Cr.P.C. for seeking a pre-mature acquittal appears to be incentive-incompatible. At such a stage of the trial the spirit of Section 249- A. Cr.P.C. i.e. to save an accused from the rigorous of a full trial, is not attracted. Therefore, it is not only inappropriate for an accused person to file an application under Section 249-A, Cr.P.C at such an advanced stage of the trial but also quite justified for a trial court not to entertain or decide the same on the merits of the case. In the present case, as observed above, the trial of the petitioner had already reached its final stage when the learned trial court had decided the petitioner's application under Section 249-A, Cr.P.C. It is unfortunate that the learned trial court did not decide that application of the petitioner soon after its filing but it is also true that the petitioner also did not show any interest in an early disposal of that application. It is noticeable that when that application was finally decided by the learned trial court the stage of the trial was such that the learned trial court was quite justified in not deciding the said application on the merits of the case. 7. As regards the merits of the case urged by the learned counsel for the petitioner before me I would refrain from commenting on the same at this stage lest the same may prejudice the case of either party before the learned trial court. All those points will, however, be available to the petitioner while arguing the main case on its merits before the learned trial court at the concluding stage of the trial. 8. For what has been observed above the impugned orders passed by the learned Magistrate Section 30, Model Town, Lahore on 17.6.1997 and the learned Additional Sessions Judge, Lahore on 9.9.1997 are found to be unexceptionable in the circumstances of this case. This petition is, therefore, dismissed. (T.A.F.) Petition dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1481 Present: MUHAMMAD NASEEM CHAUDHRI, J. SHER alias SHERA etc.-Petitioners versus STATE-Respondent Crl, Misc. No. 2443-B of 1998, accepted on 1.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497~Bail--Grant of--Prayer for--Offence u/S. 379 PPC--Case was referred to Police with a delay of 15 days, that offence under Section 379 PPG does not fall within prohibitory clause whereupon acceptance of bail is a rule and its rejection is an exception and that stolen buffalo stands recovered~0n this score petitioners are held entitled to be admitted to bail-It would be instructive to express that a bail application has to be disposed of within frame work of Section 497 of Code of Criminal Procedure and not on basis of material which is neither available nor relevant in matter—Bail granted. [P. 1482] A Mr. M. Ramzan Ch. , Advocate for Petitioners. Mr. Muhammad Khalid Khatak, Advocate for State. Date of hearing; 1.6.1998. judgment Noor Muhammad complainant got recorded F.I.R. No. 89 dated 13.2.1998 at Police Station Gogera, District Okara under Section 379 PPC with the allegation that 15 days before his one head of buffalo valuing Rs. 20.000,'- was stolen. The foot prints reached the bank of River Ravi. The Trackers named Sher alias Shera, Hashmat (petitioners-accused), Zakir, Farzand, Amin and Sarwar as the accused of the case who are said to have given the undertaking to return the buffalo. However, they did not abide by the promise. 2. On 19.2.1998, the stolen buffalo is said to have been taken into possession by the Police under Section 50 Cr.P.C. vide recovery memo attested by Noor Ahmad and Shah Jamal constable. The said recovery is alleged to have been made from Sher alias Shera and Hashmat accused-petitioners named in the FIR. 3. The bail plea of both the petitioners Sher alias Shera and Hashmat is said to have been rejected by the Area Magistrate and the learned Sessions Judge Okara on the ground that some other cases of cattle lifting are also pending against them at Police Station Bhalak District Faisalabad. The petitioners have filed this petition before this Court to try heir luck to be admitted to bail. 4, I have heard the learned counsel for the petitioners as well as learned counsel for the State and gone through the record before me. . 5. The bail application of petitioners has been rejected by the learned lower courts on the ground that they are involved in other cases of cattle lifting. However, it was admitted by the Police Officer present in Court that no case of cattle lifting against both the petitioners is registered or pending at Police Station Gogera District Okara. He has referred to the list of some cases said to have been registered at Police Station Bhalak, District Faisalabad against the petitioners. However, a perusal of this list has made out that the same contains the seal of Police Station Gogera, District Okara and not the seal of Police Station Bhalak, District Faisalabad. On this very short ground, this list can safely be ignored and I pass an order accordingly. Even otherwise mere production of the list or without the result of the cases in favour of the prosecution regarding the conviction of the accused, the same cannot steal the eminence for the purpose of the retention of the discretionary relief. The fact of the matter is that the case was referred to the Police with a delay of 15 days on 13.2.1998, that the offence under Section 379 PPC does not fall within the prohibitory clause whereupon the acceptance of bail is a rule and its rejection is an exception and that the stolen buffalo stands recovered. On this score the petitioners are held entitled to be admitted to bail. 6. It would be instructive to express that a bail application has to be disposed of within the frame work of Section 497 of the Code of Criminal Procedure and not on the basis of material which is neither available nor relevant in the matter. 7. For what has been said above, I accept this application and admit both Sher alias Shera and Hashmat petitioners-accused to bail in the sum of Rs. 10,000/- (rupees ten thousands only) each with one surety each in the like amount to the satisfaction of learned Area Magistrate Police Station Gogera, District Okara with the direction to appear before the learned trial court on every date of hearing failing which the learned trial court may cancel ,the bail allowed to the petitioners by this Court. 8. Copy Dasti subject to payment of usual charges. (T.A.F.) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1483 [ Multan Bench] Present: ahmad nawaz malik, J. SABTAIN-Petitioner versus STATE--Respondent Crl. Misc. 695/B 1998, accepted on 21.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Grant of-Prayer for-Case of further inquiry-Offence u/S. 459/397 PPC-Petitioner is admittedly student of 9th class and though was caught red handed he could not be able to have stolen away by snatching away any valuables from complainant and his sons-­ Complainant and petitioner have no injury on their persons-Petitioner fired from close range but could not hit petitioner-F.I.R. was registered by complainant's sister-Allegation of previous enmity-Possibility of false implication due to malafide of police because of enmity and initiation of false case against petitioner is not ruled out-Petitioner is in judicial lock­ up for the last nine months-For reasons petitioner is held entitled to grant of bail. [Pp. 1483 & 1484] A & B Rana Khalid Mahmood, Advocate for Petitioner. Anwar-ul-Haq Shah, Advocate for State. Date of hearing: 21.5.1998. order The petitioner has moved this application for post arrest bail in case FIR No. 248/97 registered on 22.9.1997 under Sections 459/397 PPC at Police Station Jalal Pur Pir Wala, Multan . 2. The prosecution case, as is evident from the FIR, is that Hafiz Ghulam Nabi complainant alongwith his son Hafiz Abdul Shakoor and Yousaf was sleeping at his residence on the night of occurrence i.e. 21/22,9.1997 and was awakened at 3.30 a.m. on hearing a noise and Subtain petitioner armed with 30 bore pistol was found to have done so. He based the complainant to handover every thing to him otherwise he would be killed and he jocked him by holding by his collars. In the meantime his sons Abdul Shakoor and Hafiz Muhammad Yousaf also woke up. The petitioner was over powered. Abdul Shakoor aforesaid tried to catch hold of the petitioner hut the latter fired at him and he luckily escaped. The complainant and the petitioner also scuffled to each other and the former sustained injuries also. Then the petitioner fired second time but the fire missed. The complainant and his both sons captured the petitioner and in the meantime residents of the Mohallah also reached there. All of them gave slaps to the petitioner. Thereafter the petitioner alongwith .30 bore pistol was produced before the police and the present case was got registered. 3. I have heard the learned counsel for the parties and perused the record. 4 Learned counsel for the petitioner contents that due to the enmity of the police which resulted on the case of FIR No. 209/96 having been registered against Police Officials of the same Police Station including Abdul Latif SHO at the instance of Razia Batool sister of the petitioner and the case being that of further enquiry also due to the factum that no injury was caused to any of the complainant or the witnesses and nothing having been looted from them. It is further contended that the petitioner is student of 9th class and being of tender age has been in the judicial lock-up for the last about 9 months and he was arrested on 22.9.1997. For the reasons the petitioner may be allowed bail. 5. Learned counsel for the State has opposed the petitioner. He contended that the petitioner trespassed into the house of the plainant while armed with fire arms and fired at him and the complainant has luckily scaped. The petitioner tried to also snatch the valuables from the omplainant and his sons but was caught red handed. For the reasons the etitioner does not deserve to be bailed out. 6. The petitioner is admittedly student of 9th class and though was caught red handed, he could not be able to have stolen away by snatching away any valuables from the complainant and his sons. The complainant and the petitioner have no injury on their persons. The petitioner fired rom lose range but could not hit the petitioner. All the circumstances goes to render it a case of further enquiry in view of the fact that FIR No. 209/96 was registered at the instance of Mst. Razia Batool sister of the petitioner and in that case it was alleged that the police had abducted the elder brother of the petitioner and tortured him. The allegation shows that Abdul Latif SHO was also complained against and also one of the sons of the complainant who was a Razakar of the police also involved therein. The enmity as such having been nourished against the complainant stand established thereby. Reliance is placed on Munir Ahmad vs. The State (1993 MLD 2272). "I have heard the learned counsel for the petitioner and gone through the file. As far as the registration of cases against the police officials of the Police Station is concerned, they have been accepted by learned counsel for the State, because the same is borne out from the record. Learned counsel for the State could not refute the assertion that the witness from public is a witness who is already a prosecution witness in 63 cases, mostly of similar cases. In these circumstances, case against the petitioner does become of further inquiry. Therefore, Munir Ahmad petitioner is allowed bail provided he furnishes security " In view of the above observations of law the possibility of false implication due to mala fide of the police because of enmity and initiation of false case against the petitioner is ruled out. For the reasons the petitioner is held entitled to the grant of bail. 6. Consequentially, the petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 50,0007- with one surety in the like amount to the satisfaction of Trial Court. (K.A.B.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1485 Present: dr. GHOUS MUHAMMAD, J. MUHAMMAD SHAFIQUE-Applicant versus STATE-Respondent Crl. Bail Application No. 1451 of 1997, rejected on 1.1.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(l)-Bail--Grant of-Prayer for-Offence u/S. 22 of-Offences Against Property (Enforcement of Hadood) Ordinance 1979-Grounds of delay as envisaged by third proviso of S. 497(1) accused derives a statutory right to be enlarged on bail but such right is derogated in case accused is hardened, dangeroxis or desperate criminal or is involved in any act of terrorism-Applicant was caught red handed after a police car chase—He is involved in a crime pertaining to car snatching which is an act of terrorism affecting society at large-Bail refused. [Pp. 1489 & 1490] A & C (ii) Words and Phrases- (a) Black's Law Dictionary 1968, Revised Fourth Edition at page 1643:- "TERROR. Alarm; fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening even or manifestation; fear caused by the appearance of danger. In an indictment for riot, it must be charged that the acts done were "to the terror of the people See Arto v. State, 19 Tax. App. 136". (b) Chambers 20th Century Dictionary 1983 New Edition at page 1335:- Terror, n. extreme fear, a time of, or government by, terrorism; and object of dread; one who makes himself a nuisance...." (c) Webster's Collegiate Thesaurus, 1988 at page 579:- "terror n. syn FEAR 1. alarm, consternation, dismay, dread, fright, horror, panic, trepidation trepidity rel. are fearfulness. (d) Legal Thesaurus by W.C. Burton at page 999:- "Terror-far, panic, phobia, trepidation" "Terrorism-anarchy, lynch law" "Terrorist-assailant, criminal" "Terrorize-bait (harass), coerce, endanger, frighten, harass, intimidates, threaten." (3) Eugene v. Walter has defined terrorism as a process of terror involving elements; 'the act or threat of violence, the emotional reaction and the social effects, (Walter, E.V., Terror and Resistance, New York , Oxford University Press, 1977, p. 14. (f) R.K. Sinha has defined terrorism as the use of violence when its most important result is not only the physical and mental damage to the direct victims but also the psychological effect produced on someone else. (R.K. Sinha; Crimes Affecting State Security), Deep & Deep Publications New Delhi. [Pp. 1489 & 1490] B Mr. S. Suleman Badshah, Advocate for Applicant. Agha Zafir, Advocate for State. Date of hearing: 9.12.1997. order This order will dispose of bail application filed on behalf of applicant/accused Muhammad Shafique who is involved in Crime No. 78/1996 for the offence under Section 22 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at P.S. Airport Karachi. His bail application was rejected by the learned trial court on 8.7.1997. The facts of the case as unfolded in the F.I.R. dated 25.4.1996 lodged by one Muhammad Akram are that while he was coining in his taxi No. PL- 2296 without any passenger from Gulshan-e-Iqbal three boys gave him a signal to stop the taxi as he reached near Drive nn Cinema at 9.00 p.m. They asked him to take them to the old airport. At about 9.45 p.m. when they reached in a street in front of the rport Hotel those three passengers directed the complainant to get down from the taxi, but when he inquired the reason they forced the complainant to leave the driver's seat. Thereafter one of the boys of tall height occupied the driver's seat and started the taxi. At about 22.00 hours the taxi reached Al Shifa Chowk and the complainant raised a great hue and cry. Many persons were present there, therefore the culprits ran away. In the meanwhile a police Cab bearing No. PH-0201 which was coming from the back being driven by Muhammad hafi, lso reached the scene. Constable Shakil Ahmed who was sitting in another taxi also joined the chase for apprehending the culprits nd ultimately the applicant was apprehended while the remaining two culprits aged about 19/20 years managed to escape. The apprehended ccused was brought to the police station where an F.I.R. was registered. I have heard the learned counsel for the applicant, the earned State, counsel and perused the record.Bail is sought on the ground of statutory delay in conclusion of the trial of the accused. His first ail Application No. 1150/1996 was rejected by the learned Sessions Judge Malir and the second bail application was moved mainly on the point of delay in the conclusion of trial, but the learned IXth Additional Sessions Judge Karachi South (Ms. Nuzhat Ara Alvi) rejected the same. The operative part of the impugned order reads as under:- "Arguments of learned counsel for the parties have been given areful onsideration and perused the record of the case. The first bail application of the accused Shafiq had been rejected by learned District Judge alir on 9.6.1996 and had observed: "On perusal of the police papers I find that the boys after hiring the taxi car of the complainant applied and mplied force for snatching tax cab from him which was resisted. The applicant/accused was caught at the spot by the PWs. Muhammad iraj nd Shakil Ahmed from busy area. He was immediately produced before the police. Until and unless the complainant and eye witness of this ase are not examined by this Court, no concession of v bail can be given to the applicant/accused particularly in these ays when the type of crimes t have become very common in the city of Karachi." Learned counsel for the accused has not taken any fresh round in the present bail application and the ground taken in second bail application is the same as had been taken in previous bail application and has observed in 1987 P.Cr.L.J. 749 wherein it has been held: "1987 P.Cr.L.J. 737. S. 497-Pakistan Penal Code (XLV) of 1860 S. 392-- Bail grant of Ground of delay in trial of more than one year although available to applicant and specifically taken in earlier bail application yet not pressed ... such ground, held could not be considered as a fresh ground nor could be made basis of any subsequent application in circumstances." and in view of order of learned District Judge Malir passed earlier accused is not entitled to connection of bail. Hence bail application is hereby rejected." I have given my anxious thoughts to the matter at hand. The third proviso to Section 497 was essentially introduced in 1979 to strike greater certainly in disposal of causes. Before such amendment a lot was left to the discretion of the Court when entertaining bail applications on grounds of delay. The Court could then examine the facts arid circumstances of each matter to balance various factors before coming to a conclusion as to whether the accused would he entitled to bail. However, after introduction of the third proviso such discretion in the court has been taken away. The Hon'ble Supreme Court in Zahid Hussain Shah v. State P.L.D. 1995 SC 49 relying upon its earlier decisions in Wazir Khan v. State (1983 SCMR 427) and Nazir Hussain vs. Zia-ul-Haq and others 1983 SCMR 72 came to the conclusion that the right of an accused to be enlarged on bail under the third proviso to Section 497(1) of the Criminal Procedure Code is a statutory right which cannot be denied under the discretionary power of the court to grant bail. The right of an accused to get bail under the third proviso of Section 497Q) Criminal Procedure Code is thus not left to the discretion of the court but is rather controlled by such provision. The bail under the third proviso to the said Section 497(1) of the Criminal Procedure Code can only be refused to an accused by the court where it is shown that the delay in the conclusions of the trial had occasioned on account of any act/omission of the accused or any other person acting on his behalf. Additionally, the concessions under the third proviso to Section 497(1) of the Criminal Procedure Code would not be available and the court can refuse bail if the provisions of the fourth proviso to Section 497(1) of the Criminal Procedure Code are attracted i.e. the accused is a previous convict and in the opinion of the court is a hardened, desperate or dangerous criminal or involved in any act of terrorism. Such state of law is fully endorsed by other decisions including AsifAli Zardari vs. State 1993, P.Cr.L.J. 781, Muhammad Azam v. State 1995 P.Cr.L.J. 864 and Jaggat Ram v. State 1997 SCMR 361. In Jaggat Ram the aspect that where an accixsed is involved in any act of terrorism he shall not be entitled to bail even on grounds of delay has been categorically under-scored. The true import of Jaggat Ram is that persons who are involved in acts of terrorism are to be treated at par with persona who are hardened, desperate and dangerous criminals. Accordingly, the fourth proviso to Section 497(1) would -- come into play to refuse bail despite allegations of one-sided delay on the part of the prosecution. In the present case the learned counsel for the applicant has vehemently contended that, the applicant and his counsel are not responsible for causing any delay in trial and accordingly the accused derives a statutory right to be enlarged on bail. He further contended that the trial court has f erred in applying the law laid down in CM Muhammad v. The State (1987 P.Cr.L.J. 737. On the other hand, the learned counsel for the State after perusal of the case diaries has frankly conceded that the accused is not a previous convict and both the accused and his counsel are not responsible for causing any delay in trial but since the accused was caught red-handed on the spot the court should not grant him bail, have already cited the law that would be applicable to the present controversy. It is true that on grounds of delay as envisaged by the third proviso of Section 497(1) the accused derives a statutory right to be enlarged on bail but such right is derogated in case the accused is a hardened, dangerous or desperate criminal or is involved in any act of terrorism. In order to ascertain the plausibility of the argument advanced by the State this Court will have to determine as to whether the crime of car snatching through force and intimidation shall amount to terrorism. In order to ascertain the true connotation of the term "terrorism" the following are being referred:- (a) Black's Law Dictionary 1968, Revised Fourth Edition at page 1643:- "TERROR. Alarm; fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening even or manifestation; fear caused by the appearance of danger. In an indictment for riot, it must be charged that the acts done were "to the terror of the people See Arto v. State, 19 Tax. App. 136". (b) Chambers 20th Century Dictionaiy 1983 New Edition at page 1335:- Terror, n. extreme fear, a time of, or government by, terrorism; and object of dread; one who makes himself a nuisance ...." ! c i Webster's Collegiate Thesaurus, 1988 at page 579:- "terror n. syn FEAR 1. alarm, consternation, dismay,dread, fright, horror, panic, trepidation trepidity rel. are fearfulness. (d) Legal Thesaurus by W.C. Burton at page 999:- "Terror-far, panic, phobia, trepidation" "Terrorism-anarchy, lynch law" "Terrorist-assailant, criminal" "Terrorize-baft (harass), coerce, endanger, frighten, harass, intimidates, threaten." (3) Eugene v. Walter has defined terrorism as a process of terror involving elements; 'the act or threat of violence, the emotional reaction and the social effects, (Walter, E.V., Terror and Resistance, New York, Oxford University Press, 1977, p. 14. (f) R.K. Sinha has defined terrorism as the use of violence when its most important result is not only the physical and mental damage to the directvictims but also the psychological effect produced on someone else. (R.K. Sinha; Crimes Affecting State Security), Deep & Deep Publications New Delhi. A scrutiny of the above definitions would reveal that acts of terrorism cover actions which cause or are calculated to cause alarm, fright, dread, panic, horror, Tearfulness etc. Car snatching at gun point is covered by such definition of terrorism. We are all witnesses to a decay and declined in the law and order situation coupled with a hike in car snatching through show of force by individuals or mobs. The crime of car snatching and certain others have become a menace to the society and we are all hostages to such criminals. Though such crimes are directed against individuals who are the victims but in a wider context they affect the society at large. Car-snatching is thus a crime against the society in view whereof the court has to be cautious in granting bail as mandated by the Supreme Court in Imtiaz Ahmad v. The State PLD 1997 SC 545. In my humble opinion the applicant in the present case was caught red handed after a police car chase. He is involved in a crime peitaining to car snatching which is an act of terrorism affecting the society at large. Thus pressing into service the dictum of the Supreme Court in Jaggat Ram I decline to grant him bail. The present application is thus dismissed. However, directions are issued to the learned trial court to dispose of the entire trial expeditiously within four months. It is further observed that the observations hereinabove are only of a tentative nature and should not influence the learned trial Judge at the trial. (K.A.B.) Bail rejected.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1491 Fr^enr: MUHAMMAD AsiF jan, J. SABIR HUSSAIN-Petitioner versus STATE—Respondent Crl. Misc. Xo. B 2251-B/1998, decided on 25.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —5 4?:-Bail--Grant of-Prayer for-Offence u/Ss. 409/411 PPC-Taking :u: rje:rcl from Government vehicles and selling out illegally—Allegation ::--There are two basic requirements of S. 409 PPC, entrustmerit or i:::::r-ion over property by a person in his capacity as a public servant-­There v/as no entrust to petitioner (owner of petrol pump) neither did he ha - . e any dominion over property in question, therefore, it is a matter of ser.r.is doubt as to whether S. 409 PPC will have any application-Section 411 ??C is punishable with 3 years and does not fall within prohibition ;::r.:.a:ried in sub-section (1) of S. 497 Cr.P.C.-Bail granted. [P. 1492] A, B & C .'.f-. Muhammad Ramzan Ch. , Advocate for Petitioner. .V" ,M. Bashir Chandhary, A.A.G. for State. Da-e of hearing: 25.5.1993, order Sabir Hussain, petitioner, aged about 35 years, was arrested on the 2'~.':. ::" March 1998, in pursuance of a case registered against him and ar.:.:her ;•;-> FIR No. 81/98, dated 20th of March 1998, under Sections 409 411 of :he Pakistan Penal Code, at Police Station Shahdara Town, Lai:re. regarding an occurrence which allegedly took place on the 20th of March 199S at about 1 p.m. at the petrol pump of Sabir Hussain petitioner tdc-.vr. as Allah Dad Filling Station" situated at Kala Khataee Road , which is ah : u: 3 Kilometers from the police station where the FIR was lodged on .he same day at 5 p.m. by Sh. Ghulain Rasool, Magistrate, Metropolitan C: no: ration. Lahore. 2 According to the FIR, complainant Sh. Ghulam Rasool, Mar-sorate Metropolitan Corporation of Lahore had secret information that r. -'-. : '. ': e".: ::r.:ig to the Corporation was being taken out from the vehicles of .he T: ~ : ra~;: n and was being illegally sold and that this illegal activity was :i.r.; carr.cn :n at the petitioner's Filling Station. Accordingly, a raid was ::r.:/.:;:ed by complainant Sh. Ghulam Rasool and co-accused Amjad Ali, a ir.ver :•:' one of the vehicles of the Corporation was taking out petrol from through a pipe and, therefore, he was arrested at the spot. The petitioner was also arrested because he was present at his petrol 3. The first requirement for application of Section 409 PPC is entrustment or dominion over property by a person in his capacity and this is a second requirement of a public servant. 4. Admittedly, there was no entrustment to the petitioner neither did he have any dominion over the property in question, therefore, qua Sabir Hussain petitioner, prima facie, it is a matter of serious doubt as to whether Section 409 PPC will have any application. 5. Section 411 PPC is punishable with three years' R.I. and does not fall within the prohibition contained in sub-section (1) of Section 497 Cr.P.C. 6. Resultantly, the petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the trial Court/fllaqa Judicial Magistrate. (T.A.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1492 Present: mian muhammad ajmal, J. ZAR BADSHAH-Petitioner versus SAMIULLAH and another-Respondents Criminal Revision No. 27 of 1994, dismissed on 6.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34-Murder--Offence of-Acquittal due to benefit of doubt-­ Revision against-Analysis of evidence by trial court appears to be reasonable and fair and seems to be based on correct appreciation of evidence-Unless it is demonstrated with certainty that none of grounds f acquittal are supportable, Superior courts will not interfere-In absence of reliable corroborative evidence, retrial should not be ordered as it will be a repetition of same exercise of trial with no better result-Petition dismissed. [P. 1497] A PLD 1966 SC 424 ref. M. Zahurul Haq, Advocate for Petitioner. Mr, Fakkre-Azam, Advocate for Respondent No. 1. Mr. Abdur Rauf Gandapur, Advocate for State. Date of hearing: 6.2.1998. judgment Through the instant Criminal Revision. Zar Badshah complainant has challenged the judgment dated 28.8.1993 of the learned Sessions Judge, Kohat, whereby he acquitted Samiullah alias Samu accused-Respondent No. 1 in case FIR No. 187 dated 25.2.1990 under Section 302/34 PPC, Police Station, Saddar Kohat. 2. Brief facts of the prosecution case are that on 25.2.1990 Zar Badshah complainant reported the matter to the police to the effect that at the time of occurrence he was present in the High School Dhoda whereas his deceased brother Khan Badshah was sitting outside the said school. On hearing the report of fire shots he rushed outside the school and saw Nisar son of Abdul Hakeem and Samu son of Hqji Ahmad Yar firing at his brother Khan Badshah, with which he was hit and died on the spot and the accused decamped from the scene of occurrence. The occurrence was allegedly witnessed by Abdul Samad, Liaq Shah and Waheedullah. The motive was stated to be a dispute over the electricity poles which was later on compromised. 3. After the necessary investigation of the case, challan was submitted in the court of Illaqa Magistrate, Kohat, who later sent the case for trial before the Sessions Court. 4. After complying with the provisions of Section 265-C Cr.P.C. the accuse'd was charged under Section 302/34 PPC for the murder of Khan Badshah deceased to which he pleaded not guilty and claimed trial. 5. In order to prove its case the prosecution examined Asal Khan SHO (PW. 1), Shad Muhammad (PW. 2), Shah Jehan HC (PW. 3), Anwar Din HC (PW. 4), Hazrat Rehman HC (PW. 5), Munir Khan (PW. 6), Zarbadshah (PW. 7), Liaq-Shah (PW. 8), Waheedullah (PW. 9), Malik •Muhammad Yousaf (PW. 10), Mir Sayed Inspector (PW. 11), Hukam Jan ASI (PW. 12), Sarwar Jan HC (PW. 13), Ghulam Jan ASI (PW. 14) and Dr. Gulab Zarin (PW. 15) and abandoned the remaining PWs being unnecessary. 6. The ocular account of the prosecution version was furnished by Zar Badshah complainant (PW. 7), Liaq Shah (PW. 8) and Waheedullah (PW. 9). The former has reiterated the version given by him in the F.I.R. while the latter two supported him. The other witnesses are more or less of formal nature and their version is fully discussed in the judgment of the trial court and need not be repeated here. The accused was examined under Section 342 Cr.P.C. who denied the allegations made against him in the prosecution evidence. However, he did not wish to be examined under Section 340(2) Cr.P.C. nor liked to produce defence evidence. The learned trial Judge on the appraisal of the evidence so produced in the case, extended the benefit of doubt to the accused-respondent and acquitted him of the charges. 7. This revision was filed when application of the complainant before the Provincial Government to file appeal against acquittal was pending before District Magistrate, Kohat. On 4.4.1994, when the revision as heard in motion, learned counsel for the petitioner informed the court that the said application has been rejected. The revision petition was admitted to hearing for reappraisal of the prosecution evidence. 8. I have heard the learned counsel for the parties and go.n i !i rough he evidence on the record with their assistance. 9. Learned counsel for the petitioner with reference to the statements of Zarbadshah (PW. 7), Liaq Shah (PW. 8) and Waheedullah (PW. 9) argued that they had no ill-will or animus against the accusedrespondent to falsely involve him in the case. He contended that medical A| evidence is in line with the prosecution version which is corroborated by th un-explained abscondence of the accused. On the other hand, learned counsel for the respondent while defending the acquittal order submitted that prosecution case is replete with doubts and thus trial court has rightly extended the benefit of doubt to the respondent. 11. Learned counsel for the State also supported the acquittal order stating that the same is based on the correct appreciation of evidence and, as such, warrants no interference. 12. Learned trial court has discussed the eye-witness account in the following manner:- "Zar Bad Shah (PW. 7) in his court statement stated that, on the day of occurrence at 9.30 or 9.45 AM he was present inside the School of village Dhoda Sharif. Khan Bad Shah deceased was sitting on the road side. After a while he heard report of fire shots, came out of the School and saw accused facing trial and absconding co-accused, namely, Nisar firing at the deceased, with their pistols. According to him Khan Badshah was hit with their fire shots and the accused decamped. Ex. PB is the site plan prepared by the I.O. at the pointation of the complainant. At point No. 1 Khan Badshah is shown. At this point he received fire shot injuries and fell down at point 1(A). The distance between point No. 1 and point 1(A) is 7 paces. At point No. 2 absconding co-accused is shown, while point No. 3 is given to accused facing trial. At points 4, 5, 6, 7 Zar Badshah, Liaq Shah, Waheedullah and Abdul Samad are shown, while from point 'B' an empty of .30 bore was recovered by the I.O. According to complainant he took the dead body of the deceased in a Datsun Pickup tq the PS where he lodged report Ex. PA. Under crossexamination Zar Bad Shah stated that Maweez Khan is his maternal uncle. He is always contesting election of local bodies. Haji Ahmad Yar Khan was contesting election and Maweez Khan was supporting him. He also stated that he cannot say whether dispute over the Pole was earlier or later the said election, this witness is contradicted by Liaq Shah (PW. SI who under cross-examination stated as under:- "Maweez Khan and Ahmad Yar Khan did contest election. Maweez Khan was elected, while Ahmad Yar was defeated." Dr. Gulab Zarin (PW. 15) conducted P.M. examination on the dead body of the deceased. He found five entry wounds on the person of the deceased and four exit wounds. Zar Badshah stated that if a person is standing inside the school, the spot is not visible, and the spot is 22/23 paces from the School. According to him, after hearing 3/4 fire shots he came out from the school, he was sitting in a grassy ground adjacent to the school gate. He admitted that one Chowkidar was present and no other person was present inside the school. However, this Chowkidar, who is independent and disinterested person, was not produced by the prosecution to prove the presence of Zarbadshah at the spot. According to Zarbadshah, while he was inside the school he heard report of 3/4 shots and when he came out the remaining shots were fired by the accused, while the report of doctor is not supporting his version. Zar Badshah stated that only Shah Muhammad accompanied him to the PS. He also admitted that his one hand was bismeard with blood, and he had shown the said blood to the I.O. There is nothing on record to suggest that he had shown bismeard hand to the I.O, He admitted that one Patel of his village had dispute with one Fateh Sher. He also admitted that house of Fateh Sher was buggered for which deceased was charged alongwith brother of Dr. Alam. According to him, when I.O. reached the spot people of the locality were not present there, while I.O. contradicted him on this point. Liaq Shah deposed that he was student of 8th Class. On the day of occurrence he appeared in the Middle Examination. At about 10.00 AM he came out from Examination Hall for pissing. At that time Khan Badshah was sitting on the road towards the Ice Factory. Nisar and Samu came from Ice Factory, started firing at Khan Badshah, with which he was hit and fell down. Then he entered the examination hall for completing paper. He admitted that he was examined by the police u/S. 161 Cr.P.C. Ex. PD/1 is police statement of this witness. He was confronted with his said statement. Liaq Shah stated that he did mention in his police statement that both accused started firing, with which deceased was hit having his legs towards, from front side. On the other hand firing from front side not mentioned. According to him, he has not stated before the 1.0. that Nisar came near the deceased and fired at him from the close range. While in his police statement he had stated so. He voluntarily stated thaf. Nisar fired at the deceased from the distance of 4/5 paces. In his police statement this witness had stated that both the accused appeared from Ice Factory side. Khan Badshah was sitting on the road side. Nisar fired at him, with which he was hit and fell down to the other corner of the road. Then Samu fired at him, with which he was hit and died. Later on he entered the hall and gave paper. In his court statement he has not mentioned that first volley of shots was fired by Nisar followed by Samiullah, meaning thereby that this witness has made improvements in his court statement. It is also in his statement that when he came out at 10.00 AM he heard the report of fire shots, while complainant stated that he heard the report, of fire shots at 9.30/9.45 AM. He admitted that he did not go to the spot on account of firing and entered the Hall. He contradicted complainant and stated that deceased had no enmity regarding theft with any person. He further stated as under: "Sarwar Khan of Mosam Khan Banda had not charged the deceased for theft." He also stated as under: - "Patel and Fateh Sher had not charged the deceased for theft." This witness has not shown the place where he urinated after coming out from the Examination Hall. Asal Khan PW. 1 in his cross-examination admitted that on the day of occurrence Liaq Shah (PW. 8) appeared in Board Examination, and he verified from the staff of Examination Hall that Liaq Shah gave paper on the said date. Although this witness was present in examination hall, but in my opinion, keeping in view his divergent and contradictory statements, he had not witnessed the occurrence and has not come to the court with clean hands. Waheedullah son of Khan Badshah stated that on the day of occurrence he had gone to School for helping Liaq Shah who was appearing in a paper. Khan Badshah was sitting on road side towards the Ice Factory. At about 10.00 AM Liaq Shah came out from the hall, called him. In the meanwhile accused facing trial and absconding co-accused appeared from the side of Ice Factory having Tamachas their hands. According to him, first of all Nisar fired. Deceased retracted and fell down and then Samiullah also fired at him. Zar Badshah and Liaq Shah have not stated that first of all Nisar fired followed by the firing of Samiullah. According to Waheedullah, he did not go near to his father, but went to his house for informing the inmates. It is nowhere mentioned in his statement that Zar Badshah and Liaq Shah had also witnessed the occurrence. This witness was also confronted with his police statement recorded u/S. 161 Cr.P.C. copy Ex. PW. 1/D2. He stated that it is incorrectly recorded in his police statement that he came to the school for helping Liaq Shah in solving paper. He admitted that other persons/friends of the students had come to the school premises for moral support for their friends, but none of them was examined by the prosecution to support/corroborate the tainted statements of interested and partisan witnesses. Occurrence took place on main road, but no independent and disinterested witness was examined to corroborate the statements of Zar Badshah, Liaq Shah and Wahidullah, who are admittedly hostile, partisan and interested persons, in my humble opinion the presence of the said witnesses at the spot is not proved beyond reasonable doubt. There are material contradictions, omissions, additions and improvements in their statements." The above analysis of evidence by the trial court appears to be reasonable and fair as it seems to be based on correct appreciation of evidence, as such, the impugned judgment cannot be said to be preserve or fanciful. It has been repeatedly laid down by the apex court of the country in PLD 1959 SC 258, PLD 1960 SC 286, PLD 1964 SC 26, 422, 795 and PLD 1966 SC 424 that unless" it is demonstrated with certainty that none of the grounds of acquittal are supportable, the Superior Courts will not interfere only because of different view could be taken by the Superior Courts if it was trying the case. vr^en the view taken by the trial court is reasonably possible, simply that an alternative view might have been taken does not justify the setting aside of acquittal order. In view of the aforequoted case-law on the subject and in absence of re'-iat'e corroborative evidence, I am of the opinion that in such a case retrial shcuii n:c be ordered. It seems to me that retrial in all probability would be a repetition of the same exercise of the trial with no better result. Consequently this revision pet^Jion is dismissed. MYFK Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1498 (DB) Present: malik hamid saeed and shah jehan khan yousafzai, JJ. Mst. RUBINA and another-Petitioners versus INAM KHAN and another-Respondents Crl. B.C.A. No, 293 of 1997, accepted on 18.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)--Pakistan Penal Code (XLV of 1860), S. 302-Compromise bail- Cancellation of-Prayer for-Accused/respondent has been admitted to bail on ground of compromise alone--Petitioners are true legal heirs of deceased and they had been wrongly and illegally ignored in compromise proceedings while passing impugned order by court below-Compromise is defective and incomplete, rather it seems that brothers of deceased had compromised case with accused only to deprive petitioners from legacy of deceased—Held : Impugned order of court below based on so-called ompromise alone, is, therefore, patently illegal and unwarranted- Petition allowed. [Pp. 1500 & 1501] A, B & C PLJ 1996 SC 364 and NLR 1992 SC 508. Mr. Shafqatullah Khan, Advocate for Petitioners. S. Saeed Hassan Sherazi, AAG for State. Mr. Gohar Zaman Kundi, Advocate for Complainant. Date of hearing: 18.6.1997. Judgment Malik Hamid Saeed, J.--Mst. Rubina and her minor daughter named Mst. Zarkesh have by this application filed under Section 497(5) Cr. P.C. sought the indulgence of this Court to recall the bail granted to Inam Khan, accused/respondent herein, by the learned Special Judge Bannu on 27.10.1997, in case FIR No. 328 dated 17.3.1992 registered at Police Station Bannu City under Section 302 PPG. 2. The prosecution's case in brief is that on 17.3.1992 at 1735 hours, Iqtidar Khan son of Bahadur Khan, had lodged a report in injured condition in the Emergency Ward of District Headquarters Hospital Bannu to the effect that on the eventful day at 7.10 P.M. while coming out from the house of his father-in-law, namely, Wali Ayaz Khan, and reaching near Rashid Hotel in 'Chai' Bazar travelling in Motorcar No. BUB-5085 and accompanied by his aunt's son named Tariq Mehmood son of Gul Ajab Khan, when Inam Khan son of Muhammad Younis, accused/respondent, herein, duly armed with .30 bore pistol emerged at the scene and opened fire at him, as a result whereof he sustained injuries on his right arm and chest. The accused/respondent, thereafter, decamped from the spot. Motive for the offence was stated to be a dispute over women-folk and the occurrence was alleged to have been witnessed by the aforesaid Tariq Mehrnood. The injured/complianant, thereafter, succumbed to the injuries and his report was as such reduced into writing as a dying declaration in the shape of murasila by the S.H.O. Nazif Shah in presence

pf two qualified- Doctors ! onduty. Initially the case was registered under Section 324 PPG but after the death of the injured, the section of law was altered to that of Section 30£ PPC. After committing the crime, the accused/respondent went into hiding and remained fugitive from law for but 5^ years. It was on 25.9.1997 that the accused/respondent applied for bail-before-arrest which was granted to him by the learned Special Judge Bannu. Meanwhile, the accused succeeded in manoeuverlng and while his bail before arrest application was fixed for confirmation or otherwise on 13.10.1997, he presented some of the legal heirs of the deceased Iqtidar Khan who recorded their joint statement about compromise, but two brothers of the deceased named Ghaffar Khan and Mustafa Khan were absent and, therefore, the Court observed in its Order "that it appeared that the accused had not compromised the case with all the, legal heirs of the deceased and as such, the pre-an-est bail granted to him was recalled on the same day. 3. Thereafter, the accused/respondent applied for post-arrest bail. Mst. Rubina, petitioner herein, had through Misc. Petition' No. 925'4 of 1997 also applied for her impleadment as a respondent in the bail petition of the accused/respondent, on the plea of her being legally wedded wife of the deceased Iqtidar Khan. Both the petitions were taken together and vide common order of the Court below, the impleadment prayer of the petitioner Rubina was turned down while bail was conditionally allowed to the accused/respondent on the ground of compromise alone per order dated 27.10.1997 impugned herein, despite the fact that two real sisters of the deceased named Mst. Yasmin and Mst. Sufia .were absent and were not consenting parties in writing and despite the fact that the consenting parties _ to the compromise though had named the petitioners to be the wife and daughter of the deceased which fact too is mentioned in the impugned order, yet the accused/respondent was admitted to bail on account of an incomplete compromise. 4. It is astonishing to note that inspite of the fact that the accused respondent was held not entitled to bail on merits being directly charged in the dying statement of the deceased and having remained fugitive from law for a sufficient unexplained period, still he was admitted to bail on account of a defective compromise as two sisters and the petitioners though mentioned by the compromising party to be the legal heirs of the deceased had not compromised the case with the accused. While rejecting the claim of the petitioners, it was observed that suit for restitution of conjugal rights between her and the accused was pending adjudication in Family Court at Bannu and after its decision in case of her success she would be at liberty to move for cancellation of bail allowed to the accused/respondent. Likewise, the two un-associated sisters of the deceased to the compromise proceedings were left entitled to file bail cancellation petition against the accused/respondent. 5. Learned counsel for the petitioner vehemently criticized the impugned bail order of the Court below and the learned counsel for the accused/respondent and State supported the same. 6. After giving our anxious considerations to the respective arguments advanced at the bar and weighing the materials so far brought on record, we are of the considered views that this bail cancellation application merits' acceptance. The accused/respondent has been admitted to bail on the ground of compromise alone. While passing the impugned order, the learned Special Judge has altogether over-looked all the materials available on record. A civil suit was pending adjudication wherein all the legal heirs of late Bahadur Khan, father of deceased Iqtidar Khan, were made party therein excluding the petitioners. It was on 16.9.1997 that on their request the petitioners were arrayed as a party therein by the learned Senior Civil Judge Bannu. The plaintiff had failed to challenge the said order dated 16.9.1997 in appeal and, therefore, it had attained finality, terming the petitioners to be amongst the legal heirs of deceased Iqtidar Khan, as his wife and daughter respectively. Besides, the occurrence had taken place on while the petitioner had produced a Nikah Nama dated 7.12.1991, i.e. about three months and ten days before the incident, which shows that Mst. Rubina was already in the wed-lock of the deceased Iqtidar Khan. Mst. Akhtar Begum, mother of the deceased Iqtidar, had died after the present occurrence and her inheritance mutation was attested in favour of her legal heirs including the petitioners. Another sale Mutation No. 10055 attested on ide which inheritance mutation was attested in the name of the petitioners who had subsequently sold the property in question to Mustafa, Inamullah Khan, Ghaffar and Bahadur Slier, brothers of the deceased and this fact is/was available on record and entries to this effect had duly been made in the revenue record. In his report, the deceased had categorically stated that at the time of occurrence he had come out of the house of his father-in-law named Wali Ayaz and in her National Identity Card too, Mst. Rubina is mentioned to be the wife of Iqtidar Khan. Above all, the inheritance mutation of the deceased Iqtidar Khan was attested at the behest of his brother Bahadur Sher Khan wherein petitioner Rubina is duly mentioned as legal heirs of his brother deceased Iqtidar Khan. This fact further gets support from the 'Roznamcha-Waqiati' wherein Mst. Rubina is mentioned as the wife of the deceased Iqtidar Khan. All the aforesaid facts proves that the petitioners are the true legal heirs of the deceased Iqtidar han and they had been wrongly and illegally ignored in the compromise proceedings while passing the impugned order by the Court below. It was obligatory for the Court to have first determined positively as to whether the petitioners were on the basis of aforementioned materials brought on record or not the legal heirs of the deceased and thereafter to have passed any order. In this respect, reliance is placed on the case reported in PLJ 1996 SC 364 = PLD 1996 Supreme Court 178. Question of legitimacy can be proved by 'materials' instead of direct evidence of marriage and legitimacy. Islamic law leans in favour of legitimization rather than stigmatization and it is almost wrong to resolve all doubts in favour of stigmatization and illegitimacy rather than legitimacy. In this respect, we are fortified to a case reported in NLR 1992 Supreme Court Judgments 508. This being the true picture of the case, the petitioners being the legal heirs of the deceased were required to have been made party to the compromise proceedings including the two remaining sisters of the deceased and in their absence, the compromise is defective and incomplete, rather it seem that the brothers of the deceased had compromised the case with the accused only to deprive the petitioners from the legacy of the deceased-husband/father. The impugned order of the Court below based on the so-called compromise alone is, therefore, patently illegal and unwarranted. 7. In consequence, we would set aside the impugned order and recall the bail granted to the accused/respondent. He is present in Court, taken into custody and sent to judicial lock-up to await his trial as an under-trial prisoner. He is, however, at liberty to move on merits for bail afresh from the Court of Ilaqa Magistrate, as at the time of passing of the order in question, .30 bore pistol was not included in the scheduled offences and, therefore, post-arrest bail petition of the accused was not legally required to have been entertained by the Special Judge in a Sessions case. 8. Before parting with the case, we may observe that when the aforesaid material facts were available on record which duly proves the petitioners to be the legal-heirs of the deceased, the Judge below was not legally required to have made basis an incomplete and defective compromise for grant of bail in a murder case charging the accused/respondent by the deceased in his dying statement. By doing so some smell of illegal consideration comes out from his impugned order which is needed to be dig out. We, therefore, suggest a stern action against Mr. Abdul Sattar Khan Khattak who was then Special Judge Bannu by making an adverse entry in his A.C.R. A thorough judicial probe about his integrity should be conducted arid he is required to be dealt with iron hands. Record of the case be sent back to the Court concerned forthwith. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 1507 [DB] Present: iftikhar muhammad chaudhary and raja fayyaz ahmad, JJ. GUL HASAN-Appellant versus STATE-Respondent Criminal Appeal No. 60 of 1998, dismissed on 30.4.1998. (i) Suppression of Terrorist Activities, (Special Courts) Act, 1975 (XV of 1975)-- -—S. 7-Criminal Procedure Code, 1898 (V of 1898) S. 410-Offence u/S. 324 PPC-Conviction for-Appeal against-Appellant/accused is also guilty for offence harbouring etc. (S. 216 PPC), therefore, he will also be charged u/S. 216 PPC which comes within jurisdiction of Special Court as per para a (ii) of schedule of Act, 1975-Moreover T.T. Pistol (weapon of offence) was recovered from him—Commission of an offence by an accused with an automatic or semi automatic weapon including a T.T. Pistol, was an act of terrorism which creates sensation in general public- In such like cases accused deserves a speedy trial-Appellant did not object on jurisdiction of Special Court during trial-Held: Trial of appellant held by Special Judge under Act, 1975 does not suffer from jurisdictional defect. [Pp. 1511, 1516 & 1517] A to D PLJ 1994 SC 173 ref. (ii) Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)-- 7 read with S. 410 of Cr.P.C.-Offence u/Ss. 216 and 324 PPC- Conviction for-Appeal against-Victim was fired upon with help of fire arm and spent bullets/crime empties were recovered from place of incident-None examining PW-1 and PW-2 as witness by prosecution is not fatal to case-During cross examination no suggestion was given to complainant that appellant was not known to him neither any question was put to 1.0. as to why he did not arrange identification Parade-- Complainant/victim who received injuries with fire arm has furnished trust worthy evidence and merely on account of minor contradictions his evidence cannot be discarded—In a hurt case evidence of injured is sufficient to establish case if it gets corroboration from medical evidence-Discrepancies in evidence pointed out by appellant are of not much importance-In absence of motive which was asserted, but not proved, accused is entitled for lessor punishment which has already been awarded to him by trial court-Appeal dismissed. [Pp. 1518 & 1521] E to J PLD 1993 SC 895 ref. Mr. Tahir Muhammad, Advocate for Appellant. Mr. Noor Muhammad Achakzai, Addl. A.G. for State. Mr. Mchrnood Raza, Advocate for Complainant. Date of hearing: 21.4.1998. judgment Iftikhar Muhammad Chaudhary, J.--This appeal is directed against the judgment dated 6.2.1998 passed by Special Judge for Suppression of Terrorist Activities Jaffarabad at Dera Allahyar whereby appellant Gul Hassan s/o Mir Hassan has been convicted/sentenced under Section 324 P.P.C. to suffer imprisonment for seven years and to pay fine of Rs. 10.000/- or in default in payment of fine to further undergo imprisonment for 3 months. Benefit of Section 382-B Cr.P.C., however, was given to the convict. Prosecution case as gleaned from Fard-e.-Biyan dated 19.2.1997 of PW-1 (complainant) Muhammad Etabar son of Muhammad Akram caste Cori'Ex P/l-A, subsequently reduced into FIR No. 20/1997 lodged at Police Station Usta Muhammad at 9:15 p.m., is that at 8.30 p.m. when he alongwith Abdul Ghaffar was going to house, Abdul Ghaffar was riding his bicycle whereas he was sitting on the rear seat. When they reached on 'pakka road' near the house of Gul Hassan Leghari and Rahak Qadir Bakhsh Hajwani tWo persons were spotted by them standing near the motor cycle. The gave signal to stop them. On this Abdul Ghaffar stopped the cycle and they both got down. He saw that Gul Hassan s/o Mir Hassan caste Rind resident of Goth Abdul Rahim Rind had a T.T. Pistol in his hand; whereas other person standing alongwith him, who is not known to him, was empty handed. Gul Hassan gave him 'lalkara' that today he would not go safely. On this with the intention to commit murderous attack he fired with the T.T. Pistol one after the other which hit him due to which he got injured arid fell down. Abdul Ghaffar son of Ahmed, caste Cori, had seen this incident. After firing both the accused while riding on the motor cycle went towards Usta Muhammad Town. After sometime Mir Haider Khan Jamali and Faiz Muhammad Khan Jarnali reached there. They evacuated him in injured condition to hospital Usta Muhammad. Motive for the commission of crime was that Mir Hassan, father of Gul Hassan, was murdered by the members of his tribe M/s Mustufa and Faiz Muhammad sons of Baqir caste Cori. Today Gul Hassan considering him their tribeman and to take revenge of his father had launched murderous attack upon him due to which he has been injured. On the report investigation was commenced at 9.40 p.m. and appellant was arrested. On completion of investigation he was sent up to answer the charge before the Special Judge STA Jaffarabad at Dera Allahyar. Convict/appellant did not plead guilty to the charge and claimed to be tried. As such prosecution to substantiate the accusations led the evidence of:- (i) PW-1 Etabar/Complainant (injured):- He produced Farde-Biyan Ex P/l-A; (ii) PW-2 Abdul Ghaffar:- He is ocular witness of the incident. He produced recovery memo of blood stained clothes of the injured Ex. P/2-A; (iii) PW-3 Ali Gul S/0 Ali Muhammad:- He is witness of the Fard of inspection of the place of incident produced by him as Ex. P/3-A as well as the witness for the blood stained earth, recoveiy of empties Ex. P/3-B & C respectively; (iv) PW-4 Mehboob Ali:- He stood witness to the recoveiy of one T.T. Pistol with ten live cartridges alongwith its licence vide Ex. P/4-A and witness for the recoveiy of the motor cycle Ex. P/4-B: (v) PW-5 Muhammad Waris:- He being I.O deposed about, the steps taken by him for completion of investigation of the case. He produced site plan Ex. P/5-A and challan Ex. P/5-B; (vi) PW-6 Dr. Shah Bakhsh:- He produced medical certificate of injured Ex P/6-A; Appellant/convict thereafter was examined under Section 342 Cr.P.C. wherein he denied to the prosecution case and stated that he is innocem and has been falsely involved in the case. However, he did not opt to make statement on oath. DWs Wazir Ahmed and Gul Hassan sons of Din Muhammad caste Leghari, appeared on behalf of the convict as defence witnesses. On completion of trial the appellant, was found guilty for the commission of offence under Section 324 P.P.C., as such he was sentenced details whereof has already been mentioned hereinabove. At the time of hearing complainant/injured appeared in the court in crippled condition on a wheel chair. On seeing him it was noticed that no sentence has been awarded to convict for the injuries, therefore, notice was given to him explain as to why he may also not be sentenced for the injuries which the complainant had sustained ui accordance with the provisions of Section 324 PPC. In the meanwhiie^complamant/injured also preferred a revision for enhancement of the sentence which was subsequently dismissed being not pressed. Mr. Tahir Muhammad Khan learned counsel appeared on behalf of appellant; whereas Mr. Mehmood Raza learned counsel appearing for the complainant assisted to Mr. Noor Muhammad Achakzai learned Additional Advocate General for the State. Mr. Tahir Muhammad Khan learned counsel first of all contended that trial of appellant is coram non judice. To highlight his view point he urged: (i) As per Paragraph a(ii) (a) the trial of accused u/S. 307 PPC as replaced by Section 324 PPC can only take place if the accused is charged for the offence of Section 216 PPC, as per para-a(ii) and if otherwise he cannot be tried by STA; (ii) Trial of a case before Special Court can only take place if it has been sad filed that the accused has committed acts of sabotage, subversion, and terrorism during course of commission of offence falling within the schedule; (iii) There is no recover}' of crime weapon from appellant warranting registration of the case against him u/Ss. 8, 9 & 10 of the West Pakistan Arms Ordinance, 1965 because T.T. Pistol allegedly recovered from his possession was a licensed one, therefore, appellant has not been found guilty for keeping in his possession un-licensed arms, as such the offence which allegedly has not been committed in violation of these sections of the Ordinance mentioned hereinabove will not be triable by Special Court for STA under Paragraph-C to the Schedule. On the other hand Mr. Noor Muhammad Achakzai learned Addl. A.G. stated that para-a(ii) and ii(a) of the Schedule are distinct, from each other, therefore, for attracting the jurisdiction of STA Court for trial of an accused u/S. 324 PPC it is not necessary that the accused must face trial u/S. 216 PPC as it is mentioned in Paragraph-a(ii) of the Schedule. He further argued that commission of an offence by semi automatic or automatic pistol and those commonly kown as T.T. Pistols shall be deemed to have been committed for the purpose of sabotaging terrorism, therefore, such offences are exclusively triable by Special Judge STA. He further argued that notwithstanding the fact whether the pistol recovered from the possession of accused is a licensed one, but it is a crime weapon as it was taken into possession at the instance of the accused after his arrest. Even otherwise it is not necessary that the accused must have fired with this pistol because the empties recovered from the place of incident and fired by the appellant constituted an offence of keeping ammunition in possession of accused within the mischief of Section 9 of the Arms Ordinance, 1965, therefore, for such offence appellant has rightly been tried by the Special Judge STA. • Learned counsel j further elaborated his arguments on the ground that the Special Judge (Jan determine his jurisdiction after receipt of the challan on the basis of FIR and other material and it is mentioned therein that the offence has been committed by a weapon which falls under the provisions of Clause (C) of the Schedule, he would take cognizance and proceed with the matter. Mr. Mehmood Raza learned counsel for the complainant adopted the arguments of learned Additional Advocate General. It is to be noted that the schedule appended with the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the 'Act' of 1975) specifies the offences falling under the mischief of different laws including the Pakistan Penal Code which shall be triable by the Special Court. For the purpose of instant case paragraph-a(ii) as well as a (ii)(a) would be relevant. A recital of the former, i,e. a (ii) reveals that 'trial of a case of the offence falling within the mischief of Section 216 PPC if committed by an offender who is accused of having committed any of the offences specified in this schedule. In fact, Section 216 PPC deals with harbouring an offender who has escaped from custody or whose apprehension has been made triable in respect of those accused who are facing trial under any of the scheduled offences during course whereof it has been brought in the notice of the court that the said accused is also guilty for the offence of harbouring etc., therefore, accused would also be charged under this section besides other charges for which the accused is being tried within the schedule. As per the language in this part of the schedule is concerned it is abundantly clear and does not admit any ambiguity; whereas Paragrapha(ii)(a) added by Ordinance VII of 1991 its import is that offence u/S. Section 302 or Section 307(324) P.P.C., if committed in the course of same transaction in which an offence specified in this paragraph or paragraphs B and C is committed or in addition to or in cohabitation with such offence, it shall be triable by the Special Court. At this juncture reference to paragraphs B and C would also not be out of context because the former paragraph speaks in respect of offences punishable under the Explosive Substance Act, 1908; whereas later paragraph speaks, that any offence punishable under the Arms Act, 1878 (XI of 1878) or any offence punishable under any of the sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance XX of 1965) namely, Sections 8, 9 and 10 if committed in respect of a cannon, grenade, bomb, rocket or a light or heavy automatic or semi automatic weapon, such as kalashnikove or G-3 rifle including semi automatic or automatic pistols and those commonly known as T.T. Pistols, shall be triable by the Special Court. A careful persual of these three paragraphs makes it abundantly clear that as far as they are concerned, they attract to each other in view of the reference made in paragraph a(ii)(a). As far as paragraph a(ii) is concerned it has nothing to do with them and it is to be read independently; whereas these paras are to be considered with reference to each other, therefore, the objection raised in this behalf by the learned counsel has no substance. Now turning towards the next objection of Mr. Tahir Muhammad Khan that no recovery of un-Hcensed pistol has been affected from the possession of accused, therefore, the offence allegedly committed by him does not attract paragraph-B, as such the offence charged against him under Section 324 PPC cannot be tried by the Special Court. To consider this argument it is necessaiy to make reference to Section 9 of the Arms Ordinance, 1965. As per its plain language no person shall have in his possession or under his control any arms or ammunition etc. As far as Section 13-E of the Ordinance is concerned according to it who so ever commits any of the offences namely; has in his possession or under his control any arms, amnvnp.Jtlo;: >/ military stores in contravention of the provisions of Section 9 he ? ball be liable for punishment. In the instant case the prosecution story as has been mentioned in FIR is that accused fired four shots wirh a T.T. Pistol. After the commission of offence four empties were recovered from the place of incident. Although the recovery of licensed T.T. Pistol at the instance of appellant has been affected, therefore, this arm being a licensed it would not attract, to the provisions of Section 9 of the Arms Ordinance, but as far as the four empties are concerned with which the fire was made, attracts to the provisions of Section 9. Thus when challan was submitted it was stated that four empties have been recovered. Undoubtedly the cartridges alive or spent, do not fall within, the definition of ammunition. Because it is stated that the appellant had fired upon the complainant, therefore, it would be presumed hat he had control over these empties. May be he had not fired these empties from his licensed T.T. Pistol, but as far as allegation of the prosecution, that recovered four empties are those which were fired with a T.T. Pistol by the appellant. Since no document to keep these empties has been shown by the appellant, therefore, it would attract to the provisions of Paragraph-C of the Schedule and during the transaction of firing allegedly accused committed the offence under Section 324. We would also like to mention that registration of a separate case for violation of Section 13-E of the Arms Ordinance, 1965 against an accused is not condition precedent for attracting paragraph-C in order to make out a case for trial u/S. 324 PPC because registration of a case is altogether an independent act of the prosecution. But for the purpose of attracting the provisions of para-a(ii) (a) and C, it is sufficient that if it has been established that ammunition without license or documents were recovered from the place of incident which were used while committing the principal offence of attempt to murder. Learned counsel Mr. Tahir Muhammad Khan in this behalf referred to the following authorities in order to emphasis that, if in the same transaction in which violation of the offences mentioned in paragraph-C of the Schedule has not been committed while completing the crime u/S. 324 P.P.C. the Special Court would have no jurisdiction. (i) First of all he referred to PLD 1978 Lahore 1087 'Muhammad Ashraf us. The State'. In this judgment the accused was charged for removing stealing 18 railway fish plates with bullets; thereafter he was challaned before the Special Judge. With these facts it was held by honourable Single Bench that mere removal of fish plates would not be sufficient to make the offence triable under the Act, of 1975 because prosecution is further bound to prove requisite interest or knowledge on the part of accused to endanger the safety of any person travelling by train. This judgment apparently is distinguishable in view of the facts of this case. (ii) Secondly he relied on 1991 P.Cr.L.J. 595. In this case applicant Asif Ali Zardari prayed for grant of bail in a case pending against him before Special Court under Section 365-A/395/120-B PPG. Honourable Division Bench while considering the question of jurisdiction for trial of applicant by the Special Court surveyed the scheme of the Act by making reference to its preamble and its different parts and held that the Special Courts have been established as exclusive forum for trial of schedule offences under the Act and as such the jurisdiction of all other courts shall be deemed to have been excluded in respect of all these matters to which jurisdiction of Special Courts extends and the application of general provisions contained in the Criminal Procedure Code regulating trial of an accused person before the Special Court has been excluded to the extent that the provisions in that regard have been made in the Act. Learned Bench further observed that one more object which clearly appears from the preamble and various provisions of the Act is that Special Courts have been established for the purpose of suppression of acts like sabotage, subversion and terrorism on leaving special provisions of completing trial of such offence In view of the broad objects discussed in the judgment we are not inclined to agree with the contentions of the learned counsel that in such like situation where a licensed pistol has been recovered from the possession of accused, thus he has not been found guilty for the offence of Section 9 r/w 13-E of the Arms Ordinance. 1965, therefore, the trial should have not been held by the pecial Court because even if the recovery of pistol being a licensed one is kept out of question presuming might be that accused had not fired with this arm, but still the recovery of ammunition which is admittedly without license as the accused has disowned its recoveiy, it attracts to the provisions of the schedule for making the offence ; committed by him triable by the Special Court. As such this authority has not rendered any help to the appellant. (iii) PLD.1994 Lahore 93.-This authority is not attracted at all because the arm recovered from the possession of accused was an ordinary rifle and it was neither automatic nor even a semi automatic weapon, therefore, it was held that case was not triable by the Special Court; whereas in the case in hand empty cartridges of automatic T.T. Pistol have been recovered, therefore, prima facie accused has been found guilty for violation of Section 9, as such he was arrayed for trial before the Special Court. (iv) Learned counsel also referred to 1995 SCMR 59. Facts of this case in brief are that a Mauser pistol was recovered from the accused facing trial, therefore, he was convicted/sentenced by the Special Court. In appeal honourable Lahore High Court acquitted the accused of the offence because the offence concerning weapon so recovered does not fall within the schedule, as such appeal was allowed as he was tried by the wrong forum. Honourable Supreme Court granted leave to appeal to interpret the words and expression 'automatic or semi automatic weapon', such as kalashnikove, G-3 rifle or any other type of assault rifle. Ultimately appeal of the State was dismissed endorsing the view of the High Court as Mauser, as such, is not a weapon but is the name of manufacturer (from Germany) of the pistol and revolver. It was further observed by honourable Supreme Court that Mauser pistol is a type of automatic pistol made by Mauser (Germany). The weapon allegedly recovered in these cases were not the product of Mauser, but were a local production. According to FIR words 'Pak made' were inscribed on the body of the fire arm recovered from Najam-ul-Hassan respondent and the words 'Made in Pakistan' were inscribed on the barrel of the weapon recovered from Ikhtiar Hnssain. Mr. Tahir Muhammad Khan in view of this authority has also drawn oxir attention to the licence of appellant wherein it is stated that Pistol No. 9833 Bore-30 Pak Made. As such he stated that the recovered arms cannot be termed to be T.T. Pistol, therefore, the case of appellant will not fall under paragraph-C of the Schedule. It may be seen that with reference to the facts of the present case the Amended Ordinance XL of 1995 would be attracted in pursuance of the Schedule so amended and in Clause (C) after the words and letters of G-III rifle the commas and words including 'semi automatic or automatic pistol' and those commonly known as T.T. Pistols were inserted. The distinction on facts in reported judgment with this case would be that here the allegation is that the crime was committed with T.T Pistol which accused was holding in his hand at the time of firing. Assuming for the sake of arguments that the pistol recovered from his possession may not be a T.T. Pistol as is indicative from its license and that is why a case has not been registered against him. But at the time when the cognizance was taken by the Presiding Officer as per the contents of FIR and Fard Ex. P/3-B four spent empty cartridges of .30 bore T.T. Pistol were found to have been recovered from the accused, therefore, the learned Judge took cognizance; whereas in the reported judgment allegedly Mauser pistol though automatic or semi automatic was recovered, but it was found that it is Pak. made. At this juncture reference to the judgment in the case of 'Allah Din & 18 others vs. The State & another' (PLJ 1994 SC 173) = 1994 SCMR 717 would be beneficial. In this case the honourable Supreme Court observed that question of jurisdiction can be determined on the basis of FIR and other material which is produced by the prosecution at the time of presentation of challan. On the basis of that material the court has to decide whether cognizance is to be taken or not. This authority has also been relied upon by Mr. Noor Muhammad Achakzai learned Add. A.G. ' Second distinction in the case in hand and the judgment reported in 1995 SCMR 59 is that as per the recovery memo Ex. P/3-B T.T. spent cartridges have been recovered. The contents of this document have not been challenged. Thus the conclusion would be that it attracts to Section 9 meaning thereby that this ammunition was fired from an automatic or semi automatic pistol including the one which is generally known as T.T. Pistol, therefore, with utmost respect we are inclined to hold that on account of these two distinctions as well as in view of the principle of honourable Supreme Court laid down in 1994 SCMR 717, the appellant had not made out any convincing ground on this score for declaring the trial without jurisdiction. Mr. Tahir Muhammad Khan also referred to PLD 1995 Karachi 59. We have gone through this judgment carefully, but in our opinion it is not attracted to attend the question of jurisdiction in any manner, therefore, we do not deem proper to discuss the rule mentioned therein. Mr. Tahir Muhammad Khan on the point of jurisdiction also contended that in view of the preamble to the Act of 1975 only these cases shall be triable where an offence relating to suppression, sabotage, terrorism has been committed. According to him an ordinaiy offence committed with an automatic or semi automatic pistol including the one which is commonly known as T.T. Pistol, it would not tantamount, to causing terrorism by the accused, therefore, the selection of the cases is required to be done keeping in view the objects and purpose for which the law has been promulgated. Mr. Noor Muhammad Achakzai learned Additional Advocate General contended that the schedule appended with the Act has got backing of a statutory provision which is the part of the Act; whereas the preamble is only given to an enactment, to understand its object, therefore, it is not necessary to make the selection of cases for the purpose of trial by a Special Court at the touchstone of the preamble. It is settled position that as far as a preamble to a statute is concerned it spells out intention, purpose, object for which the legislature has promulgated the enactment as in the Act of 1975 it is mentioned that whereas it is expedient to make special provisions for suppressing the acts of sabotage, subversion and terrorism and to provide for speedy trial of offences committed in furtherance of or in connection with such acts, the Act of 1975 was promulgated. As per the preamble itself the law has got apparently two objects, firstly to suppress curb the acts of sabotage, subversion and terrorism and secondly to provide speedy trial of offences committed in relation to these three elements. But as far as the preamble itself is concerned it would not be considered a controlling part of the statute, therefore, neither it can extend nor curtail the operation of the Act itself because to meet with the reqiiirement for which the law was promulgated then in the operational parts of the Act provisions have been made to provide speedy trial in respect of offences relating to sabotage, subversion and terrorism etc. In the wisdom of the law givers commission of an offence by an accused with an automatic or semi automatic weapon including a pistol commonly known as T.T. Pistol, was an act of terrorism which creates sensation in the general public. At this juncture it would not be out of context to note that expressions 'terrorism' has its origin in the word 'terror' which according to Black's Law Dictionary 5th Edition, 1321 means, alarm, fright, dread, state of mind induced by the apprehension of hurt from some hostile or threatened even or manifestation, fear caused by the appearance of danger. In an indictment at common law it must have been charged that the acts done were to the terror of people.' Keeping in view this definition there is no ifficulty to understand that a person who during the night time having an automatic or semi automatic pistol in his hand opened fire upon the victim for the purpose nothing else but to create terr freight harrassment etc., therefore, in such like cases accused deserves a speedy trial so it may be deterrent for the like minded persons who take the law in their hands. There is yet another aspect of the case which would also be relevant with reference to the question of jurisdiction of the trial court namely, assuming for the sake of arguments that we agree witli the learned counsel that the trial of accused/appellant is coram nonjudice, but observing so we would not acquit him as at the best we would remand his case for trial to the competent court. Then the question would he that what justice would he done with him because the offence u/S. 324 PPG is triable by the Sessions Judge and Additional Sessions Judge who both can be appointed as Special Judge under the Act of 1975, therefore, if on setting aside the judgment trial again is to be held either by the Sessions Judge or Additional Sessions Judge it would not serve the ends of justice particularly in view of the fact that when appellant was facing trial and he was represented by an Advocate before the Special Court, he did not object on the jurisdiction and no injustice apparently has been caused to him. Thus if viewed the case in hand from this angle as well, it would not be in the interest of justice to agree with the contention of the learned counsel, as such we are inclined to hold that the trial of appellant held by Special Judge under the Act of 1975 does not suffer from jurisdictional defect. Mr. Tahir Muhammad Khan learned counsel contended that on merits prosecution has also failed to establish the accusations because Farde-Biyan Ex P/l-A and the court statement of accused contradict to each other as in the Fard-e-Biyan he deposed that Mir Ali Haider Khan Jamali and Faiz Muhammad Khan Jamali reached at the spot after the incident; whereas in the court statement he stated that Faridullah and Faizullah reached at the spot of incident. We have compared both the statements and in both of them the name of Haider Ali and Faiz Muhammad to be the persons who reached at the place after the incident have been mentioned. He further stated that in the Fard-e-Biyan it is stated that police was informed on telephone by Medical Officer Dr. Shah Bakhsh; whereas in the court statement PW Abdul Ghaffar had stated that he informed the police on telephone from hospital about the incident. In our opinion these contradictions are riot material at all because the police had reached at the spot after receiving information about commission of the offence. It is next contended by learned counsel that the statement of PW-1 Etabar (complainant) is improbable because it was not possible for him during the month of February at 8.15/8.30 p.m. to see whether the accused had a T.T. Pistol in his hand, as he has deposed in his evidence. Even an ordinary pistol cannot be identified by any one else, therefore, to involve the appellant PW-1 has falsely stated that he had a T.T. Pistol in his hand. Suffice to observe that the statement of PW-1 will not be discarded merely for the reason that he had in his hand a T.T. Pistol or an ordinary pistol because the fact remains that with the help of fire arm the victim was fired upon and subsequently vide Ex. P/3-B, 4 spent bullets/crime empties were recovered from the place of incident. It was also contended by learned counsel that Haider AH and Faiz Muhammad were not examined by the trial Court. It may be noted that in Fard-e-Biyan and court statement of PW-1 as well as PW-2 the names of these two persons finds mention with reference to the context that after the incident they reached at the spot and took the injured to hospital. As far as the fact of removing the victim to hospital is concerned it cannot be denied because he has received injuries, therefore, the manner/mode in which he was taken to hospital by these two persons would not be relevant because their evidence if produced could have been at the best to the extent that they found the victim/complainant lying in an injured condition, as such they removed him to hospital. If they had appeared they would not have given evidence more than this. As such non examining them as witness by the prosecution is not fatal to the case. It was next argued by the learned counsel that during the night it was not possible for appellant to identify the appellant Gul Hassan because he had he concern with him nor he gave his profiles in Fard-e-Biyan or the court statement. In our opinion it is not true to say that Gul Hassan was not known to appellant prior to the incident because in the Fard-e-Biyan he had identified to be the person whose father was murdered by the people of Cori tribe about 10/12 years back. Before the trial court during cross examination no suggestion was given to PW-I/complainant that Gul Hassan was not known to him neither any such question was put to the 1.0. as to why he did not arrange identification parade. Learned counsel also stated that PW-Ghaffar has been introduced to testify the version of PW-1 as he is his cousin. According to him he was not present on the scene of incident. But during the statement of PW-1 or PW-2 no material has been brought on record to support the plea that Ghaffar was not present at the scene of incident, but the objection is over ruled. Learned counsel next argued that there is contradiction is the ocular testimony of PW-1 and the medical evidence because in his testimony he had stated that he received one injury on arm, two injuries on legs and one injury on the back; whereas according to PW Dr. Shah Bakhsh the complainant had not received injuries on the back or on the legs, therefore, according to him the contradiction in both these evidence gives rise to doubt in the prosecution case and it should be held that the appellant has not given a true story of the incident. It would be appropriate to re-produce contents of the Medical Certificate Ex. P/6-A relating to the injury and>a note written thereon:- (i) Fire-arm injury (wound) on right uppei arm on the mideal side through and through size 1" in diameter; (ii) Fire-arm wound on the chest in the midaxillary size M " in diameter, blackening present; (iii) Two fire-arm wound on the right leg through and through in nature size % " x 1 in diameter, Note: Patient was referred to C.M.C. Hospital Larkana on the same date (14.2.1997). Report received from JPMC Karachi. According to the report patient is not improved and result is poor. Report of C.M.C. Larkana and JPMC Karachi is also attached with the certificate two pages." We have examined the arguments of the learned counsel in view of the oral statement and the medical certificate. In the court statement he had stated that appellant made four fires upon him which hit on his legs, arms and back; whereas contents of medical certificate reveal that he had received injuries on right, upper arm on the chest in mid auxiliary and on the right leg. In our opinion there is no contradiction because in respect of mid auxiliary wound the complainant, being an illiterate person is making reference to the back. As far as remaining injuries are concerned those correspond with the oral statement. Even otherwise if for the sake of arguments it is presumed that there is some contradiction in the oral and medical evidence the former will prevail as it has been held in the case of "Muhammad Hamf vs. The State" (PLD 1993 SC 895), relevant para is re­ produced hereinbelow:- "Experts' evidence may be it medical or that of blastic expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence, but if there is direct evidence as in the instant case which is definite, trust worth, confirmatory evidence is not of much significance. In any case it cannot out weight the direct evidence". Applying the above test on the case in hand we are inclined to hold that the complainant/victim who has received injuries with the fire arm has furnished a trust worthy evidence in respect of receiving the injuries with the fire arm and merely on account of minor contradictions his evidence cannot be discarded. Learned counsel next contended that prosecution has failed to examine any independent witness particularly Mir Haider Ali and Faiz Muhammad. It may be seen that in a hurt case the evidence of injured is sufficient to establish the case if it gets corroboration from the medical evidence. Because the complainant had no reason to allow to go escort free to real culprit who has caused injury and would falsely involve to a person without any justification. Similarly he pointed out contradictions in the statement of Abdul Ghaffar. We have considered them as well. But in our opinion the discrepancies pointed out by the learned counsel from his statement are of not much importance to shake the intrinsic value of his statement as well as the statement of PW-1/complainant. In this behalf Mr. Tahir Muhammad Khan contended that as per PW-1 when he alongwith Abdul Ghaffar reached on a cycle near the house of Gul Hassan, they saw two persons were standing there. Out of them he identified to Gul Hassan; whereas Abdul Ghaffar deposed in his testimony that two persons were standing on a motor­ cycle and they gave signal to him to stop the cycle. According to him because PW-1 had not stated that they were standing on motor cycle, therefore, the statement of any one of them is incorrect, as according to him Abdul Ghaffar was introduced subsequently, therefore, his presence is to be disbelieved at the place of incident. It may be noted that in the Fard-e-Biyan Ex P/l-A the PW-1 had stated that two persons were standing on a motor cycle near the house of Gul Hassan. Subsequently the motor cycle was also recovered from the house of accused/appellant vide recovery memo Ex. P/4-A produced by PW-4 Mehboob All Constable, therefore, non mentioning of the fact that two persons were standing on motor cycle by PW-1 would not render the statement of Abdul Ghaffar inadmissible. In respect of PW-2 he further stated that he is also an interested witness because he being the cousin and also member of the Cori tribe had reasons to involve the accused in the commission of offence. In this behalf it is to be noted that the complainant specifically had not alleged motive against Gul Hassan for causing injuries to him in the Fard-e-Biyan on account of previous enmity. Actually he had never made reference to a previous incident which took place about 10/12 years back in which father of Gul Hassan was murdered, therefore, merely for the reason that he is cousin of PW-1, his statement cannot be discarded because the over all perusal of the statement of PW-1 Fard-e-Biyan which was lodged immediately within 15 months after the incident in the Police Station suggest that PW-2 Abdul Ghaffar was present at the place of incident. Learned counsel next contended that the recovery of blood stained earth from the place of incident through PW-3 Ali Gul is not possible because as per Inspection Report of the place of incident Ex. P/3-A and the site plan Ex. P/5-A the accused fired upon the complainant while standing on the 'Pakka raod', therefore, there was no question of collecting the earth from there, but it could be blood stained pebbles if at all available were taken into possession. This point needs no discussion because Fard of Inspection of the place of Wardat has not been disputed; secondly the blood stained earth or pebbles whatever was recovered was not sent for the report of chemical analyser. Learned counsel next argued that as far as recovery of pistol from the house of accused is concerned it is not admissible under the provisions of Article 40 of the Qanun-e-Shahadat Order, 1984. In our opinion the recovery of pistol has lost its importance because it was not sent for the opinion of the Fire Arm Expert alongwith the recovered spent bullets, therefore, learned trial Court has not utilized this piece of evidence against the appellant. Lastly learned counsel argued that the motive though established but has not been proved by the prosecution. If we have to agree with the learned counsel on this point then at the best we can hold that in absence of motive which was asserted, but not proved, the accused is entitled for lessor punishment which has already been awarded to him by the trial court. Learned counsel then contended that alternately keeping in view the mitigating circumstances the appellant is entitled for reduction in the quantum of sentence. We have attended this aspect of the case as well, but in our opinion there is no mitigating circumstance except non proving motive for which the trial Court has already taken a lenient view because maximum punishment provided u/S. 324 PPC has not been awarded to him. Even otherwise as we have observed hereinabove that the complainant appeared before this court in a crippled condition on the chair. The note appended with the Medical Certificate Ex. P/6-A also indicates that so far he has not recovered fully. Moreover the trial court has also given a concession to the accused in not awarding him punishment for the injuries which PW-1 has sustained in view of Section 324 PPC according to which an accused who is guilty of Qatal-e-Amd shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused. In addition to the sentence already awarded appellant was also liable for Arsh as well as imprisonment of either description for a term which may extend to 7 years, but no penalty of Arsh has been imposed upon him. On the first date of hearing we were inclined to make the impugned order proper in accordance with law and from that point of view we issued notice to appellant, but as we have to exercise jurisdiction for enhancement of sentence u/S. 349 Cr.P.C. in the case decided by STA Court, but such powers are not available, as held by this court in the case of 'Abdul Qadir and another v. Te State' (1998 P.Cr.L.J. 426), therefore, we decided to withdraw the notice. Thus for the foregoing discussion we see no merit in the appeal, as such it is dismissed and conviction awarded to appellant by the trial court vide impugned order dated 06.2.1998 is maintained. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1522 Present: TARIQ PARVEZ KHAN, J. Qari Hafiz MUHAMMAD EHSANULLAH-Petitioner versus Syed AHMAD SHAH and others-Respondents Crl. Misc. No. 23 of 1997, dismissed on 11.5.1998. Criminal Procedure Code, 1898 <V of 1898)-- —-S. 561-A-Quashment of FIR-Whetber a FIR should be quashed on ground of pendency of civil suit-Question of-There is no legal bar in resorting to adopt either course against a wrong doer, civil proceedings or criminal-In FIR co-partners of property dealers are also charged who are not party in civil suit-Fraud is alleged by all accused who are parties in civil suits-Case being at initial stage of investigation, quashment of FIR would tantamount to stifle working of police in accordance with law- Alleged admission by petitioners before civil touri as to power of attorneys being forged also requires due consideration which can only be done after conducting thorough investigation-Contents of FIR are directly sub-judice before civil court would also amount to pre-empting jurisdiction of civil judge-Held: Petitioners has miserably failed to show abuse of powers of any court as no criminal proceedings are pending against him, before any court-Petition dismissed. [Pp. 1524 & 1525 ] A & B Mr. Wasim Fazal, Advocate for Petitioner. Mr. Muhammad Akbar Khan and Miss Nighat Afsar, Advocates for State. Date of hearing: 11.5.1998. judgment Instant petition is for quashment of F.I.R. No. 713 dated 15,10.1997 of P.S. Mir Pur Abbottabad, of which the investigation is still in process. Grounds taken up in the petition and argued at the bar are to the effect that the registration of the case F.I.R. is illegal, because on the subject matter, civil dispute between the parties is pending; that pending civil suit, no criminal proceeding can be initiated against the petitioner; that simultaneous proceeding tantamounts to double jeopardy; that no criminal liability of the petitioner can be spelt out from facts as given in the report; that, report has been made after long delay, though civil proceeding started back in the year 1995. 2. Learned counsel for the petitioner in support of his submission relied on 1992 NLR Cr.L.J. page 6, where F.I.R. was quashed because it was made after 3 months of the occurrence. Reference was also made to 1994 P.Cr.L.J. page 67 where on the basis of facts given in F.I.R. no case of criminal nature could be made out and finally, reliance was placed on PLD 1976 Lahore page 148, to the effect that when question for determination as to commission of forgery, fraud deception are involved, then the proceedings before criminal courts are to be stayed, till they are decided by civil court. he last submission was infact an alternate plea that in case the F.I.R. is not quashed, then, order be passed that no further proceeding/step be taken pursuant to the report by the police. 3. To controvert the arguments of petitioner, learned counsel for respondent-complainant submitted that F.I.R. has been properly lodged, that mere delay in filing the report is not sine qua non for quashing the same, that, material so far placed on file and investigation conducted has unveiled the criminal acts of the petitioner and his co-accused. That there is no legal bar in continuing with pursuing two remedies, one fixing the civil liability and the other criminal, that notwithstanding the fact of civil suit pending between the parties, it was infact disclosure/admission made by the petitioner in course of civil litigation that forgery and fraud was admitted, on which the complainant-respondent was constrained to resort to criminal proceedings. Learned counsel referred to 1975 P.Cr.L.J. 27 in support of his submission. 4. To understand the above legal counter submissions I would here make reference to factual back-ground of the case. Petitioner Haji Ehsanullah purchased land/plot measuring one kanal and 10 marlas, through mutation dated 4.7.1994 on the basis of power of attorney attested on 1.3.1994. The original owner in the revenue record is Ms?. Shahnaz Hussain Shah wife of Ejaz Hussain Shah. Power of attorney dated 1.3.1994 No. 1041 is allegedly executed at Karachi by Ms?. Shahnaz in favour of one Ali Askar Shah. Second transaction took place when another plot of same size, i.e., one kanal, 10 marlas was purchased by Qari Mehboobur Rehman from Hafiz Ehsanullah (petitioner) who got power of attorney No. 2361, dated 7.6.1994, executed again at Karachi by Mr. Ejaz Hussain in his favour. It was the petitioner who then got attested six mutations'bearing Nos. 3380 to 3385 dated 26.1.1995 in favour of Qari Mehboob. Both the above sales are said to have been transacted through Paradise Property Dealers of which Chan Zeb, Abdul Waheed, Muhammad Riaz and Muhammad Anwar are co-partners. 5. Petitioner Hafiz Ehsanullah and Qari Mehboobur Rehman filed civil suit on 15.11.1995 against Mst. Shahnaz and Mr. Ejaz Hussain for permanent injunction asking the court to restrain the defendants, not to interfere with their property rights, based on mutations dated 4.7.1994 and dated 24.1.1995. Mst. Shahnaz and Ejaz Hussain also filed suit on 7.4.1996 against Hafiz Ehsanullah, Qari Mehboob-ur-Rehman and others who allegedly have purchased their property through fictitious, forged and bogus power of attorney. They accordingly challenged entries in the revenue record in favour of defendants in their suit. 6. Interesting aspect of the case is that Paradise Property Dealers are not party to either of the suits, but as admitted by learned counsel for the petitioner that co-partners of Paradise Property Dealers. (Chanzeb is still absconding) have struck a compromise with Hafiz Ehsanullah and Qari Mehboobur Rehman to give them other plots in lieu of plots in dispute and would also make cash payment of deficient amount. Pursuant to said agreement Hafiz Ehsanullah filed his written statement in suit filed by complainant where he admitted that two power of attorneys which form basis of their proprietary rights are forged, he through another undertaking given in writing accepted to re-alienate the plot in favour of complainant and would hand over the possession. 7. Many more details were high-lighted by either side by making reference to different documents presently on the file. I would avoid to make any comments as to any entiy made, document executed, or agreements reached upon, as all such matters are sub-judice before learned civil Judge. 8. The question that is to be resolved at present is, if or not F.I.R. No. 713 dated 15.10.1997, and all consequential proceedings should be quashed on the ground of pendency of civil suit? My answer is in negative, for the following reasons:- (a) There is no legal bar in resorting to adopt either course against a wrong doer, civil proceeding or criminal, or both at a time. (b) In the report, which is sought to be quashed, co-partners of Paradise Property Dealers are also charged who are not party to either of the civil suit. (c) Fraud is alleged by all accused named in the Report and are said to be involved by virtue of their joint venture in procuring/making forged power of attorneys. (d) After the registration of the case, the investigation has just commenced when the instant quashment application was filed. The record has since been requisitioned by this Court, no further investigation as to the genuineness or otherwise of the power of attorneys could be ascertained. The case being at initial stages of the investigation, the quashment of the FIR at this stage would tantamount to stifle the working of the Police in accordance with law. (e) The alleged admission by the petitioner before the civil Court as to the power of attorneys being forged also requires due consideration which can only be done after conducting thorough investigation and of course is subject to trial. (f) The quashment of the F.I.R. at this stage, the contents of which are directly sub-judice before the civil court would also amount to pre-empting the jurisdiction of the civil Judge who is presently seized of the matter. 9. No doubt that Section 561-A Cr.P.C. is regarding the inherent power of the High Court whereunder no provision of the Criminal Procedure Code can limit or affect the power of this Court to make any such order as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court, or otherwise secure the ends of justice. In the instant case the petitioner has miserably failed to show the abuse of powers of any Court, as no Criminal Proceedings are pending against him presently, before any Court. As to "secure the ends of justice" tliis part of the section is not worded or inserted to help the accused but is equally applicable to the case of victim or complainant. Either of the party if feels like that the ends of justice would be more secured by invoking the provision of Section 561-A Cr.P.C. can make an application to this Court. The apparent facts, rather suggest that ends of justice would be rather more secured if the investigation is allowed to be carried out on the basis of the F.I.R. registered against the petitioner and his co-accused and if they are found prima facie involved the case will be then put up before the learned trial Judge who is only the competent forum to decide the fate of the case on the basis of evidence led before it either oral or documentary. 10. These are detailed reasons for my short order passed on even date. Quashment petition is dismissed alongwith Cr.M. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1526 [DB] Present: ghulam sarwar sheikh and dr. kahlid ranjha, JJ. Mirza TASSADDAQ HUSSAIN BEG--Petitioner Versus STATE--Respondent Criminal Appeal No. 144 of 1993 and Murder Reference No. 78 of 1993, decided on 26.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302--Murder--Offence of-Conviction for-Appeal against--Day time occurrence which is not denied by appellant-Its venue and injuries on person of deceased with firearms are hardly disputed-Conclusions of trial court are based on material on record-Motive looks shrouded in mystery and wrapped in mist-Occurrence happened without pre-meditation- Punishment converted into imprisonment of life. [Pp. 1530 & 1531] A to D Ijaz Hussain Batalvi, Advocate for Appellant. S.D. Qureshi, Advocate for State. Sardar Khurram Latif Khan Khosa, Advocate for Counsel for Complainant. Date of hearing: 26.2.1998. judgment Ghulam Sarwar Sheikh, J.--Resume of prosecution version and entire episode as reflected by and un-folded in Ex. PA lodged by Mirza Humayon Baig, brother of the deceased, namely, Mirza Khalid Baig, and re­ affirmed by him as PW 1 is to the effect that Mst. Shehzadi, their sister, is married to Idris Baig, brother of the appellant. As Idris Baig is employed in Dubai, Mst. Shehzadi alongwith her family is residing in a bungalow at Rajgarh Road, jointly owned by her husband, Idris Baig and his younger brother Mirza Tassadaq Hussain Baig, the appellant. Statedly, the appellant used to compel Mst. Shehzadi to vacate the bungalow to have exclusive possession thereof. Complainant, deceased and their mother Fehmida Begum persuaded the appellant, many a times, to desist from such demand, but, to no avail. 2. On the occasion of "Qul Ceremony" of Naheed Kausar on 12.5.1990, where appellant and complainant party happened to be present, the complainant and the deceased tried to prevail upon the appellant. But it led to exchange of hot words. On intervention of participants, matter was hushed up. for the time being. Appellant, however, imparted threats to deceased to avenge the disgrace meted out to him. 3. On fateful and eventful day, falling on 24.5.1990, there was Daswan Ceremony" of aforesaid Naheed Kaiisar. Mirza Tariq Baig PW. 2, Mirza Abid Baig, Mirza Younus Baig (both given up PWs). Kahlid Baig and complainant set out towards Allattddin Road, Lahore Cantonment to attend the ceremony in Motor Car No. 9552/LHY. On reaching Regal Chowk at 11 A.M. they parked the car near Masjid-i-Shohda to purchase fruit, leaving Khalid Baig to look after the vehicle, While crossing Shahrah-e-Quaid-e-Azam, they came across the appellant on a Scooter No. 1272/LEV. While taking out carbine from right side ofNeifa of his Shalwar by the appellant on reaching there and at such juncture, it went off all of a sudden and fell on the ground. Thus injured appellant, immediately took out Mouzer from left side of 'Neifa 1 of his Shalwar and fired at Khalid Baig, which, hit his belly. Aforesaid Khalid Baig ran towards Beadan Road, where the complainant and PWs had reached to purchase fruit. Appellant took off his chappals and continued firing while chasing injured Khalid Baig, who, fell down near a fruit shop. Brandishing his Mouzer, the appellant decamped from the venue. On way to Mayo Hospital in aforesaid car, injured succumbed to the injuries suffered by him. 4. On receiving information of incident, Inspector Saeed Ahmad PW. 12 went to Emergency Ward of Mayo Hospital where, statement Ex. PA of complainant was recorded and upon which formal FIR Ex. PA/1 was drawn by Irshad Ahmad PW. 3. Dead body was despatched to morgue for autopsy under the escort of FC Muhammad Iqbal and Muhammad Siddique PW. 4.' 5. Investigating Officer accompanied by complainant and Abid Baig (given up PW) then proceeded to place of occurrence, inspected the post and secured blood with cotton and took the same into possession vide memo. Ex. PE after making it into sealed parcel A crime empty of .30 bore Mouzer P4 and Scooter No. 1272/LEV P5 were also taken into possession through memos. Ex. PD and Ex. PF respectively. All recovery memos were duly attested by the witnesses. Tariq Baig (PW. 2) and Younas Baig. He searched for the accused, but, could not find him. Sealed parcels were deposited with Moharrir of Police Station. Last worn blood stained clothes i.e. shirt P8, shalwar P9 and vest PlO were produced by Muhammad Siddique, HC PW. 4 before Investigating Officer, who, took it into possession by means of memo. Ex. PG. Statements under Section 161 Cr.P.C. of witnesses were also taken down. Site plans Ex. PH and Ex. PH/1-2 were prepared by PW 8, Syed Imran Ali Shah. 8. Appellant was arrested on 28.5.1990. On his personal search a Mouzer .30 bore P 11 and two live bullets P. 11/1-2 were recovered, made into a sealed parcel and secured vide memo. Ex. PJ/A in presence of Tariq Hussain and H.C. Niaz Ahmad, who, duly attested the same. Rough sketch Ex. PJ/AA of place of recovery was also prepared. At the instance of appellant, blood stained shirt and shalwar P. 12 P. 13 were recovered from his house and taken into possession through memo. Ex. PJ/A in presence of aforesaid witnesses. Rough sketch Ex. P.I/AB of place of recovery was, prepared. Through Ex. PM, Investigating Officer got the appellant medically examined on 28.5.1990. Medico Legal Report to that effect finds a mentioned of file as Ex. PLA. After recording the statements under 161 Cr.P.C. of witnesses, completing the investigation, final report as envisaged by Section 173 Cr.P.C. was submitted. 7. Post mortem examination on the dead body of Mirza Khalid Baig was conducted by Dr. Misbaul Islam at 3 P.M. on 25.5.1990. His report Ex. PI duly proved by PW9 Syed Muhammad Shah contains narration of injuries and observations, which, need not be recapitulated. 8. Charge under Section 302 PPC was framed against the appellant, who, pleaded not guilty to it and claimed trial. 9. To substantiate its version as many as 13 witnesses were examined by the prosecution. PWI, and PW2 furnished ocular account. PW6 advised the appellant to make amends in his demeanour towards Mst. Shehzadi. As PW 7 Mst. Shehzadi deposed that she was forced by the appellant to vacate bungalow jointly owned by him and her husband, who, was abroad. Syed Imran Bokhari is author of site plan Ex. PH. Syed Muhammad Shah PW9 proved post mortem report Ex. PI as indicated above. PW 10 is recovery witness and Investigating Officer appeared as PW. 12. Remaining PWs are formal. After tendering reports of Chemical Examiner and of Serologist Ex. PO, Ex. PP Ex. PQ and Ex. PR prosecution case was closed. 10. In his statement under Section 342 Cr.P.C., the appellant denied all the incriminating circumstances figuring against him in prosecution evidence, professed innocence and alleged false implication. Following plea was advanced by him: "My brother Idrees Baig was abroad in the days of occurrence. In his absence, his wife Mst. Shehzadi used to roam about, which, I did not like. I advised her not to do so. She got thereon afronted. She instigated her brother deceased Khalid Baig against me. Khalid Baig thereon nourished grudge against me. He visited by house before the occurrence and picked up row with me. While leaving the house, he threatened me of dire consequences. On 24.5.1990, at about 11 A.M. I was going by Shahrah-e-Quaid-e-Azam, by my scooter. I was surprised, near Masjid-e-Shohoda, by deceased Khalid Baig, Jamshed Baig and Aurangzeb. All of them were armed with fire arms. They opened fire on me. The fire shot of the deceased hit me on my right thigh. During this occurrence the deceased also received fire arm inj uries from the hands of his companions Aurangzeb and Jamshed aforesaid. I was taken to Service Hospital, Lahore by one Muhammad Nawaz, where, I was admitted and medically examined. On the same date, SI Saeed Ahmad forcibly took me away at about 4 P.M. and kept me in illegal confinement uptil 28.5.1990. 1 told to him the aforesaid facts of the case, but, he did not listen to me. He summoned complainant Humayyun Baig from Tibbi Gorian, District Gujrat and made him a false complainant in the case. After some days my elder brother Idrees Baig came back from Dubai. He filed Writ Petition in the Hon'ble High Court for the registration of the case against actual culprits. I produce copies of the Writ Petition (No. 4667/90) Ex. DG and order dated 2.7.1990 of Hon'ble High Court Ex. DH. The Police did not register the case at my instance notwithstanding. Then I filed a private complaint against the aforesaid persons which is also pending in this Court." 11. The appellant did not opt to appear as his own witness in disproof of allegations as envisaged by Section 340(2) Cr.P.C. However. Ghulam Rasool, Inspector, Javed Mirza and Dr. Mian Abdur Raoof were examined as DW 1 to DW 3 respectively in defence. 12. Upon culmination of trial, learned trial Court believed prosecution version, discarded the evidence adduced in defence and convicted and sentenced the appellant to death, to be hanged by neck till he be dead, with fine of Rs. 10,000/- and in default to suffer R.I. for another term of one year. Payment of Rs 50,000/- to legal heirs of deceased and in default to undergo R.I. for further period of five years was also directed. 13. Such conviction and sentence stands assailed and challenged in instant Criminal Appeal No. 144/93 and matter is before us by way of Reference No. 78/93 under Section 374 Cr.P.C. and we propose to dispose, oth of it, together by this single judgment 14. Learned counsel for the appellant has lambasted the verdict, by indicating and pointing out various snags and infirmities, which, according to him, impair the prosecution case beyond repair and which, unfortunately, escaped the notice of learned trial Court who, rather remained oblivious of defence version. Also it has been impressed that veiy act of deceased was provocative and no option had rather been left, but, to resort to self-defence, which, cannot be modulated step by step nor it can be measured in golden scales. Since family honour was being tarnished reaction has been described to be natural by the appellant, who, did not digest and aptly persuaded Mst. Shehzadi to mend her ways. Reliance has been placed upon Safdar All vs. The Crown (PLD 1953 F.C. 93), Sikandar vs. The State (PLD 1966 S.C. 555), Kaicha Sarkar alias Kanchoo and another vs. The State (PLD 1966 Dacca 508), Painda Khan vs. The State (PLD 1967 Pesh. 325), Sher Daraz Khan vs. The State (1983 S.C.M.R. 266), Ahmad Din vs. Faiz Ahmad and 2 others (1972 SCMR 549) Anwar vs. The State (1975 P.Cr.L.J. 750), Allah Bakhsh vs. The State (1969 P.Cr.L.J. 1204) and Shaukat Alt etc. v. The State (P.L.J. 1974 Kar. 106) to contend, inter alia, that grave doubts are cast on the case for prosecution; wherever, investigation reveals dishonesty and that accused is entitled to benefit of doubt though he may have failed affirmatively to establish the plea. 15. But there can be no cavil to the proposition that such plea was never "first version" of appellant even upto trial. Same appears to be an after­ thought affair and figment of his imaginations. Admittedly, he was going on scooter. Occurrence/Incident is not denied. Day, time, its venue and injuries on the person of deceased with firearms are hardly disputed. In wake thereof, if injury on the person of appellant is ascribed to deceased, even then, it stands established that death of Mirza Khalid Baig was caused by the appellant. Complainant party well knew the consequences of false implication, because, the appellant happens to be real brother of husband of sister of complainant and deceased. 16. It is duty of Court to review entire evidence adduced by prosecution and defence and gather if there is reasonable possibility of the defence put forward by accused to be true. Such inference reacts on whole prosecution case as expounded in Safdar All vs. The Crown (PLD 1953 F.C. 93). Undoubtedly; it is "two version" case. When both are juxta-posed, prosecution story turns out to be not only plausible but also rings true by over-whelming evidence, data and material on record. One, advanced by the appellant, is manifestly exposed to frivolity. Possibility that the deceased lost his life at the hands of his own companions cannot even be visualized. Conclusions and findings of learned trial Court in this regard are based not only on data and material on record but also on exhaustive analysis and sound reasonings. Hence the same are un-exceptionable. 17. Bare and bald perusal of prosecution evidence, however, suggests and irresistible conclusion that family honour was certainly involved. Yearning for exclusive possession would not make the appellant as sole owner of property at Rajgarh Road . Also it is pertinent to note that after ccurrence, appellant's real brother did not stand by his wife, sister of complainant and rather sided with the appellant. It means that husband of , Shehzadi was in concord with reaction of his brother, the appellant, who, took serious notice of aimless loitering of his 'Bhabi'. Plea of appellant that he persuaded Mst. Shehzadi "not to roam about" is seemingly nearer to probability. In other words, motive also looks shrounded in mystery and wrapped in mist. 18. Hence keeping in view of misty nature of motive, relationship of parties, special features including family honour and happening of occurrence, undoubtedly without pre-meditation, imposition of capital punishment and extreme penalty does not seem to be justified. Same accordingly is converted and altered into imprisonment for life. Sentences of fine and compensation are, however, maintained and upheld. Benefit of provisions of Section 382-B Cr.P.C. shall be extended to the appellant while compxiting the period of his sentence. 18. Appeal and Murder Reference stand disposed of accordingly. (MYFK) Sentence modified.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1531 [DB] Present: qazi muhammad farooq and sardar jawaid nawaz khan gandapur, JJ. IFTIKHAR ALI-Appellant Versus STATE-Respondent Criminal Appeal No. 65 of 1996 and Murder Reference No. 5 of 1996, decided on 18.3.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/353~Triple murder-Offence of-Conviction for-In view of testimony of two witnesses B and C who is an independent and impartial witness, arrest of appellant after occurrence by a disinterested chasing police party and his abortive attempt to dupe police by suppressing his real name and failure to give a plausible explanation for his presence in chakdara and injury on his person and further corroborative evidence consisting of recovery of crime weapon from him and crime empties from spot and positive report of Fire-arms Expert; prosecution has succeeded to establish its case against appellant beyond any reasonable doubt- Occurrence was motivated by. a previous blood fued-Delay in recording statement of PW-2 does not smack of consultation or machination- Occurrence had taken place in a chowk and not at a deserted place, hence, PW-4 was not a chance witness-No suggestion was made to concerned prosecution witnesses that seals of parcel of crime empties were tampered with delay of 10 days in sending parcel of crime empties and kalashinkov cannot be termed as inordinate-Appeal dismissed. [Pp. 1533, 1534, 1535 & 1536] A to D 1997 SCMR 89 ref. (ii) Witness-- —Abandoning of-Now it is firmly settled that prosecution is not bound to examine all witnesses and no adverse inference can be drawn from nonproduction of itnesses if charge is brought home to accused on evidence produced at trial. [P. 1536] E Mr. Muhammad Zahoorul Haq, Advocate for Appellant. Mr. Abdur Rauf Gandapur, Advocate for State. Mr. Muhammad Sherin Khan, Advocate for Complainant. Date of hearing: 18.3.1998. judgment Qazi Muhammad Farooq, J.--This criminal appeal and the accompanying Murder Reference have arisen from the judgment dated 7.2.1996 of the learned Sessions Judge/Zilla Qazi, Timargera whereby the appellant Iftikhar Ali, aged about 25 years, was convicted for triple murder of Bakht Rawan, Habibur Rehman and Siraj Din alias Sakhi and sentenced to death as Qisas on three counts and was further convicted for murderous assault on Muhammad Islam and Beboor and sentenced to ten years' RI on each count and was also convicted under Section 353 PPC and sentenced to one year RI and a fine of Rs. 20.000/- with benefit of Section 382-B Cr.P.C. We propose to dispose of both the matters by this common judgment. 2. The gory incident had occurred on 15.2.1993 in Chowk Bazar Chakdara and the F.I.R. was made at 12.00 Noon by Fazal Muhammad S.H.O. Police Station Ouch who had nabbed the appellant after a hot pursuit. 3. The F.I.R. discloses that on the eventful day the complainant had rushed to the spot from the Court of E.A.C. Chakdara on hearing reports of fire-arm. He was informed that one Muhammad Arif Khan had killed his enemy Bakht Rawan and his nephew Beboor and injured two passers-by Muhammad Islam and Sakhi by firing made from a Kalashanikov and was running towards Muhajir Camp. He alongwith a police party chased the assailant and arrested him in an injured condition near Ramial Mountain after an exchange of fire and recovered a China made Kalashanikov No. 15093118 alongwith a bandolier containing three empty and one loaded chargers. 4. It will be pertinent to point out at this stage that at. the time of his arrest the assailant had disclosed his name as Muhammad Arif but during the ensuring interrogation it had transpired that he was a resident of Risalpur, his real name was Iftikhar Ali and he was a proclaimed offender in two cases • involving murder and attempted murder registered at Police Station Risalpur. Besides, the Kalashanikov recovered from the assailant. namely, the appellant at the time of his arrest was made into a sealed parcel and so were the five empties of 7.62 bore recovered from the spot and both were sent to the Fire-arms Expert who opined that the empties were fired from the Kalashanikov. It may also be mentioned that a judicial confession was made by the appellant on 29.3.1993 and he was medically examined by Dr. Abdullah (PW. ll) on the very day of occurrence at 1.15 p.m. who had found the following: - 1. An entry wound on the lateral side of the left thigh. 2. Another small wound on the antero-lateral side of the left thigh. 3. Exit wound on the anterior of the right thigh. Right thigh fractured. 5. The dead bodies of the three deceased were not subjected to autopsy but the omission is immaterial as their death by violence Le. Firing was not questioned by the learned counsel for the appellant. Besides, the inquest reports available on the record and the statement of Dr. Jan Alam (PW. 8) who had medically examined the deceased Habibur Rehman and Sirajuddin alias Sakhi in an injured condition also lead to the same conclusion. The same doctor had medically examined Muhammad Islam and found an inlet fire-arm wound on his back, left side of the chest, with no exit wound. 6. At the trial, as many as eleven witnesses were examined by the prosecution including the complainant Fazal Muhammad SHO (PW. 7), who had also conducted the investigation, Dr. Jan Alam (PW. 8), Dr. Abdullah (PW. 11) and Syed Amir Shah (PW. 9) who had recorded confessional statement of the appellant. The ocular evidence was furnished by Bakht Zaman (PW. 2) and Chari (PW. 4) and of the remaining witnesses while Muhammad Islam (PW. 8) did not charge any one for his injury Niaz Muhammad ASI (PW. 5) and Jan Muhammad FC No. 130 (PW. 6) deposed about the chase and arrest of the appellant and incriminating recoveries and Momin Khan (PW. 1) and Sher Bahadur Khan ASI (PW. 10) gave evidence of formal nature. 7. The allegations levelled against him by the prosecution were denied by the appellant in his statement under Section 342 Cr.P.C. He also examined himself on oath and reiterated the stance taken by him in his statement under Section 342 Cr.P.C. He, however, admitted that he was an accused in two criminal cases registered at Police Station Risalpur and having become a fugitive from law was residing in Tehsil Adenzai District Dir and was a Tractor driver employed by one Fazal Ghani. About the fire­ arm injury sxistained by him he stated that he had come to Chakdara for medical treatment and was hit by a stray bullet while defecating in 'Khawar'. 8. The retracted judicial confession of the appellant is to be ruled out of consideration as it was recorded after one month and 14 days of his arrest and no explanation muchless satisfactory has been furnished for the delay. However, the matter does not end here because in view of the testimony of the two eye-witnesses Bakht Zaman (PW. 2) and Chari (PW. 4), who is an independent and impartial witness, the arrest of the appellant after the occurrence by a disinterested chasing police party and his abortive attempt to dupe the police by suppressing his real name and failure to give a plausible explanation for his presence in Chakdara and the injury on his person and further corroborative evidence consisting of the recovery of the crime weapon from him and crime empties from the spot and positive report of the Fire-arms Expert, we are of the considered opinion that the prosecution has succeeded to establish its case against the appellant beyond any reasonable doubt, 9. The ocular evidence was criticised by the learned counsel for the appellant on the grounds that names of both the eye-witnesses were neither mentioned in the F.I.R. nor in the site-plan and their statement under Section 161 Cr.P.C. were recorded after five days of the occurrence, PW Chari was an addict chance witness and PW Bakht Zaman was not only closely related to the deceased and inimically disposed towards the absconding co-accused of the appellant but also not a natural witness because had he been present on the spot he would have lodged the F.I.R., both of them had not uttered a word about Sirajuddin alias Sakhi and had identified the appellant in the Court and a test identification parade was not held. The criticism has not impressed us. It is true that the names of both the eye-witnesses are not mentioned in the F.I.R. as well as the site-plan but the omission is not fatal as the F.I.R. was neither made by an eye-witness nor by a relative of any of the three deceased and the site-plan is not a substantive piece of evidence. The statement of PW Chari was recorded on the very day of occurrence. However, the statement of PW Bakht Zaman was admittedly recorded after five days. Ordinarily, delay in recording the statement of an eye-witness makes his credentials doubtful but in the present case the delay reflects on the efficiency of the police and not the credibility of PW. Bakhat Zaman. It. is a matter of common knowledge that the standard of investigation has improved in the Malakand Division after the repeal of the PATA Regulation governing the criminal cases and prior to that the police used to investigate the cases by and large in its own queer style. It is thus not surprising that PW Bakht Zaman was allowed to take the dead bodies of his uncles to his far-flung village without recording his statement. Be that as it may, the delay in recording his statement does not smack of consultation or machination because he gave a simple and straight forward account of the occurrence that on the fateful day he alongwith Naseeb Rawan and his two deceased uncles had come to the Court of E.A.C. Chakdara in connection with the hearing of the case of Muhammad Aiif etc. After adjournment of the case when they reached Chakdara Chowk the appellant fired at his uncles effectively from a Kalashanikov and also injured two others including Sakhi Shop Keeper. He had chased the appellant for some distance but had returned to the spot in order to take his injured uncles' to the hospital and that the occurrence was motivated by a previous blood feud in which his deceased uncles were charged for committing murder of the son of the nephew of Muhammad Arif. Had PW Bakht Zaman been a trumped-up witness he would have definitely charged his enemies Muhammad Arif etc. for effective firing and spared the appellant who is a hired assassin according to the police officials examined at the trial. His failure to lodge the F.I.R. cannot be blown out of proportion because he had taken his injured uncle to the hospital in order to save his life and apart from that this possibility cannot be excluded that he may not have been asked by the police to make the F.I.R. in view of his absence at the time of the arrest of the appellant after the sensational chase. Mere fact that he is closely related to the deceased Bakht Rawan and Habibur Rehman does not justify rejection of his testimony particularly when it is amply corroborated by independent, evidence coming from an unimpeachable source. Chari (PW. 4) may or may not be an addict but his conduct is praiseworthy because he displayed courage and testified against the appellant whereas now a days most of the eye-witnesses are loath to come forward. His testimony does not suffer from any inherent defect or infirmity and he is not a chance witness in true sense of the word because the occurrence had taken place at a Chowk and not at a deserted place. It. was held in Muhammad Ahmad and another vs. The State and others (1997 SCMR 89) that a passer-by is not a chance witness if the crime is committed on a public thoroughfare or at a place frequented by the public generally. As regards the absence of test identification parade it would be enough to say that it was not necessary as not only both the eye-witnesses had seen the appellant at the time of occurrence but PW Chari and also joined the police party by which had chased and apprehended him. The name of deceased Sakhi finds mentioned in the statement of Bakht Zaman (PW. 2), therefore, it, cannot be said that his name was not mentioned at all by the eye-witnesses. 10. The arrest of the appellant after the occurrence was also censured by the learned counsel for the appellant on the ground that the alleged encounter between him and the police was not supported by recovery of empties and blood stained earth. The criticism is unfounded. The arrest of the appellant in the manner highlighted at the trial stands fully established in the light of the statements of Niaz Muhammad ASI (PW. 5), Jan Muhammad FC No. 130 (PW. 6), Fazal Muhammad Khan SHO (PW. 7) and Chari (PW. 4) who is an independent witness. Besides, the explanation furnished by him for the fire-arm injury on his person is not plausible and same is the case with the explanation in regard to his presence in the area. It appears that the police-party was too excited to bother about recoveiy of emptieaifilid blood stained earth. Be that as it may, this possibility cannot be ruled out that the blood was absorbed by the clothes of the appellant and the empties had become untraceable in the hilly terrain. In any event the investigation was not circumspect as mentioned earlier. 11. The positive report of the fire-arms Expert was challenged by the learned counsel for the appellant on the ground that crime empties and the Kalashanikov were received in the Forensic Science Laboratory Peshawar on 25.2.1993 which meant that there was a delay often days in sending the same. The challenge is devoid of force because the crime empties and the Kalashanikov were made into separate sealed parcels and no suggestion was made to the concerned prosecution witnesses that the seals were tampered with. In any case the delay cannot be termed as inordinate. 12. This brings us to two general objections raised by the learned counsel for the appellant. The first objection was that some eye-witnesses including Wadood, whose name was mentioned in the site-plan, were bandoned by the prosecution. The objection cannot prevail because by now it is firmly settled that the prosecution is not bound to examine all the witnesses and no adverse inference can be drawn from non-production of witnesses if the charge is brought home to the accused on the evidence produced at the trial. The second objection was that it was in the crossexamination of Fazal Muhammad Khan SHO (PW. 7) that according to the statement of Naseeb Rawan the assailant was wearing black clothes while the colour of the clothes of the appellant taken into possession by him was greenish. The objection is misconceived for the short reason that Naseeb Rawan was not examined at the trial and the statement of a witness recorded under Section 161 Cr.P.C. can be used only for the pxirpose specified in Section 162 Cr.P.C. 13. As to sentence, there is no mitigating circumstance, therefore, the appellant, deserves to be awarded the sentence of death which is the normal sentence for murder. However, the sentence of death as Qisas having been awarded by the learned trial Court without undertaking the exercise of Tazkiyah-Al-Shuhood requires alteration to death as Tazir which too is an Islamic punishment and has been recognised as such by the Qisas and Diyat Ordinances/Act 11 of 1997. No doubt Qisas and Diyat Ordinances/Act 11 of 1997 have not been extended to the Malakand Division and the criminal cases arising from offences affecting the human body are being tried and decided by the Courts functioning there under the common Islamic, law but. in view of the observations with regard to the state of Vacuum made in Federation of Pakistan and another vs. N.W.F.P. Government and others (PLD 1990 SC 1172) the Courts functioning in the Malakand Division are required to seek guidance from Qisas and Diyat Ordinances/Criminal Law (Amendment) Act, 1997 (Act 11 of 1997) in force in rest of the Country. The sentence under Section 353 P.P.C. does not warrant interference. However, the sentences for attempt to commit qatl-iarnd of PW Muhammad Islam and Beboor are not sustainable because Muhammad Islam has not charged any one for his plight and Beboor had expired in the hospital. 14. For the reasons aforesaid, this criminal appeal is dismissed, the conviction of the appellant on three counts for triple murder of Bakht Rawan, Habibur Rehman and Sirajuddin alias Sakhi is upheld but the sentence of death as Qisas awarded to him is altered to death as Tazir on each count and confirmed as such. The murder reference is answered in the affirmative accordingly. The conviction and sentences in regard to murderous assault are, however, set aside and he is acquitted of the charge levelled against him. The conviction and sentence under Section 353 P.P.C. are also maintained. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1537 [DB] Present: malik hamid saeed and shahjehan khan yousafzai, JJ. NIAZ ALI-Appellant versus STATE-Respondent Criminal Appeal No. 27 of 1995, decided on 2S.3.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Murder-Offence of-Conviction for-Appeal against—Eye witnesses were present on the spot-In absence of any enmity, witnesses could not be labelled as interested and inimical towards accused- Statements of PWs-5 and 6 get support from circumstantial evidence i.e. recovery of pellets from dead body of deceased—Immediate dis-appearance of accused appellant after occurrence is also a corroborative piece of evidence against accused keeping in view Article 21 of Qamm-e-Shahadat Order-Clothes of deceased were found bismered with mud which further support prosecution version—Guilt has been brought home to appellant beyond reasonable doubt-Appeal dismissed-Amount of fine enhanced to Rs. 80,000/- from Rs. 30,000/-. [Pp. 1541 & 1542] A to E S. Zafar Abbas Zaidi, Advocate for Appellant. S. Saeed Hassan Sherazi, A.A.G. for State. Mr. Dost Muhammad Khan, Advocate for Complainant. Date of hearing: 18.3.1998. judgment Malik Hamid Saeed, J.-Niaz Ali son of Fazal Qadir, alias Khan Caste Pashtoon, resident of village Jandari Killa, has been tried by the learned Sessions Judge Bannu on the charge u/S. 302 PPG for the murder of Sher Qadir and sentenced to imprisonment for life coupled with to pay a fine of Rs. 30.000/- or in default whereof to suffer six months simple imprisonment, vide his judgment dated 18.4.1995. Benefit u/S. 382-B Cr.P.C. was. however, accorded. 2. Both the convict and complainant are aggrieved from the aforesaid conclusion of the learned trial Judge and have separately filed Cr. Appeal No. 27/95 by the accused/appellant while the complainant has come up through Criminal Revision No. 4/95. The appellant seeks the setting aside of his conviction and sentences while the complainant has prayed for enhancement, of the sentence to that of death and to award adequate compensation to the legal heirs of the deceased in accordance with law. 3. Since both the appeal and revision have arisen out of a same judgment of the learned trial Judge, these are. therefore, disposed of by this common judgment. 4. The prosecution's case in brief is that complainant Tariq Khan lodged a report at Police Station Mandan on 11.7.1991 to the effect that he alongwith his cousin Nisar Khan were sitting under a tree while his uncle Sher Qader was busy in making ablution on a nearby water channel when in the meantime the accused/appellant together with his co-accused Sharifullah and Maizullah emerged there. Under the command of Maizullah, the appellant and Sharifullah opened fire at, Sher Qadir Khan with their D.B. shotguns, of which the shot fired by the appellant proved effective while that of his co-accused Sharifullah went amiss. The deceased was died from the fire-shot of the appellant Niaz Ali Khan. Motive for the offence was given to be a water turn dispute. 5. All the three accused stood trial before the learned Sessions Judge Bannu where the prosecution produced as many as eleven witnesses and after conclusion of the trial convicted and sentenced the appellant as stated above while the other two were acquitted by extending them the benefit of doubt. 6. Doctor Abdul Rehman Qureshi (P.W, 4) had conducted autopsy on the dead body of the deceased Sher Qadir and had found the following: - EXTERNAL APPEARANCE No legature marks observed. The condition of the body was stout, clothy and blood stained. DETAILS OF EXTERNAL INJURIES 1. Firearm entry wound on right side of neck at the level of carotid size 1/2' x 1/2" with black powder stains; 2. Subcutaneous pellet recovered on the left side above scapula (left shoulder post-aspect). 3. Fire-arm entry wound at the right side chest wall, powder stained, size 1/2 " x 1/2 " right mamary line lateral aspect; 4. Subcutaneous pellet, recovered on the middle of spinal cord at the 5th thoricic vertebrae (ppst). 5. Firearm wound on the middle exillary line; size 1/2" x 1/2" with no exit, wound (powder stained). Right side chest wall. 6. Firearm wound at the right side abdomen lateral wall above right illic crest. No exit wound size 1/2" x 1/2", powder stained. ' INTERNAL EXAMINATION THORAX: Walls, ribs and cartilages-right side chest wall injured. Right side of pleaura injured. Right lung injured and right carotic artery also injured. Fifth thoricic spine was found fractured. The rest of the organs of the chest were found healthy. ABDOMEN Pertitonium, small intestine and large intestine alongwith right, side abdominal wall, found injured while the rest of the organs were found healthy. In his opinion the deceased had died due to injuries to the large blood vessels and vital organs causing prof used haemorrahage and shock. Probable time that elapsed between death and post­ mortem examination three to four hours, while that between injiiries and death was instantaneous. 4. P-W. 1, Gul Qaddar identified the dead body of the deceased. P.W. 2 Ayub Khan M.H.C. registered the case vide FIR No. Ex. P.A. on receipt of murasila Ex. PA./l. P.W. 3 Mohabat Khan had escorted the dead body of the deceased from the spot to the mortuary P.W. 5 Tariq Khan lodged the report and supported same during cross-examination P.W. 6 an eye-witness of the occurrence had deposed in line with the P.W. 5. P.W. 7 had drafted the murasila and registered the case. He had prepared the injury sheet (Ex. P.M.) and inquest report Ex. PM/1 of the deceased, had prepared the site plan Ex. PB., at the instance of the complainant and the other eye witness. He took into possession blood stained earth from the place of deceased vide memo Ex. P.R., an empty shell of .12 bore from the place of the accused and another empty shell of the same bore from the place of the acquitted coaccused Sharifullah vide, memo Ex. PR/1. He had proceeded u/'S. 87 Cr.P.C. and 204 Cr.P.C. against the accused. P.W. 8 had witnessed the said exerd.se of the SHO while P.W. 9 had recovered the D.B. shotgun alongwith cartridges and empties at the instance of the accused/appellant and .sent, the same for arms expert's report. P.W. 10 is also a marginal witness to recovery memo Ex. PR/4 while P.W. 11 had arrested the accused/appellant on 20.2.1992. 3 5. After conclusion of the prosecution evidence, the accused were examined u/S. 342 Cr.P.G. but they denied the charge and pleaded their innocence and claimed trial. The learned trial Judge passed the impugned judgment after scanning the entire evidence brought on record. 6. Learned counsel for the appellant argued that prosecution evidence is unanimous on the point that deceased fell down in the water channel after he was hit and his clothes were dismered with mud but there is no mention by the doctor about the condition of the clothes. He further submitted that according to the evidence the deceased was facing towards south but the injuries sustained by him were on his right side. He stressed that the appellant is attributed one shot from a distance of 15/16 feet and as per medical jurisprudence the pellets after discharge from the barrel of the gun goes in a bunch uptil 12 feet and thereafter spreading of bullets would be 2/3 inches per yard as per Parikh's Text Book of Medical Jurisprudence and Toxicology Page 278, 4th Edition of 1987, which reads as follows:- "When a shotgun is fired with the muzzle in contact with or near the body, the shot enters as a mass and the gases produced by the explosion cause considerable laceration of the surface skin, destruction of the deeper tissues, and often fragmentation of bone. Scorching of the skin, signing of hair and blackening are generally seen upto about a yard but upto about three yards, a few particles of powder grains may still be found on careful search." He further emphiasised that as per post-mortem report, there are powder stained found on injury Nos. 1, 5 and 6 which totally negates the prosecution version, and that according to the report of the Arms expert, both the empties recovered from the spot were fired from one shotgun. His last argument was that the gtm was in fact recovered from possession of brother of the appellant not himself. 7. In reply, learned counsel for State and complainant submitted that the prosecution had successfully proved the murder charge against the appellant through reliable testimony of PWs 5 and 6. They submitted that the conflict between the medical and ocular account in reference to spot –of injuries on the person of deceased and that in the site plan is.irrelevant as according to identification of firearms and Frozonic Ballastic by Maj. Gerralled it is stated at page 60 as under: - "The proportion of unburnt powder to the whole charge depends on three factors:- 1. The length of the barrel of the weapon; 2. The pressure; 3. The type of powder. On page 61 it is mentioned in the following terms:- "Duiing the past thirty years, I have repeatedly come across shotguns cartridges which had been loaded by gun makers and umatenrs in which the fault lay in the use of cheap foreign cartridge cases capped with caps which were totally un-suited to the powders actually used so in the shotguns combustion is more likely to be incomplete than in rifles and consequently it is possible that un-burnt powder grains may be present round a wound from a shotgun. On page 63": "Hence the larger the size of powder grains in any cartridge the greater will be the tendency to un-burnt grains". 8. We have anxiously considered the facts and circumstances of the case in the light of the arguments addressed by the learned counsel for the parties at the bar and perused the record. It is not disputed that the deceased was met with un-natural death. From the combined study of the whole case, it is established that the witnesses were present on the spot. The legal worth of the witnesses' ocular account is to be seen from the time of occurrence which is as per FIR 'Pesheen Wela' and it is in the statement of the PWs 5 and 6 that they had gone to offer Zuhur prayers to the spot where a raised portion is meant for offering prayers near to which there is a water channel. It is common in villages that villagers use to get ablution from the water channel to got relief from the hot wheather, villagers do refer to go on water channels and spings to get ablution with fresh cold water and offer prayers. 9. So for the contention of the learned counsel for the appellant that both the eye witnesses are interested witnesses, their degree of interest is to be seen as to whether they are highly interested or inimical towards the accused. We find no such background in the case. Motive alleged was not such which could be termed a motive for the witnesses to depose against the accused. In absence of any enmity, the witnesses could not be labelled as interested and inimical towards the accused. The statements of PWs 5 and 6 get support from the circumstantial evidence i.e. recovery of pellets from the dead body of the deceased. Immediate dis-appearance of the accused appellant after the occurrence is also to be taken into account as a corroborative piece of evidence against the accused, keeping in view Article 21 of the Qanun-i-Shahadat. The appellant was arrested on 20.2.1992, i.e. about 8 months after the occurrence and by then all the proceedings u/Ss. 204, 87 Cr.P.C. had been complied with by the prosecution and further the recovery of crime gun at the instance of the appellant left no room to doubt his involvement in the crime. Defence despite hetic efforts failed to brought any material contradictions despite the fact that witnesses were examined three times during the trial and despite of the lengthy cross-examination nothing fatal to prosecution was brought on record. So for conflict in medical evidence and ocular account furnished by the witnesses on whose pointation the site plan was prepared is concerned, as contended by the appellant's counsel, we have considered this point and found that a complete answer to the controversy is available from pages 61 to 63 and in some portions of pages 68, 70 and 71 in the book written by Major Sir Gerald Burrard (Author of the Modern Shotgun) named as 'The Identification of Fire Arms and Fronsic Elastics". We after perusal of the said pages of the book are of the views that in case of faulty combustion, due to weight of the pellet, gravity of force redused the speed of pellets and dispersion of pellets would be more which definitely effects the distance as normally considered by all the authors on the subject, i.e. Modis, Tylor and Proxy. None of the pellets crossed the body of the deceased which gets support from the contention as given by Maj. Gerralled in his said book. The said alleged conflict of the medical evidence with the site plan is further ignorable in the presence of direct and consistent eye account of two witnesses who had no reasons to falsly implicate the accused/appellant in the case. A sealed parcel containing clothes of the deceased was opened in the Court and we found it bismerecl with mud which further supports the v- prosecution version. 10. From what has been discussed above, we are of the considered view that conviction of the accused/appellant is well based, appraisal of evidence was in accordance with the settled principles of law and the guilt has been brought home to the appellant beyond reasonable doubt, we therefore, dismiss the appeal and maintain the conviction. Now coming to the quantum of sentence awarded to the appellant by the learned trial Judge and violation of mandatory provisions of Section 544-A Cr.P.C., we are of the opinion that the learned trial Judge, keeping into consideration the young age of the accused/appellant coupled with the fact that he was armed with a D.B. Shot gun but he has only/fired a single shot and has not repeated the act, has rightly awarded the lesser punishment. So far violation of mandatory provisions of Section 544-A Cr.P.C. is concerned, 3/4th out of the imposed fine on the appellant be paid to the legal heirs of the deceased. However, we modify the impugned judgment to the extent that above the fine of Rs. 30,000/- imposed by the learned trial Judge, an additional sum of Rs. 50,000/- shall also be paid the appellant to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. In default of payment of the additional fine he shall further undergo six months S.I. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1543 Present: mian SHAKIRULLAH jan, J. MUHAMMAD KAMAL-Appellant versus STATE-Respondent Jail Criminal Appeal No. 6 of 1997, decided on 20.2.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 316 & 33l--Qatle-e-Shibh-i-Amd--Offence of-Sentence of payment of Diyat-Non payment thereof-Simple imprisonment-Jail appeal against- Appellant is directly charged for commission of offence-Crime weapon is blood-stained stick has been recovered from his house—Medical report affirms factum of death of deceased through blunt means like stick-Accused-appellant has also admitted his guilt before Magistrate as well as before trial court-Trial Judge has rightly held accused-appellant guilty of charge and sentenced him to punishment of Diyat u/S. 331 PPC after considering point of sudden fight between accused and deceased as mitigating circumstances in his favour-No illegality committed by trial court-Appeal dismissed-Appellant ordered to be released on bail on furnishing surety equivalent to amount of Diyat i.e. Rs. 2,40,000/-. [P. 1544] A • Mr. M. Waris Khan, Advocate for Appellant. Mr. Fazalur Rehman Khan, A.A.G. for State. Date of hearing: 20.2.1998. judgment This Jail Criminal Appeal has been filed by Muhammad Kamal, convict appellant, against his conviction u/S. 316 PPC on the charge of Qatle-Shibh-i-Amd and the sentence of Diyat amounting to Rs. 2 ,40,000 /- payable to the legal heirs of Umar Gul, deceased, in three equal installments of Rs. 80,000/- per year from the date of judgment i.e. 20.3.1996 of the learned Additional Sessions Judge/Izafi Zilla Qazi. Due to non-payment of the amount of Diyat, the appellant was kept in jail for undergoing simple imprisonment. 2. According to the prosecution case, on 25.9.1993 Mst. Bibi lodged a report to the effect that her husband (Umar Gul) had gone to Karora Bazar on 24.9.1993 for shopping when at about 2 P.M. the villagers brought his dead body to the house and informed her that accused Muhammad Kamal has committed the murder of her husband in the way while he was coming back from the bazar. The accused Muhammad Kamal was arrested from his house on the same day and the police also recovered a blood stained stick, the alleged crime weapon from his house. The accused was produced before a Magistrate, where he confessed his guilt by recording his confessional statement. The site-plan was also prepared at his pointation. On external examination of the dead body, the doctor found that the deceased has been murdered by blunt means like a stick due to injuries to the vital organ, the brain. The accused in his confessional statement has admitted his guilt to the effect that on the day of occurrence he was going to his village from Mingora. At the place known as Karora he boarded in a pick-up datsun in which deceased Umar Gul was also sitting. They both deboarded from the vehicle at Jabba and proceeded on foot to their village. After going for about 10/15 minutes, he demanded his money (loan) from Umar Gul but he replied improperly on which an altercation took place between them and due to the reason of his youngerness than Umar Gul in age, he snatched the stick from him and gave 2/3 blows of the said stick to Umar Gul with which he fell to the ground. Keeping in view the voluntary confession of the accused, the affirmation of the same at the trial, the recovery of the crime stick from the house of the accused and the medical opinion, the learned trial Judge held the accused-appellant guilty of the charge of Qatle-e-Shibh-i-Amd and sentenced him to the punishment of Diyat to be paid to the legal heirs of the deceased. Today, Mr. M. Waris Khan, advocate , appeared on behalf of theaccused-appellant and argued the appeal. The learned State counsel was also ft heard. The accused-petitioner is directly charged for the commission of the offence. The crime weapon i.e. blood-stained stick has already been recovered from his house. The medical report affirms the factum of death of the deceased through blunt means like a stick and the accused-appellant has also admitted his guilt before a Magistrate as well as before the trial Court. In these circumstances the learned trial Judge has rightly held the accused- ' appellant guilty of the charge and sentenced him to the punishment of Diyat u/S. 331 PPC after considering the point of sudden fight between the accused and the deceased as a mitigating circumstance in his favour. I, therefore, find no illegality or irregularity to have been committed by the learned trial Court passing the impugned sentence of Diyat against the appellant. The appeal in hand is, therefore, liable to be dismissed and I order accordingly. It may, however, be mentioned that u/S. 331 PPC, the convict is entitled to be released on bail if he furnishes security equivalent to the amount of Diyat to the satisfaction of the Court. The convict-appellant, therefore, should be released on bail on furnishing a security equivalent to the amount of Diyat amounting to Rs. 2 ,40,000 /- with two sureties each in the like amount to the satisfaction of the trial Court with directions to the appellant that he should pay the Diyat amount in three yearly installments (each installment of Rs. 80,000/- per year) starting from today. Before parting with this judgment, it would not be out of place to mention here an important contention of the learned counsel for the appellant with regard to the difficulty arising in proper interpretation to the provisions of Section 331(2) PPC. According to the learned counsel for the appellant an offender in case of Qatl-e-Shibh-i-Amd is liable to be punished with Diyat in addition to imprisonment as Tazir. The convict will not be required to suffer imprisonment in default of payment of Diyat or any part thereof, but he will be kept in jail to suffer simple imprisonment until the Diyat is paid in full, if he fails to pay Diyat. According to the learned counsel there is nothing in the Section that the convict can be imprisoned in case of failure to pay the amount of Diyat. The learned counsel for the appellant then invited my attention to the provisions of Section 338-F PPC which provides that in the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The learned counsel for the appellant taking advantage from certain books on the subject has argued that the amount of Diyat in case of Qatl-e- Shibh-i-Amd is liable to be paid by the blood relations of the offender and if they fails to pay then the legal heirs of the deceased are entitled to such payment from 'Bait-ul-Maal'. . In my view the argument of the learned counsel for the appellant is having substance in it so far as the indefinite term of imprisonment to be served in jail by an offender in case of his failure to pay the amount of Diyat is concerned for the reason that neither the provisions of Section 331 PPC itself provide any definite period for the purpose nor the Court has the powers to fix period of imprisonment in default thereof. I, therefore, recommend that the law making authority should consider this aspect of the matter so as to remove the difficulty in interpreting the provisions of Section 331 PPC. (MYFK) ' Orders accordingly

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1545 (DB) Present: mian muhammad ajmal and malik hamd saeed, JJ. MIR ZAKAM and another-Petitioners versus STATE and another-Respondents Cr. Misc. Bail Application No. 244 of 1996, dismissed on 12.5.1998. Criminal Procedure Code, 1898 (V of 1898))-- —-S. 497--Bail»Grant of-Prayer for-Offence U/Ss. 302/324/34 PPC-Trial is in progress, wherein certain witnesses have already been examined- Practice of Superior Courts is that when a murder case is fixed for hearing, ordinarily bail applications are not decided on merits and matter is often left to discretion of trial Judge," lest it may not prejudice judicial mind of trial Court-Petition dismissed, with direction to trial court to conclude trial within two months positively. [Pp. 1546 & 1547] A & B PLD 1989 SC 585 rd. S. Zafar Abbas Zaidi and Pir Liaqat Shah, Advocates for Petitioners. S. Saeed Hassan Sherazi, AAG for State. Mr. Dost Muhammad Khan. Advocate for Complainant. . Date of hearing: 12.5.1998. judgment Mian Muhammad Ajmal, J.-After rejection of their bail application from the Court of Special Judge, Bannu, vide his order dated 10.10.1996, the petitioners have approached this Court for the same relief. 2. According to the F.I.R. the complainant on the eventful day alongwith his father and cousin, after making purchases from the Bannu City , left for Paindakhel in Datsun. When they deboarded at Paindakhel Adda and were going towards their home, and reached near the lands of Muhammad Ali Khan, the petitioners armed with Kalashinkoves appeared on the scene. Petitioner No. 1 commanded the co-accused to kill. Whereupon the accused/petitioners opened ndiscriminate firing with which his father was hit and died at the spot. However, the complainant and his cousin escaped unhurt. The assailants fled away from the scene of occurrence. The motive for the alleged offence is stated to be a previous blood feud enmity. 3. After their arrest, the petitioners applied for their bail to the Court 'of Special Judge, Bannu but their application was turned down vide his order cited in Para-1 above. Hence the petition in hand for the same relief. 4. We have heard the learned counsel for the parties and perused the relevant record of the case with their able assistance. 5. Learned counsel for the parties stated that the trial is in progress wherein certain witnesses have already been examined, we as such refrain to dilate upon the merits of the case lest it may not prejudice the judicial mind of the trial Court . Reliance is made on case "Muhammad Ismail vs. Muhammad Rafique and another" reported as PLD 1989 Supreme Court 585 wherein it is held:- "Practice of the superior Courts is that when a murder case is fixed for hearing, ordinarily the bail applications are not decided on merits and matter is often left to the discretion of the trial Judge and this practice is directly relatable to the "question of prejudice". 6. In view of the above dictum laid down by the apex Court, we dismiss this application and direct the trial Court to conclude the trial within a period of two months positively. The office is directed to send the record of the case to the trial Court forthwith. (MYFK) Application dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1547 Present: sardar jawaid nawaz khan gandapur, J. AHMAD ALI-Appellant versus STATE-Respondent Criminal Appeal No. 302 of 1997, accepted on 13.4.1998. Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979)-- —Articles 3 & 4 read with S. 103 Cr.P.C.-Recovery of heroin-Offence of- Conviction for-Appeal against-Prosecution was bound to associate two members from locality to witness recovery which it patently failed to do so--No effort was made to show that it was not possible to associate two members with recovery process, hence, entire process of recovery of narcotics from possession of appellant had become highly doubtful- Moreover '13' 'puns' weighing 13 grams were allegedly recovered from possession of appellant, but instead of sending 13 samples prosecution had sent only one sample from one 'puri', hence, it could not be concluded that all 13 'puris' contained heroin powder—Appeal accepted. [P. 1549] A & B PLJ 1997 SC 1922 ref. Mr. Tahmash Khan, Advocate for Appellant. , Khawaja Azhar Rashid, A.A.G. for State. Date of hearing: 13.4.1998. judgment The appellant was charged for having committed an offence punishable U/A. 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 vide F.I.R. No. 212 dated 27.3.1996 lodged in Police Station, Chura, District Mardan and after the completion of the usual police investigation he was put on trial. The Addl. Sessions Judge-I (Syed Afsar Shah), at the conclusion of the trial, held the appellant guilty and convicted him. He was accordingly sentenced to undergo 2 years, rigorous imprisonment. The appellant was also sentenced to pay a fine of Rs. 1,000/- (Rs. one thousand) or in default thereof to undergo further one month's rigorous imprisonment. 2. Aggrieved by the said judgment the appellant has challenged its legality /validity by filing this appeal. • 3. Mr. Muhammad Tehmash Khan Advocate learned counsel for the appellant and Khawaja Azhar Rashid learned Asstt. Advocate General for the State present and heard. Record of the case perused carefully. 4. The learned counsel for the appellant has, in the main, attacked the judgment on the following two grounds:- Firstly that the provisions of Section 103 Cr.P.C. were not complied with and, therefore, the recovery of the narcotics from the possession of the appellant had become doubtful. Resultantly he could not be convicted; Secondly that 13 'Puris' (weighing 13 grams) were allegedly recovered from the possession of the appellant and as such the prosecution was bound to send samples from all the 13 'purris' for chemical analysis, that the same was however not done inadvertently or otherwise. Only one sample was taken from one of the 13 'puris', therefore, there was no evidence to show that except for one 'Puri' the rest of the 12 'Puris' also contained heroin powder, that on this score too, the appellant was entitled to be acquitted. 5. The contention of the learned counsel for the appellant that the provisions of Section 103 Cr.P.C. were not complied with seems to be correct. The Prosecution has failed to associate two independent witnesses from the locality to witness the recovery. No effort, what-so-ever, was even made to procure the attendance of two mashirs from the locality. The Police party clearly violated the mandatory provisions of Section 103 Cr.P.C. and, therefore, the alleged recovery of contraband narcotics had become illegal and could not be made the basis of a conviction. The appellant was accordingly entitled to be acquitted not as a matter of grace but as matter of right in view of the decision of the Full Bench of the Hon'ble Supreme Court of Pakistan, comprising of their Lordships, Mr. Justice Ajmal Mian, Mr. Justice Saleem Akhtar, Mr. Justice Saiduzzaman Siddiqui and Mr. Justice Nasir Aslam Zahid, determined in case titled State vs. Bashir and others reported as P.L.J. 1997 Supreme Court 1922. It was held:- (iii) Criminal Procedure Code, 1898 (V of 1898).. S. 103~Non compliance of Effect-It has been repeatedly held that the requirement of Section 103 Cr.P.C. namely, that two members of public of locality should be mashirs to recovery, is mandatory unless it is shown by prosecution that in the circumstances of a particular case it was not possible to have two mashirs from the public-Where no efforts made to secure two mashirs recoveries may be considered as doubtful. (v) Arms Ordinance. 1965 (W.P. Ord. XX of 1965) S. 13-Recovery of irniporcs-Whereas police personnel- Status in a case whereby witnesses of recovery were police personnel though it wag possible to have two mashirs from locality where recovery was made their testimony in the absence of other reliable pieces of evidence would not warrant conviction. But where in a case other pieces of evidence on record are free from doubt, testimony of police personnel if free from any legal infirmity may be accepted." 6. Khawaja Azhar Rashid, learned Asstt. Advocate General, when confronted with this situation, admitted that in the circumstances he was not in a position to defend the impugned judgment. He conceded, and rightly so, that the conviction/sentence recorded by the Addl. Sessions Judge-I was not legal/in accordance with law. 7. In view of what has been stated above I am of the view that the prosecution was bound to associate two members from the locality to witness the recovery. The prosecution had patently failed to do so. Besides, no effort was made to show that it was not possible to associate two mashirs, with the recovery process, in the circumstances. Accordingly it can be safely concluded that the entire process of recovery of narcotics from the possession of the appellant had become highly doubtful. 8. Additionally, the record would reveals that 13 'puns' (weighing 13 grams) were allegedly recovered from the possession of the appellant. The Prosecution was, therefore, bound to send 13 samples (one each from each B Pun) for chemical analysis. Instead of sending 13 samples the prosecution had sent only one sample from one 'puri'. In the circumstances, it could not be concluded that all the ISpuris contained heroin powder. 9. Resultantly this appeal is accepted, the conviction/sentence recorded by the Addl. Sessions Judge-I Mardan is set aside and the appellant is acquitted. He shall be released forthwith if not required in any other case. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1550 [DB] Present: IFTIKHAR HUSAIN CHAUDHRY AND MUMTAZ ALI MlRZA, JJ. WAZIR SHAH and others-Appellants Versus STATE-Respondent Murder Reference No. 163 of 1993 and Criminal Appeal No. 105 of 1993 decided on 4.3.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302(a)/34~Double murder-Offence of-Conviction for-Appeal against- Motive part of incident was proved by witnesses-It was a day time occurrence and occurrence place was admitted by defence itself-Not a word favouring accused/convicts could be elicited by defence from mouths of witnesses-No enmity was suggested-No false implication was even suggested-Shooting was also admitted-Testimony of witnesses is believed-Ocular account furnished by witnesses who no doubt are related to deceased but they are closely related to accused/convicts, is corroborated by medical evidence—Report of Forensic Science Laboratory further lends support to prosecution case which was proved beyond any shadow of doubt—Appeal dismissed. [Pp. 1555 & 1556] A to D Syed Raza Abbas Naqvi, Advocate for Appellants. Malik Kabir Ahmad, A.A.G. for State. Date of hearing : 4.3.1998. judgment Iftikhar Husain Chaudhry, J.--Wazir Shah son of Yusuf Shah, Intizar Shah son of Wazir Shah and Imtiaz Hussain Shah son of Safdar Shah were convicted for offence under Section 302 (a)/34 PPC for causing Qatl-e- Amd of Arif Shah and Mukhtar Shah vide judgment dated 27.4.1993 passed by Sessions Judge, Attock and were sentenced to death on two counts of murder. Intizar Shah was also convicted under Section 337-F(V) PPC and sentenced to rigorous imprisonment for two years. He was also directed to pay Rs. 25,000/- to Sadiq Shah injured PW by way of ' Daman '. 2. Occurrence in this case took place at 9.00 A.M. on 15.8.1992 in the area of village Dharek, Police Station Bahtar District Attock and case FIR No. 85/1992 Ex. PN was registered at Police Station Bahtar on the report of Sadiq Shah, PW 10. According to complainant he was present in his house at 9.00 A.M. on 15.8.92 when he heard an alarm. He ran towards the mosque and saw that Wazir Shah armed with .12 bore gun. Intizar Shah armed with .12 bore DBBL gun. Imtiaz Hussain armed with, .30 bore pistol were abusing Arif Shah. Arif Shah also replied in the same manner. Imtiaz Shah-fired twice with his pistol which hit Arif Shah, deceased, on his head. Wazir Shah fired a shot hitting him on his back. When the complainant tried to intervene, Intizar Shah fired a shot which hit hum on the back of his right hand causing injuries on his fingers. At raising of hue and cry Wazir Shah Intizar Shah and Imtiaz Shah started running towards their houses. In the meantime Mukhtar Shah son of the complainant came from the opposite direction who admonished the accused. Intizar Shah fired a short with his gun which hit him on his chest. Imtiaz Shah fired with his pistol hitting him on his right arm. 3. The motive behind the occurrence as stated by the complainant was that the accused had tied their she-ass in the land of Arif Shah. Arif Shah restrained them from doing so due to which hot words were exchanged between them. Due to this reason all the accused while^rmed with guns and pistol, with their common intention, committed the murders of Arif Shah and Mukhtar Shah. 4. In the subsequent investigation carried out all the three accused were found guilty and were sent up to face trial in the court of Sessions Judge, Attock. The prosecution examined 12 witnesses to prove its case against the accused. 5. Dr. Muhammad Shujjat Khan PW1 on 15,8.1992 examined Sadiq Shah and found the following injury on his person: 1. A fire arm inlet wound on medial side of right hand of size 1 x % cm at the level of distal end of fifth meta-carpal bone. The edges were inverted and lacerated. The edges were black in colour and charring was present around the wound. The wound was probed inward and found fire arm out let wound at the level of distal end of second and third metacarpal bone of size 1.3 x 3/4 cm. The edges of black colour and everted on dorsal side of right hand. On the same day at 3.00 P.M. the Medical Officer conducted postmortem examination of Arif Shah and observed the following injuries on his dead body: 1. A fire arm injury, inlet, wound 1 x 3/4 cm on right side of skull (parietal area) the edges were black colour and everted, charring present fi cm behind the right ear. The wound was probed towards left and found an exit wound of size 1 x 1 on front of left. ear. The edges were everted with the fracture of underneath bones. 2. A fire arm injury inlet wound of size of 1 x 3/4 cm on right side of skull on parietal area 7 cm behind the right ear. The edges were of black colour and everted. Blackening was present, The wound was probed towards left and found an exit wound on left, parietal area 7 cm behind the left ear with everted edges and of size 1x2 cm with the bone pieces in the exist wound. Course of the wound was straight. 3. ' Multiple wounds of entry in an area of 17 x 12 cm on middle and upper part of back of chest, the edges had blackening and inverted. The nylon cap of cartridges was recovered under the shirt. The corresponding holes on the shirt of size 3 mm in diameter were present. The size of the wound was also 3 mm in diameter. The gun powder was present on the shirt. All the injuries were antemortem and were caused by fire-arm. The Medical Officer on the same day at about 3.15 P.M. conducted post-mortem examination on the dead body of Mukhtar Shah and noted the f following injuries: 1. A firearm inlet wound on medial side of left elbow region 2 cm below the joint of the size 4 cm x 2.5 cm. The edges were inverted blackening and charring were present on the edges. The wound was traced outwards and found two outlet fire arm wounds of size 2 x 2 cm each on lateral side, 2 cm above the elbow joint. The edges Were everted with the fracture of elbow joint. (Lower end of humerus) and upper end of radious and ulna). 2. A fire arm inlet wound 3x5 cm in size, 3 cm above the injury No. 1. The edges were inverted blackening and charring were present. The wound was treated outwards and wound 3 outlet wound measuring 2x1 cm, 2 x 1.3 cm and 2 x 1 cm with the fracture of lower end of humerus above the fracture caused by injury No. 1. 3. Multiple fire arm inlet wound in an area of 16 x 12 cm on front of chest (epigastrium) each measuring 3 mm on size the edges were inverted blackening and charring were present. Corresponding holes were present on front of chest and shirt some of the holes probed and found wound on back in the centre of the level of thorax region in an area of 10 x 12 cm the edges were everted, each hole was of 2.3 mm in size, corresponding hole was present on back of shirt. All the injuries were antemortem and were caused by firearm. 6. Muhammad Razzaq Patwari PW 5 had prepared site plan Ex. PG and Ex. PG/1. Ghor Zamin PW 6 had identified the dead bodies of Arif Shah and Mukhtar Shah at the time of post-mortem examination. Luqman Shah PW 7 witnessed the recoveries of gun Ex. P8 alongwith licence Ex. P9 and Pistol Ex. PlO recovered at the instance of Intizar Hussain and Imtiaz Hussain Shah respectively which were recovered vide memoes Ex. PF and Ex. PH. Daulat Shah PW 9 testified about the recovery of blood stained earth from the place where dead bodies of Arif Shah and Mukhtar Shah were lying. He had also witnesses the recovery of five empties of .30 bore pistol which were secured vide memo Ex. PK. On 20.8.1992 he had witnessed the recovery of .12 bore gun Ex. P13 which was recovered at the instance of Wazir Shah and was secured vide memo Ex. PM. 7. Sadiq Shah complainant PW 10 was injured during the incident. He had re-affirmed the narrative contained in the FIR and supported the version of the prosecution. Aftab Hussain Shah appeared as PW 13. He had supported the version as advanced by Sadiq Shah complainant. 8. Muhammad Nawaz SI appeared as PW 12. He testified about the various steps taken by him during investigation. He testified about the arrest of the accused, recoveries of weapons from their possession. He had recorded the statements of witnesses under Section 161 Cr.P.C. After completion of investigation he had prepared final report under Section 173 Cr.P.C. against the accused and submitted the same in court. 9. In their statements recorded under Section 342 Cr.P.C. all the accused professed innocence and have stated that complainant party lodged a false FIR against them and to support the false FIR they have fabricated false evidence. 10. Learned trial Court believed the prosecution case against all the three accused and convicted and sentenced them as noted above. Judgment dated 27.4.1993 of Sessions Judge Attock was appealed against through Criminal Appeal No. 105/1993. The matter has been referred under Section 374 Or.P.C. vide Murder Reference No. 163/1993 for confirmation of sentences of death awarded to the accused. 11. Learned counsel for the appellants contended that, occurrence did not take place in the manner as alleged by the prosecution and that the complainant with the help of local police fabricated a false story in which he involved the present appellants though they never took part in the occurrence. It was submitted that motive as set up by the prosecution was not proved and appellants were not shown as to why they would have attacked both the deceased. It was argued that the complainant, the eye witnesses and witnesses of recoveries were closely related to one another and no implicit reliance could be placed on testimony of such interested and inimical witnesses. It was further argued that Intizar Shah was serving in army and had returned to village the same day and he was roped in the case by the complainant. It was contended that prosecution case was not free from doubt and benefit of that had to be given to the convict/appellants. It was contended that due to non-proving of motive, it was a case in which maximum punishment could not have been awarded. Learned Assistant Advocate General on the other hand contended that the complainant and other private witnesses were closely related to accused and they had absolutely no enmity with them and their testimony was confidence inspiring and worthy of reliance particularly when the defence was unable to elicit anything from their mouth favouring the accused. It was submitted that the incident took place after a quarrel which stalled over tethering of a donkey in the land belonging to Arif Shah deceased, and such quarrels are common feature in the area and motive as set-up by the prosecution was adequately proved. He submitted that prosecution had proved its case beyond the slightest shadow of doubt and the appellants, thus were convicted rightly. 12. Sadiq Shah complainant PW 10 is closely related to Wazir Shah as his real sister is married to him. Another real sister of Sad ; "- Shah is married to Safdar Shah, father of Imtiaz Hussain Shah accused. Wazir Shah is brother-in-law of Sadiq Shah while the other convicts namely Intizar Shah and Imtiaz Shah are his maternal nephews. Arif Shah deceased is son of Daulat Shah and nephew of Sadiq Shah while Mukhtar Shah was his son. Aftab Shah PW 11 is real brother of Arif Shah. Thus the complainant, eye witnesses, the witnesses of recoveries of crime property and accused-convicts are very closely related to one another. No enmity existed between the parties prior to the incident. Nothing was suggested to the prosecution witnesses and nothing has been highlighted by the convicts-appellants during trial or during hearing of the appeal. According to prosecution Arif Shah objected to tethering of a donkey by the accused near certain trees which the donkey was likely to damage; a quarrel ensured between the parties and after a verbal brawl Arif Shah was fired at and when Mukhtar Shah deceased, came from his house towards the place of occurrence he was also fired at by Intizar Shah. According to complainant the occurrence took place in this back ground and since there was no enmity between the parties, it can safely be inferred that stand of the prosecution in this regard was not improbable. Incidents of like nature do occur in this region and, therefore, it could not be said, as has been argued, that motive set up by the prosecution went un-proved. Sadiq Shah immediately after the incident had reported the matter to police and had given the reasons for the incident. This was not a case in which prosecution had set-up a case that an earlier quarrel between the parties was avenged by the accused and no evidence was led by the prosecution to prove that a quarrel between the deceased or the accused and ever taken place. Only in such situations where no evidence is led by the prosecution with regard to an alleged earlier incident, an adverse inference is drawn against the prosecution. This is not the position of the case in hand. A quarrel took place between Arif Shah and the accused and immediately thereafter the situation aggravated and shooting took place. The motive for the incident, therefore, appears to be same as has been claimed by the prosecution. 13. The occurrence in this case took place at 9.00 A.M. on 15.8.1992 in front of the village mosque in an open space. It was a day time occurrence and could not have gone unwitnessed. Sadiq Shah complainant was present in his house at the relevant time and on hearing of alarm he reached in front of the mosque and found Intizar Shah and Wazir Shah holding shot guns in their hands while Imtiaz Shah was carrying a .30 bore pistol. He had travelled a distance of about 100 yards from his house to the place of occurrence which was admittedly at a higher point of elevnation than his house. He had sen Arif Shah and the accused engaged in verbal duel and himself was injured in the incident. He was subjected to cross-examination in the following terms: "It is correct that I continued hearing the alarm also on my way to the spot. When Arif Shah called Imtiaz Shah accused son of 'Be-ghairaf I was away 2/3 paces from Arif Shah From the un-tieing of the she-ass and of demise of the deceased I was present at the occurrence. At the time of un- tieing of she-ass I was not resent at the spot and had comesubsequently. It is at the occurrence that I had come to know that the quarrel had emanated on the un-tieing of the ass. I had come to now because the accused were insisting to tie "~ the she-ass whereas Arif Shah deceased was resisting. The she-ass was present at the spot It is incorrect that Intizar Shah was not present at the spot. He had come on leave on the day of occurrence. We are not that callous that we should have involved Intizar Shah falsely into the case taking advantage of his being on leave in the village and to have named him because he is the only earning member of \ his family It is ncorrect that in an open fight the fires were shot from either sides while Intizar was not there when the pellets hit me and no body knows whose cartridge that was. imilarly it is not known whose fire hit the two deceased." Aftab Hussain Shah PW 11 is the second eye witness. He was cross-examined in the following terms: "It is ncorrect that Intizar Shah was not present at the spot nor was I or my mother present at the spot. The place of occurrence is towards east from the main entrance of he mosque I had also seen the she-ass un-tied standing. The donkey did not run away during the occurrence. It is incorrect to suggest that I was not there. It is ncorrect that it is on the east of our village mosque where occurrence could take place. Towards south of the mosque is grave-yard whereas on its west are the houses. t is incorrect that I have neither seen the spot nor the mosque. From the above it is apparent that motive part of the incident was proved by the witnesses, the place of ccurrence was admitted by the defence itself. The occurrence itself was admitted as having been taken place and only uggestion put to witnesses was that Intizar Shah was not present there which suggestion was vehemently denied by Sadiq Shah by claiming that they were not that callous. Not a word favouring the accused/convicts could be elicited by the defence from the mouths of these witnesses. No enmity was suggested. No false implication in respect of Wazir Shah and Imtiaz Shah was even suggested. Shooting was also admitted. After having gone through the testimony of these witnesses we are left with no option except to believe their deposition in totality. 14. The ocular account furnished by witnesses who no doubt are elated to the deceased but they are also closely related to accused-convicts. hey are not inimical witnesses and in the absence of any dis-qualification pointed out by the defence from which these witnesses suffered, their testimony could provide a safe ground for basing the conviction of the accused-appellants. The ocular account in this case is further corroborated by the medical evidence. Sadiq hah himself was injured. Three metacarpal bones of his hand were fractured on aconint of gun shot and injuries on the person of both the deceased as noted by the edical Officer fully support the ocular account. The recoveries of crime cartridges lend further corroborationto the prosecution case. Luqman Shah PW 7 and Dault hah W 9 who had testified about recoveries of crime articles proved the recoveries effectively. The cross-examination to which they were subjected was direction less and neither their integrity nor their credibility was shattered in any manner by the defence. 5. One empty cartridge recovered from the spot matched with .12 bore DBBL shot gun having been recovered at the instance of Intizar Shah accused. The other spent cartridge of .12 bore shot gun recovered from the spot wedded with SBBL shot gun recovered from Wazir Shah. The spent bullet casing of .30 bore pistol also wedded with pistol having been recovered at the instance of Imtiaz Shah. The report of Forensic Science Laboratory Ex. PY further lends support to the prosecution case. 16. After having carefully gone through the entire material on record we are of the view that prosecution case against the convictsappellants was proved beyond any shadow of doubt. We have been unable to ay our fingers on any circumstances, the benefit of which could be given to convicts. Therefore, the appeal filed by the convicts-appellants is dismissed. The conviction/sentences as recorded by learned trial Court on all charges are maintained. 17. Death sentences awarded to convicts-appellants are confirmed. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1557 [DB] Present: QAZi muhammad FARooQ and sardar muhammad raza, JJ. Mst. JEHAN ARA-Appellant versus STATE-Respondent Jail Criminal Appeal No. 381 of 1995, dismissed on 22.1.1998. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 337-J and 365-A-Kidnapping for ransom-Offence of-Convition for- Appeal against-There is no motive for false charge-Abductee was recovered by police in presence of local witnesses from house of appellant in a state of unconsciousness-Such recovery is admitted by appellant herself-Strong circumstantial evidence of recovery cannot be wriggled out from by appellant-Medical report and report of Chemical Examiner further support prosecution and also confessional statement of accused- Appellant is linked with commission of offence-Prosecution succeeded in bringing home required charge-Appeal dismissed. [Pp. 1559&'l562]A, B&D (ii) Pakistan Penal Code, 1860 (XLV of 1860)- —S. 361-Kidnapping from lawful guardianship-Definition of~Offence is not restricted merely to taking away of minor from "physical possession of lawful guardian" but is fairly widened to rendering minor "out of keeping of lawful guardian"-Any action of an accused whereby some minor is kept away from keeping of a lawful guardian, is an offence of kidnapping even such minor is not physical removed. [P. 1562] C Mr. SherAfgan Khattak, Advocate for Appellant. Mr. Zia-ur-Rehman, Asstt. A.G. for State. Date of hearing: 19.11.1997. judgment Sardar Muhammad Raza, J.-Mst. Jehan Ara convict wife of Zameer Zada of Bicket Gunj Mardan, through the authorities of Central Prison. Pes-hawar, has filed this appeal against the judgment dated - 16.11.1995 of learned Sessions Judge Mardan, whereby she was convicted u/'Ss. 337-J and 365-A PPC for administering poisonous drug to Junaid Anwar, a minor boy aged 5/6 and then kidnapping him for ransom. She has been sentenced to imprisonment for life and forfeiture of property, if any; u/S. 365-A PPC and RI for ten years u/S. 337-J PPC. Both the sentences, with benefit u/S. 382-B Cr.P.C., were to run concurrently. 2. Junaid Anwar s/o Jainshed Khan, a student of Class-I went out of his house at Bicket Gunj Mardan, on 17.8.1994 at 1330 hours. At 1515 hours somebody rang up, disclosing him as "Manzarey" and informing that the boy was with him at Nowshera that a sum of Rs. 15,00,000/- be arranged for his release and that next phone call for further message be awaited till 8 PM. The telephone rang up again at 1600 hours. This time some lady was on the other end, asking, if the message conveyed by Manzaray was properly understood. On receiving the answer in the affirmative, she also put the matter off to 8 P.M. 3. Home people reflected that three days ago, their telephone number 61136 was obtained by their neighbour Mst. Jehan Ara that the boy frequently used to visit her house - and that the voice on telephone resembled the voice of Jehan Ara. Reinforced by such suspicion and with suspicion reinforced, Aurangzeb Khan, the uncle of Junaid, within 15 minutes, at 1615 hours lodged a report at Police Station 'A' Division Mardan registered at Sr. # 1203, charging Jehan Ara and her son Zeeshan for kidnapping minor Junaid for ransom. 4. After reducing the aforesaid charge into FIR Ex. PA Ainuddin Khan alongwith the complainant and witnesses from the locality, including Habibur Rehman and Humayun, hurried to the house of the appellant Jehan Ara. On search, the minor boy Junaid was found lying unconscious upon beddings in a large tin-box. He was rushed to the hospital where he showed no response to painful stimuli. His pupils were fixed, pulse not traceable and the blood pressure not recordable. The doctor suspected the dministration of drugs, chemicals or poison and considered the condition to be dangerous to life. The stomach was washed, the contents were sent for chemical analysis and the patient was referred to Lady Reading Hospital, Peshawar. The Chemical Examiner detected tranquiliser in the stomach wash. 5. Mst. Jehan Ara and her son Zeeshan were arrested soon after recovery. They involved another Iqbal who also was arrested. On 24.8.1994 Jehan Ara and Zeeshan were produced before Mr. Masoodur Rehman, Magistrate First Class Mardan where the lady made a confession Ex. PG while Zeeshan gave a statement Ex. PH claimed by the prosecution to be a confession. At the close of trial, Iqbal and Zeeshan were acquitted of the charges, while Jehan Ara is before this court after conviction. 6. Not verbatim but, in nut-shell, the impressionistic reproduction of the confessional statement (Ex. PG) of Mst. Jehan Ara would indicate that she is a literate woman and a teacher in some school of Handicrafts. She knew Iqbal, the co-accused who was a driver in the hospital and who had floated the idea of kidnapping some one for ransom. As she was financially in a bad shape, sbe succumbed to the persuation and administered four tablets to Junaid who frequented her house. When fell unconscious, the boy was laid on a 'cot' and Zeeshan was deputed to take care. Mimicking a male voice (her original too having a male tendency) she rang up at Junaid's house. Then she went to inform Iqbal, who left to arrange for the conveyance. To her bad luck, instead of Iqbal, the police arrived. She hid the boy in a box wherefrom he was recovered. 7. Through Ex. PH, Zeeshan acquitted co-accused and a student of 9th class, says, that not aware of the occurrence, when he returned home, he found that the police had raided his house. The boy who was intoxicated by his mother at the instance of Iqbal, was recovered in his presence. The accused had never confessed any thing. He expressed his ignorance about occurrence and stated at the very outset, in answer to 1st, 3rd and 4 th question (Ex. PH/1) put by the Magistrate, that he would not confess and that he would give a simple statement. Such narration of facts without being inculpatory cannot be dubbed as confession by any stretch of imagination. It can neither be used against him ownself nor against Iqbal nor against Jehan Ara. It such statement had been given by him, without having been treated as an accused, he would have been a start witness of the prosecution. Thus the present statement neither makes him an accused nor a witness. He being useless altogether, was rightly acquitted and rightly was Iqbal against whom there was no evidence worth the name except the confessional statement of co-accused Jehan Ara without corroboration and the statement of co-accused Zeeshan, which was not a confession at all. 8. Before adverting to what the appellant has in store for her in her defence, it may be observed that the instant one is a case where apparently there is no motive for false charge. Though Jehan Ara appellant, in her statement u/S. 342 Cr.P.C. has come-up with a reason that the complainant party wanted to take her house but this allegation is neither supported from the prosecution evidence nor from any thing adduced by the accused. It has not gone beyond a bald statement. Second is her reason to the effect that she is involved at the instance of her uncle Abdus Sattar who had appeared against her without being a witness to the occurrence. This also does not appeal to reason that a neighbour, having no enmity of his own, would involve another neighbour and that too, a lady for an offence that carries capital charge simply to please another relative of the accused. 9. Such charge brought about under aforesaid circumstances was extremely prompt and thus left no room for consultations and deliberations. Its truth is evidence from the hard fact that the boy Junaid was not only recovered by police in the presence of local witnesses, from the house of Jehan Ara appellant but his recovery was effected from a box and that too in a state of unconsciousness. Such recovery, as such, is admitted by the appellant herself, through alluding to different circumstances, which will be attended to in due course. Strong circumstantial evidence of recovery, in the condition as it was, cannot be wriggled out from by the appellant. The medicolegal report and report of Chemical Examiner are further supports rendered to the prosecution. Last one is the confessional statement of the accused. We believe and hold that the appellant is linked with the commission of both the offences she has been convicted of. 10. We now advert to the appellant's defence. Learned counsel for the appellant contended that the recovery was not properly proved and the witnesses were highly interested. In this context, we have gone through the evidence on record and have no reasons to doubt the veracity of PW Aurangzeb, the complainant who, as said earlier, had no motive of his own to bring a false charge. We see no reasons, similarly, to reject the statement of Ainuddin SHO who is supported by Habibur Rehman (PW 6) a witness to the recovery; the other one namely Humayun having been abandoned as • unnecessary. Above all, such recovery and the condition in which it was, are admitted by the appellant herself in her statement u/S. 342 Cr.P.C. She has, no doubt taken the plea that the boy, in her absence, had taken the sleeping pills while playing hide and seek with his mates and thus had hidden himself in the box. 11. Such a far fetched logic, we must say, is neither reasonable nor logical. How could the minor boy know as to where the pills were lying? How could he know that those were sleeping pills? How the taking thereof was at all necessitated because the pill induces sleep and does not help in hiding some one. It should have better been administered to the "seeker" rather than to the "hidden". We, in the circumstances rejected the reasons given by the appellant and hold that the pills were administered by none else but the principal accused and owner of the house in question with the criminal mens rea that she subsequently conveyed through telephone. 12. Next objection of the learned counsel was about the veracity of confessional statement of Jehan Ara appellant. It was stressed that the statement was neither true nor voluntary. We have given our considered thought to this aspect of the case and observe that the appellant/convict was caught in such a hurry and so unawares and the boy was recovered from a box in her house in such a horrible condition that she had no choice but to confess. She was not in a position to come out with any plausible explanation. It was only much subsequently, in her statement u/S. 342 Cr.P.C., that she thought of placing some ifs and buts to the confession. Her explanation of the occurrence and recovery seems to be an ill-thought dramma. She did not think of the fact that hide and seek is not played by a boy alone. She failed to give names of other boys. Hiding one's self after taking sleeping pills was not at all confidence inspiring and so the appellant, minus her ill-fitting explanations, has rather supported her confessional statement in her statement before court u/S. 342 Cr.P.C. The admission, as well as proof, of the factum of recovery of the boy, are alone sufficient to conclude that the confession is in line with what in fact happened. The appellant had no choice but to tell the truth and so do we conclude that the statement was true. 13. With regard to the voluntariness of the confessional statement, the Magistrate has taken all necessary precautions. The appellant is an educated woman and she was fully aware of the fact that she was before a Magistrate in court and not before a Police Officer. The only matter that attracts attention is a 6 days delay in recording of confessional statement but, in the circumstances of the present case, this also crumples into insignificance. One may not fail to appreciate that in the instant case Jehan Ara appellant was not the only accused arrested and interrogated. Iqbal coaccused was also interrogated almost for the same duration. He was produced before Magistrate but he flatly refused to confess. Being an adult male he could easily be subjected to inferior degrees of the methods of investigation but he was not worked upon. The reason that he might have been a tough soul, is totally negated by the third co-accused named Zeeshan, the son of appellant, who was hardly thirteen. If tried upon, his confessional statement would have been an asset to the prosecution but he also refused to confess. So, the appellant could have easily refused to make a confession, like Iqbal and Zeeshan did under similar conditions and especially when, as pleaded by defence, all the three were produced before Magistrate at one and the same time. Appellant behaved quite differently and hence we hold that her act was voluntary. 14. Last was the legal criticism over recording of conviction for the offence of kidnapping. It was contended that the offence of taking away, by force or by deception, of the minor boy from physical possession of the lawful guardian is not proved in the instant case. We agree with such contention but still believe that the offence in question is completed as well as proved. Kidnapping, like one in hand, is defined in Section 361 of the PPG, the relevant part whereof is reproduced for convenience of reference. Section 361 PPG KIDNAPPING FROM LAWFUL GUARDIANSHIP. "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such • guardian, is said to kidnap such minor or person from lawful guardianship. Explanation ..................................................................................... Exception 15. Noteworthy feature of the definition is that the offence is not restricted merely to the taking away of the minor from "physical possession of the lawful guardian" but is fairly widened to rendering the minor "out of the keeping of lawful guardian". A victim though may not be taken out of the possession of a lawful guardian yet it can constitute an offence if he or she is kept "out of the keeping" of a lawful guardian. Any action of an accused whereby some minor is kept away from the keeping of a lawful guardian, is an offence of kidnapping even if such minor is not physically removed. Any act done by the accused which may be regarded as proximate cause of a minor being kept out of the keeping, authority or control of a lawful guardian is an offence of kidnapping. In other words, an act but for which the person would not have gone out of the keeping of a guardian, is an offence of kidnapping if done with the criminal mens rea indicated in the definition. 16. In the instant case, there may not be an evidence of the physical removal of Junaid from his house or from the street by the appellant Jehan Ara but, as discussed earlier in detail, she certainly kept the minor not only from the keeping and control of the guardian but kept him in wrongful confinement, under wrongful restraint and concealed him in a box after administering intoxicant. This all was with a view to demand ransom which she demanded in fact. This constitutes an offence u/Ss. 365-A and 337-J of the PPC. 17. Consequently, we are of the view that the prosecution has succeeded in bringing home the required charge against the convict/ appellant. The convictions and sentences were rightly recorded and imposed. We do not see any plausible grounds to interfere. There being no merit in appeal, it is hereby dismissed. (MYFK) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1562 Present: sardar jawaid nawaz khan gandapur, J. SHER ZAMAN-Appellant versus STATE-Respondent Criminal Appeal No. 245 of 1996, decided on 16.3.1998. (II of 1947)-- -—S. 5(2) read with S. 161-PPC-Trap Case-Recovery of tainted money-­ Conviction for-Appeal and revision against-Complainant had no ill will or enmity with appellant-Tainted amount of Rs. 7,000/- was recovered from pocket of shirt of appellant-No explanation or cogent evidence given y him that he had been falsely involved because of ulterior motive- Prosecution had succeeded in establishing its case against appellant for receiving bribe money amounting to Rs. 7,000/- and trial court had rightly convicted him-Appeal dismissed-Revision petition filed by state accepted and sentence enhanced from 17 days to 3 years-Order accordingly. [Pp. 1566 & 1567] A to E Mr. Sardar Aslam Khan Afridi, Advocate for Appellant. Mr. Abdur RaufKhan Gandapur, Advocate for State. Date of hearing: 24.11.1997. judgment The appellant, Sher Zaman Patwari, alongwith his co-accused Muntazir, Girdawar Circle, was charged for having committed an offence punishable u/S. 161 P.P.C. R/W Section 5(2) Prevention of Corruption Act, 1947, Vide: F.I.R. No. 2 dated 23.4.1991 registered at Police Station, Anti- Corruption Establishment, Mardan. 2. After the completion of the usual Police Investigation complete challan was submitted in the court of Special Judge, Anti-Corruuption N.W.F.P. Camp at Mardan against both the accused on 3.1.1994. 3. At the conclusion of the trial which took more than 2^ years, the Special Judge, Anti-Corruption N.W.F.P. while acquitting accused Muntazir, Girdawar, convicted the appellant, Sher Zaman, Patwari, by his order recorded on 15.7.1996. For the sake of convenience the operative portion of the impugned order is reproduced hereunder :-- "At the same time the case of the two accused is different. Accused Muntazir is not alleged to have demanded bribe money in the F.I.R. The tainted amount was not recovered from his direct possession. He was not directly involved in issuing the required Fard. PW Ehsan Ullah had not met him. It was accused Sher Zaman who wanted to share the booty with him and thus oblidge to him. His case therefore deserve benefit of doubt. He is therefore, acquitted of all the charges in this case. The net result is that I conclude that the prosecution have proved their case beyond any reasonable doubt against the accused Sher Zaman. He is therefore convicted u/S. 161 PPC and Section 5(2) P.C. Act of 1947. He is sentenced on both the counts to the period of imprisonment of 17 days which is the period of his judicial detention undergone by him in this case in terms of the amended Section 382-B and to a fine of Rs. 50,000/- (Fifty thousand) or in default to undergo six months simple imprisonment. The orders are announced. It is at this juncture that the convict Sher Zaman informs that he intends to pay the above fine today and further intends to prefer an appeal. He is in his active service. His services may be prejudiced pending the institution of the above appeal. I therefore, direct that the operation of this judgment in respect of some efforts on his present service (if any) is kept suspended till the expiry of the period of limitation under the law or the institution of appeal by him before th"e Hon'ble Appellate Court." 4. Aggrieved by the impugned order the appellant/accused Sher Zaman, Patwari, has challenged its validity/legality by filing this appeal. 5. Similarly the State, through Advocate General, N.W.F.P. (Mr. Muhammad Akbar Khan Swati) has filed Criminal Revision No. 122/96 praying therein that the sentence awarded to the accused Sher Zaman Patwari, being inadequate, may graciously be enhanced in accordance with law. 6. As the appeal as well as the Cr. Revision have arisen out of the same judgment, therefore, I propose to dispose the two by this judgment. 7. Sardar Aslam Afridi, Advocate learned counsel for the appellant and Mr. Abdur Rauf Khan Gandapur, Advocate learned counsel for the State present and heard. I have also gone through the record of the case carefully with the able assistance of the counsel for the parties. 8. Since the facts of the case in hand have already been given, in detail, by the Special Judge, Anti-Corruption, in the impugned judgment dated 15.7.1996 therefore, it would be a futile exercise to reproduce/narrate the same once again. 9. In essence, the legality/validity of the impugned judgment appears to have been challenged, in the main, on two grounds. Firstly, that the prosecution witnesses had not seen the passing of the bribe money (tainted amount) to the accused by the complainant and secondly, that the conversation, which took place between the bribe receiver (appellant) and the bribe giver (complainant), was not heard by the P.Ws. i.e., the members of the raiding party. 10. Besides, it has been alleged that all the P.Ws. being official witnesses were interested witnesses and therefore, their testimony was not trustworthy to record the conviction u/S. 161 PPC r/w Section 5(2) Prevention of Corruption Act, 1947. Consequently the same could not be sustained. The learned counsel for the appellant, in support of his contention, relied on case titled Muhammad Ashraf vs. The State reported as N.L.R. 1996 (Criminal) 184. This case was decided by an Hon'ble Division Bench of the Supreme Court of Pakistan comprising of his Lordship, Mr. Justice Afrasiab Khan and his Lordship, Mr. Justice Muhammad Bashir Khan Jehangiri. It was held by their Lordships:- "(c) Ibid.... S. 5(2). Interested testimony of Police Officials which remained uncorroborated, would not be enough to record conviction u/S. 5(2) with PPC, S. 161. (d) Police Officials .... Interested evidence of Police Officials which remained incorroborated would not be sufficient for sustaining conviction recorded by Trial Court. (e) Constitution of Pakistan, 1973. Art. 185(3). Leave petition against judgment of High Court upholding conviction/sentence U/S. 161 PPC recorded by Trial Court on basis of evidence of Police Officials which remained uncorroborated. Supreme Court holding that interested evidence of Police Officials could not sustain conviction converting leave petition into appeal, allowing appeal ordering acquittal of convicts." 11. The learned counsel for the State on the other hand, submitted vehemently that in trap cases it was absolutely not necessary to look for direct evidence between the accused and the decoy witness. According to him it was sufficient if the person who had supervised the raid had not been cheated either by the complainant/decoy witnesses or by the accused, and that he was of the view that the episode had in fact taken place as was alleged by the prosecution. He further contended that under the said circumstances conviction could be validly recorded by the trial court. The learned counsel for the State further argued that the standard and mode of appreciation of evidence in cases where "acquittal" was sought to be set aside was quite different than the appreciation of evidence in the cases where "conviction" was sought to be set aside. In support of his contention he placed reliance on a case, Muhammad Aslam vs. The State, reported as P.L.D. 1992 Supreme Court 254 decided by a Division Bench of the Hon'ble Supreme Court of Pakistan, comprising of their Lordships Mr. Justice Muhammad Afzal Zullah (the then Chief Justice) and his Lordship Mr. Justice Abdul Qadeer Chaudhry. It was held by their Lordships:- (a) Prevention of Corruption Act (II of 1947)~S. 5(2) Penal Code (XLV of 1860), S. 161-Trap cases-Not necessary in a raid (trap) case to look for direct evidence of criminal conversation between the accused and decoy witness; provided that the Magistrate who supervised the raid was satisfied that he had not been cheated neither by the complainant/decoy witness or by the accused—Where the Magistrate who conducted the raid was in no doubt about the correctness of the prosecution case nor was he in any doubt about the reality which had token place and which was witnessed by him. Supreme Court declined interference in the conviction and sentence of the accused." 12. A critical analysis of the petitioner evidence would show, admittedly, that the complainant had no ill will or enmity with the two accused against whom he had reported the matter to the concerned quarters. When examined as P.W. 1, nothing could be brought on record, in the crossexamination, to show that he had either concocted the case against the appellant or had any malicious intention to involve them in the case falsely. Admittedly the complainant had produced the currency notes before the raiding officer who had duly noted the number of the notes. Later, the complainant (PWl) alongwith Yaqoob (PW 2) went to the "Patwarkhana" with the tainted amount where the bribe amount was actually paid. Immediately after the payment of the amount in question the agreed signal was given by Yaqoob (PW 2). Resultantly the raiding party entered the "Patwarkhana". It was the S.H.O. (PW 5) who recovered the tainted amount of Rs. 7,000/- (Seven thousand) from the pocket of the shirt which the appellant Sher Zaman was wearing. The amount recovered was found to be the tainted money. The remaining tainted amount of Rs. 3,500/-(Rs. Three thousand and five hundred) was however recovered from beneath of a "mat". 13. The recovery Memo: (Ex. P.W. 4/4) was duly prepared by the raiding party. It may be pointed out that although the raiding officer was not a Magistrate, but he was a responsible/Senior Police Officer of the rank of Deputy Superintendent of Police. It was contended by the learned counsel for tha State that this method was adopted so as to avoid the leakage of the information regarding the raid. The appellant, from whose possession the tainted amount of Rs. 7,000/- was recovered, failed to explain reasonably as to how and under what circumstances the tainted amount was received by him. Since the amount was duly recovered from his possession, therefore, it was incumbent upon the appellant to have shown, by cogent evidence, that he had been falsely involved in the case because of some previous enmity/ulterior motive. Such explanation is however not forth-coming. The contention of the appellant that the complainant was not the owner of the land in the Patwar Halqa in which he was posted as a Patwari and that he was, therefore, not entitled to ask for or to get "Fard Jamabandi", is of no significance. The contention of the complainant, on the other hand, that his son was the owner of landed property in the said Patwar Halqa and that he required the requisite Fard Jamabandi on his behalf is quite plausible and could not be refuted by the appellant during the trial. 14. The appellant's second plea that the complainant was annoyed with him as he was declared as a defaulter in respect of non-payment of "Abiana" and "Ushr", by the appellant, is also without any substance inasmuch no evidence worth the name was produced in this respect at the trial in support of this contention. The contention of the appellant regarding this fact cannot be therefore accepted. 15. In the circumstances, I am of the view that the prosecution had succeeded in establishing it's case against the appellant for receiving bribe money amounting to Rs. 7,000/- (Rs. seven thousand) and that the Special Judge, Anti-Corruption had rightly convicted him. In my opinion there appears to be nothing wrong with the well reasoned judgment recorded by the Special Judge Anti-Corruption which is neither arbitrary nor perverse. He has, to my mind, recorded a speaking order and has given valid reasons for his conclusion. The appeal does not merit consideration and is accordingly dismissed. 16. Since the appellant-accused has been convicted and sentenced to undergo imprisonment for 17 days only and to pay a fine of Rs. 50,000/- (Rs. Fifty thousand) or in default to undergo 6 months' R.I., therefore, I am of the view that he has been dealt with quite leniently. Accordingly the Revision Petition filed by the State is accepted and the sentence is enhanced to 3 years' H.I. The sentence of fine to be paid by him shall however remain the same. 17. The appellant is absent although his brother namely, Munir Khan S/o Isa Khan is present, therefore, perpetual non-bailable warrant of arrest be issued against him. (MYFK) O rders accordingly

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1567 Present: dr. munir AHMAD MUGHAL, J. MUHAMMAD SIDDIQUE-Petitioner versus STATE-Respondent Criminal Misc. No. 895-B of 1998, accepted on 26.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/Ss. 302/148 & 149 PPC-Grant of bail on statutory ground-Prayer for-Petitioner is behind bar since date of his arrest and period of more than two years has passed, but trial has not yet concluded-Right of accused to seek bail would not be left to discretion of court and would be controlled by relevant provisions—Held : Case of accused falls within purview of 3rd proviso to Section 497 Cr.P.C.-Bail allowed. [Pp. 1568 & 569] A, B & C PLD 1995 SC 49 and 1998 SCMR 897. Ch. Muhammad Zafar Iqbal, Advocate for Petitioner. Date of hearing: 26.6.1998. order The petitioner is involved in case FIR No. 248 of 1996 dated 20.5.1998 for offence under Sections 302/148 and 149 PPC registered at Police Station Chunian, District Kasur. 2. Briefly, the prosecution case as given in the FIR is that Mst. Sakina Bibi, the complainant on 19.5.1995 at Shamwela alongwith her son Asghar Ali was on her way to Kot Bodla to see wtie Allah Ditta Dogar. When she reached in the field of Bagh Ali Shah, from the nearby field, Siddique alias Baggi, armed with rifle, Rafique with gun and Nazir Ahmad armed with rifle and Pir armed with .12 bore gun were thrashing the wheat. Siddique alias Baggi raised a lalkara to Ashgar Ali, the complainant's son, to teach him a lesson of making quarrel on which Muhammad Siddique fired with his rifle which hit Asghar Ali in his belly. Nazir fired with his rifle which hit Asghar Ali on the right thigh. Mukhar fired with his .12 bore gun which hit Asghar Ali on the back side of his left knee, Rafique and Peera fired with their respective weapons which hit Asghar Ali on his buttock. Asghar Ali fell down on the ground. The complainant made hue and cry which attracted Allah Ditta and Siddique. The assailants decamped. The motive behind the occurrence is that two days ago Siddique and Asghar Ali had a quarrel and because of that Siddique alias Baggi etc. injured the complainant's son who died on the spot because of the injuries. 3. Earlier, the bail application of the petitioner was dismissed by the learned Additional Sessions Judge, Kasur vide order dated 6.4.1998. 4. Bail is pressed on the grounds that the petitioner is behind the bar for a period of more than two years and that there is delay in lodging the FIR and that there are contradictions in the occular version and the medical evidence and that nothing has been recovered from the petitioner and that the petitioner has been implicated in the case due to previous enmity. 5. The petition is opposed on the grounds that the petitioner is named in the FIR with specific role of firing and that the offence with which the petitioner stands charged fall within the prohibitory clause of Section 497 Cr.P.C. 6. I have given due consideration to the valuable arguments on both the sides. 7. Admittedly, the petitioner is behind the bar since the date of his arrest 'and a period of more than two years has passed but the trial has not yet concluded. His case, therefore, falls within the purview of 3rd proviso to Section 497 Cr.P.C. which lays down that, where the Coxirt is of the opinion that the delay in the trial of the accused has not been occasioned by an act or omission of the accused or any other person acting on his behalf, the accused shall be released on bail if the offence with which he stands charged is punishable with death and has been detained for a continuous period exceeding two years. 8. The Hon'ble Supreme Court of Pakistan in the case of Zahid Hussain Shah versus The State (P.L.D. 1995 S.C. 49) while examining the application of 3rd proviso to Section 497, Cr.P.C. had observed that the right of the accused to seek bail would not be left to discretion of the Court and would be controlled by the relevant provision. This observation has been approved by their lordships of the Hon'ble Supreme Court in the case of Abdur Rashid versus The State (1998 S.C.M.R. 897). 9. This being the position of law, this petition is allowed and the petitioner is granted 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 the trial Court. (B.T.) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1569 Present: M. javed buttar, J. ABDUL SATTAR-Petitioner versus STATE-Respondent Criminal Misc. No. 592-B of 1998, accepted on 29.5.1998. Criminal Procedure Code, 1898 (V of 1898)— —-S. 497/498-Offence u/S. 302/324/148/149 PPC-Accused in cross case and co-accused having similar role already on bail-Case of further enquiry-Bail-Grant of—Prayer tor-According to FIR version, PW sustained two fire arm injuries, one attributed to petitioner and other attributed to co-accused and this fact can only be determined at trial stage by trial court after recording evidence as to who caused fire arm injury to PW-Furthermore, it is cross version case and accused in present FIR and PW, in cross FIR has since died and all these facts show that everybody under circumstances, may ultimately be held to be responsible for his own acts-Petitioner is behind bars for last about one and half year-All these circumstances, coupled with fact that large number of persons have been shown as accused, case to extent of petitioner is that of further enquiry-Petition allowed. [Pp. 1570 & 1571] A Ch. Saghir Ahmed, Advocate for Petitioner. Mr. Noor Muhammad Qasid Kalyar, Advocate for State. Date of hearing: 29.5.1998. order The petitioner, Abdul Sattar, is seeking post arrest, bail in case FIR No. 146/96, dated 11.7.1996, registered at. Police Station Sadar Burewala, District Vehari, for the offences under Sections 302/324/148/149 PPC, at the instance of complainant Shamshir-ul-Haq, for an occurrence in which Nazir Ahmed, father of the complainant got killed due to single fire arm injury on left knee, attributed to co-accused Sajwara, and Farooq, P.W., to injured due to fire arm injuries attributed to co-accused Din Muhammad and the petitioner. 2. The petitioner was arrested in October, 1996, and the learned Additional Sessions Judge, has dismissed the application for the grant of bail on 28.2.1998. The challan has been submitted against thirteen persons including the petitioner. 3. It is contended by the learned counsel for the petitioner that the petitioner although allegedly armed with a rifle did not cause any injury and the so-called injury attributed to the petitioner on the person of Farooq Ahmed, P.W. is not supported with the medical evidence because according to the'FIR. Farooq Ahmed, P.W. sustained two fire arm injuries whereas Medical Report shows that he has only one injury on the left leg and it is yet to be determined as to whether the same was caused by the petitioner or by co-accused Din Muhammad and even otherwise the same is on the non-vital part of Farooq Ahmad who was not seriously injured because according to the FIR version he also went alongwith the complainant to the Police Station to lodge the FIR. It is further submitted that three of the accused namely, sajwara, Ali Sher and Mst. Zainab also received fire arm injuries in the occurrence which have not been explained in the FIR and cross case FIR No. 147/96 has also been registered and the accused in the cross-case are on bail. The bail is also being sought, on the ground that, the co-accused Muhammad Anwar, Ali Sher and Mashooq Ali. having the similar role, have been granted bail by this Court on 25.2.1997 and 8.5.1997 respectively in Cr. Misc. No. 1882 B/96 and Cr. Misc. No. 599-B/97. Learned counsel for the State while opposing the petition has submitted that the petitioner is specifically nominated in the FIR with a specific role and his case is distinguishable than of those who have been granted bail by this Court as injury to Farooq Ahmed, P.W., is attributed to the petitioner alongwith the co-accused Din Muhammad. 4. No doubt the petitioner's case is not the same as of those who have been granted bail by this Court becatise the petitioner is attributed injury to Farooq Ahmed, P.W. However, medical evidence shows that Farooq Ahmed sustained only one fire arm injury, whereas, according to the FIR version he sustained two fire arm injuries, one attributed to the petitioner and the other attributed to the co-accused Din Muhammad and this fact can only be determined at the trial stage by the trial Court after recording evidence as to who caused fire arm injury to Farooq Ahmad, P.W. Furthermore, it is a cross-version case and Sajwara, the accused in the present FIR and the injured P.W., in the cross FIR No, 147 has since died and all these facts show that everybody under the circumstances, may ultimately be held to be responsible or his own acts. The petitioner is behind the bars for the last about one and a half year. All the circumstances, coupled with the fact that a large number of persons have been shown as accused, I am of the view that the case to the extent of the petitioner is that of further enquiry. The application is, therefore, allowed and the petitioner is granted hail subject to his furnishing bail bond in the sum of Rs. 100,000/- with one surety, in the like amount to the satisfaction of the trial Court. Copy dasti. (B.T.) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1571 Present: raja muhammad sabir, J. RIAZ AHMAD-Petitioner versus D.S.P. etc.-Respondents Criminal Misc. No. 448-H of 1998, accepted on 29.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 491-Habcas Corpus petition-No case stood registered against detenu- No case diary produced before bailiff at time of raid-Facts and circumstances indicate that detenu was with police since 25.6.1998 in case FIR No. 317 only on suspicion of complainant-SHO states that no recovery was effected from detenu—No valid reason given in remand order by Judicial Magistrate-Held : Detention is unlawful-SHO is directed to submit explanation why he should not be punished u/S. 343 PPC for keeping detenu in wrongful confinement-Detenu set at liberty. [P. 1572] A & B Sh. Muhammad Ghias-ul-Haq, Advocate for Petitioner. Date of hearing: 29.6.1998. order Hamid Ali, SHO, Police Station Cantt. Multan has produced the detenue. According to him the detenue was arrested on 27.6.1998 under Section 54 Cr.P.C. in case F.I.R. No. 317/98 dated 20.6.1998, was produced before Judicial Magistrate on 28.6.1998, and two days remand was obtained till today i.e. 29.6.1998. The report of the Bailiff shows that the case diary was not produced before him at the time of raid on the pretext that the file is with the Investigating Officer, whereas the detenue informed him in the Police Station that he was taken into custody on 25.6.1998 from his Village Aslampurand he remained in their custody-till 27.6.1998 when he was recovered by the bailiff. In the petitioner is also stated that the detenu Shahid Shaukat was taken into custody by the Police on 25.6.1998 and since then he is with them. The petitioner had been trying for the deputation of Bailiff for his recovery since 26.6.1998. However the detenue was arrested on 27.6.1998 and on the same day bailiff was deputed. 2. The facts and circumstances indicate the detenue was with the police since 25.6.1998 whereas the contention of the police is that he was arrested on 27.6.1998 in case FIR No. 317 only on the suspicion of the complainant in the afore-said case. The SHO states that no recovery was effected from Shahid Shaukat detenue. No valid reason is given in the remand order by the Judicial Magistrate. The detenue was kept in wrongful confinement, by police since 25.6.1998. His detention as such is declared unlawful. The detenue is set at liberty. He may go wherever he likes. This etition stands disposed of. 3. The S.H.O. shall submit his explanation as to why he should not be punished under Section 343 P.P.C. for keeping the detenu in wrongful confinement from 25.6,1998 till his recovery through bailiff on 27.6.1998. He 8 will appear alongwith his explanation on 2.7.1998. Separate criminal proceedings shall be initiated against Hamid AH S.I ./ S.H.O. P.S. Multan Cantt. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1572 Present: mrs. fakhar un nisa khokhar, J. WARYAM and another-Petitioners versus STATE-Respondent Criminal Misc. No. 687/B of 1998, accepted on 8.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence under Sections 337-A (ii), 337-(ii), 337-L(ii), 337/A, 148 & 149 PPC-Bail--Grant, of-Prayer for-Further inquiry-It is still to be determined who has caused injuries to whom and what is nature sf injuries caused through evidence at trial-Injuries shown in Medico Legal Report do not deter High Court to give etitioners benefit of bail as they are judicial lock-up for last three months-Bail allowed. [P. 1573] A Ch, Saghir Ahmad, Advocate for Petitioners. Mr. James Josea, Advocate for Complainant. Mr. Kamran, Advocate for State. Date of hearing: 8.6.1998. order Petitioners are involved in F.I.R. No, 13/98 dated 10.1.1998 registered u/S. 337-A (ii), 337-F (ii) 337-L (ii), 337-A, 148 and 149 PPC at Police'Station Noor Shah District, Sahiwal. Involvement of the petitioners according to the F.I.R. is that Petitioner No. 2 gave a sota blow which hit the PWs on the right small finger which according to the Medico Legal Report is Injury No .- 3 and Petitioner No. 1 gave a sota blow to the PW which hit him on the right frontal part of the leg that is Injury No. 4 swelling 10 cm x 8 cm. 2. According to the contention of learned counsel for the petitioners, they are in the judicial lock-up for the last three months. The offence do not fall with the prohibitory clause u/S. 497 Cr.P.C. and petitioners post arrest bail was refused by the leaned Addl. Sessions Judge on 6.4.1998. 3. Learned counsel for the complainant has vehemently contested this bail application and submitted that petitioners are specifically nominated in the F.I.R. and a specific role has been attributed to the petitioners. They have given merciless beatings to the poor and old PWs and the nature of offence is heinous. 4. I have heard the learned counsel for the parties. It is still to be determined that who has caused the injuries to whom and what is the nature of injuries caused through evidence at. the trial. The injuries shown in the Medico Legal Repart do not deter this case to give the petitioners the benefit of bail as they are in the judicial lock-up or at the last three months, therefore, they are bailed but in the sum of Rs. 1 ,00,000 /- each with two sureties each in the like amount to the satisfaction of learned Sessions Judge, Sahiwal. (B.T.) Bail allowed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1573 Present: dr. munir ahmad mughal, J. MUHAMMAD IQBAL-Petitioner versus STATE-Respondent Criminal Misc. No. 633-B of 1998, accepted on 26.6.1998. Criminal Procedure Code, 1898 (V of 1898)— —-S. 497-Offence u/S. 324 PPC-Bai! on statutory ground-Grant of-Prayer for--Grant of bail under 3rd Proviso to Section 497(1) Cr.P.C. is statutory ight and is not left to discretion of court, but is to be controlled by relevant provision-Petitioner is in judicial lock-up for more than one year but. trial has not yet concluded-It could not be pointed out by learned counsel for state that delay has occasioned on account of any act or omission on part of petitioner or any person acting on his behalf-Held: Additional Sessions Judge has not, acted in manner he is required to acf and has passed order which shows non-adherence and non-application of law declared by Hon'ble Supreme Court, of Pakistan-Petition accepted. [Pp. 1575 & 1578] A, B, C & D PLD 1995 SC 49, 1997 SCMR 32, PLJ 1998 SC 1241 and 1997 SCMR 34. Malik Manzoor Ahmad Bhara, Advocate for Petitioner. Mr. Raftque Ahmad, Advocate for State. Date of hearing: 26.6.1998. order The petitioner is involved in case FIR No. 11 of 1997 dated 17.1.1997 for offence under Section 324 PPC registered at Police Station Karor Pucca, District Lodhran. 2. Briefly, the prosecution case is that on 17.1.1997 at about 12 noon, Mst. Bashiran the niece of complainant, was doing knitting work while sitting on a cot when all of a sudden, Muhammad Iqbal son of Khuda Bux armed with gun came and fired at Mst. Bashiran which hit on her lower portion of waist towards left as a result of which she fell down. The motive for the alleged occurrence stated to be was that Muhammad Iqbal had instigated Mst. Bashiran to commit zina to which she repremanded and the complainant also made a complaint of it to the father of Muhammad Iqbal and due to this grudge, the accused had injured Mst. Bashiran. 3. The petitioner was arrested on 11.2.1997 and till date, he is in judicial lock up. He moved three bail applications before the learned Additional Sessions Judge but all were rejected. The last in series is dated 4.3.1998. A perusal of this order passed by the learned Additional Sessions Judge, Lodhran shows that the learned counsel for the accused-petitioner cited the precedents of the Hon'ble Supreme Court of Pakistan and also from the High Court. The citations of Hon'ble Supreme Court were Zahid Hussain Shah vs. The State (P.L.D. 1995 S.C. 49) and Karim Bakhsh versus Zulfiqar etc. (1997 S.C.M.R. 32). • 4. In the case of Zahid Hussain Shah versus The State (P.L.J. 1995 Supreme Coxirt 49) their lordships of the Hon'ble Supreme Court observed as under:- "The right of an accused to be enlarged on bail under the 3rd proviso to Section 497(1), Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused to get bail order the 3rd proviso of Section 497(1), Cr.P.C. is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso to Section 497(1), Cr.P.C. can be refused to an accused by the Court only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person acting on his behalf. The bail under the 3rd proviso to Sectipn 497(1), Cr.P.C. can also be refused by the Court if the case of the accused fell under the 4th proviso to Section 497(1), Cr.P.C. In all other cases the Court must grant bail." The principle laid down in Zhaid's case was approved by their lordships of the Hon'ble Supreme Court of Pakistan in the case of Abdur Rashid versus The State (PLJ 1998 SC 1241) = (1998 S.C.M.R. 897). Next is the case ofKarim Bakhsh versus Zulfiqar and 4 others (1997 S.C.M.R. 34) while in the order of the learned Additional Sessions Judge it is mentioned as 32. This ruling has no nexus with the question involved in the petitioner's case. It was a case where leave was granted to consider that the accused in the complaint as well as in the FIR being the same, separate trial was not needed. 5. It appears that the learned Additional Sessions Judge did not even bother to see the precedents cited by the learned counsel for the petitioner what to talk of following the same. Had he done so, he would not have referred the case of Karim Bukhsh (1997 S.C.M.R. 32) supra. It is, therefore, obvious that the learned Additional Sessions Judge is oblivious of the law laid down by the Hon'ble Supreme Court as while dismissing the bail application, he has observed that bulk of evidence has already been recorded, and he found no ground to recall his previous order. At the cost of repetition, it may be observed that grant of bail under 3rd proviso to Section 497(1), Cr.P.C. is a statutory right and is not left to the discretion of the Coujft bvt is to be controlled by the relevant provision. Reliance can be placed on Zahid's case, supra. 6. Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 reads as under:- "189. Decisions of Supreme Court binding on other courts.-- Any decision of the Supreme Court, to the extent that it decides a question of law or is based upon or enunciates a principle of law, shall be binding on all other Courts in Pakistan." Article 190 reads as under :-- "190. Action in aid of Supreme Court.-All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court." 7. This being the position of the law, it may be noted the learned Additional Sessions Judge has not acted in a manner he is required to act and has passed an order which shows non-adherence and non-application of law declared by the Hon'ble Supreme Court of Pakistan. 8. The concluding part of the order of the learned Additional Sessions Judge dated 24.3.1998 also makes an interesting reading. It may be reproduced as under:- "Lastly I dismissed this application, vide my order dated 12.2.1998 and it was noted in the order that bulk of the evidence has already been recorded. Only one month and eight days after I do not found any new ground to re-call my previous order. So, without going into the merits of the case I once again dismiss this application. File be consigned to the record foom after due completion." 9. Now coming to the mei'its of this case, the petitioner is admittedly in judicial lock-up since 11,2.1997 and more than one year has passed but the trial has not yet concluded. It could not be pointed out by learned counsel of the State that the delay has occasioned on account of any act for commission on the part of the petitioner or any person acting on his behalf. In the light of the law declared by their lordships of the Hon'ble Supreme Court in Zahid Hussain case (P.L.D.4995 Supreme Court 49) I am left with no option but to grant this petition, as such, the petitioner is admitted to bail in the sum of Rs. 50,QOO/- with one surety in the like amount to the satisfaction of the trial Court. 10. A copy of this order shall be sent to the learned Inspection Judge of the District Lodhran and shall also be placed before Hon'ble the Chief Justice, Lahore High Court, Lahore for appropriate action. (B.T.) • Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. Lahore 1577 (DB)' Present: IFTIKHAJR hussain CHAUDHARY AND • mian muhammad najam-uz -zaman, JJ. MUHAMMAD ASHRAF-Appellant versus STATE- -Respondent ' Crl. Appeal No. 509 and 92 M.R. 355-92, decided on 9.6.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302--Murder-Offenee of--Conviction for--Challenge to-—Case of prosecution is not supported by any other independent, witnesses or person from locality where occurrence took place-Material brought on record qualitatively was not of a degree to have warranted conviction of appellant on a capital charge—Enmity between parties was admitted and an over all view of case shows that incident was an unwitnessed one and appellant was involved in case due to suspicion which lurked in mind of complainant party-Appeal allowed. [Pp. 1580 & 1581] A Mr. Iqbal Mahmood Awan, Advocate for Appellant. Kh. Shaukat All, Advocate for State. Date of hearing: 9.6.1998. judgment Iftikhar Hussain Cfcaudhry, J.-Muhammad Ashraf son of Muhammad Din was tried in the court of Additional Sessions Judge, Chunian District Kasur in case, FIR No. 575 dated 3.9.1991 Police Station, Kangan Pur District Kasur under Section 302 PPC for committing intentional Qatl-e-Amd of Shafqat and was sentenced to death by judgment dated 10.6.1992 passed by Additional Sessions Judge, Chunian. 2. Case FIR No. 575/1991 Ex. PA/1 was registered at the instance of MsL Razia Bibi wife of Sadiq. According to Razia Bibi, she was resident of Milage Tangrian and her husband was agriculturist. Her uncle Ghulam Muhammad resident of Kot Ghulam Muhammad died natural death 6/7 days before and an offering after 7th day of his death was given in the village. She alongwiih her son Shafqat, Rashid Ahmad brother, Falksher, cousin,. reached Kot Ghulam Muhammad at 2.00 P.M. Considerable number of people of the brotherhood were present at the spot. Food was served and thereafter men and women of the brotherhood left the village. She alongwith Shafqat sou. Rashid Ahmad and Falksher were sitting on cot in courtyard of house of Muhammad Yousaf son of Muhammad Hanif under trees when Muhammad Din empty handed, Akhtar AM, Muhammad Ashraf alias Kali armed with 12 bore guns, Abdul Ghaffar armed with 7 mm rifle caste Khokhar resident of village Mehmood Khokhar came to the spot and Muhammad Din shouted that Shafqat AH should not escape and he be taught a lesson for murder of Ahmad AH, Muhammad Ashraf fired with shot gun which hit Shafqat on head who fell on the ground. Mst. Razia Bibi and her companions raised alarm whereafter the accused left the spot after seeing.a large number of people of the village. 3. Motive for the incident was stated to be that in 1983 Ahmad AH son of Muhammad Din was murdered and Shafqat was challaned to court in that case but later was acquitted and he was done to death on account of that grievance. 4. Muhammad Walayat ASI, Police Station Kangan Pur was present in Rural Health Center Kangan Pur when Mst. Razia Bibi got her statement Ex. PA recorded which was sent to Police Station for registration of criminal case. He visited the spot, prepared injury statement Ex. PF, inquest report Ex. PG, recovered blood stained earth from the spot vide, memo Ex. PD, prepared site plan Ex. PH and recorded statements of prosecution witnesses under Section 161 Cr.P.C. He got prepared site plan Ex. PB from patwari. Mushtaq Ahmad SI PW 8 arrested Muhammad Ashraf on 16.9.1991, completed the investigation and submitted report under Section 173 Cr.P.C. against the accused in court. 5. Prosecution examined 8 witnesses at the trial to prove its case against the accused. 6. Dr. Muhammad Shahid Saleem PW 4 conducted post mortem examination on the dead body of Shafqat AH on 4.9.1991. Following injury was found by the Medical Officer on the dead body: A lacerated wound 18 cm x 8 cm x brain cavity deep on the head. Brain matter was severely lacerated and coming out. Both parietal and temporal-occipital and frontal bones were fractured. Brain cavity was full of blood. Wound was directed from right to left. Three malletic pieces were recovered from the brain cavity. Blackening was present on the wound. Major part of skull, scalp and brain matter had blown away. Wound extends 4 cm above the right ear to 4 cm above the left ear and from frontal part of skull, occipital part intenoposteriorly. 7. The injury was antemortem and was caused by firearm. The time between postmortem and death was given as 24 hours. In cross examination medical officer admitted that according to police report death occurred on 3.9.1991 at 6.15 P.M. 8. Noor Muhammad constable PW 1, Muhammad Tufail constable PW 2, Ahmad AH Draftsman PW 3, Razia Bibi PW 5, Rashid Ahmad PW 6, Walliat PW 7 and Mushtaq Ahmad SI/SHO PW 8 were examined by the prosecution to prove its case against the accused. 9. The accused in their examination under Section 342 Cr.P.C. denied the prosecution case against them. Muhammad Ashraf stated that it was an unseen occurrence and he was involved in the case due to enmity and suspicion. He also stated that deceased had so many enemies and was done to death by unknown assailants. 10. Learned trial Court believed the prosecution case to the extent of Muhammad Ashraf alias Kali and convicted and sentenced him as noted above. Muhammad Ashraf filed Criminal Appeal No. 509/1992. Matter has been referred to this court by trial Court, for confirmation or other-wise of death imposed on Muhammad Ashraf vide. Murder Reference No. 355/1991. . 11. Learned counsel for the appellant as well as state have been heard in the matter. 12. Learned counsel for the appellant contended that occurrence allegedly took place in the village Kot Ghulam Muhammad Dakhli village Mehmood Khokhar but no one from the locality came forward to state that any occurrence in the village had taken place as alleged by the prosecution or not. It was submitted that according to complainant a large number of people had gathered at the condolence ceremony but not a single person supported the prosecution regarding the incident or involvement of the present appellant in the case. It was submitted that even the Investigating Officer admitted that he had associated about a dozen persons with the investigation of the case and this was done as the incident was an unseen occurrence and no body knew as to who the assailant was and present appellant was involved in the case due to suspicion alone. It. was contended that learned trial Court had disbelieved the prosecution case to the extent of majority of the accused and it was not shown as to how the case of the present appellant was distinguishable from that of the acquitted accused. It was argued that conviction of the appellant was based essentially on the opinion of the Investigating Officer and the same was thus unwarranted and unsustainable. Learned counsel for the State supported the impugned judgment and siibmitted that it was a day time occurrence and identity of the assailant coxild not be mistaken and no reason has been advanced for substitution of the appellant for the real culprit. 13. According to Razia Bibi, her maternal uncle Ghulam Muhammad resident of village Kot Ghulam Muhammad died about 7 days prior to the incident and she alongwith the deceased and other had gone to he offering which was given on the 7th of death of Ghulam Muhammad and a large number of men and omen of the brotherhood were also invited who were served meals after 3 P.M. and when others had left, the complainant alongwith her son and witnesses sat in the courtyard of Muhammad Yousaf when the appellant alongwith co-accused came to the spot and fired at the deceased. Neither in the course of investigation nor subsequently at the trial any body from the house of Ghulam Muhammad maternal uncle or from village Kot Ghulam Muhammad itself came forward to support the case of the prosecution that any ritual was held in the village on the date of occurrence. The occurrence in this case allegedly took place in the house of Muhammad Yousaf but none from that house supported the prosecution case regarding taking place of occurrence at 3 p.m. or involvement of the appellant. The Medical Officer admitted in cross examination that according to police report death occurred on 3.9.1991 at 6.15 P.M. Muhammad Tufail constable PW 2 escorted the dead body of deceased to Civil Hospital Chunian for post mortem examination. He admitted in cross examination that dead body was collected by him from village Tangrian. The occurrence in the case had taken place in village Kot Ghulam Muhammad and not in village Tangrian and, therefore, collection of dead body from village Tangrian shows that occurrence had not taken place in village Kot Ghulam Muhammad as claimed by the prosecution. 14. 'Mushtaq Ahmad SI/SHO PW 8 admitted that Mubarik Ali, Ashgar Ali, Waryam, Safdar, Khan Muhammad, Amanat Ali, Abdul Qavi, Muhammad Akram, Muhammad Sharif, Sher Muhammad joined the investigation and he recorded their statements and that; they supported the prosecution case to the extent of Muhammad Ashraf only, None of the aforementioned persons came forward to testify in support of prosecution case. Mere opinion of Investigation fficer or conclusion drawn by him is not a substitute for evidence which is led at the trial and, thus, could not have provided any basis for recording conviction of the appellant. 15. As observed above no concrete evidence was led at the trial to show that any post mortem ritual was held in the village Kot Ghulam Muhammad where the occurrence took place. It is also a matter of common knowledge that women are not invited to such offerings and only men take part in such rituals. Presence of Razia Bibi complainant and of her brother Rashid Ahmad at the spot is not supported by any other material on record. The eye witness account is also suspect. According to medical evidence, the deceased v/as fired at from a very close range as his skull was virtually blown away. In case the complainant or the PWs were present at the spot, they would not have allowed the accused to have approached the accused carrying a gun and to have shot at him from point-blank range. There is another aspect of the matter. In case shooting had taken place as alleged, the persons sitting close by the victim would have been hurt or injured. Neither the complainant nor other witnesses received a scratch during the incident. 16. We have examined the record with meticulous care. The evidence on record does not inspire confidence. Case of the prosecution is not supported by any other independent, witnesses or person from the locality where the occurrence took place. The material brought on record qualitatively was not of a degree to have warranted conviction of the appellant on a capital charge. The enmity between the parties was admitted and an over all view of the case shows that incident was an unwitnessed one arid appellant was involved in the case due to suspicion which lurked in mind of the complainant party. 17. For the foregoing reasons we allow the appeal filed by Muhammad Ashraf, set aside conviction and sentence awarded to him and acquit him from the case. He shall he released from custody if not wanted in any other case. 18. Murder reference is answered in the negative. (AAJS) Appeal allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1581 Present: raja muhammad khurshid, J. MUHAMMAD SHAFI-Petitioner Versus MUHAMMAD SAFDAR and 4 others-Respondents Crl. M. No. 1102-C-B-98, dismissed on 26.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-CanceIlation of-Prayer for--Offence u/Ss. 337-H(ii), 440, 427, 148 and 149 PPC--There is civil litigation between parties-None was injured during occurrence nor any empty was recovered from place of occprrence-Impugned order confirming pre-arrest bails of respondents appears to be iin-exceptionable-Petition dismissed. [P. 1582] A Ch, SabirAH Sarra, Advocate for Petitioner. Mr. Muhammad Iqbal Mohal, Advocate for Respondents. Mr. Nasir Hussain Chishti, Advocate for State. Date of hearing: 26.6.1998. orbbr Respondents are involved in a case under Sections 337-H(ii), 440, 427, 148, 149 PPG registered at the report of Muhammad Shafi petitioner at Police Station, Pasrur District Sialkot vide FIR No. 4/98 dated 4.1.1998. 2. Respondents applied for pre-arrest bails. . They joined the investigation. Their pre-arrest bails were confirmed by the learned Additional Sessions Judge, Pasrur vide order dated 22.1.1998, on the ground that although firing was made by one of the accused, but no empty was recovered from the spot. As such offence under Section 440 PPG required further inquiry, whereas the remaining offerees were bailable. 3. The learned counsel for the petitioner has submitted that while confirming the bails of respondents, the learned trial court did not take into account the well known principles dealing with grant or refusal of pre-arrest bail. In this context, it is contended that there was no mala fide on the pan of the police so as to entitle the respondents to earn bails; that weapons of offence carried by the respondents were never recovered by the police and as such respondents should not have been admitted to bails. 4. Lastly it is contended that two co-accused namely Rafaqat Ali and Qayyum have since absconded, and, therefore, respondents were not entitled to bails. 5. The learned counsel for the State has submitted that incomplete challan has already been sent to the court concerned and that the matter in respect of involvement of Rafaqat Ali and Qayyum is yet under inquiiy because the complainant i.e. the petitioner has submitted that if Haji Muhammad Mushtaq makes an oath regarding their innocence, he would accept/the same. 6. The learned counsel for the respondents has submitted that prearrest bail has been confirmed by the learned Additional Sessions Judge, Pasrur in accordance with law as no one was injured during the transaction and that respondents had faithfully joined the investigation. The mere fact that two co-accused namely Rafaqat Ali and Qayyuin have since absconded could not dis-entitle the respondent to earn the bails, of their own rights. It is also submitted that admittedly no body was injured during the occurrence although firing was made, but no empty was recovered. 7. Lastly it is contended that the FIR is the out come of mala fide because the respondents have been involved falsely in this case on account of civil litigation between the parties over the 'haveli' in dispute, which was allegedly demolished during the occurrence. 8. I have considered the submissions made at the Bar. It is admitted from both sides that there» is civil litigation in respect of 'haveli' in question, which is pending and that none was injured during the occurrence nor any empty was recovered from the place of occurrence. Without discussing the merits of the case, it is enough to say that the parties are also pitched against each other in civil litigation in respect of the 'haveli' in question, therefore, taking into consideration all the circumstances, the impugned order confirming the prearrest bails of respondents appears to be un­ exceptionable. This petition is dismissed. (AAJS) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1583 Present: sheikh abdur RAZZAq, J. MUHAMMAD RAFIQUE and 3 others-Appellants versus STATE-Responclent Cr. M. No. 1/98 in Crl. A. No. 211/98, accepted on 28.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 426-Suspension of sentence-Prayer for-Offence u/S. 337-F (iii)/34 PPC-Trial Court has not given any reasoning for passing an order of conviction as required/contemplated u/S. 367 Cr.P.C.-Although deeper appreciation of evidence is not warranted while disposing of an application u/S. 426 Cr.P.C. yet there is no bar in scanning contents of judgment while disposing of an application u/S. 426 Cr.P.C.-There is also no likelihood of disposal of appeal in near future and sentence being short, petition is accepted and sentence awarded is suspended. [P. 1584] A & B Mr. Inayat Ullah Khan Niazi, Advocate for Appellants. Mr. Farrukh Hummayun, Advocate for State. Date of hearing: 28.7.1998. order This is an application for suspension of sentence awarded to the appellant/petitioners Muhammad Rafique, Abdul Hameed sons of Niaz Gul, Sher Zaman son of Khan Gul (Jan Gul) and Saffi Ullah son of Shah Gul who have been convicted under Section 337- F( III)/34 PPC vide judgment dated 21.3.1998 passed by the learned Sessions Judge Mianwali whereby each of them has been sentenced to undergo R.I. for 3 years and has been further ordered to pay Daman of Rs. 20,000/- in equal share. However they were extended benefit of Section 382-B Cr.P.C. Besides the present petitioner their co-accused Niaz Gul and JVIuhammad Iqbal have been convicted under Section 302/34 PPC and have been sentenced to imprisonment for life and to pay Rs. 1 Lac as compensation to the legal heirs of the deceased. 2. Contention of the learned counsel for the petitioners/appellants is that petitioners have been convicted vide para No. 23 of the judgment wherein no reasoning of passing the order of conviction has been incorporated. He further contends that there is a general allegation of firing upon Gul Nawaz injured. He further contends that sentence awarded is a short one and there is no likely hood of disposal of the appeal at an early date. He further argues that although deeper appreciation is not warranted while disposing of application for bail, yet the contents of the judgment can ip looked into to verify the reasoning of order of conviction. In support of his contention he has relied upon Muhammad Khan Shahid vs. The State (PLD 1997 S.C. 1) and Muhammad Nawaz vs. The State (1996 P.Cr.L.J. 1250). He thus submits that petition be accepted and petitioners be admitted to bail while suspending the order of conviction, 3. Conversely contentions raised by the learned counsel for the petitioners have been controverted/repudiated by the learned counsel for the State. 4. Vide FIR dated 21.2.1996 registered at Police Station Kamarmashani District Mianwali, the present petitioners alongwith 9 others were sent up for trial out of whom 1 have been acquitted whereas 6 have been convicted. Niaz Gul and Muhammad Iqbal have been awarded life imprisonment whereas the present petitioners have been convicted U/S. 373- F( III)/34 PPC and have been sentenced to R.I. for 3 years each as referred above. 5. A perusal of the judgment shows that the trial Court has discussed the entire evidence culminating into conviction of Niaz Gul and Muhammad Iqbal, but has not referred to any evidence ending in the conviction of the petitioners and this fact is evident from para No. 23 of the judgment which only relates to the conviction of petitioners and its perusal evinces that trial Court has not given any reasoning for passing an order of conviction as required/contemplaced u/S. 367 Cr.P.C., Although deeper appreciation of the evidence is not warranted while disposing of an application under Section 426 Cr.P.C. yet there is no bar in scanning the contents of judgment while disposing of an application u/S. 426 Cr.P.C. 6. Since the impugned order does not contain any reasoning for holding appellants/petitioners responsible for the commission of offence referred above, and there is no likelihood of disposal of appeal in the near future and sentence being short, the petition is accepted and sentence awarded to them is suspended provided they furnish bail bonds in the sum of Rs. 20 ,OOQ /- (Twenty Thousands only) with two sureties each in the like amount to the satisfaction of the trial Court. (AAJS) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1585 [DB] [ Multan Bench] Present: MUHAMMAD NAWAZ ABBASI AND ZAFAR PASHA CHAUDHRY, JJ. MUHAMMAD HUSSAIN alias GHULAM HUSSAIN-Appellant versus STATE-Respondent Crl. Appeal No. 34-94, (M.R. 49-94), decided on 16.9.1997. Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302/324/337-J-109--Murder--Offence of-Conviction for-Challenge to- Benefit of doubt-Motive shrouded in mystry-Uncorr oh orated retracted extra Judicial confession being not of standard and value to be placed reliance as sound evidence, same cannot be made basis for conviction on capital charge-Except retracted extra judicial confession there is no other evidence available on record to connect appellants with commission of offence-Appeal accepted. [Pp. 1588, 1589 & 1590] A to D Ch. Muhammad Anwar Khan, Advocate for Appellant. Ch. Muhammad Bashir, A.A.G. for State. Date of hearing: 16.9.1997. judgment Muhammad Nawaz Abbasi, J.--This Judgment will propose the disposal of Murder Reference No. 49 of 1994 sent by the Sessions Judge Vehari with Criminal Appeal No. 34 of 1994 filed by Muhammad Hussain alias Ghulam Hussain and Criminal Appeal No. 35 of 1994 filed by Muhammad Nawaz. The appellants having faced trial for the charge under Sections 302/324/337-J/109 PPC upon the allegation of committing the murder of Allah Bakhsh were convicted by the learned Sessions Judge, Vehari through Judgment dated 24.2.1994 and sentenced as under: - (i) UNDER SECTION 302/109 PPC. Sentenced to death as Tazir with direction to pay Rs. 20.000/- each as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. (ii) UNDER SECTION 324/109 PPC. Sentenced to imprisonment for a period of 5 years each with a fine of Rs. 5,000/- each and in default of the payment of fine to undergo RI for a period of 6 months each. (iii) UNDER SECTION 337-J/109 PPC. Sentenced to RI for a period of 5 years each. 2. Precisely the facts in the background as contained in the FIR Ex. PJ lodged by Muhammad Iqbal PW-9, the son of Allah Bakhsh deceased, are s under:- "That in consequence to the Watta Satta arrangement, Mst. Rhem Elahi sister of Muhammad Nawaz appellant was married with the complainant Muhammad Iqbal and in exchange Mst. Zubaida his sister was married with Muhammad Nawaz appellant. Mst. Rehm Elahi having strained relations with the complainant left for the house of her parents about 15 days prior to the ccurrence. Ghulam Hussain Mochi visiting the house of the complainant with sweets offered one Ladoo each to the complainant and his father to eat on the happy occasion of the return of Allah Bakhsh from Haj. It is stated that immediately after taking the Ladoo, the complainant and his father Allah Bakhsh started vomiting with loose motion and within an interval of 3/4 hours Allah Bakhsh died, whereas Muhammad Nawaz complainant remained under treatment for about 10 days in the Hospital. The complainant after release from Hospital was made to know that his father ied unnatural death. Subsequently Ghulam Hussain appellant allegedly disclosed before Muhammad Iqbal complainant that Muhammad Nawaz having arranged Ladoos instructed him to offer the same to Muhammad Iqbal and his father to settle the family dispute once for all. Suspecting the Ladoos containing som poisonous element, the report of the incident was lodged on 6.10.1991 and the proceedings under Section 174 Cr.P.C. having initiated, the dead body of Allah Bakhsh deceased was exhumed. The post mortem examination upon the deceased having conducted on 2.11.1991, the samples of viscera obtained by the doctor were sent to the Chemical Examiner for opinion and on the basis of his report Ex. PF a case was registered against the appellants on 18.12.1991 at Police Station Saddar Mailsi, District Vehari." 3. Dr. Arshad Ali Khan PW-3, who conducted the post mortem examination on the dead body of the deceased opined as under:- "The dead body was in the advance stage of putrifaction. Scalp and brain was putrified. In the chest the walls were putrified alongwith lungs, pleurae and the heart was in the advance stage of putrifaction. In the abdomen, there was advance putrefaction and foul smelling gasses were coming from the abdomen." The Chemical Examiner's report is to the following effect:- "Arsenic detected in the above viscera. Arsenic estimated by Gutzed method is 2 mg/100 GMS of Liver." 4. Muhammad Hussain appellant allegedly confessing his guilt before Haji Khuda Bakhsh PW-6, brother-in-law of Allah Bakhsh deceased accepted the liability of causing the death of the deceased. The witnesses stated that the appellant at the instance of Muhammad Nawaz appellant offered one Ladoo each to the deceased and the complainant, which brought the truble. The witness claimed that he made the statement regarding the confession of the appellant before the police about 10/15 days after the occurrence. Muhammad Nawaz appellant also allegedly making similar disclosure regarding the delivery of poisonous Ladoo to Muhammad Hussain appellant to offer to Allah Bakhsh deceased and Muhammad Iqbal complainant after about 8 days of the occurrence at the occasion of offering condolance in the house of the deceased, confessed his guilt. 5. Mst. Manzooran Mai widow of Allah Bakhsh deceased while appearing as PW-8 admitted in cross-examination that the people had been giving gifts and sweets to her husband on his return after performing Haj and that a day earlier Muhammad Hussain appellant hosted feast in his honour. According to her Muhammad Hussain appellant told her that Ladoos were given to him by Muhammad Nawaz. 6. Muhammad Iqbal PW-9, the complainant of the case and also" victim of the incident remained un-conscious in the Hospital for about 5/6 days and upon return from the Hospital, taking him into confidence, Muhammad Hussain appellant on his visit to his house disclosed the administering of poison to him and to the deceased through Ladoos. 7. Muhammad Anwar, Inspector/SHO, the Investigating Officer of the case verifying the facts of the case and evidence of extra judicial confession recorded by him during the investigation, frankly stated that he did not visit the Hospital to veryfy the record pertaining to the admission of Muhammad Iqbal PW as patient in the Hospital or record the statement of the doctor, who provided treatment to Muhammad Iqbal. He also did not make any effort to trace the orgin of the poison and the manner in which it was administered. 8. The appellants in their statements under Section 342 Cr.P.C. denying the charge pleaded that upon return from Haj, the deceased was being offered sweets and gifts by the relatives and the villagers and that allegation of administering of poison to the deceased by them through Ladoos was baseless. Muhammad Zikriya, Secretary Union Council Luddan appearing as DW verified the entry regarding the death of the deceased on 25.9.1991. He making reference to the record available with him stated that the deceased remained under treatment of Dr. Muhammad Hussain Chishti. 9. Sahabzada Farooq All Khan, Advocate assisted by Mr. Zafar Iqbal Awn, Advocate, the learned counsel for Muhammad Nawaz appellant contended that as per medical evidence the death was not the result of taking the sweets/Ladoos and that the arsenic deducted in the liver through the report of the Chemical Examiner would indicate taking of some medicine by the. deceased. The learned counsel with reference to the statement of the doctor, who conducted the post morten upon the deceased contended that arsenic can be detected in the body through the hair and nail within two weeks from the time of there being taken, and consequently the possibility of taking something containing the element of arsenic by the deceased being not ruled out the allegation against the appellants are unfounded. It is further contended that death as a result, of arsenic is not ipso facto an evidence of administering the same by the appellants through Ladoos as the story of Ladoos having introduced much later the pivotal question would be whether the appellants intentionally giving poisons Lacloos to the deceased to eat caused his death or he suffered food poisoning attack or used some medicine containing poisons elements being not clear, the conviction and sentence is not sustainable. He vehemently contended, that with the exclusion of the extra judicial confession a fabricate evidence, no other evidence is left on record to connect the appellants with the commission of offence. 10. The learned Assistant Advocate General appearing on behalf of the State argued that the witnesses of extra-judicial confession being independent and respectables of the area were not expected to falsely depose gainst the appellants and the evidence of extra judicial confession seeking support from the medical evidence, proved the charge against the appellants beyond doubt. 11. Ch. Muhammad Anwar Khan, Advocate, the learned counsel appearing on behalf of Muhammad Hussain appellant adopting the arguments of the learned counsel for Mxihammad Nawaz appellant added that Muhammad Hussain having no concern with Muhammad Nawaz had no reason to become party in the occurrence and probably he was made accused for the reason that a day earlier to the occurrence a feast was offered y him to the deceased and the complainant uspecting some foul play on his art also involved him in the case. 12. We have gone through the evidence with the help of the learned counsel for the appellants and also heard them and the learned Assistant Advocate General at length. 13. The prosecution case mainly rests upon the evidence of extra judicial confession and the medical evidence alongwith report of the Chemical Examiner, whereby the arsenic was detected in the viscera obtained by the doctor from the liver. The alleged motive of family dispute behind the occurrence was not substantially proved by the prosecution. The strained relations of the ladies married in Watta Satta with their in-laws has been advanced as motive to a occurrence, the tension between the parties due to the strained relations of ladies could equally cause grievance to both the parties and the ladies of both sides facing same situation, the motive suggested could not be one sided and the same being double edged the possibility of false implication of the appellants on the basis of suspicion developed much after the burial of the deceased cannot be ruled out. Therefore, the strained relations of the two families as such cannot be a source of alleged motive for committing the murder of Allah Bakhsh. 14. The report regarding the unnatural death of Allah Bakhsh was lodged after about 15 days of his burial. The deposition of the witnesses regarding the making of confession by the appellants before them in the meanwhile is not mentioned in the report of the occurrence lodged with police. The said report contained no such fact except that Ghulam Hussain appellant offered two ladoos, one each to the complainant and his deceased father. The complainant subsequently through change of version stated that the appellants have confessed their guilt before him. The evidence of the remaining witnesses namely Haji Khuda Bakhsh, Habib Ullah and Mst. Manzoor Mai mother of the complainant is to the effect that, appellants confessed before then 10 days after the occurrence but they kept this fact secret till after the registration of case. Muhammad Iqbal complainan having suspected un-natural death of his father got the dead body exhumed and also carried the post mortem examination. According to the prosecution the appellants made extra judicial confession shortly after the alleged occurrence but strangly this fact was not made to know till receipt of report of Chemical examiner and no case was registered. This is noticeable that the case with no legal bar could be registered on the basis of extra judicial confession without the positive proof of death through poison. The non­ registration of case before the receipt of reports of the Chemical Examiner has strongly refuted the voluntarily and independent character of extrajudicial confession, there is no denial to the proposition that even a retracted extra judicial confession can be made basis for confiction, if the same is confidence inspiring but the extra judicial confession in the present case being not of the standard and the value to be placed reliance as sound evidence, the same cannot be made basis for the conviction on capital charge. The silence of the PWs for a considerable period regarding the making of extra judicial confession by the appellants created a serious doubt in the truthfulness of the evidence of extra judicial confession. 15. Undoubtedly there is no definite evidence to the effect that ladoo eaten by the deceased on the asking of Ghulam Hussain appellant contained poison or that the deceased had not taken anything else on that day except the ladoos given to him by the appellant. As per evidence the deceased and the complainant started vomiting with loose motions immediately after taking the ladoos negates the prosecution version in toto as the process of digestion of such good stalls with some interval. Therefore, the possibility that the deceased might have taken something causing truble before taking ladoo cannot be ruled out. Thus the circumstances under which the deceased after vomiting died do not suggest that the death was the result of taking ladoo. . Therefore, the net result is that uncorroborated retracted extra judicial confession of shaky character and not confidence inspiring having no evidentiary value cannot be made basis for conviction. Further the medical evidence and the report of chemical examiner can ascertain the cause of death but cannot identify the accused. Hence with the exclusion of evidence of extra judicial confession from consideration, there is no other evidence available on the record to connect the appellants with the commission of offence. 16. It is noticeable that the appellants are not related interse and also have no common cause or grievance against the complainant party. Ghulam Hussain appellant having no motive to become a party in the occurrence and join hands with Muhammad Nawaz his co-accused. The alleged motive of Muhammad Nawaz also being with the complainant could be used as source of false implication. 17. In the light of the above discussion, we having not found the appellants connected with the crime giving them the benefit of doubt allow this appeal and setting aside the conviction and sentence of the appellants acquit'them from the charge. They are directed to be released forthwith if not required in any other case. The murder reference is answered in the Negative. (AAJS) Appeal allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1590 [DB] Present: muhammad nawaz abbasi and zafar pasha chaudhry, JJ. JEEWAN and another-Appellants versus STATE-Respondent Crl. Appeal No. 18 of 1993 and (M.R. No. 26 of 1993), decided on 8.9.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- — S. 302/34-Murder-Offence of-Conviction for-Challenge to~ Appreciation of evidence-Witnesses are truthful and confidence inspiring-They corroborated each other in confirmation of prosecution story narrated in F.I.R.-Ocular account of prosecution is fully supported by medical evidence-Contention that despite availability of a large number of persons as natural witnesses of occurrence none was cited as prosecution witness was repelled on the ground that in our society except close relatives no one involves himself in such matters taking risk of enmity with accused-Appeal without merits hence dismissed. [Pp. 1594 & 1995] A, B, C & D Ch. Pervaiz Aftab, Advocate for Appellants. Sardar Altaf Hussain Khan, Advocate for Complainant. Date of hearing: 8.9.1997. judgment Muhammad Nawaz Abbasi, J.-This Judgment will dispose of Murder Reference No. 26 of 1993 sent by the learned Sessions Judge, Rajanpur, alongwith Criminal Appeal No. 18 of 1993 filed by Jeewan and Nazoo, appellants against their conviction and Sentence under Section 302/34 PPC awarded to them by the learned Sessions Judge, Rajanpur, vide judgment dated 12.1.1993, for the charge of committing the murder of Safdar Hussain and Criminal Revision No. 28 of 1993 filed by the complainant for the enhancement of sentence of Nazoo appellant and for setting aside the acquittal of Badroo his co-accused. 2. Precisely, the facts of the case in the background as narrated in the FIR (Ex. PA) lodged by Muhammad Nawaz father of Safdar Hussain deceased soon after the occurrence with Police Station City Rajanpur recorded by Bashir Ahmad SI/SHO PW-7 are to the following effect- That on 27.4.1990 after Bid ul Fitr prayer Muhammad Nawaz complainant went to Model High School for Boys, Rajanpur to see the Kabaddi match. Safdar Hussain his son alongwith Ahmad Khan his brother-in-law and Bashir Ahmad also reaching there were present with him. Safdar Hussain was sitting on the ground, while Ahmad Khan and Bashir Ahmad alongwith complainant were standing in the play ground, when at about 11 AM Jeewan son of Gulab armed Kulhari, Nazoo son of Habib Khan armed with Churri and Badroo son of Wahid Bakhsh empty handed, appeared from behind the school building. Badroo raised Lalkara that Safdar Hussain will not be spared on that day for causing injuries to Jeewan and in the meanwhile Jeewan appellant inflicted two blows with hatchet on th neck of the deceased, who made an attempt to stand up but fell down and then Nazoo appellant inflicted a Churri blow on his chest. Safdar Hussain succumbed to the injuries at the spot." The motive as given in the FIR was that a year ago Safdar Hussain deceased having suspected illicit relations of Jeewan with his wife caused injuries to Jeewan with Churri and as a result thereof a case under Section 307 PPC was registered against Safdar Hussain which was still pending. Jeewan appellant with a view to take revenge of the said incident in furtherance of common intention of his co-accused, namely, Nazoo and Badroo, causing injuries to Safdar Hussain committed his murder. 3. Bashir Ahmad SI/SHO PW-7 reaching at the spot, secured blood stained earth from the place of occurrence through Memo Ex. PC and prepared injury statement Ex. PG and inquest report Ex. PH of the deceased and despatched the dead body for post, mortem examination. He arrested the appellants on 4th of May, 1990. Jeewan appellant led to the recovery of blood stained hatchet P-5 from his residential house which was taken into possession vide recovery memo Ex. PD. Nazoo appellant got recovered blood stained Churri P-6 which was taken into possession vide recovery memo Ex. PE. Both the recoveries witnessed by Ahmad Khan and Bashir Ahmad PWs. The investigating officer after completing the formal investigation challaned the appellants. 4. Dr. Azhar Hussain PW-8 being familiar with the signatures of Dr. Aftab Ahmad Alvi proved the post mortem report Ex. PF prepared by Dr. Aftab Ahmad Alvi, Medical Officer, DHQ Hospital, Rajanpur who conducted the post mortem examination upon the dead body of Safdar Hussain deceased on 27th of April, 1990 and found the following injuries:- (1) An incised wound 13 cm x 5 cm x bone deep, traches oasophygus, main blood vessels of the neck, hyoid bone 4th, 5th and 6th servical vertibrea were cut, lying obliquely on the right side of the neck. (2) An incised wound 4 cm x 2 cm x hyoid bone cut on the front of neck. (3) An incised wound 8 cm 1 cm x muscle deep on the fron of the left side of the chest, just below the left clevical. 4th, 5th and 6th vertibrea were cut down, spinal cord was injured. Injuries No. 1 & 2 were declared grievoud and injury No. 3 as simple. 5. Muhammad Nawaz PW-4, father of the deceased, and the first nformant as eye-witness of the occurrence confirming the story of the FIR stated that Jeewan appellant inflicting two successive hatchet blows caused injurie.s to the deceased on neck and jugular vein, whereas Nazoo appellant caused Churri blow on the left side of chest of the deceased. Similarly the second eye-witness namely Ahmad Khan PW-5 corroborating the statement of Muhammad Nawaz complainant fully supported the prosecution case. 6. The appellants having denied the allegations pleaded false implication due to previous enmity. 8. The learned counsel for the appellants questioning the presence of he prosecution witnesses at the place of occurrence contended that there being no mention of their names in the inquest report and the rough sketch of the scene of occurrence, they were shown present at the scene after conducting preliminary investigation and in consequence thereof the case was registered with deliberation, he argued that admittedly appellants being not armed with fire arm could easily be resisted by the companions of the deceased but non-interference of his father and brother-in-law caused serious doubt of their presence at the spot. The next contention raised by the learned counsel was that indeed a large number of persons were gathered in the playground on the day of Eid for enjoying Kabaddi match, but no independent person was cited as witness, and the testimony of the father and maternal uncle of the deceased the inimical and interested witnesses being not confidence inspiring could not be made basis for conviction. The learned counsel further contended that evidently injury No. 2 was not the result of hatchet or churri blow and consequently, the prosecution story of only use of Kulhari and Churri in the occurrence stood contradicted by the medical evidence and thus. The eye witnesses account was shaky to sustain the conviction. The recovery of blood stained Kulhari and Churri has been challenged firstly on the ground that blood could not possibly be traced on such weapons after 10/11 days of the occurrence and secondly that admittedly both the weapons were recovered from a room in the house in joint possession of the appellants and consequently recovery of hatchet and Churri being of joint character as not admissible. Lastly it has been contended that grievance of the deceased against Jeewan appellant for carrying of illicit relations with his wife having not came to an and, there being eveiy possibility of false implication, due to the said reason the motive attributed is not proved as such to be a reason behind the crime. ' 9. Conversely, the learned counsel appearing on behalf of the complainant contended that the appellant namely Jeewan and Nazoo being sister's son and sister's son's respectively of Muhammad Nawaz PW-4 father of the deceased and Badroo (acquitted accused) is his brother's son having no background of enmity except the incident in which Jeewan appellant was injured even a remote possibility of the false implication is excluded. He argued that undoubtedly Ahmad Khan PW-5 is closely related to the complainant but being not inimical towards the appellants, his testimony was beyond doubt. He forcefully argued that the appellants having grudge against the deceased due to the incident of his causing injuries to Jeewan appellant being revengeful had a strong motive. 10. We with the help of the learned counsel for the appellants as well as the complainant and the State, have gone through the evidence minutely and also heard them at length. 11. The defence without denying the factum of pendency of a criminal case under Section 307 PPC against the deceased in which Jeewan appellant was injured pleaded false implication due to the said reason, herefore, both sides carrying same grievance would inimical to each other and consequently the motive as such is not deniable. The gravity of grievance was with Jeewan appellant, who having not digested the earlier incident decided to do away with the deceased. The presence of the eye-witnesses has been questioned mainly on the ground that they being residents of about 2% miles from the place of occurrence were not supposed to come to the playground at 11 AM for reviewing the kabaddi match to be held in the afternoon and further the people generally after Bid prayer first go to their houses and similar it was contended that unconvincing the reason of offering prayer at the shop in the Bazar instead of mosque was advanced by the witnesses only to cover the gap of time with no reality. Undeniably the Model High School being situated near Rajanpur City and students of the surrounding villages including the village of th« complainant and the other parties were studying in the said school and the kabaddi match having scheduled in the afternoon, it was natural for the concerned to reach together in the playground as spectators before the actual start of Match. The complainant and PWs being interested in Kabaddi Match also reached there before time, therefore, their presence at the spot in the circumstances cannot be excluded without the availability of specific evidence in rebuttal. The scrutiny of the evidence and the attending circumstances do not suggest any doubt in the presence of complainant and two other witnesses namely Ahmad Khan and Bashir Ahmad. However, the presence of a witness at the scene of occurrence itself is not a guarantee of his telling the truth. We, therefore, visualizing all possibilities of untrue allegation thoroughly . examined the evidence but find that the witnesses are truthful and confidence inspiring. They corroborate each other in confirmation of the prosecution story narrated in the FIR. The contention of the learned counsel that the use of more than two type of weapon was proved through the medical evidence with the result that ocxilar account stood materially contradicted to be relied upon and made basis for conviction was unfounded. It is noticeable that prosecution did not make any effort to make even a slight improvement for removing the wrong impression of use of more than two type of weapons in the occurrence. In view of an admitted fact that both Kulhari and Churri were used in the occurrence. The ocular account of the prosecution is fully supported by the medical evidence. The two injuries with hatchet on the neck of the deceased are attributed to Jeewan appellant, whereas the third injury with churri on the chest is attributed to Nazoo appellant, therefore, the medical evidence in fact provides a confirmatory source to the eye-witnesses account. We, however, may observe that even without using the evidence of recovery of blood stained weapon of offence the eye-witnesses account seeking ample support from the motive and medical evidence can sufficiently sustain the conviction. The learned counsel placing reliance on Mansab Khan versus The State (PLJ 1973 Lahore 475) and Abid Rahi versus The State (NLR 1987 Criminal 628) contended that the omission of the material facts, such as particulars of FIR, the weapon used and the names of witnesses in the inquest report being material in nature created reasonable doubt regarding the truthfulness of the story and lodging of report after preliminary investigation with import of false witnesses and consequently the conviction was not sustainable. The omission of the names of witnesses in the inquest report would repel the above contention as the inquest report was prepared much later to the lodging of FIR wherein the appellants have been named as accused, therefore, the omission of their names in the inquest report or any other such document prepared by the police official could have no adverse effect to disbelieve the story. The causing of injuries by Safdar Hussain deceased to Jeewan appellant and registration of case against the deceased being an admitted fact, the nursing of grudge by the appellant against the deceased of taking extreme step of causing his death with the help of his co-accused resulted to this fateful occurrence and therefore, the minor discrepancies and contradictions, if any, cannot dislodge the prosecution case. The further contention of the learned counsel that despite the availability of a large number of persons as natural witnesses of the occurrence none was cited as prosecution witness which fact caused serious doubt regarding the truthfulness of the case is also without force. This is common in our society that except the close relatives, no one involves himself in such matters taking the risk of enmity with the accused. This is understandable that the persons present at the spot must have scattered at the happening of the incident and therefore, no person from the gathering could be willing to become a witness against the accused. The result would be that we being in agreement with the view of the evidence taken by the learned trial Court affirm the findings of guilt of the appellants and consequently maintaining the conviction and sentence of the appellants, we dismiss this appeal. We having examined the question of sentence find Jeewan appellant, while indulging in immoral activities disgraced the deceased and upon his re-action taking law in his own hand without waiting for the result of trial done him to death. We having found no mitigating circumstance in favour of Jeewan appellant for lessor penalty answer the Murder Reference in Affirmative. Crl. Revision No. 28/1993 is dismissed. (AAJS) Appeal dismissed

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1595 [DB] [ Multan Bench] Present: muhammad nawaz abbasi and zafar pasha chaudhry, JJ. ALLAH DITTA-Appellant versus STATE-Respondent Crl. Appeal No. 96 and M.R. No. 87 of 1993, partly accepted on 1.10.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34--Murder~Offence of-Conviction for-Challenge to- Appreciation of evidence—Eye-witnesses are related inter se and also with deceased but facts of case do not suggest any reason for false implication and consequently without looking of any other corroborative evidence, ocular account is absolutely ndependent has proved guilt of appellant beyond doubt-Evidence of eye-witnesses being confidence inspiring and nimpeachable to the extent of actual occurrence sufficiently satisfying test of truthful witnesses receives full weight-However, evidence of eye witness to the extent of motive uncorroborative so prosecution has not satisfactorily discharged burden of proving motive-Factum of taking lace uf occurrence during night itself is not enough that it was unseen- Medical evidence except identifying assailants provided full corroboration to ocular account-Delay if any in lodging report would have been material only if culprit would be unknown so there was no chance of substitution or false implication-Motive not proved death sentence converted into life imprisonment-Mandatory provision of Section 544-A Cr.P.C. having not given effect by trial court-Appellant agreed for payment of compensation of Rs. 10,000 to legal heirs of deceased in case of non-payment appellant will suffer simple imprisonment for 6 months and amount of compensation will be recovered as arrears of land revenue to be paid to legal heirs of deceased. [Pp. 1599 & 1600] A to D Ch. Muhammad Yaqoob Kung, Advocate for Appellant. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 1.10.1997. judgment Muhammad Nawaz Abbasi, J.--The appellant, namely, Allah Ditta alongwith Muhammad Yar his brother and Riaz Ahmad son of Naseer Ahmad, acquitted accused was tried for the charge of committing the murder of Abbas real brother of Muhammad Sharif complainant. The appellant pon conviction under Section 302 PPG has been sentenced to death while giving benefit of doubt to his co-accused, namely, Muhammad Yar and Riaz Ahmad were acquitted of the charge by the learned Additional Sessions Judge, Pakpattan Sharif, vide judgment dated 10.3.1993. The appellant has filed the instant appeal (Crl. A No. 96 of 1993) against his conviction and sentence and the learned trial Court has sent Murder Reference No. 87 of 1993 under Section 374 Cr.P.C. to this Court. The State or the complainant has not preferred any appeal or revision against the acquittal of Muhammad Yar and Riaz Ahmad. The appeal and the murder reference are being disposed of together through this judgment. 2. The facts of the prosecution case as contained in the FIR Ex. PD registered on the report lodged by Muhammad Sharif PW-5 at Police Station Sardar Pakpattan Sharif recorded by Muhammad Rafiq Ins./SHO PW-10 on 28.5.1992 are to the following effect- "That on 27.5.1992 at 7.00 PM the complainant alongwith his brother Abbas deceased while proceeding towards the house of Muhammad Amin, their paternal cousin, through the Ahata of Allah Ditta Makin was suddenly attacked by the appellant and his co-accused in the street. Allah Ditta Makin appellant is attributed infliction of hatchet blow on the backside of head of the deceased, whereas Riaz Ahmad allegedly took the deceased in his Jappha. Allah Ditta and Muhammad Yar allegedly caused successive hatchet blows to the deceased within the sight of the PWs who alongwith some other residents of the village attracted to the scene of occurrence on raising alarm by the complainant. The accused extending threats to the complainant and the PWs, restrained them from interference. The deceased succumbed to the injuries at the spot." 3. The motive behind the occurrence as stated was the exchange of hot words over the demand of money by Allah Ditta appellant from the deceased, who had purchased some articles of daily use from the shop of the appellant without any payment a few days earlier. 4. Muhammad Rafique Inspector/SHO PW-10 having reached at the spot at 2.30 AM during the same night conducted formal investigation at the spot and despatched the dead body for post-mortem examination. The Investigating Officer after completing the formal investigation challaned the accused. The recovery of weapons of offence effected by him during the investigation, was not used as incriminatory evidence against the accused, therefore, the escription of the same is not needed for the purpose of disposal of the appeal and the murder reference. 5. The prosecution case rests mainly on the testimony of eye­ witnesses in addition to the evidence of motive and medical. . 6. Dr. Faqir Ahmad PW-6 conducting the post-mortem examination on the deceased on 28.5.1992 at 2 PM in DHQ Hospital Pakpattan Sharif observed the following injuries on the dead body of Abbas deceased. (1) An incised wound 6 cm x 1 cm cutting the bone through and through, blind deep on right anterior part of head, anterioposterior in direction. (2) An incised wound 5 cm x 1 cm cutting the bone through and through upon left part of head, oblique in direction, about 10 cm above the left ear. (3) An incised wound 6 cm x 1 cm cutting the right part of occipital bone on the right part of back of head, would was transverse in direction. (4) An incised wound 4 cm x 1 cm cutting the occipital bone on the middle part of back of head, would was transverse in direction. (5) An incised wound 5 cm x 1 cm curring the left part of occipital bone on the left lower part of back of head, oblique in direction, about 4 cm behind the left ear. (6) An incised wound 4 cm x 1 cm on the left side of head about 5 cm about the left ear. • In the opinion of the doctor, all the injuries on the person of the deceased collectively causing damage to brain were fatal to life. He has described the age of injuries from 12 to 18 hours. 7. The eye-witness account of the case has been furnished by Hanif PW-4 and Sharif PW 5, the complainant of the case. They confirming the prosecution story of the FIR that Allah Ditta appellant and Muhammad Yar his co-accused armed with hatchets attacked upon the deceased and caused him blows on his head and other parts of the body, whereas Riaz Ahmad the third accused has been ascribed the role afJappha to the deceased. 8. The appellant denying the charge pleaded innocence and false implication without bringing on record any circumstance negating the allegation and the prosecution stoiy except that at the time of alleged grappling of the deceased with the appellant a few days before the present occurrence over the dispute of return of money the witnesses were not present. 9. Learned counsel for the appellant with reference to the admission of the, eye-witnesses contended that they were not present at the time of arlier quarrel between the deceased and the appellant or the direct knowledge of the money transaction and the dispute thereof did not support the motive part of the prosecution stoiy. The second major contention raised by the learned counsel is that claim of Sharif PW-5 of his reaching on a bicycle at 1.00 AM (midnight) at the Police Station is contradicted with the medical evidence according to which the occurrence probably happened at about midnight. He argued that it was not humenly possible for the complaint to reach the Police Station at a distance of 24 KM from the place of occurrence within the given time. He contended that the occurrence having taken place in the night was unseen and the appellant was substituted for un-known culprits due to the previous incident. He next argued that both eye-witnesses being closely related to the deceased were not independent to the relied upon without independent corroboration in addition to the medical evidence and that no such corroborative evidence available, the conviction on the sole evidence of the interested witnesses on capital charge is not safe. Lastly he argued that the motive having not proved the original of fight being not known the extreme penalty of death is not proper.. 10. Conversely, the learned AAG assisted by Sh. Muhammad Raheem, Advocate for the State argued that there being no previous enmity between the parties, the mere relationship of the PWs with the deceased is not a ground to exclude their evidence from the consideration and that the accused having killed the deceased cruelly the motive even if not proved would not provide a reason for lesser punishment. 11. We having thoroughly examined the evidence with the help of the learned counsel for the appellant as well as the learned AAG have heard them at considerable length. Undoubtedly, the eye-witnesses are related inter se and also with the deceased but there being no back ground of enmity or grudge between the parties expect the dispute over return of money the mere relationship of the witnesses with the deceased was not enough to discard their evidence raising the presumption of not telling truth. The evidence of a related witness if is confidence inspiring and free from the disqualification of any doubt, he is as good a witness to be relied upon as any other person. The peculiar facts of the case do not suggest any reason for false implication and consequently, without looking for any other corroborative evidence, the ocular account in the present case absolutely independent has proved the guilt of the appellant beyond doubt. The evidence of the eye-witnesses being confidence inspiring and unimpeachable to the extent of the actual occurrence sufficiently satisfying the test of truthful witnesses receives full weight. However, the evidence of the eye-witnesses to the extent of motive undeniably is of no use to the prosecution for want of direct knowledge and there being no other evidence to prove the motive given therein, the prosecution has not satisfactory ly discharged the burden of proving the motive. 12. The factum of taking place of the occurrence during the night itself is not enough that it was unseen. According to the Investigating Officer, he reached at the spot at 2.30 AM i.e. within two hours of the lodging of the report of occurrence which fact undoubtedly proved the time of reaching the complainant at the Police Station at about 1 AM (Mid Night) and the time consumed by him to cover the distance of 25 KM from the place of occurrence to the Police Station on bicycle. The medical evidence also do not support the contention of the learned counsel that it was a blind murder as the maximum age of the injures given therein amply corroborates the time of occurrence given in the FIR. The injuries with hatchet on the person of the deceased as described in the FIR were traced by the doctor as such of the nature of incised wounds. The medical evidence except identifying the assailants provided full corroboration to the ocular account. 13. In a nutshell giving our anxious considerations to the contentions raised by both sides, we are of the considered opinion that occurrence was narrated in the manner it happened and find the prosecution case free of any describable infirmity creating a credible doubt or dent dislodging the prosecution story. The delay if any in lodging the report would have been material only if the culprit would be unknown but the appellant belonging to the same place was not a stranger to the complainant and the PWs, therefore, the identity of the appellant being beyond doubt, there was no chance of substitution or false implication. • 14. From the examination of the record and the scrutiny of the evidence, we are convinced with the view of the evidence taken by the trial Court and hold that the conviction of the appellant under Section 302 PPC is unexceptional. However, taking notice of the fact that prosecution has not been able to prove the motive set up for the commission of offence by the appellant and the actual cause of occurrence also not known, the possibility of happening something abruptly between the appellant and the deceased being not ruled out, the appellant deserves to be dealt leniently in the matter of sentence. We accordingly withholding our hands from confirming the death sentence awarded to the appellant by the learned trial Court alter the same into imprisonment for life and dismiss this appeal. 15. The mandatory provision of Section 544-A Cr.P.C. having not given effect by the trial Court, we issue notice to the appellant through his counsel, who accepting the same is agreed for payment of compensation of Rs. 10,000/- by the appellant to the legal heirs of the deceased. Order accordingly with the direction that in case of default in payment of compensation, the appellant will suffer simple imprisonment for 6 months and th.e amount of compensation will be recovered from him as arrears of land revenue to be paid to the legal heirs of the deceased. 16. with the above alteration in the sentence this criminal appeal is dismissed and the murder reference is answered in the Negative. (AAJS) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Karachi ) 1600 Present: GHOUS MUHAMMAD, J. SAEED AHMAD-Petitioner versus STATE and 3 others-Respondents Crl. Rev. No. 99 of 1997, rejected on 29.12.97. Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975)- —-S. 4 read with S. 439 Cr.P.C.-Murder case-Application for transfer of case from Additional Sessions Judge to Special Court-Rejection of- Challenge to-Jurisdiction of court-Determination of-Whenever a trial court is called upon to determine its jurisdiction it will have to scrutinize entire, available and obtaining record, statements, testimonies and 'material for the purpose of determining jurisdiction-Material available does notprima facie support case for use of T.T. pistols-No doubt such allegation exists in FIR but that by itself would not be enough where firstly, no recoveries were made and secondly, forth coming material did not support such fact-At a subsequent stage if any further material is brought on record, concerned parties or trial Judge suo moto can take appropriate action as is required by law for purpose of transfer of case to court of competent jurisdiction-Petition dismissed. [P. 1603] A Mr. Gul Zaman Khan, Advocate for Petitioner. Agha Zafir, Advocate for State. Mr. Muhammad Iqbal, Advocate for Respondents No. 2 to 4. Date of hearing: 29.12.1997. judgment The applicant is a complainant in this case and is aggrieved by the order dated 1.10.1997 passed by the learned 1st Additional Sessions Judge Karachi West (Mrs. Shamshad Kazi) in Sessions Case No. 121/1997 (State v. Qadeem Khan and another) whereby application under Section 4 of the Suppression of Terrorist Activities (Special Courts) Act 1975 (hereinafter referred to as the Act XV of 1975) submitted by the applicant/complainant for transfer of the instant case to the Special Court was rejected. The brief background of the matter is as follows:- As per F.I.R. on 28.11.1996 at 20.30 hours inside the house No. B- 208 MPR Colony Orangi Town Karachi West the respondents Nos. 2 to 4 allegedly committed the murder of Haji Ahmad who was the brother of the applicant. In the last line of the First Information Report, it is stated that due to some previous enmity the accused committed the murder of Haji Ahmed with T.T. Pistol although he has not disclosed the crime weapon as T.T. Pistols but only pistols as reflected in the main body of the F.I.R. The matter was accordingly reported to the police on 29.12.1996 and after usual investigation the case was challaned in the Sessions Court. Now it is pending on the file of the learned I-A.S.J. Karachi West. So far four witnesses have been examined. The applicant/complainant submitted an application on 22.9.1996 wherein it was stated that the learned trial Court had no jurisdiction in view of the allegations made in the F.I.R., challan and the 161 Cr.P.C. statements of the P.Ws. to the effect that the deceased was murdered with T.T. Pistols irrespective of the fact that no T.T. Pistol was recovered from the culprits. Therefore being a scheduled offence the challan be returned for submission before the Special Court established under Act XV of 1975. Notice of this revision application was served on the State and thereafter the respondents No. 2 to 4 were also summoned from Jail. I heard the learned counsel for the parties and have perused the record. Learned counsel for the applicant mainly urged that since the alleged offence was committed with T.T. Pistols therefore the learned trial court has no jurisdiction to proceed with the case. He further submitted that the question of jurisdiction is to be determined by each and every court, - — tribunal before proceeding with the case. Lastly he submitted that the learned trial court appreciated the evidence while passing the impugned order but that should not have been done for want of jurisdiction as only the competent trial court can do so. Learned counsel for the State while opposing the revision submitted that already four witnesses have been examined and no recovery was made therefore the learned trial court has jurisdiction to proceed with the matter. Learned counsel for the respondents No. 2 to 4 also advanced similar arguments and further submitted that the Act XV of 1975 has already lapsed. This argument of the learned counsel for the respondents No. 2 to 4 is devoid offeree in view of the law laid down by the Hon'ble Supreme Court in Soona v. The State PLD 19970 SC 264. In this judgment it was held by their Lordships that:- "Section 6 of the General Clauses Act of 1897 which applies to Central Acts or Regulations is also in the same term and language. One of the effects of the repeal is that it shall not affect any investigation legal proceeding or remedy in respect of any such right privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. It is therefore quite clear that all the investigations or proceedings which are contemplated are to continue as if the Repealing Act or Regulation had not been passed. On this language it is quite clear that the trial of criminal cases has to be in accordance with rules of procedure jin force at the commencement of the trial and the same procedure has to be followed." ' In the present case the trial had already commenced after investigation and submissions of challan in view whereof the proceedings are protected under Section 6 of the General Clauses Act. I would now address myself to the contention advanced by the learned counsel for the applicant that the Sessions Court has no jurisdiction in the matter which has to be transferred or sent to the Special Court. After a careful scrutiny of the record and the contentions of the learned counsel for the applicant I am of the view that the contention has no merit. In Allah Din v. The State 1994 SCMR 717 the Supreme Court took the view that the question of jurisdiction of the Special Court can be determined on the basis of the F.I.R. and the other material produced by the prosecution at the time of presentation of the challan. This was, of course, a pointer for the purpose of determining the jurisdiction of the trial court initially which can subsequently determine its own jurisdiction upon consideration of further evidence, record or other material placed on record. In other words, once the jurisdiction is initially determined by the trial court, subsequent orders for transfer of the case to the court of competent jurisdiction can obviously be passed where material and testimonies are subsequently brought on record to justify the same. On this I am fortified by the observation of the Hon'ble Supreme Court in Allah Din which are as under.- "Other contentions raised by the learned counsel for the petitioners as mentioned above can be properly appreciated only when evidence is recorded in the trial court and witnesses are cross-examined. When that stage comes the law will take its own course and it is open to the parties to take steps as are permitted by the law." In Allah Din it was alleged that a Kalashnikov had been used by the accused, though recovery of the weapon had not been made but six eye-witnesses supported the allegation in relation to the use of the Kalashnikov. The Hon'ble Supreme Court thus came to the conclusion that the statements of the eye-witnesses, the allegations in the F.I.R. and the documents produced by the prosecution at the time of the presentation of the challan confirmed, prima facie, that Kalashnikov has been used and as such the Special Court had jurisdiction. In striking contrast in the present case though there had been an allegation in the F.I.R. with regard to the use of T.T. Pistols but none had been recovered and no surrounding circumstance, including 161 Cr.P.C. statements or the testimonies of the four prosecution witnesses so far recorded supported the contention regarding the use of the T.T. Pistols. Whenever a trial court is called upon to determine its jurisdiction it will have to scrutinize the entire, available and obtaining record, statements, testimonies and material for the purposes of determining the jurisdiction. In the present case the material available at present with the learned trial Judge does not prima facie support the case for the use of T.T. Pistols. No doubt such allegation exists in the F.I.R. but that by itself would not be enough where firstly, no recoveries were made and secondly, the forthcoming material did not support such fact. Once again it is needless to emphasise that at a subsequent stage if any further material is brought on record, the concerned parties or the trial Judge suo moto can take appropriate action as is required by law for the purpose of transfer of the case to the court of competent jurisdiction. The upshot of the above discussion is that the revision is dismissed being without, any merit and the stay order granted earlier injuncting the proceedings is hereby vacated. (AAJS) Revision dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1604 Present: zafar pasha chaudhry, J. FAIZ MUHAMMAD-Petitioner versus STATE-Respondent Cr. R. No. Ill of 1997, accepted on 10.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 514--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302, 109 & 34- Forfeiture of surety bond-Petitioner stood surety for accused who was admitted to interim pre-arrest bail-He appeared in court on subsequent dates, but lastly applied for adjournment on basis of illness with Medical Certificate supporting his illness—Addl. Sessions Judge burdened petitioner/surety with amount of Rs. 20.000/- u/S. 514 Cr.P.C.- Challenge to-Surety is stated not to be professional person-He stood surety being relative of accused-Any body coming as surety in fact helps administration of justice-Therefore, he should not be burdened with amount of surety unless it is shown that he was professional and frequently stood surety in cases and default by accused is wilful-Held : Accused person did appear on next date of hearing, petitioner should not have been burdened with surety amount-Petition allowed and impugned order set aside. [Pp. 1605] A, B & C Mr. Ahmad Usman, Advocate for Petitioner. Mr. Ibrahim Farooq, Advocate for Respondent. Date of hearing: 10.11.1997. judgment This revision petition is directed against the order dated 2.10.1997 passed by learned Additional Sessions Judge, D.G. Khan whereby he burdened the petitioner/surety with an amount of Rs. 20,000/- in proceedings under Section 514 Cr.P.C. 2. Briefly the facts of the case are that Faiz Muhammad petitioner stood surety for Atta Muhammad accused in case FIR No. 137/97, under Section 302/109/34 PPC, registered with Police Station Kot Chhutta, District Dera Ghazi Khan, who was admitted to interim pre-arrest bail on 26.5.1997 subject to furnishing bail bond in the sum of Rs. 20,000/- with one ' surety in the like amount. The case was adjourned to 13.6.1997 on which date the learned Additional Sessions Judge was transferred. The case was then adjourned to 25.6.1997. On that date the learned Additional Sessions Judge was on tour, therefore, the case was adjourned to 28.6.1997. On 28.6.1997 the accused person did not appear and instead an application was moved praying that he had suffered heart attack, therefore, adjournment may be granted. Since the application was not accompanied by any Medical Certificate his bail was withdrawn and notice was issued to the surety/ petitioner. 3. It is contended by learned counsel for the petitioner that the accused was against admitted to interim bail on 30.6.1997 on the ground that he was ill on the previous date of hearing i.e. 28.6.1997. His admission to interim bail shows that the absence of the accused person was not willful. The learned Additional Sessions Judge himself though by implication admitted that the accused was unable to appear on 28.6.1997 on account of illness. The bail application is still pending. It is argued that the petitioner has not committed any default in the performance his duty. The accused failed to appear on the date of hearing and an application for adjournment was moved on his behalf. The default in appearance by the accused is practically of technical nature. The accused put up appearance on all the other dates of hearing. Therefore, the petitioner should not have been burdened with the amount of surety bond furnished by him. 4. The argument is not without force. The surety is stated not to be a professional person. He stood surety being relative of the accused person. In case an accused person is released on bail he is bound to furnish surety and any body coming as surety in fact helps the administration of justice. therefore, he should not be burdened with amount of surety unless it is shown that he was a professional and frequently stood surety in cases and default by the accused is wilful. In this case the surety is a genuine person and he furnished surety bond being relative of the accused, therefore, he hould be dealt with leniently. Learned counsel for the State has although supported the impugned order yet has not been able to controvert the submissions made by the petitioner's learned counsel. Considering the facts and circumstances of the present case and the fact that the accused person did appear on the next date of hearing i.e. 30.6.1997, the petitioner should not have been burdened with the surety amount. The petitioner is, therefore, allowed and the impugned order is set aside. < AA JS) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 1605 [ Multan Bench] Present: AHMAD NAWAZ MALIK, J. MUHAMMAD AKRAM and 2 others-Petitioners versus STATE-Respondent Crl . Misc. No. 1582-B of 1997, accepted on 30.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Offence u/Ss. 337-F (ii)/337-D/34 PPC-Bail-Grant of--Prayer for-Offence u/S. 337-D PPC was constituted as a result of Injury No. 7 caused on person of victim--Both learned counsel agree that same Injury No. 7 is attributed to Petitioner No. 3-Learned counsel for petitioners does not press petition to his extent-However, to other petitioners • injuries attributed constitute offence which falls under non-prohibitory clause-They were arrested five months back and since then they are in judicial lock-up-Held : Both Petitioners Nos. 1 and 2 are entitled to bail. [P. 1606] A Mr. Altaf Ibrahim Qureshi , Advocate for Petitioners. Sh . Gul Muhammad, Advocate for State. Date of hearing: 30.10.1997. order Muhammad Akram , Nasir Ali alias Mandoo and Muhammad Saieem alias Weem , petitioners have moved this application for post arrest bail in Case FIR No. 150/97 dated 2.6.1997 u/Ss. 337-F (ii)/337-D/34 P.P.C. Police Station Saddar Dunyapur , District Lodhran . 2. The prosecution case is that on 25.5.1997 at about 6.30 P.M. when Mushtaq Hussain sister's son of Muhammad Boota complainant was going to make some purchases from the shop and when he reached Chowk Bagh Ali Wala Dunyapur , Muhammad Nadeem alias Muhammad Saieem , Muhammad Akram and Muhammad Nasir alias Mandoo , petitioners, armed with daggers stopped him. Muhammad Akram petitioner raised lalkara that they would teach him a lesson that da , for quarrelling with Nasir . Muhammad Nadeem alias Muhammad Saieem and Muhammad Nasir alias Mandoo , petitioners gave him daggar blows with their respective weapons of offence. Muhammad Akram petitioner also caused injuries on hjs body with his daggar . Zulfiqar and Abdul Majeed rescued him. The injur /d was taken to the Civil Hospital , Dunyapur where he was medically examined and 7 injuries were caused on his person. 3. I have heard the learned counsel for the petitioner as well as for the State and gone through the record prodiiced by the police. Offence u/S. 337-D P.P.C. was constituted as a result of Injury No. 7 caused on the person of the victim. Both the learned counsel agree'that the same Injury No. 7 is attributed to Muhammad Saieem alias Weem petitioner. Learned counsel for the petitioners does not press the petition to his extent. However to other petitioners the injuries attributed constitute the offence which falls under non-prohibitory clause. They were arrested five months back and since then they are in judicial lock-up. 4. For the foregoing reasons, both Muhammad Akram and Nasir Ali alias Mandoo petitioners are held entitled to bail. They are accordingly admitted to bail provided they furnish security in the sum of Rs . 50,000/- (Rupees fifty thousand) each with one surety each in the like amount to the satisfaction of the Judicial Magistrate/Trial Court Lodhran . 5. The application on behalf of Muhammad Saleem petitioner is dismissed as having been withdrawn. AAJS i Bail accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1607 [ Multan Bench] Present: CH. IJAZ AHMAD, J. SHARIF and others-Petitioners versus STATE-Respondent Crl. Misc. No. 1265-B of 1997, accepted on 16.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/S. 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979-Bail-Grant of-Prayer for-Further enquiry-­ Case of-Two eye witnesses have given affidavits that incident did not take place, therefore, case of petitioners does not fall under the prohibitoiy clause of S. 497 Cr.P.C.-Case of petitioners becomes that of further inquiry-Held : Petitioners are granted bail subject to their furnishing bail bonds in sum of Rs. 50,000, with two sureties. [P. 1608] A Mr. Tariq Muhammad Iqbal, Advocate for Petitioners. Mr. Muhammad Rafique, Advocate for State. Date of hearing: 16.10.1997. order The petitioners are involved in a case F.I.R. No. 84/97 lodged by one Jummay Khan alias Sarwar registered at Police Station Farid Town, Sahiwal under Sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979. 2 The learned counsel of the petitioner contended that two eye­ witnesses stated in their affidavits that incident did not take place. Even one of the victim Mst. Khedja also gave affidavit that the incident did not take place. In the interest of justice and fair play vide order dated 21.8.1997, I.O. was directed to find out as to whether the affidavits are genuine or not? I.O. is present in Court and states that the affidavits are genuine and have been rightly recorded. 3. The learned State counsel opposed the bail petition strongly and stated that statement under Section 161 Cr.P.C. shall be given preference over the affidavits. 4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record Shah Ali, and Abdul Sattar have, given affidavits that incident did not take place, therefore, the case of the petitioner does not fall under the prohibitory clause of Section 497 Cr.P.C. The case of the petitioners becomes that of further inquiry. 5. In view of these circumstances, the petitioners are granted bail subject to their furnishing bail bonds in the sum of Rs. 50.000/- (rupees fifty thousand only) with two sureties in the like amount to the satisfaction of A.C./Deputy Magistrate Sahiwal. (AAJS) Petition accepted

PLJ 1998 Cr PLJ 1998 Cr.C . ( Lahore ) 1608 [DB] [ Multan Bench] Present: muhammad javed buttar and zafar pasha ch., JJ. ABDUL WAHAB-Petitioner versus STATE- Repsondent Crl . Misc. No. 2151-B of 1996, accepted on 31.3.1997. Criminal Procedure Code, 1898 (V of 1898 )-- • —-S. 497-Offence u/S. 13, West Pakistan Arms Ordinance, 1965-Bail- Grant of-Prayer for-Contention that petitioner was involved in a mala fide manner due to bitter enmity with one A and in fact was arrested from his house and that is why not even a single independent and disinterested witness from general public was cited at the time of alleged recovery-Offence as alleged against him does not fall within prohibitory clause of S. 497 Cr.P.C . bail in such like cases cannot be with held as a punishment-Bail granted. [P. 1609] A & B Mr. Altaf Ibrahim Qureshi , Advocate for Petitioner. Date of hearing: 31.3.1997. order The petitioner Abdul Wahab is seeking post-arrest bail in case FIR No. 102/96 dated 4.5.1996 registered at Police Station Basti Maluk , District Multan under Section 13 of the Arms Ordinance No. XX of 1965 at the instance of complainant Muhammad Abdullah S.I ./ SHO with an allegation of being in possession of unlicenced pistol .30 bore with five live cartridges. 2. The petitioner's application was dismissed by the learned Presiding Officer, Punjab Special Court No. VI under the Suppression of Terrorist Activities (Special Courts) Act, 1975. 3. I have heard the learned counsel for the petitioner and that of the State. It is contended by the learned counsel for the petitioner that the petitioner has been involved in a mala fide manner due to bitter enmity with one Abdur Rashid and in fact he was arrested from his house and that is why not even a single independent and disinterested witness from the general public was associated at the time of alleged recovery. On the other hand, learned counsel appearing for the State has opposed the application. 4. The petitioner was arrested on 4.5.1996 and the offence as alleged against him does not fall within the prohibitory clause of Section 497 Cr.P.C . and the bail in such like cases cannot be withheld as a punishment. 6. The application is, therefore , allowed and the petitioner is granted bail subject to his furnishing bail bond in the sum of Rs . 1,00,000/- with one surety in the like amount to the satisfaction of the trial Court. fK.A.B .) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1609 Present: raja muhammad khurshid and mumtaz ali mirza, JJ. UMER KHAN-Appellant versus STATE-Respondent Criminal Appeal No. 133-J-1997, dismissed on 18.11.1997. Pakistan Penal Code, 1860 (XLV of I860)— —-S. 302(B)~Double murder-Offence of-Conviction for-Appeal against- Though PWs are related to deceased, but there is nothing to suggest from record that these PWs will in any way tell lie regarding occurrence, nor they have any malice against appellant-Presence of both PWs is natural and justifiable, hence, they can be relied upon safely without any further corroboration through circumstantial evidence—Mere fact that recovery of kalashinkov was not proved or empties recovered did not match to it would not make much difference particularly when eye witnesses are persistent to link appellant/convict with murder of deceased persons beyond any reasonable doubt-'Seeing is believing' and direct evidence is to be preferred over circumstantial and indirect evidence while dealing with criminal matter-Moreover injuries suffered by deceased were rightly depicted by eye witnesses during their evidence-Prosecution has been successful to prove its case against appellant beyond any reasonable doubt-Appeal dismissed. [Pp. 1613 & 1614] A to D Mr. Gabrial Francis Advocate for for Appellant. Raja Saeed Akram, Advocate A.A.G. assisted by Mr. Muhammad Ayub Kiani, Advocate for State. Date of hearing: 18.11.1997. judgment Raja Muhammad Khurshid, J.--The appellant to Umar Khan son of Noor Khan caste Pathan resident of Torewali District Attock was convicted by Ch. Saifullah Buttar, Judge. Special Court for Anti-Terrorism Rawalpindi Division and Islama >ad Capital Territoiy under Section 302 (B) PPC for the murders of Ahmad Gul and Khial Badshah and sentenced to death on each count with the compensation of Rs. 25,000/- on each count to be paid to the legal heirs of deceased under Section 544-A Cr.P.C. or in default to undergo six months S.I. vide his judgment dated 15.9.1997. 2. According to the FIR Ahmad Gul resident of Torewali District Attock was murdered in his house by the appellant and two others absconding accused namely Dadu Khan and Hashhn Khan on 11.6.1994 at about 3.30 PM. It was alleged by the complainant Mst. Hukam Jan i.e. the widow of the deceased Ahmed Gul that she alongwith Ghulam Murtaza (PW-10) were present in the house; that the appellant while armed with a Kalashnikov entered their house. The absconding accused aforenamed were armed with rifles. One out of them stood towards north while the other took this position towards South of the courtyard. At that time the deceased Ahmad Gul was busy in his shop, which was located in a room of the house. The appellant entered in the shop and asked the deceased to corne out to hear him Thereupon the deceased came out in the courtyard. The appellant demanded heavy amount from the deceased to which the latter replied that the former had been taking articles from his shop on credit and that he would not give him any more money. This reply led to an altercation between the appellant and the deceased, which was followed by the exchange of abuses. Thereupon the appellant pulled out his kalashnikov and fired straight at the deceased hitting him on the left side of abdomen, right side of the polvicegion, right thigh and on his back. The deceased after receiving injuries fell on the ground. The firing attracted Khial Badshah a son of the decease -I. who tried to intervene to save his father, whereupon the appellant and absconding accused started firing at him. As a result aforesaid deceased Khial Badshah received firearm injuries on his chest, face, near right lip and on his back. He too folldown. The occurrence was seen by the complainant Mst. Hukam Jan, Ghulam Murtaza and Zar Badshah. All three of them raised noise whereupon the accused threatened them to stay away failing which'they would lose their lives. Since all of them were un-armed, therefore, they did not intervene in order to save the lives of the deceased persons. The noise made by the PWs and the firing made by the accused attracted a number of nearby villagers. On seeing them the accused ran away while firing. The motive was given in the FIR that Umar Khan appellant was a hardened criminal and was in habit of taking away articles from the shop of the deceased on credit, but never paid back the amount. On the day of occurrence, he demanded mere money from the deceased and upon latter's refusal be alongwith his son aforenamed were killed. 3. The police investigation led to the conclusion that the appellant and the absconding accused had committed the occurrence. The challan against the appellant was accordingly submitted to the court for trial. 4. The prosecution relied upon 4 kalashnikov empties and one empty of 7 mm rifle recovered from the spot in the presence of Zar Badshah and Ghulam Murtaza. The kalashnikov was recovered from the appellant from his residential house vide memo Ex. P/4 attested by Amir Badshah and Phal Badshah. Besides that the medical evidence consisting of the statement of Dr. Captain Dost Muhammad PW-8, was examined to show that the deceased was done to death due to firearm injuries, and that the injuries received by them were sufficient in the ordinary course of nature to cause death. The post mortem report of deceased Khial Badshah was placed on record as Ex. P/G where the pictorial diagram of injuries was Ex. P/G/1. Likewise the post mortem report, of Ahmad Gul deceased was placed on record as Ex. P/H and its pictorial sketch of injuries was brought on record as Ex. P/H/1. 5. -The next set of evidence consisted of ocular account of occurrence given by Mst. Hukam Jan (PW-9) being complainant in the case and widow of the deceased Ahmad Gul. She supported the prosecution case out and out in respect of the occurrence as well as the motive behind the occurrence. The other eye witness namely Ghulam Murtaza was examined as PW-10, who also supported the prosecution case in its material details thereby inking the appellant with the murder of both the deceased. Muhammad Jamil, retire Sub Inspector was examined PW-11 to prove recovery of Kalashnikov P/l from the appellant and also about the absconsion of Dadu Khan and Hashim Khan,-i.e. proclaimed offenders of this case. He also submitted the challan against the present appellant. The Investigating Officer Muhammad Zamir S.I was examined as PW-12 in order to show as to what evidence in the case was collected during investigation. 6. The prosecution has given up Zar Badshah, Nasim Gul, Amir Khan, Phal Badshah and Niaz Gul PWs being unnecessary. 7. The appellant/convict was examined on the conclusion of the trial under Section 342 Cr.P.C. He contended that he was innocent and took up the following stand in defence:- "PWs are related to both the deceased as well as interse.. The actual facts of the occurrence are that deceased Ahmad Gill was residing with family in the house of one Dilasa Khan. Said Dilasa Khan is maternal uncle of one Mahboob Khan and Amir Khan. I am step son of aforesaid Mahboob Khan. After death of Dilasa Khan, I and Mahboob Khan my step father demanded back the house from Ahmad Gul deceased, since the house was mortgaged with Ahmad Gul against the consideration of Rs. 25,000/-. Ahmad Gul, deceased was not willing to leave the house on the plea that since the inflation had taken place and the price of house had been enhanced. I have been falsely involved in this case alongwith two other accused." . After making the aforesaid defence plea, the appellant declined to appear in his defence to make statement upon oath regarding his version. He simply relied upon the report of Forensic Science Laboratoiy which has been negative in respect of use of Kalashnikov and its matching with the empties recovered from the spot. 8. The learned counsel for the appellant has contended that prosecution evidence in this case was quite shady and did not inspire confidence to sustain conviction; that both the eye witnesses were interse related and were also close relative of the deceased persons; that recovery in his case was allegedly dis-believed by the learned trial court as the same was not proved through an independent, and un-impeachable evidence; that the case of the prosecution had become extremely doubtful as according to the Forensic Expert the empties recovered from the spot did not match the kalashnikov with which the alleged murders were committed; that the medical evidence also contradicted the oral evidence in respect of local of the injuries given by the Medical Officer performing the autopsy and the eye witnesses examined at the trial; that the defence stoiy was most probable and had a ting of truth regarding the false implication of appellant/convict in this case in order to usurp the property left by one Dilasa Khan who was the maternal uncle of Mahboob Khan and Amir Khan, PW. In this respect, the story given by the appellant/convict that the aforesaid Mahboob Khan was his step father and demanded the house left by Dilasa Khan from Ahmad Gul deceased which was mortgaged with him for Rs. 25,000/- and since the deceased was not willing to leave the house and demanded more money, therefore, the false implication of the appellant/convict was alleged to be quite probable. 9. The learned counsel for the State however, supported the impugned judgment on the ground that there was no contradiction between the medical evidence and the eye witnesses, which were rather supportive to each other; that the mere fact that the recovery was dis-believed by the learned trial court would not spoil the prosecution case because the evidence of two eye witnesses was above board by all standards; that the eye witnesses had not even remotest idea of falsely implicating or substituting the appellant for the real offenders; that in the normal course of events since both the eye witnesses were closely related to the deceased therefore, the natural instinct on their part would be to name the real offenders who had killed their near and dear; that there was no need to seek any corroboration for such truthful witnesses, who were not only natural, but had also no interest to tell lie in order to involve the accused falsely for the murder of the deceased persons, out of when one was the husband of the complainant whereas the other was her real son. Likewise the other eye witness Ghulam Murtaza would also speak truth and would not unnecessarily substitute the accused as his real uncle and cousin were butchered within his view in a callous manner. In view of the foregoing submissions, it was contended that conviction of the appellant was rightly made by the learned trial court and since there was no mitigating circumstances, he was properly sentenced to death for each of the murders. 10. We have given our anxious consideration to the above submissions made at the Bar. First of all, it is to be seen whether or not the prosecution has been successful to prove its case beyond any reasonable doubt. In this regard the star witnesses of this case appear to be the widow of Ahmad Gul deceased namely Mst. Hukam Jan (PW-9) and his nephew Ghulam Murtaza (PW-10). It is to be seen if their evidence can be safely relied upon to sustain the conviction and sentence passed upon the appellant/convict for the murder of both the deceased. Both the witnesses are persistent in their evidence to state that the appellant alongwith the absconding accused entered the courtyard, called out the deceased from his shop and put up demand for the payment of heavy amount and upon refusal of the deceased, he was shot dead by the accused Umar Khan by using his kalashnikov with which he was armed at that time. The son of the deceased namely Khial Badshah a young boy of about 17 years of age came out for the rescue of his father, but he too was mercilessly fired at by the appellant/convict and two absconding accused killing him at the spot. After on acting the tragedy all the three accused escaped from the spot when a number of villagers rushed to place of occurrence on hearing the noise of PWs and firing made by the accused. None of the two eye witnesses contradicted each other when in the witness box regarding the material details of occurrence. Even otherwise both of them would entertain a natural instinct and desire that the real culprits should be brought to book and punished in accordance with law, for committing the beastly murder of their kith and kin i.e. deceased persons. There is nothing to suggest from the record that these PWs will in any way tell lie regarding the occurrence nor did they have any malice or interest to implicate the appellant/convict falsely in this case. Such type of witnesses can be safely relied upon particularly when one of them namely Mst. Hukam Jan is inmate of the house and her presence in the premises would not only be natural, but seems to be irrebutable. Likewise the presence of Ghulam Murtaza cannot be doubted due to his close relationship with the deceased persons. It appears that he was to be married in the near future and he had come to the deceased uncle and cousin to talk about the details of his marriage. This has been said by both the PWs in their statements to justify the presence of aforesaid Ghulam Murtaza. The aforesaid witness also stated that he had no other special business except he had to talk about his marriage, and for that purpose he g had come to the house of his uncle. Hence his presence is not only justifiable but cannot be considered improbable or un-natural being related to the deceased and with the purpose he had chalked out regarding his-presence in their house to discuss his forthcoming marriage. A ring of truth can be found in the evidence of these witnesses which seems to be un-rebutable and un­ impeachable. Hence these witnesses can be relied upon safely without any further corroboration through the circumstantial evidence. In such a situation, the mere fact that recovery of Kalashnikov was not proved or the empties recovered did not match to it would not make such difference particularly when the eye witnesses are persistent to link the appellant/convict with the murders of the deceased persons beyond any reasonable doubt. It is well said that 'Seeing is believing' and for that reason direct evidence is to be preferred over the circumstantial and indirect evidence white dealing with a criminal matter. Going a stop further, it would be clear enough that the injuries suffered by the deceased were rightly depicted by the eye witnesses during their evidence. The distance between the assailants i.e. the appellant/convict and £he deceased persons according to ocular account of occurrence ranged between 4 to 5 feet, whereas according to the Draftsman it was between 8 to 9 feet. It therefore, follows that the fires were made from a very close range as there was no blackening around the injuries on the persons of both the deceased. This shows that the fires were made from very close range. After calling the deceased Ahmad Gul, there was altercation between the appellant and deceased and there was exchange of abuses which led to the firing by the appellant. This situation clearly visualises that the assailant and the victim were closely position at the time of firing. This was also confirmed during the ocular account of occurrence given by the PWs. The other deceased Khial Badshah a young boy of 1? years while seeing his father being roasted to death with a kalashnikov madly rushed towards him in order to. safe his life. He too was killed by the appellant with heartless desperades in merciless manner. This brutal act on the part of the appellant clearly made it a cold blooded murder in broad day light in the house of the deceased persons, which is considered to beafort for its inmates. It, therefore, follows that the prosecution has been successful to prove its case against the appellant/convict for the murder of both the deceased beyond any reasonable doubt. 11. Coming to the defence, it may be pointed out that the accused in his statement under Section 342 Cr.P.C. had raised a story that one Dilasa Khan had ortgaged the house with Ahmad Gul deceased and after his denies the heirs of Dilasa Khan which includes Amir Khan (PW) and ahboob Khan wanted to take back the house but the deceased taking the plea of inflation demanded the heavy amount for its return, which led to the occurrence in which he was allegedly involved falsely by his step father Mahboob Khan. However, a different story was invented by the appellant in his memo of appeal received from the jail. In paragraph No. 4 of the aforesaid memo of appeal, the appellant contended that aforesaid Dilasa Khan was a gambler and had taken some amount from the deceased Ahmad Gul. However, the aforesaid Dilasa Khan lost the aforesaid amount in the gambling. After his death his nephew namely Amir Khan alias Gudmani being heir of his estate wanted to have the house back. The aforesaid Amir Khan hatched a conspiracy with Mst. Hukam Jan PW i.e. widow of Ahmad Gul as she had allegedly illicit relations with Amir Badshah a brother of aforesaid deceased. After the murder of Ahmad Gul, the aforesaid Mst. Hukam Jan married Amir Badshah and therefore, this according to the appellant/convict was a proof that she had illicit relations with him and as such both of them removed Ahmad Gul from the scene, in order to further their ends. The appellant was allegedly involved because the mother of the appellant/convict was previously married to one Subedar Mahboob a brother of Amir Khan alias Gudmani aforesaid who was divorced whereupon she married the father of the appellant/convict; that the father of the appellant/convict would have also been involved in the case had he not been in Karachi at the time of occurrence. It follows that this stoiy was invented by the appellant/convict while lodged in jail, which is contradictoiy to the story given by him in his statement under Section 342 Cr.P.C. in which he never mentioned that the aforesaid Dilasa Khan was a gambler or had lost the house in gambling or that Mst. Hukam Jan had illicit relation with Amir Badshah a brother of the deceased and that both of them had hatched a conspiracy in order to remove the deceased form the scene. It appears that he has invented this story in a vain attempt to save his skin although it is not true and is clearly an after thought, having no substance in it. In view of our above discussion, there is no merit in this appeal, which is dismissed and the conviction and sentences awarded to the appellant are maintained. The death sentence awarded to the appellant on each count for the murder of each of the deceased namely Ahmad Guland Khail Badshah is confirmed. Murder Reference No. 162/97 is answered in the affirmative. (AAJS) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1616 (DB) Present: raja muhammad khurshid and mumtaz ali mirza, JJ. INAYATULLAH KHAN--Appellant versus STATE-Respondent Criminal Appeal No. 153-T of 1997 and M.R. No. 241-T of 1997, dismissed on 2.12.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/392-Murder--Offence of-Conviction for--Appeal against- Complainant is first cousin of deceased, but it is not likely that he would falsely name appellant/convict-None of other witnesses either related to deceased or inimical to appellant-They clearly stated that they had over­ powered appellant after he was injured due to fire made by some one from crowd—Such like witnesses have no axe to grind—There is not an iota of doubt to say that prosecution has proved its case beyond any reasonable doubt that deceased was done to death by appellant-There is no chance regarding substitution of appellant for real offender because FIR was promptly lodged-Appellant had 15 cases to his credit between a span of ten years—There is no doubt about culpability of appellant to have committed murder of deceased, in order to rob his motor cycle- Conviction upheld-Appeal dismissed. [Pp. 1619, 1620 & 1621] A to F Mr. Muhammad Ilyas Siddiqui, Advocate for Appellant. Raja Saeed Akram, AAG for State. Mr. Rab Nawaz Noon, Advocate for Complainant. Date of hearing : 2.12.1997. judgment Raja Muhammad Khurshid, J.--By this judgment we propose to dispose of Murder Reference No. 241/T of 1997 and Criminal Revision No. 97 of 1997 besides the instant Criminal Appeal as all of them arise out of the impugned judgment. 2. The appellant/convict Inayatullah Khan was tried on the charge under Section 302/392 PPC and was sentenced to death under Section 302 (B) PPC and a fine of Rs. 25.000/- or in default two years R.I. On the Second charge i.e. under Section 392 PPC he was sentenced to 10 years R.I. and a fine of Rs. 10,000/- or in default to undergo further R.I. for one year. The fine if recovered was directed to be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. vide judgment dated 14.10.1997 passed by Ch. Saifullah Buttar, Judge Special Court Anti-terrorism, Rawalpindi Division and Islamabad Capital Territory. 3. The brief facts are that on 26.7.1994 at about 5.30 PM the complainant Haji Ahmad alongwith Muhammad Siddique deceased were going on a Motor-cycle No. RIS-8315 form the side of Golra Railway Station to their house situated in Dhoke Rameania. The deceased Muhammad Siddique was driving the Motor-cycle, whereas the complaint Haji Ahmad was occupying the pillion seat. The appellant/convict raised lalkara and asked the deceased to stop the Motor-cycle whereupon the latter stopped the same. The appellant/convict pulled out a pistol and made three successive fires from it. The bullets hit in the abdomen of the deceased, who fell on the 0 ground. The complainant took refuge behind a bush. The appellant/convict started the Motor-cycle and proceeded towards Dhoke Ramzania. On hearing the fire reports and the hue and ciy raised by the complainant, the people from the nearby abadi were attracted to the spot. They started pursuing the assailant. The occurrence was also seen by Muhammad Salim who was also present nearby in his fields. The deceased succumbed to the injuries whereupon the resent case was registered on the same day at 6.20 PM. The appellant/convict was over-powered by the people who were pursing him and was produced before the police alongwith the weapon of offence i.e. pistol. 4. The police also recovered 3 crime empties 4/3-1 from the spot vide memo Ex. P/B. The pistol i.e. the weapon of offence was taken into possession vide memo Ex. P/C. . The prosecution examined the eye witnesses namely Haji Ahmad (PW-11) being the complainant of the case, whereas Muhammad Saleem was put in the witness box as PW-12. The recovery of the weapon of offence i.e. pistol P-l vide Memo Ex. P/C was proved through Nazar ussain PW-4. The recovery of crime empties 1-3 vide memo Ex. P/B was proved through Abdul Latif PW-3. Motor-cycle No. RIS-8315 was taken into possession in the presence of Muhammad Asif PW-2 and Nazar Hussain PW-4. 6. The witness namely Arshad Mahmood PW-1 and Nazar Hussain W-4 had over-powered the ppellant/convict after he was pursued by them. The aforesaid Nazar Hussain with the help of one Amjad had caught hold of the appellant in the presence of Muhammad afaqat and Pervaiz Akhtar PW-5 and PW-6 respectively. The deceased was removed to Islamabad Hospital Complex in the car of Ibrar Hussain (PW-7) after he was njured in the occurrence. The site plan was prepared by Sarfraz Ahmad Patwari PW-15. The medical evidence was brought on record through r. Muhammad Naseer PW-8, which showed that the deceased was done to death due to the firing made upon him with the fire-arm. He also found that the ppellant/convict also suffered fire-arm injuries, though these injuries ^ were not mentioned in the FIR, itself, but in the karwai police it was mentioned that the appellant/convict was found injured. These injuries were however, explained by the PWs who had over-powered the accused by stating that the latter was injured as some body pursuing him had fired at him as a result of which he had fallen from the Motor-cycle and was caught red-handed. The pistol i.e. the weapon of offence was sent to the ballistic expert but it did not match the empties which were picked upon form the spot. The blood stained earth was not collected from the spot as according to the Investigating Officer the same was washed out by heavy rain. The learned counsel for the appellant/convict has submitted that the prosecution has not been successful to prove its case beyond any reasonable doubt. In this connection, it was contended that the blood stained earth was not collected to pin point the place of occurrence; that the weapon of offence recovered from the appellant/convict did not match the crime empties; that the complainant is close relative of the deceased; hence his evidence was not reliable; that other witnesses were either co-villagers of the deceased or were merely chance witnesses; that the motive in the case was also shady and that the origin of the occurrence being shrouded in mystry, the case had become doubtful. In defence it was stated that the appellant/convict was dealing in the business of illicit arms. The police was pursuing him on the day of occurrence to arrest him and had fired at him thereby causing him injury in the abdomen. Later on he was allegedly implicated in this case falsely with he help of the complainant, who being a relative of the deceased nominated him in the case although the deceased was done to death by some un-known person. 9. The learned counsel for the State assisted by the learned counsel for the complainant contended that FIR in this case was very promptly lodged, which excluded even the remotest possibility of a false or substituted case; that the eye witnesses or the other prosecution witnesses were not only independent but were also dis-interested; that there was no chance o the false implication of the appellant/convicting by such type of witnesses; that though the crime weapon i.e. the istol did not match with the crime empties ut that would not make any difference so far as the evidence of the eye witnesses is concerned; that the medical evidence clearly corroborated the testimony of the eye witnesses that the deceased was done to death by the appellant/convict by making fires with a pistol; that non recovery of blood stained earth would also not create any doubt in the veracity of the prosecution case particularly as the blood was washed out by heavy down pour; that catching of the appellant/convict at the spot after he was injured by some one from the crowd will speak for his physical presence at the spot; that the antecedents collected by the Investigating Agency show that the appellant/convict is a hardened and heartless criminal having a long list of criminal cases in some of which he has been admittedly convicted. His defence version that he was injured by the police while the latter was pursuing him in connection with selling of illicit arms or for his implication by the eye witnesses at the instance of the police does not convince about his innocence nor it rings true because it is not likely that dis-interested witnesses would falsely involve the appellant/convict in the case if in fact the he was not the killer of the deceased who was their kith and kin or a covillager. 10. We have considered the foregoing submissions. It is clear that the appellant/convict confronted the deceased when he was travelling on Motor-cycle, while the complainant Haji Ahmad was sitting on the pillion seat. Although the aforesaid Haji Ahmad is Khalasad of the deceased but it is not likely that he would falsely name the appellant/convict for the murder of his first cousin. It will be natural instinct on his part that he should bring the actual offender to book particularly when he was also accompanying the deceased and had' saved his life after hiding himself behind the bush. On seeing the gruesome murder of his first cousin the complainant would not spare the actual offender who had enacted the lawful tragedy under his eyes. The other eye witness namely Muhammad Saleem was grazing his cattle in the nearby field and had seen the high-handedness committed by the appellant/convict when the latter had robbed the deceased of his Motor-cycle on pistol point and also callously fired to take his life. The complainant however, managed to escape behind a nearby bush and was thus miraculously, saved. The fire reports as well as the noise raised b the complainant attracted other nearby villagers which included Arshad Mahmood PW-1, Nazar Hussain PW-4, Muhammad Rafaqat PW-5 and Pervaiz Akhtar PW-6. None of them is either related to the deceased or inimical to the appellant/convict. They clearly stated that they had over­ powered the appellant/convict after he was injured due to the fire made by some one from the crowd. It is thus obvious that such like witnesses have no axe to grind, but that truthful story should be narrated regarding the participation of the appellant/convict regarding the murder of the deceased committed by him. Likewise the eye witness Muhammad Saleem is not only natural, but disinterested witness having no relationship with the deceased or enmity with the accused. 11. In view of the above qualitative testimony of eye witnesses, there is not on iota of doubt to say that the prosecution has proved its case beyond any reasonable doubt that the deceased was done to death by the appellant/convict. The mere fact that the pistol P-l did not match with the crime empties would lose evidentary value of its recovery, but in the presence of the un-impeachable ocular account of occurrence and the witnesses, Who had caught the appellant at the spot would in no way mitigate the intrinsic value of the version given by eye witnesses. There is no chance or possibility regarding the substitution of the appellant/convict for the real offender because the occurrence had taken place at 5.30 PM on 26.7.1997 whereas the case had been registered on the same day at 6.20 PM, although the Police Station was at a distance of 2/3 kilometers from the lace of occurrence. Hence the FIR having been promptly lodged and the accused having been caught at the spot and handed over to the police by independent witnesses would provide sufficient and wholesome corroboration to the eye witnesses who had actually seen the appellant/ convict committing murder of the deceased after snatching his Motor-cycle. The medical evidence consisting of post mortem report Ex. P/E would show that the deceased was done to death by the firearm injuries in his ahdomen from a close range. It is thus ohvious that the appellant/convict must be quite close to the deceased when he had snatched the Motor-cycle and had made fires upon him. As such the charring around the injury would show that the fire was made by the appellant/convict at the deceased from a very close range as will be obviated from the situation attending to the occurrence. 12. List Ex. P/H speaks about the antecedents of the appellant/convict. It shows that the appellant/convict had 15 cases to his credit out of which the first was registered some time in 1984 and the last in 1994. In some of the cases aforementioned he was acquitted and in atleast 4 cases he was convicted and awarded sentence to different terms. In one of the cases registered against him vide FIR No. 121 dated 30.5.1993 under Section 392 PPC, he was declared absconder. It is thus obvious that the accused is a hardened and heartless criminal having been involved in similar type of cases in the past and had also been convicted and sentenced in some of such cases. Even according to his own statement under Section 342 Cr.P.C. he had stated in reply to question No. 15 that, in some cases under the Arms Ordinance he was convicted. However, he while replying to question No. 16 contended that he was dealing in illicit arms. The police had tried to haul him up to search his person. He allegedly ran away, whereupon a Police Official fired at him with a private weapon and as a consequence thereto he was injured. However, later on the Police Planted this case through forged evidence and with the help of PWs. He however, did not lead any defence nor did he appear to make statement on oath in disproof of the allegation against him. 13. In is clear from the statement of the appellant/convict that he had raised the plea for the first time that he was injured by the Police Official with a private weapon while he was running away as the police wanted to haul him up. This story appears to be concocted and an after­ thought, because the complainant or other witnesses in this case would in no way be willing to become false witnesses at the instance of the police, if the deceased was not done to death by the appellant/convict. There is no possible reason that the prosecution witnesses would side with the police in order to implicate the appellant/convict falsely in this case. The injury has already been proved on the person of the appellant to have been caused to him, while he was being pursued by a crowd after he had killed the deceased. In such a situation, there is no doubt about the culpability of the appellant/convict to have committed the murder of the deceased Muhammad Siddique in order to rob his Motor-cycle. The prosecution C having proved its case against the appellant/convict beyond any reasonable doubt, the learned trial court had rightly convicted him for the murder of the deceased and for committing robbery, of his Motor-cycle. Since the murder was committed in a heartless manner, therefore, the normal penalty of death under Section 302(b) PPC was rightly awarded by the learned trial court. It needs no interference. The death sentence passed upon the appellant/ convict is therefore, maintained alongv-ith fine as awarded by the learned trial Judge. Likewise the conviction under Section 392 PPC made by the learned trial court is upheld as the offence against the appellant/convict has been proved beyond any doubt. Resultantly we find no merit in this appeal, which is dismissed. The convictions and sentences passed by the learned trial court are accordingly upheld. The death sentence awarded to the appellant/convict is confirmed. Murder Reference No. 241/T//97 is decided accordingly in affirmity. The complainant had filed criminal revision with the prayer that the sentence of fine under Section 302 PPC be enhanced from Rs. 25,000/- to Rs. 5,00,000/- and under Section 392 PPC from Rs. 10,000/- to Rs. 1,00,000/-. However, there is nothing on record to justify that the appellant/convict has sufficient means to satisfy the aforesaid proposed heavy amount of fine. We therefore, do not find ourselves in agreement with the learned counsel for the revision petitioner that the fine be enhanced as aforesaid. The sentence of fine awarded on each count under Section 302 PPC and under Section 392 PPC by the learned trial court is not only reasonable but appropriate in the given situation. The revision petition is therefore, dismissed. (AAJS) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1621 Present: raja MUHAMMAD KHURSHID, J. SAEED AHMED-Appellant versus STATE-Respondent Criminal Appeal No. 627 of 1995, accepted on 15.12.1997. Pakistan Penal Code, 1860 (XLV of I860)-- -—S. 3G2(b)--Murder--Offence of-Conviction for-Appeal against~PW A who is first cousin of complainant made certain improvements in respect of last seen evidence vis-a-vis entering of deceased in house of appellant/convict—As such reliance on his solitary statement would not be in interest of safer administration of criminal justice-Recoveries from appellant are highly doubtful and cannot be relied upon as these have been effected without calling any independent person from locality and were only attested by a close relative of deceased and I.O.-Giving up of two independent witnesses makes prosecution case doubtful qua appellant-Motive has not been proved-Being blind murder it has no plausible or visible link for involvement of appellant-Case remains unroved beyond any reasonable doubt by prosecution-Prosecution case did not stand on sound footing--Appellant deserves, benefit of doubt—Appeal accepted. ' [Pp. 1626, 1627 & 1628] A to E Mr. Muhammad Siddique Chughtai, Advocate for Appellant. Mr. Iftikhar Ahmad Sipra, A.A.G. for State. Date of hearing: 15.12.1997. judgment This appeal is directed against the judgment dated 28.8.19995 passed by Ch. Fayyaz Ahmad Bhutta, learned Additional Sessions Judge, Faisalabad whereby he convicted the appellant under Section 302(b) PPC and sentenced him to 25 years R.I with the benefit of Section 382-B Cr.P.C. for the murder of Munawar Ali Khan on 7.8.1994. 2. The brief facts are that a report about the occurrence was lodged by Muzaffar Ali Khan i.e. the son of the deceased on 9.8.1994 before Allah Rakha S.I., Police Station, Sargodha Road, Faisalabad at the spot when the latter had reached there on receiving information about the aforesaid murder. It was contended by the complainant that his father Munawar Ali Khan deceased left the house in the morning on 7.8.1994 and did not return till evening. The complainant started searching the deceased and contacted all the relatives, but without any success. The search continued for about two days. On 9.8.1994 a paternal cousin of the complainant namely Rana Saeed Ahmad Khan PW-5 informed the complainant that he had seen the deceased at about 2.00 PM on 7.8.1994 in the company of the accused Saeed Hajjam, while entering his house. The aforesaid Rana Saeed Ahmad Khan and told the deceased that he was going to Lahore and would return in a day or two. On receiving this information, the complainant went to the house of accused, but found that the same was locked. He climbed to the top of the neighbouring house of Mazhar Ali and saw a gunny bag tied with a tent, (shamiana). Foul small was coming from that side. The complainant, his cousin Rana Saeed Ahmad Khan PW-5, Mahmood Ahmad and Rana Abdul Manan (given up PWs) and a number of persons from the mohalla gathered there, when the police arrived at the spot. The S.I Allah Rakha had broken the lock and entered the house. The shamiana was opened and a gunny bag was recovered from it. On opening the bag a hacked dead body was brought out. Both the legs and arms were cut and separated form the trunk of the body. The head was also missing form its trunk. On closer examination of the dead body, a silver ring was identified on the little finger of the right hand of the deceased. A healed up wound scar was also detected on the left shin of the deceased. The complainant thereupon identified the dead body of the deceased to be that of his father. The motive alleged by the complainant showed that the accused had borrowed Rs. 50,000/-from the deceased on the basis of cordial relations etween them. The deceased demanded the aforesaid amount from the accused, which led to the commission of his murder by the accused, his wife Mst. Kalsoom and his father Ghulam Hussain, alongwith some un-known persons. The murder was allegedly committed after the deceased was called by the accused in his house deceitfully and done to death in a cruel manner. The dead body could not be disposed of and was left in the Dehori (Porch) of the house, before the inmates managed to escape. The police investigation led to the conclusion that the murder was committed by the appellant/convict whereas the other two named persons i.e. Mst. Kalsoom his wife and Ghulam Hussain his father along with other un-known persons were found innocent. The case was sent to the court for trial in which Mst. Kalsoom and Ghulam Hussain aforementioned were acquitted under Section 265-K Cr.P.C. by the learned Additional Sessions Judge. The trial however, proceeded against the appellant/convict. The prosecution collected blood stained earth from the kotha of the appellant/convict on 9.8.1994 vide memo Ex. P/E in the presence of Rana Saeed Ahmad Khan PW-5 and Allah Rakha PW-9 and Mahmood Ahmad given up PW. The house of the appellant/convict was opened after breaking the lock of the main gate on the same day. The blood stained Rasi P. 2, shamiana P. 3 and gunny bag P. 4 were also taken into possession vide memo Ex. P/D on.the same date, in the presence of the aforesaid witnesses. The blood stand silver ring P. 17 belonging to the deceased was removed from the dead body by Allah Rakha Si/Investigating Officer and taken into possession vide memo Ex. P/G on the same day in the presence of the aforenamed witnesses. The blood stained clothes. P. 5 to P. 16 were secured vide memo Ex. P/F on the same day. On the pointation of the appellant/convict the head of the deceased was recovered on 10.8.1994 from his residential house from a Deg vide memo Ex. P/H, which was identified by Rana Saeed Ahmad Khan and the given up PWs Mahmood Ahmad and Abdul Manan. The blood stained Bugda (Churra) P-18 was got recovered by the appellant/convict on 20.8.1994 from inside of an iron box lying in his residential kotha. It was taken into possession vide memo Ex. P/I in the presence of Rana Saeed Ahmad Khan and Allah Rakha SI (PWs) and Mahmood Ahmad given up PW. Apart from the aforesaid circumstantial evidence the prosecution had relied upon the evidence of Rana Saeed Ahmad Khan PW-5, who had last seen the deceased in the company of the appellant/convict. The statement of Muzaffar Ali Khan (PW-6)/complainant was referred to prove the motive and recovery of the dead body from the house of the appellant/convict. The medical evidence was examined to show that the dead hody was cut into pieces with sharp-edged weapon. 7. The analysis of the evidence examined at the trial by the rosecution will show that it relied upon the last seen evidence, the recovery of blood stained earth, the weapon of offence, the blood stained clothes and the other incriminating articles such as hacked dead body and head of the deceased, which was separated from the main trunk like two arms and two legs. 8. The learned counsel for the appellant/convict has submitted that the prosecution has miserably failed to prove its case against the ellant/convict beyond any reasonable doubt. Firstly he contended that Rana Saeed Ahmad Khan is a close relative of the deceased and the complainant. He had allegedly last seen the deceased in the company of the appellant/convict. However, his statement was alleged to be contradictory in its material details. In this respect, it was pointed out that during crossexamination the witness had stated that he got it recorded before the police that he had told Muzaffar Ali Khan PW that he had seen Munawar Ali Khan deceased entering into the house of Saeed Hajjam alongwith the latter. However, upon confrontation, it was not so recorded before the police in Ex. D A which showed that he had made improvement in his statement in order to make it more acceptable. He denied to have informed the police about the occurrence but upon confrontation, it was found in his statement that he had informed the concerned Police Station. He denied that he had stated before the police that Abdul Manan, Mahmood Ahmad and Muzaffar Ali PWs had informed the police about the occurrence. However, when confronted it was so recorded in his statement Ex. D/A. It was also pointed out that according to the witness, the accused was brought at the spot on 10.8.1994 in custody and he led to the recovery of head of the deceased placed in a 'deg' lying in his residential room. The head was taken into possession by the police in his presence vide memo Ex. P/H. The witness had denied that they had cordial relations with the accused except that he was a Mueen of the village and as such used to serve them. On the contrary, the complainant stated that, the deceased and the accused had cordial relation and in pursuance of that a loan of Rs. 50,000/- was given to him by the deceased. It was also admitted that the house of the accused was situated in the abadi deh and was surrounded by the residential houses. The house of the accused measures 1^/2 marlas and consists of a court-yard with his residential room. He also stated that there were 25/30 degs lying under the shade of ladders. The deg from which the head was recovered was not taken into possession by the police. 9. The learned counsel for the appellant/convict further pointed out that the statement about the recovery of the head and the number of 'degs' is inconsistent with the site-plan Ex. PA got prepared by the police. According to the aforesaid site-plan, no 'deg' is shown in the residential room of the appellant/convict from where the hea,d of the deceased was recovered. On the contrary, there were four 'degs' lying under the ladders in the courtyard. According to PW-5, there were 25/30 'd K gs' lying there It was, therefore, contended that the witness was belied by the document prepared by the Draftsman at the instance of the witnesses. Likewise the crime weapon was recovered from the same residential room from where the clothes P. 5 to P. 16 were recovered. The recovery was seen only by Rana aeed Ahmad Khan PW and no body from the village was associated. It was, therefore, allegedly done in violation of Section 103 Cr.P.C. According to the learned counsel for the appellant/convict, the last seen evidence was not only lacking in its truthfulness but was also the result of preliminary investigation at the spot and was given by an interested witness being ; related closely to the deceased and the complainant of the case. Since there was no plausible corroboration from the circumstantial evidence, therefore, it was highly un-safe to rely upon such evidence to send a person to gallows. The evidence of the Investigating Officer PW-9 was also assailed on the ground that no dependent person from the locality was associated with the ncriminating recoveries. The total reliance was placed on the closely related witness, although the place of murder was situated in a village abadi. In such a situation, non-association of the independent persons from the locality was fatal to the case of the prosecution allegedly when the statement of the complainant was admittedly recorded after conducting preliminary investigation and inquiry about the occurrence from the persons gathered around. According to the I.O. a large number of persons had gather at the 1 spot from whom preliminary investigation was conducted and then the statement of the complainant was recorded at the spot. Such a statement had allegedly no value in the eyes of law, because it would be deemed to be a ooked up and manoeuvered affair. It was, therefore, submitted that the rosecution had failed to prove its case beyond any reasonable doubt, against the appellant/convict particularly when his co-accused were acquitted. Reference was also made to the plea of the accused that his house was broken by the police in his absence, while he had gone to Badhana P.S. Wagaha in order to attend the marriage ceremony of some relative. In this regard, he produced Nikah deed of Mst. Razia with Muhammad Khalid which was solemnised on 10.8.1994. He claimed to be innocent particularly when his two co-accused being his family members were declared innocent by the police during investigation and were acquitted by the court under Section 265-K Cr.P.C. The learned counsel for the State defended the impugned judgment on the ground that there was last seen evidence in this case supported by the recoveiy of weapon of offence, which was found to be stained with human blood according to the report of Serologist. The dead body was also recovered from the house of the appellant/convict which further linked him with the occurrence. Although the motive was not proved, but still it would allegedly not reflect adversely upon the merits of the prosection case particularly when be-headed dead body and the head were recovered from the house of the appellant/convict, the head being recovered at the instance of the appellant/convict, who had also led to the recoveiy of weapon of offence from his residential house. It was, therefore, contended that the prosecution had proved its case beyond any reasonable doubt and that the defence taken by the appellant/convict was not only hollow but meritless. 12. I have considered the foregoing submissions raised at the Bar. It is clear from the foregoing facts that the deceased was done to death in a most brutal manner. It is however, to be seen whether or not this lawful occurrence was committed by the appellant/convict. In this respect, it may be pointed out that the deceased had left his house on the morning of 7.8.1994 and did not return till evening which riased suspicion with the members of his family, who started for his search. They remained in search for two days and inquired from different places and contacted a number of relatives but no clue was found. It was only after two days of the occurrence that on 9.8.1994 Saeed Ahmad Khan PW being the first cousin of the complainant allegedly returned from Lahore and informed that the deceased was last seen in the company of the appellant/convict while entering his house. However, as stated above, his statement was not consistent regarding his first version. He made certain improvements in respect of last seen evidence vis-a-vis entering of the deceased in the house of the appellant/convict. He also discredited himself by saying that the head of the deceased was recovered from a deg (cauldron) lying in the residential room of the appellant/convict. However, the site plan did not show any such deg lying in the aforesaid room nor it was ever taken into possession by the police. On the contrary, four degs were shown in the site plan lying under the ladders, whereas according to this witness a number of degs were lying there. There is nothing on record to show that actually Rana Saeed Ahmad Khan had left for Lahore and that he had returned after two days. However, two witnesses in whose presence Rana Saeed Ahmad Khan PW had seen the deceased entering the house of the appellant/convict have not been produced by the prosecution and were given up. As such reliance on the solitary statement of Rana Saeed Ahmad Khan PW would not be possible nor it would be in the interest of safer administration of criminal justice. The appellant/convict had contended in his statement under Section 342 Cr.P.C. that he was arrested by the police on 11.8.1994, whereas according to the police he was arrested on 10.8.1994. The appellant/convict as pointed out above had taken the plea that he had gone out of the village to attend the marriage ceremony for which he has placed on record Nikah Deed. However, • no evidence was produced that the appellant/convict had actually attended that marriage ceremony. But it would be necessary to make a reference to a petition (Ex. D/B) moved before the fllaqa Magistrate for obtaining physical remand of the appellant/convict. This petition was moved by the DSP/CIA, Faisalabad on 23.8.1994. It shows that the accused was arrested by the local police on 11.8.1994 and that the weapon of offence had already been recovered from him. Since his co-accused were not yet arrested, therefore, further remand was prayed, in order to get the other accused arrested in th case on the pointation of the appellant/convict. The perusal of this petition shows that according to the local police the appellant/convict was arrested on 11.8.1994 and not on 10.8.1994 as they have claimed. This fact therefore, lends support to the contention of the appellant/convict that he was away from his house on 10.8.1994 in connection with some marriage. It is for that reason that his house was locked and was broken open be the police in the presence of the complainant side and the other villagers. The house of the appellant/convict was admittedly broken on 9.8.1994 and all the incriminating articles such as dead body, silver ring of the deceased, the broken lock, gunny bag, torn out tent, string and the blood stained clothes were taken into possession on the same day. It is also clear that there was a single residential room in the house. It is strange that the weapon of offence could not be recovered on the aforesaid date nor the head of the deceased was recovered from the deg, which was admittedly lying there. Had these things been there, those should have been taken into possession on that very date i.e. 9.8.1994. The non-recoveiy of these things, on that date would create serious doubt regarding there presence and there subsequent recovery at the instance of the accused particularly when according to DSP, CIA (Ex. D-B) the accused was arrested on 11.8.1994, whereas such recoveries were allegedly effected on his pointation on 10.8.1994. This makes the recoveries from him highly doubtful and cannot be relied upon particularly when these have been effected without calling any independent person from the locality and were only attested by a close relative of the deceased and the Investigating Officer. Such type of recoveries become tainted piece of evidence, which cannot be used to support another tainted piece of evidence rendered by the recovery witness Rana Saeed Ahmad Khan when he stated that he had last seen the deceased in the company of the appellant when he had allegedly left for Lahore. His evidence as already pointed out above does not appear to be truthful nor trust-worthy for the inconsistencies pointed out above. The giving up of two independent witnesses further makes the prosecution case doubtful qua the appellant/convict. It is particularly so when the other two named accused i.e. wife of the appellant and his father have already been acquitted by the learned trial court, under Section 265-K Cr.P.C.. as the charge against them was found groundless. They have also been found innocent during the police investigation. This shows that the prosecution case did not stand on sound footing and was rambling about even to involve the innocent persons against whom there was no evidence. The un-known accused were never brought to book nor it was disclosed as to who they could be. In such a situation, the entire prosecution case remains shrouded in mystry and is not based on any convincing evidence as pointed out above against the appellant/convict. The motive has already been discarded by the learned trial court. It does not appear to be very convincing that there would be cordial relations between an elite and a Mueen of the village. Hence the story about the loan stands discredited particularly when Rana Saeed Ahmad Khan had denied any cordial relation between the deceased and the appellant/convict. Hence the motive against the appellant convict has not been proved. The other circumstantial evidence such as last seen, recovery of weapon of offence and recovery of dead body from the locked house will not safely link the appellant with the occurrence beyond any reasonable doubt. This being the blind murder, having no plausible or visible link for the involvement of the appellant/convict, the case remains un-proved beyond any reasonable doubt by the prosecution. The appellant/convict therefore, deserves benefit of doubt and the same is extended to him. Accordingly this appeal is accepted. The conviction and sentence passed upon the appellant/convict are set aside. He is undergoing the sentence aforesaid and shall be set at liberty forthwith if no more required in any other case. (MYFK) Appeal accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1628 [ Multan Bench] Present: RAJA MUHAMMAD SABIR, J. ABDUL RAZZAQ-Petitioner versus STATE-Respondent Crl. Misc. No. 596-B of 1997, accepted on 12.5.1997. Criminal Procedure Code, 1898 (V of 1898)- - —-S. 497-Offenee,u/Ss 3, 9, 379, 411, 34 (S. 302 deleted) PPC-Bail-Grant of-Prayer for-Further inquiry-Case of-Facts of case indicate that plea ised by accused that gun went off accidently during struggle between accused and deceased is not without substance-Loaded gun belonging to complainant, was not in hands of accused-It is also mentioned in FIR hat he was not armed with any fire-arm weapon-He also received injury at his head with butt blow of gun-Medical Report supports version of accused-He was got medically examined by 1.0. himself-Trial against petitioner is pending in court of judicial magistrate perusal of FIR • coupled with investigation makes out case of further inquiry-Bail granted. [P. 1630] A Sahibzada Farooq All with Mr. Altaf Ibrahim, Advocates for Petitioner. Sh, Muhammad Rahim, Advocate for State. Date of hearing: 12.5.1997. order The petitioner seeks bail after arrest in a case registered against him vide FIR No. 288/96 dated 4.9.1996 under Sections 319, 379, 411, 34 PPC (Section 302 PPC deleted) a Police Station Saddar Chichawatni, District Sahiwal. 2. Brief facts of the case are that the complainant Muhammad Saleem lodged the above said FIR against the petitioner with the allegation that at about 6.30 PM at evening time, the complainant and his father Muhammad Yaqoob on a motor cycle were going from village to their land. The father of the complainant was driving the motor cycle and the complainant was holding his .12 bore gun, while sitting behind him. When they crossed Mor Chak'No. 44/12-L on the Pakka the Road and went about l 1 ^ Acres towards east, where Abdul Razzaq son of Bahadur Ali (petitioner) was standing. He gave a push to the motor cycle and felled them and snatched the .12 bore gun form the complainant which was loaded. It is also alleged that the petitioner raised lalkara that uhammad Yaqoob will be taught a lesson for insulting him. It is further alleged that on hearing the noise Khalid Mahmood and Muhammad Sharif reached the spot and in their presence the father of the complainant wanted to snatch the gun, when the petitioner made a fire which hit Muhammad Yaqoob on his right thigh and he fell down on the ground. The complainant further alleged that he tried to catch hold the accused but he raised lalkara that if anybody came near to him, he will be killed. Abdul Razzaq/petitioner alongwith an unknown person, who was standing alongwith a motor cycle armed with rifle from the place of occurrence. Subsequently, Muhammad Yaqoob succumbed to the injuries. After the registration of the case, it was investigated by the local police. The petitioner immediately after the occurrence, according to the 1.0. went to the Police Station and stated that he was given butt blows by the deceased on his head and during suffer the gun went off accidently, which hit Muhammad Yaqoob. He has not committed murder of Muhammad Yaqoob intentionally. The police recorded the version of the petitioner on 4.9.1996 (the day of occurrence). It was the first immediate plea, which find mentioned in the Zimni of the Police. It is also evident from the FIR that the loaded gun belong to the complainant. Learned counsel for the petitioner submits that offence under Section 302 PPC has been deleted during investigation and the petitioner has been challaned under Section 319 PPC, which has been submitted in Court on 28.9.1996. The petitioner is facing trial before the Judicial Magistrate. Sardar Muhammad Babar. The next date of hearing of the case fixed before him is 14.5.1997. No evidence has been recorded so far. The facts and circumstances of the case show that it was not an intentional murder, the gun went off accidently. Prime facie the petitioner cannot be held responsible for the said offence. Learned state counsel has conceded that the immediate plea taken by the accused before the I.O. was that he was given butt blow by the deceased and the gun went off during suffer between him and the deceased, which hit the deceased. Arguments heard and record perused. The facts of the case indicate that the plea raised by the accused that the gun went off accidently during struggle between the accused and the deceased is not without substance. Admittedly the loaded gun belonging to the complainant, was not in the hands of the accused. It is also mentioned in the FIR that he was not armed with any fire-arm weapon. He also received injury at his head with butt blow of the gun. The Medical Report supports the version of the accused. He was got medically examined by the 1.0. himself. The trial against the petitioner is pending in the Court of the'Judicial Magistrate, Chichawatni. The perusal of the FIR coupled with the investigation makes out this case of further inquiry. The petitioner was arrested on 4.91.996. Challan has been submitted in the Court but not a single witness has been recorded so far. For the reasons stated above the petitioner is admitted to bail, subject to his tendering bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac) with one surety in the like amount, to the satisfaction of the trial Court. (AAJS) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1630 [ Multan Bench] Present: mian allah nawaz, J. FALAK SHER alias PHALLI-Petitionr versus STATE-Respondent Crl. Misc. No. 1642-B of 1997, accepted on 30.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Offence u/Ss. 10/16 Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979-Bail-Grant of-Prayer for-Further inquiry-Case of-There is delay of 6 days in lodging FIR, that abductee even had not supported version given in FIR-Further more she declined to under go any medical examination-Taking all facts into consideration and without going into merits of case High Court find that it is a case of further inquiry-Bail allowed. [P. 1631] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Mr. Javaid Iqbal, Advocate for State. Date of hearing : 30.10.1997. order This application, under Sections 497/498 Cr.P.C. by falak Sher alias Phalli seeks grant of post-arrest bail in a case under Sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The FIR was lodged on 13.3.1997 by Ghulam Farid/father of Mst. Sattan abductee. It was complained therein that about 6/7 days before, Mst. Nazran had come to his house and taken away his daughter for the purpose of visiting Darbar Mahmood Langah, that as she did not come back, so, he visted the afore-said Darbar where it was communicated to him that Mst. Sattan alongwith Phalli, Mahli sons of Karam AH, Mst. Nazran daughter of Karam Ali, Nawaz son of Shamand, Jamal son of Luqman, Mamand son of Allah Jiwaya were seen going in a wagon towards Harappa and that she had been abducted with evil intentions. 2. Mst. Sattan appeared before the concerned S.H.O. on 31.3.1997 alongwith her father and stated that she was wife of Shameer and was living n Mian Channu, that she had been taken away to the house of Amir Alam where she was subjected to rape by Falak Sher. In the investigation, Nawaz son of Mamand, Mahli son of Karam Ali and Mst. Nazran daughter of Karam Ali were found innocent. However, challan has not been submitted so far before the competent Court. It is further submitted that the afore-said lady refused to subject herself to the medical examination and did not get her statement recorded under Section 164 Cr.P.C. 3. Learned counsel for the petitioner contends that as a matter of fact Mst. Sattan is aged 50/60 years of age; that this is absolutely false case; that already there'was criminal litigation pending between the parties and petitioner has been roped in on account of enmity. Learned counsel for the State has, however opposed this application. 4. From the afore-said narration, it is quite clear that there is delay of 6 days in lodging the FIR, that Mst. Sattan even had not supported the version given in the first Information Report. Furthermore she declined to undergo any medical examination. Taking all these facts into consideration and without going into the merits of the case, I find that it is a case of further inquiry. Consequently, I feel inclined to allow this application. The petitioner shall be released on bail subject to his furnishing bail bond in the sum of Rs. 25,000/- with two sureties in the like amount to the satisfaction of trial Court. (AAJS) Bail allowed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Lahore) 1632 [Rawalpindi Bench] Present muhammad nawaz abbasi, J. Mrs. SURAYYA FARMAN-Petitioner versus STATE--Respondent Or. Misc. No. 29/Q-1997, accepted on 18.6.1997. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561 A read with Ss. 249-A and 265-K Cr.P.C.--Criminal proceedings- X Quashment of--Prayer for-Maintainability of tition-Question ofower u/S. 561-A Cr.P.C. is not an alternate or additional to provision of S. 249-A or 265-K Cr.P.C.-Two rovisions f law undoubtedly covering ame field are independent to each other and High Court in its inherent powers u/S. 561-A is generally reluctant to entertain such petitions questioning proceedings of a case under trial unless remedy u/S. 249-A or 265-K of similar nature and in a way akin to and co-related with provision -u/S. 561-A made available invoked at first instance-However, if facts and circumstances of a particular case so warrant to prevent to abuse of process of any court or to secure ends of justice, High Court in its inherent powers u/S. 561-A can entertain a direct quashment petition in suitable cases in which co-existent and incidental provision of Ss. 265- K or 249-A cannot adequately met situation-Provision of S. 265-K and 249-A as case may be, or invocable in cases in which court feels no probability of accused being convicted of any offence, whereas extraordinary power u/S. 561-A can be used in all cases of misuse of process of law .to prevent injustice-Similarity in two provisions of law definitely does not give unlimited power to trial court to go side by side in exercise of power u/S. 265-K to that of power of High Court u/S. 561-A Cr.P.C. [P. 1636] A (ii) Emigration Ordinance, 1979 (XVIII of 1979)-- —-U/Ss. 18 and 22 read with S. 561-A Cr.P.C.-Registration of case-Proceedings in Special Court-Quashment of-Prayer for-Mere assertion of payment of money for employment abroad, whether fulfilled requirement of law to bring case within purview of S. 2 or not-Question of-Alleged transaction manifestly creating a contractual liability, it can at best be a case of breach of contract creating a civil liability and in case of criminal liability, if any, it cannot more than criminal breach of trust and then too if essential element of entrustrnent and dishonest mis­ appropriation can be traced-This is noticeable that mere giving of money for doing a job and failure of person to fulfil his obligation as per nderstanding and commitment does not ipso facto constitute a criminal offence-Mere assertion of payment of money for employment abroad will not be satisfactorily fulfilled requirement of law to bring case within purview of S. 22--Allegation that etitioner through breach of promise of providing service abroad failed to return amount received by her, may create a civil liability, but use of criminal law in such matter in such manner is gross abuse of process of law. [Pp. 1636 & 1642] C & D (iii) Emigration-Ordinance, 1979 (XVIII of 1979)-- —-S. 24(6) read with S. 5 of F.I.A. Act, 1974 and Sections 4(h), 154 and 173, 561-A Cr.P.C.-Registration of case-Proceedings before Special Court- Complaint filed by a person not authorised by Federal Government- Effect of-A member of FIA as such is not authorised to exercise powers under Emigration Ordinance, 1979 in consequence to investigation into an offence under Emigration Ordinance will be complainant to file a complaint under provisions of Section 24(6) of said Ordinance with exclusion of person authorised to file such complaint-Bar of taking cognizance and exercise of jurisdiction to try an offence under Emigration Ordinance, 1979 except upon a complaint does not debar F.LA. from entertaining report lodged by an individual or conducting of investigation or inquiring into it, but general practice of submission of challan having made inapplicable, court concerned cannot take cognizance of matter for trial of offence under Emigration ordinance without filing complaint by person authorized by Federal Government-Thus unless a complaint, other than a report u/S. 173 Cr.P.C. based on FIR u/S. 154 Cr.P.C. is filed as provided u/S. 24(6) of Ordinance, Special Court cannot take cognizance of case and exercise jurisdiction in an offence under Emigration Ordinance, 1979. [Pp. 1638 & 1639] C Mr. Farid-ud-Din Masood, Advocate for Petitioner. Standing Counsel Bashir Kiani, Advocate for State. Date of hearing; 9.6.1997. judgment Mr. Surayya Farman, petitioner has filed this petition for quashment of case FIR No. 177/93 dated 16.8.1993 registered with Police Station FIA Immigration Airport Cell, Islamabad under Section 18/22 of Emigration Ordinance, 1979, presently pending in trial before the learned Special Judge, Anti-Corruption (Central), Rawalpindi. 2. In consequences of an inquiry conducted upon a complaint against the Proprietor of Travel Care, Saleem Plaza, Blue Area, Islamabad by the FIA into the allegation of receiving an amount of Rs. 6,07.000/- levelled by the persons named therein for sending them abroad for employment, but neither they were provided employment abroad as per commitment nor the amount received from them was returned, a case under Section 18/22 of the Emigration Ordinance, 1979 was registered against the petitioner on 16.8.1993 to the following effect- "During the course of inquiry mentioned at column No. 2 above, it has been found that accused Mrs. Surrayya Farman w/o Farman Ali Shah Proprietor Travel Care, Salim Plaza, Blue Area, Islamabad received Rs. 1,10,000/- from Naveed Aziz son of Abdul Aziz for sending him for employment to Germany, Rs. 1,10,000/- from Asif Shabbir son of Muhammad Shabbir for sending him for employment to Germany, Rs. 1,36,000/- each from Muhammad Hanif son of Muhammad Sharif and Saeed Ahmad son of Wazir Ali for sending them for employment to Italy and Rs. 2,00,000/- from Mumtaz Hussain son of Rasheed Ahmad for sending him for employment to Japan. The payments were made in the presence of Hqji Muhammad Ramzan son of Roshan Ali during the year 1992. The accused later on returned Rs. 30,000/- each to Muhammad Hanif and Muhammad Saeed mentioned above on account of refund of Tickets. She neither sent the above mentioned five persons for employment abroad nor returned their respective amount totalling at Rs. 6,07,000/-. The accused is not an authorised Recruiting Agent. Prima facie she has committed an offence under Section 18/22 of Emigration Ordinance, 1979. Case is thus registered and investigation taken up. Copies of the FIR are being sent to the quarters concerned." 3. The Investigating Officer recorded the statements of the witnesses namely Naveed Aziz, Arif, Hanif, Muhammad Saeed and Mumtaz Hussain under Section 161 Cr.P.C. on 30.8.1993 and 14.9.1993, wherein they claimed delivery of the passports and cash as detailed in the FIR to the petitioner for arrangement of their employment abroad. According to the prosecution Naveed Aziz, Mumtaz and Asif produced their passports before the Investigating Officer on 2.5.1993 with the version that after registration of case, the petitioner returned the passports to them, which were taken into possession by the I.O. to be used as evidence in proof of the allegation. Except the oral evidence of the above named five persons and three passports produced by them no other evidence is available with the Investigating Agency in support thereof. The Travel Care a registered Company under Companies Ordinance, 1984 as is evident from the certificate of registration placed on record is owned by Syed Farman, Kashif, Raheem and Mst. Zarina Farman. The petitioner is not included in list of proprietors of Travel Care. The prosecution has not placed any evidence on the record to show that she was the proprietory of Travel Care. 4. The challan in the case having submitted on 15.11.1994, the charge was framed on 21.2.1995. The case is pending in evidence. 5. The petitioner has moved this petition under Section 561-A Cr.P.C. for the quashment of the above said criminal case without exhausting the remedy of Section 265-K Cr.P.C. before the trial Court on the ground that the proceedings in the case on the basis of given facts being not conceivable are intended to be used as vehicle of oppression and coercion amounting to misuse of process of the Court and that the proceedings before the trial Court being without jurisdiction the continuation of the same will be of no consequence and therefore moving the trial Court under Section 265-K Cr.P.C. would be of no useful purpose. 6. Mr. Gul Zaman, learned counsel for the petitioner contended that the oral statement of the witnesses without support of any ocumentary evidence in proof of the allegation of receipt of amount in question for providing employment to them beyond the limits of Pakistan annot constitute a transaction under Section 22 of the Emigration Ordinance, 1979 and that the evidence available with prosecution if is believed as such, the petitioner can hardly be held guilty of breach of contract and could not be charged and proceeded against for criminal liability. He challenging the validity of the proceedings for want of a proper complaint in terms of Section 24(6) of the Emigration Ordinance, 1979 read with Section 4(h) Cr.P.C. argued that the trial for the alleged commission of offence on the basis of FIR lodged by the Inspector, FIA Airport Cell, Islamabad is without jurisdiction. 7. Conversely, the learned Standing Counsel argued that the case falling within the ambit of clause (b) of Section 22 of the Emigration Ordinance, 1979, the oral evidence containing the allegations of receiving the amount for providing employment abroad is sufficient to prove the charge and sustain the conviction and no documentary evidence is required to substantiate the allegation. However, he candidly conceded that to prove the allegation for the charge under Section 22(a) of ibid Ordinance, the oral evidence alone is not sufficient to convict a person and the documentary evidence would necessarily be required. He next argued that without availing the remedy under Section 265-K Cr.P.C. this petition under Section 561-A Cr.P.C. is not maintainable. In reply to the contention of the learned counsel for the petitioner regarding the requirement of a proper complaint in terms of the provisions of law on the subject, the learned Standing Counsel argued that only a report prepared by a police officer is excluded from the definition of a complaint and that an official of FIA being not definable as police officer, the-report submitted by such official would be treated as complaint under Section 24(6) of the Emigration Ordinance, 1979 and therefore, taking of the cognizance of the matter by the Special Court is not questionable. He further argued that the transaction also contained the element of cheating and mis-appropriation and in addition to Section 22 of the Emigration Ordinance, 1979, the provision of Section 420/406 PPC can be pressed into service against the petitioner but the special law dealing with the subject will exclude the general provision of PPC and therefore, the trial under Section 18/22 of Emigration Ordinance, 1979 does not suffer from any infirmity. 8. I have heard the learned counsel for the parties. The power under Section 561-A Cr.P.C. is not an alternate or additional to the provision of Section 249-A or 265-K Cr.P.C. The two provisions of law undoubtedly covering the same field are independent to each other and the High Court in its inherent powers under Section 561-A Cr.P.C. is generally reluctant to entertain such petitions questioning the proceedings of a case under trial unless the remedy under Section 249-A or 265-K Cr.P.C. of similar nature and in a way akin to and co-related with the provision under Section 561-A Cr.P.C. made available are invoked at the first instance. However, if the facts and circumstances of a particular case so warrant to prevent the abuse of process of any Court or to secure the ends of justice, the High Court in its inherent powers under Section 561-A Cr.P.C. can entertain a direct quashment petition in suitable cases in which co-existent and incidental provision of Section 265-K or 249-A Cr.P.C. cannot adequately meet the situation. The scope of the provision of Section 265-K or 249-A Cr.P.C. is not wide enough to be used a substitute of Section 561-A Cr.P.C. in all matters. The provisions of Sections 265-K and 249-A Cr.P.C., as the case may be, or invocable in the cases in which the Court feels no probability of the accused being convicted of any offence, whereas the extraordinary power under Section 561-A Cr.P.C. can be used in all cases of misuse of process of law to prevent the injustice. The similarity in two provisions of law definitely does not give unlimited power to the trial Court to go side by side in exercise of power under Section 265-K Cr.P.C. to that of the power of this Court under Section 561-A Cr.P.C. If the provision of a law is being wrongly applied to a case or the Court without jurisdiction is proceeded with the matter and the process of law and Court is being used not in the interest of justice but for the sake of settling the private disputes or if the charge is not supported by the evidence on record, the High Court without asking for the invocation of the provision of Sections 265-K or 249-A Cr.P.C. before the trial Court/ Magistrate in exceptional cases in the larger interest of justice unhesitantly exercises its inherent jurisdiction under Section 561-A Cr.P.C. In the cases in which the use of machinery of criminal law and the proceedings before a criminal Court subordinate to the High Curt amounts to abuse of process of law, the barrier of Sections 265-K and 249-A Cr.p.C. will not stand in the way of provision of Section 561-A Cr.P.C. The facts of the present case justifiably calling interference of the High Court, this petition under Section 561-A Cr.P.C. is entertained and deposed of as Notice case. 9. The alleged transaction manifestly creating a contractual liability, it can at best be a case of breach of contract creating a civil liability and in case of criminal liability, if any, it cannot more than the criminal breach of trust and then too if the essential element of entrustment and dishonest mis appropriation can be traced. This is noticeable that mere giving of money for doing a job and failure of a person to fulfil his obligation as per 1998 MRS. SURAYYAFARMANv. STATE Cr.C. 1637 (Muhammad Nawaz Abbasi, J.) understanding and commitment does not ipso facto constitute a criminal offence. Notwithstanding the diversity of facts and the nature of the allegation levelled against the petitioner for the determination of the pivotal question relating to the validity of proceedings on the basis of report submitted by the FIA under Section 173 Cr.P.C. and taking of cognizance of the matter and exercise of jurisdiction by the Special Court, it will be necessary to examine the relevant provision of law dealing the subject. Section 4(h) Cr.P.C. defining the complaint is read as under:- "COMPLAINT" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer." 10, The Federal Investigating Agency having established under Federal Investigating Agency Act, 1974 (Act VIII of 1975) is constituted to perform the function as envisaged under Section 3 of the ibid Act, which provides as under:- (1) Notwithstanding any thing contained in any other law for the time being in force, the Federal Government many constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of, the offences specified in the Schedule, including an attempt or conspiracy to commit, and abetment of, any such offence. (2) The Agency shall consist of a Director General to be appointed by the Federal Government and such number of other officer as the Federal Government may, from time to time, appoint to be members of any Agency. 11. The Director General of the Agency is responsible for the administration of the Agency under Section 5(2) of the ibid Act with the exercise of all powers of the Inspector General of Police under the Police Act, 1861. This special investigating agency having established under the Special statute does not discharge functions of different nature to that of the police under Chapter XIV of the Code of Criminal Procedure, 1898. The members of the Agency exercise the same power under Cr.P.C. as police officer and not in their capacity as designated officer of the agency. The different designation given to the members of the Agency itself would not change their character, in discharge of the function of investigations of the cases within their competence different to that of the police established under Police Act, 1861. Thus, on the basis of this analogy the members of the Agency for the purpose of Criminal Procedure Code Chapter will assume the role of a Police Official. Section 5(2) of the Federal Investigation Agency Act, 1974 provides as under:- "Subject to rules, if any, a member of the agency not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer in charge of a police station in any area in,which he is for the time being and, when so exercising such powers, shall be deemed to be an officer-in-charge of a police station discharging his functions as such within the limits of his station." A member of the Agency not below the rank of Sub-Inspector exercising the powers for the purpose of inquiry and investigation shall be deemed to be an Officer Incharge of the Police Station within the limits of his Station which is also a reporting Station of the Agency for the purpose of Section 154 Cr.P.C. in the nature of Police Station established under Police Act 1861. The report for registration of a case to conduct investigation into a cognizable offence falling within the jurisdiction of FIA is a report under Section 154 Cr.P.C. There being a clear distinction between the complaint as defined under Section 4(h) Cr.P.C. and report under Section 154 Cr.P.C. the argument that the challan under Section 173 Cr.P.C. prepared by FIA on the basis of report lodged by an Inspector of FIA will acquire the Status of a complaint under Section 24(6) of the Emigration Ordinance, 1979 is misconceived. The special provision of Section 24(6) (ibid) provides as under:- "A Special Court shall take cognizance of, and have jurisdiction to try, an offence punishable under this Ordinance only upon a complaint in writing which is accompanied by the previous sanction of the Federal Government. The Federal Government may by a general or special order in writing authorise in this behalf." The plain reading of this provision of law imposed an essential condition of filing a complaint by a person authorised by the Federal Government to take cognizance by the Special Court. There is no special or general order available on record that the Inspector, who lodged report on the basis of which the case was registered, was authorised by the Federal Government to file complaint before the Special Court under the Emigration Ordinance, 1979. A member of F.I. A. by virtue of his office is not authorised to act as such and assume the role of complainant. 12. The accumulative effect of the reading of provision of Section 5 of the Federal Investigation Agency Act, 1974 together with Section 4(h), 154 and 173 Cr.P.C. and Section 24(6) of the Emigration Ordinance, 1979 manifestly show that a member of the Federal Investigation Agency as such is not authorised to exercise powers under Emigration Ordinance, 1979 in consequence to the investigation into an offence, under Emigration Ordinance will be complainant to file a complaint under the provision of Section 24(6) of the said Ordinance with the exclusion of the person authorised to file such complaint. The bar of taking cognizance and exercise of jurisdiction to try an offence under Emigration Ordinance, 1979 except upon a complaint does not debar the F.I.A. from entertaining the report lodged by an individual or the conducting of investigation or inquiring into it, but the general practice of submission of challan having made inapplicable, the Court concerned cannot take cognizance of the matter for trial of offence under Emigration Ordinance without filing the complaint by the person authorised by the Federal Government. Thus unless a complaint, other than a report under Section 173 Cr.P.C. based on the F.I.R. under Section 154 Cr.P.C. is filed as provided under Section 24(6) of the Ordinance, the Special Court cannot take cognizance of the case and exercise jurisdiction in an offence under Emigration Ordinance, 1979. 13. The inclusion of the offences under Emigration Ordinance, 1979 in the Schedule to the F.I.A. Act, 1974 undoubtedly authorised the F.I.A. to deal with such cases, but the same does not change the legal position and waived the requirement of complaint under Section 24(6) of said Ordinance. There is no bar for the F.I.A. to conduct an inquiry into the offence under Emigration Ordinance and proceed against a person but without a proper complaint by the person, who is specifically authorised, the proceedings in the Court are nullity. The F.I.A. while exercising power as investigating agency of such offence must fulfil the requirement of Section 24(6) of the Emigration Ordinance, 1979 and unless there is some special or general order made by the Federal Government, an individual member has no authority to act as complainant under the special law. The report under Section 173 Cr.P.C. either prepared by the police, established under Police Act, 1861 or any other agency such as F.I.A. established under the F.I.A. Act, 1974 cannot be termed as a complaint under Section 4(h) Cr.P.C. read with Section 24(6) of the Emigration Ordinance, 1979 for the purpose of taking cognizance i-.nd exercising jurisdiction by the Special Court into the offence under Emigration Ordinance, 1979. The submission of report by F.I.A. in consequence to the investigation of a case under investigation does not empower the Court concerned to take cognizance of the case. The report other than a complaint as specifically envisaged under Section 24(6) of Emigration Ordinance cannot be treated as complaint and the proceedings on the basis of F.I.R. and challan are without jurisdiction. It was held in Akbar Beg v. The State (P.L.D. 1975 Lahore 1440), a case under West Pakistan Foodstuffs (Control) Act, (XX of 1958) that every individual is not competent to move the Court for offence under Act XX of 1958 and the Court could take cognizance of offence only on the report of public servant defined in Section 21 P.P.C. the relevant portion of the judgment is reproduced as under:- "Section 10 of West Pakistan Foodstuffs (Control) Act, 1958, also place a similar restriction on the Court's power to take cognizance of an offence punishable under the said Act. It provides that every one should not be permitted to move the Court and it is only on the report of the 'public servant' as defined in Section 21, P.P.C. that the Court can take cognizance of such cases." The contention of the learned Standing Counsel that the F.I.A. submitted the challan after investigation on the basis of report lodged by an aggrieved person and the Inspector, who submitted the challan is deemed to be a person authorised and challan will be treated as complaint is in conflict to the provisions of law on the subject. The person authorised in terms of Section 24(6) of' Emigration Ordinance normally would be definable somebody from the department dealing with the subject and not the police or F.I.A. as the case may be. Thus, the machinery of Court of Special Judge cannot be brought into motion by submitting challan amounting to circumventing the provision of Section 24(6) ibid. If the challan in the nature of police report could serve the purpose, then there was no need of inserting the word 'complaint' in Section 24(6) ibid. Section 195(l)(a) Cr.P.C. creating similar bar provides that no Court should take cognizance of any offence punishable under the provisions of law referred therein except on the complaint in writing of the public servant concerned. Thus, complaint in such cases can only be filed by the person referred therein and the Court concerned cannot take cognizance on the report of any other public servant. Under Section 192(2) of Customs Act, 1969 (IV of 1969), no person including a police officer is empowered to investigate and submit the challan in the offence under said Act except by the person notified as Customs Officer under Section 6 of Customs Act, 1969. In the case of Dr. Ghulam Qadir v. The State (1976 P.Cr.LJ 922) and Allah Waravyo v. The State (1972 P.Cr.L.J. 585), in similar situation, the proceedings under Customs Act, 1969 and under Section 144 Cr.P.C. were quashed. 14. The review of the different provisions of law shows that the Special Judge, Anti-Corruption is not competent to exercise jurisdiction on the basis of report prepared by an official of F.I.A. unless a proper complaint is made by the proper person in terms of Section 24(6) of the Emigration Ordinance, 1979. 15. The contention that the provisions of Section 22 of the Emigration Ordinance, 1979 on the basis of allegation through oral evidence without proof of conducting the transaction through documentary evidence are not attracted, is not without force. Section 22 of the Emigration Ordinance, 1979 provides as under:- "Receiving, money etc. for providing foreign employment, whoever for providing or securing, or on the pretext of providing or securing, to or for any person employment in any country beyond the limits of Pakistan:- (a) being on Overseas Employment Promoter, charges any fee in addition to the prescribed amount, of (b) not being such a promoter demands or attempts to receive for himself or for any other person any money or other valuable thing. shall be punishable with imprisonment for a term may extend to fourteen years or with fine, or with both." Clause (a) of this Section deals with the case of Promoters whereas clause (b) deals with the case of a person who is not Promoter but transics the business of Overseas Employment. The arguments of the learned Standing counsel that to prove the charge under Section 22(6) oral evidence is sufficient but the documentary evidence is essentially required in proof of the charge under Section 22(a) of the Emigration Ordinance, 1979 is self contradictory. The two clauses of this Section dealing with two independent classes of person engaged in the business of Overseas Employment having common features except the authorisation to transics such business, the same standard of evidence would be required to prove the allegation that money was received for employment in abroad. Thus, unless some documentary evidence of taking an actual step for immigration while transacting the business of Overseas Employment is produced, mere allegation of receiving money for providing employment to a person abroad, is not sufficient evidence of commission of such an offence. Admittedly, incriminating material in the nature of indicating the engagement of the petitioner in th business of overseas employment is not available on the record. The passports of the PWs have been taken into possession by the FIA from the custody of the witnesses to be used against the petitioner. The Investigating officer in order to create evidence arranged the production of passports from the PWs which having not recovered from the custody of the petitioner or any other person, other than the person who were issued by the concerned office could not be used as an evidence against the petitioner. Except, the general statement of PWs recorded by the 1.0. no other evidence has been brought on record to connect the petitioner with the alleged transaction. It is not known that when and in what manner the amount in question alongwith the passports etc. was delivered to the petitioner and how she returned the same to the witnesses after registration of the case. The mere assertion of payment of money for employment abroad will not be satisfactorily fulfilled the requirement of law to bring the case within the purview of Section 22 of the Emigration Ordinance, 1979. The allegation that the petitioner through breach of promise of providing service abroad failed to return the amount received by her, may create a civil liability, but the use of criminal law in such matter in such manner is gross abuse of process of law. The facts and circumstances of the case, suggest that the criminal proceedings have been brought in the matter with extraneous reasons and not to advance the criminal administration of justice. There being no chance of success of prosecution in the given facts, the ultimate conviction is not foreseen, if the proceedings would have been initiated through proper complaint, therefore, the continuation of the proceedings of the case, the cognizance of which has been taken upon the police report and not on a complaint as provided under Section 24(6) of the Emigration Ordinance, 1979, will be of no useful purpose. The alleged transaction of receiving money for providing service abroad and failure to do the needful or return of money although contained no element of cheating or breach of trust constituting an offence under Section 420/406 PPC but even if the petitioner is charged for the commission of such an offence, the same is not triable by the Special Judge but the cognizance can be taken by a Magistrate. Thus, the proceedings against the petitioner under Emigration Ordinance, 1979 upon police report, being derogatory to the mandatory requirements of law of taking cognizance only on the complaint, are coram-non-judice. 16. In the light of the above discussion, this petition is allowed. The criminal proceedings under Emigration Ordinance, 1979 against the petitioner before the learned Special Judge Central, Rawalpindi are quashed. (T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1643 Present: SHAH JEHAN KHAN yousafzai, J. Mst. MASTARI-Petitioner versus NOOR NAWAZ alias NOOR NIAZ and another-Petitioners Crl. B.C. No. 341 of 1997, accepted on 16.3.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(5)--Pakistan Penal Code (XLV of 1860), S. 302/34-Cancellation of bail on ground of prolonged abscondance and specific role attributed to accused-Prayer for-Admittedly, accused/respondent and absconding accused are charged for effective firing at deceased through pistol-He remained absconder for about four years and seven months with no plausible explanation-Impugned order is perverse and accused/ respondent is prima facie reasonably connected/involved in commission of offence which is punishable for Qisas or diyat amounting to transportation for life-Prosecution has failed to effect recovery of crime pistol due to abscondance of accused/respondent immediately after occurance-Held: Absconder loses some of normal rights granted by procedural or substantive law and noticeable abscondance disentitles absconder to concession of bail notwithstanding merits of case-Bail cancelled. [Pp. 1645 & 1646] A, B, C, D, E & F PLD 1985 SC 182 and 199 P.Cr.LJ 719. Mr. Muhammad Rafique Baloch, Advocate for Petitioner. Mr. Dost Muhammad Khan, Advocate for Respondent No. 1. Malik Hamesh Gul, Advocate for State. Date of hearing: 16.3.1998. judgment . The instant bail cancellation petition filed by the widow of deceased Amir Rehman against the order of Addl. Sessions Judge, Bannu dated 15.11.1997 whereby Noor Nawaz alias Noor Niaz was allowed bail in case FIR No. 234, registered on 23.3.1993 for committing an offence punishable under Sections 302/34 PPC of Police Station Saddar Bannu. 2. Facts in brief are that Rabnawaz complainant (now dead) has lodged the report regarding the murder of his son Amir Rehman, wherein Aurangzeb, Jehanzeb, brothers inter se and accused/respondent Noor Nawaz were charged for the said murder. As per contents of FIR Aurangzeb was attributed the role of command to the co-accused to kill deceased while Jehanzeb and Noor Nawaz were attributed the role of effective firing through pistols at the deceased. The motive behind the occurrence was disclosed that few days before the occurrence the accused had beaten the deceased. 3. All the accused nominated in the FIR absconded immediately after the occurrence and they were proceeded u/Ss. 87/204 Cr.P.C. A Challan u/S. 512 was submitted on 28.5.1993. Subsequently Aurangzeb accused was arrested on 3.4.1994 and he was put on trial. At the conclusion of trial he was granted acquittal by giving him the benefit of doubts in the prosecution case vide order dated 23.2.1995 of the Addl. Sessions Judge Bannu in Sessions Case No. 50 of 1994. 4. Jehanzeb accused is still absconder in the case while Noor Nawaz accused/respondent was arrested on 26.10.1997. On his arrest he applied for bail to the Court of Addl. Sessions Judge, Bannu which was allowed to him vide impugned order referred to above. 5. The learned counsel for the widow of deceased contended that the accused/respondent is charged for effective firing at the deceased in broad day light. There is an occular evidence supported by the medico-legal report and recoveries of two empties of .30 bore pistols from the spot, the conduct of accused/respondent who remained absconder for about 4 years and 7 months also corroborate the prosecution case. Also contended that the learned Additional Sessions Judge has given the benefit of judgment in the case of acquitted co-accused Aurangzeb and has ignored the unexplained prolong abscondance of the accused/respondent and has over looked the role attributed to the accused/respondent. 6. Malik Hamesh Gul, Advocate, learned counsel for the State supported the contentions of the learned counsel for the complainant party and argued that the accused/respondent made himself available for the arrest after the acquittal of the co-accused Aurangzeb. The abscondance of accused/respondent has damaged the prosecution case. 7. The learned counsel for the accused/respondent contended that once a bail granted could not lightly be interfered unless it is shown that the bail granting order is perverse or the accused has misused the concession of bail. Further submitted that the prosecution evidence already disbelieved in the case of acquitted accused Aurangzeb could not be improved in the trial of the accused/respondent. Added that the motive has been attributed to the co-accused and there was no motive for the accused/respondent to commit the murder of deceased Amir Rehman. Further submitted that the accused/respondent was a Jr. Clerk in C & W Deptt. and due to involvement in the present case he has already suffered a lot. Further submitted that the case against accused/respondent is of further enquiry as there is a conflict between the medical evidence and the ocular evidence on the ground that the inlet wounds, 1, 5 & 8 on the person of deceased were found with blackening marks while the accused were shown at a distance of two paces and the victim could not receive an injury with blackening marks from such a distance if fired through a pistol. 8. I have heard the learned counsel for the parties and have gone through the record. 9. Admittedly, the accused/respondent and the absconding accused Jehanzeb are charged for. effective firing at the deceased Amir Rehman through Pistol. As per medical report the deceased had received a number of inlet wounds. During the spot inspection two empties of .30 bore pistol were also recovered from the place closed to the point where from the accused/respondent allegedly fired at the deceased. The accused/respondent remained absconder for about four years and seven months with no plausible explanation. The learned Additional Sessions Judge has considered the delay in lodging the FIR, the relationship of the eye-witness with the deceased, suspected the presence of Abdul Nawaz, an eye witness on the ground that he did not accompany dead body to the Hospital, one of the injury'was not caused through fire arm and the blackening around some of the injuries on the person of deceased and non-recovery of weapons of crime from the accused/respondent. 10. The impugned bail granting order is perverse because it amounts to rejection of the prosecution case in the disposal of bail application which is not permissible in law. The Courts can make a tentative assessment of the available record to arrive at a conclusion that where reasonable grounds exist to believe that the accused/petitioner has committed the alleged offence but deep appreciation of the prosecution case is not permissible under the law for disposal of "bail petition". Since the learned Additional Sessions Judge has discussed the prosecution case in a great depth and has not considered theprima facie nature of the prosecution case, therefore, in my view, the impugned order is perverse and the accused/respondent is prima facie reasonably connected/involved in the commission of offence which is punishable for Qzsas or Diyat amounting to transportation for life. ' 11. The accused/respondent in his bail petition before the lower Court has conceded that he though aware of the charge could not surrender due to fear and torture of police and other miseries likely to be faced by him. He has also alleged plea of 'Alibi'. Had he been falsely charged, he should have surrendered before the Investigating Officer and could produce official record of his attendance at the relevant time. This is also a fact that though a civil servant in C & W Department, he opted for absconsion at the cost of his service which is unusual for an innocent person.. He made himself available only when Aurangzeb a co-accused was granted acquittal. In these circumstances, accused/respondent could not be granted the benefit of bail as bonus for his absconsion. The prosecution has failed to effect the recovery of crime pistol due to abscondance of the accused/respondent immediately after the occurrence and it has been observed in "Muhammad Sadiq vs. Sadiq" (PLD 1985 S.C. 182) and Irshad & others vs. The State (1996 P.Cr.L.J. 719) that absconder loses some of normal rights granted by procedural and substantive law and noticeable abscondance disentitles the absconder to the concession of bail notwithstanding merits of the case. '• 12. In the present day society it has been noticed that in a number of cases the culprits abscond after the occurrence and surrender in peace meal. An accused having been attributed a lesser role in the commission of offence always surrenders first and on getting acquittal, paves way for other co-accused having been assigned majored role, as happened in the present case. By adopting such techniques the culprits pressurise the victim's family to patch up the matter with them or pursuade/influence or threaten not to deposed against them. Due to fear even the close relatives feel hesitation in deposition in Courts against fugitive from law always succeeds in getting benefit from his such conduct, resultantly people never come forward in the help of those who are subjected to aggression and number of crimes are increasing day by day and people are losing confidence over Courts of Justice. The tendency to avoid arrest is needed to be checked and fugitive from law who deliberately avoids to face the investigation should not be granted bail liberally. 13. There is another aspect of the present case, the bail petition was moved before the Additional Sessions Judge on original side without applying to the Magistrate for bail, although the Court of Session can only take cognizance u/S. 193 if the case is sent by the Magistrate. 14. In these circumstances of the case, I set aside the impugned order dated 15.11.1997 and the bail granted to him is recalled. The accused/respondent, present in Court, is taken into custody and be produced before the trial Court on 1.4.1998. 15. The challan against the accused/respondent has already been prepared, the prosecution is directed to ensure the submission of challan to the Coiirt of competent jurisdiction forthwith so that it should be available before trial Court on 1.4.1998 and the trial court, is directed to expeditiously dispose of the case against the accused/respondent within a period of three months. (T.A.F.) Petition accepted & bail cancelled.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1646 Present: dr. munir ahmad mughal, J. MUHAMMAD SHAFI-Petitioner versus S.H.O. POLICE STATION CITY ARIFWALA, DISTT. PAKPATTAN-Respondent Crl. Misc. No. 425/H of 11998, allowed on 25.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- -:--Ss. 491 & 491-Habeas Corpus Petition-Detenu wanted by police in a case but instead of making arrest, he was detained unlawfully-After order of Bailiff was passed for recovery of detenu, police entered arrest in record--Validity-It is well settled that High Court is competent to examine and satisfy itself that detenu is not being held in custody without lawful authority or in unlawful manner-Courts have to safeguard fundamental right of every citizen and to protect life and liberty from illegal, un-authorised and mala fide acts of omissions and commissions by any authority or person-Held: Arrest of detenu has been effected after habeas corpus petition was filed-Although arrest is formally legal, bail is granted to detenue. [Pp. 1649, 1650 & 1653] A, B & C PLD 1998 SC 313, PLD 1971 SC 677 and PLD 1968 SC 349. Mr. Abdul Rashid Shaikh, Advocate for Petitioner. Mr. AltafHussain Raan, AAG for State. Date of hearing: 25.6.1998. order Faiz Ahmad gave his daughter Mst. Razia in marriage to Muhammad Ashraf. The said Muhammad Ashraf caused curelity to her and even refused the petitioner to see her. On that an application under Section 100 Cr.P.C. was made to the learned Magistrate who on recovery allowed her to go with her parents. On 3.10.1996 the Respondent No. 2 and others attached the petitioner and abducted her daughter and grand daughter on which FIR No. 176/97 under Sections 365/148/149 PPC was registered. Again another FIR No. 519/97 dated 21.10.1997 was registered at the instance of Muhammad Yar at Police Station city Arifwala under Sections 452/34 PPC read with Section 13 of Arms Ordinance 20 of 1965. Meanwhile, suit for dissolution of marriage was also filed by the daughter of the petitioner and in order to pressurise her another FIR No. 227/98 dated 8.6.1998 under Sections 342/379/148/149/337(F)(i) read with Section 13 of Arms Ordinance 20 of 1965 regarding the same occurrence. Faiz Ahmad came to this Court through Writ Petition No. 5312/98 and an order was passed on 23.6.1998 by this Court that Respondent No. 1 shall not harass the petition. The detenu Muhammad Afzal Shah was a witness in the FIR No. 519/97 where Muhammad Ashraf was made to sit in his Baithak. The FIR no. 519/97 was found false by the local police but under the orders of the High Court it is under investigation in the Crimes Branch. Regarding the same incident Muhammad Ashraf got recorded FIR no. 227/98 after eight months of the incident on 8.6.1998. Mtihammad Afzal Shah was petitioner No. 3 in W.P. No. 5312/98. 2. This Petitioner No. 3 Muhammad Afzal Shah was arrested by the police on 20.6.1998 under FIR No. 227/98 and a prayer was made in the writ petition that since he has been arrested he be allowed bail but the police actually did not show him as arrested and the petitioner's cousin Muhammad Shaft filed Habeas Corpus petition No. 425-H/98. The petition was filed in the memorandum at 9 'O Clock in the office for same day's hearing and the order of Bailiff was passed after the Division Bench was over for the recovery of the detenu and meanwhile the police entered arrest in the record. 3. The learned counsel for the petitioner submits that it is a cplourable and mala fide action to defeat the proceedings of this Court, The learned counsel has relied upon the case of Government ofSindh through the Chief Secretary, Karachi and 4 others vs. Raeesa Farooq and 5 others (1994 S.C.M.R. 1283) where in similar circumstance the High Court had granted bail and when applicable for cancellation was moved the same was summarily dismissed without recording any finding and the leave was granted to consider the following questions:- "(i) whether the High Court was justified in allowing the above Constitutional Petition in the above terms after having been informed that the above four detenus were allegedly involved in the above F.I.Rs.' (ii) whether the High Court was justified in dismissing the above criminal miscellaneous application for cancellation of bail summarily without recording any finding, whether the allegation of the State that the four detenus jumped the bail, was correct or not." and the appeal of the Government was dismissed. 4. The learned Assistant Advocate General has taken the stand that once the detenu had been formally arrested the habeas corpus petition becomes infructuous because it is a matter of investigation which would be onducted by the Investigating Officer in accordance with law. 5. I have given due consideration to the valuable arguments on both sides and perused the record. 6. The Hon'ble Supreme Court in the above ruling has given the following guidelines:- "It is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of any person, the High Court will not straightaway refuse to exercise jurisdiction the moment and information is laid that the detenue is involved in any criminal case registered with the Police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affairs, the detenue has not been illegally detained without a proper and legal remand order where it is required and there appear reasonable grounds for. believing that the detenue is involved in the crime charged with. If one it is conceded that on receipt of information as supplied the High Court should refuse to exercise its Constitutional jurisdiction without examining it, the very provision of the Constitution (Article 199 (l)(b)(i) conferring power of judicial review, will be frustrated. The High Court is competent to examine and satisfy itself that the detenue is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reasons, facts and causes leading to detention. While examining, the High Court will not act as an appellate Court nor will it make sifting investigation. In such Constitutional petition the prosecution is bound to disclose the material upon which it has acted and the Court is to satisfy itself that such action is lawful and not in violation of law and fundamental rights. Reference can be made to Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 SC 313) in which the appellant had challenged his detention under the Defence of Pakistan Rules, 1965 by filing Constitutional petition in the High Court under Article 98(2)(b) of the Constitution of 1962 (Article 199(l)(b) of Constitution of 1973) which was dismissed. While accepting appeal Hamoodur Rahman, J. (as he then was) made the following observation which is applicable to the present case as well:- "This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under the present Constitution of Pakistan is wholly different, for, the Article 98(2)(b)(i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court to 'satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner'. Can this Constitutional duty be discharged merely by saying that there is an order which says that he is being so detained? Can the High Courts be expected to be satisfied on the mere ipse dixit of the detaining authority? If this could be so, then this 'judicial Power' would as pointed out in that case, be 'reduced to a nullity of laws are so worded or interpreted that he executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction', for imposing restraints on the enjoyment of the fundamental rights of citizens, and Article 2 of the Constitution itself would be 'rendered meaningless'. If the mere production of an order of a detaining authority, declaring that he was so satisfied, was to be held to be sufficient also to 'satisfy' the Court then what would be the function that the Court was expected to perform in the discharge of this duty." "However, as I have said earlier, my reading of the majority decision in Ghulam Jilani's case to which I am a party, is that it alters the law laid down in Liversidge's case (1941) 3 AER 338 only to the extent that it is no longer regarded as sufficient for the executive authority, merely to produce its order, saying that it is satisfied. It must also place before a Court the material upon which it so claims to have been satisfied so that the Court can, in discharge of its duty under Article 98(2)(b)(i) be in turn satisfied that the detenu is not being held without lawful authority or in an unlawful manner. The wording of clause (b)(i) of Article 98(2) shows that not only the jurisdiction but also the manner of the exercise of that jurisdiction is subject to judicial review. If this function is to be discharged in a judicial manner, then it is necessary that the Court should have before it the materials upon which the authorities have purported to act. If any such material is of a nature for which privilege can be claimed, then that too would be a matter for the Court to decide as to whether the document concerned is really no privileged. In exercising this power the High Court does not sit as an appellate authority nor does it substitute its own opinion for the opinion of the authority concerned." The principles laid down not only govern the cases of preventive detention but apply to all such cases where detention or arrest has been challenged in the Constitutional jurisdiction of the High Court. The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorised and mala fide acts of omission and commission by any authority or person. In the instant case the information laid before the High Court was deficient and no substantive material as produced to satisfy it that will then there existed reasonable ground that the detenue had committed the crime. In fact the statement of two witnesses was not produced which was basis for involving the detenus in a crime committed five months back, report of which did not mention the names of the detenus. The prosecution therefore failed to produce material statement which was the basis for the arrest of the detenus. How could in such circumstances the High Court close its eyes to the glaring illegalities perpetuated in the background of the failure to arrest Dr. Imran Farooq. In the circumstances, the High Court was justified to reasonably conclude that the arrest was mala fide and intended to extract information about the whereabouts of Dr. Imran Farooq and therefore exercised its Constitutional jurisdiction in a limited manner by releasing the detenus on furnishing surety bond and leaving the prosecution free to make further investigation if necessary. The High Court had thus corrected actions of the investigating agencies in the right direction without in any manner interfering with the investigation. These observations find support from the following dictum of Hamoodur Rehman, C.J. in Mst. Shahnaz Begum v. Hon'ble Judges of High Court of Sindh and Balochistan (PLD 1971 SC 677):- "If an investigation is launched mala fide or in clearly beyond the jurisdiction of the Investigating Agencies concerned, then it may be possible for the action of the Investigating Agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of Section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under Section 561-A of the Criminal Procedure Code." The other aspect of this case is that Respondents Nos. 3 to 6 were released on furnishing bail bonds. This has also been challenged by the appellants. Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not probe into the merit of the case but restrict itself to the material placed before it by the prosecution to see whether some tengible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State (PLD 1968 SC 349), however, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judges came to the conclusion that the action being mala fide and also the material documents not having been produced, no reasonable grounds existed to believe, that the accused had committed the crime. This Court rarely interferes with the discretion exercised properly, judicially and legally by the High Court. In our view, considering the facts and circumstances of the case and the material produced, the learned Judges were justified in releasing the detenue on furnishing personal bond. In cases where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenue the superior Courts should not be reluctant to step in and grant relief to the citizens. The learned counsel for the appellant contended that the conditions imposed on the appellant in case respondents Nos. 3 to 6 are to be arrested as contained in the last paragraph of the impugned order are illegal. Ordinarily such conditions are not imposed but where the action and proceedings are not bona fide and with ulterior motive to obtain information about an absconding accused and arrest after arrest is made involving same person in different blind reports lodged much earlier and no explanation is provided for such series of actions in seriatim one after the other, the High Court is empowered to afford protection to the citizen against frivolous and mala « fide actions by imposing conditions on the ring authorities and agencies. We, therefore, dismiss C.A. No. 58 of 1993. Now we take up Cr.A. No. 85 of 1993 which has been filed against the order of the High Court dismissing the application for cancellation of bail granted to respondents Nos. 3 to 6. A Court granting bail is empowered to cancel it provided reasonable grounds are made out. In the present case the application made by the appellants alleged that the respondents have jumped the bail and did not attend the investigation whenever called upon to do so. These were vague and general allegations which could be made at any time against any accused. In fact once bail has been granted, the prosecution should make out strong case for cancellation not by making allegations alone, but by giving substantive proof of such allegations. In the present case the appellants had filed an application which did not give any particulars of any nature. It was an application making general allegations without any attempt to substantiate the same. The learned Judge, therefore, rejected the application. 7. In the light of the guidelines given by their Lordships of the Hon'ble Supreme Court in the case of Government of Sindh (Supra) I am convinced that the arrest has been effected after the habeas corpus petition was filed. In these circumstances, although at present the arrest is formally legal but I grant bail to the detenu, Muhammad Afzal Shah, subject to his furnishing personal bail bonds in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of Deputy Registrar (Judl.) of this court. the SHO Police Station City Arifwala is warranted to be careful in future while dealing with the liberty of the people. 8. Disposed of accordingly. (B.T.) Petition allowed for bail

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1653 Present: MANSOORALAMGIR QAZI, J. ABDUL KAREEM and another-Appellants versus STATE-Respondent Grl. Appeal No. 227 of 1991, dismissed on 14.5.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- ----S. 302/34--Murder-Offence of--Conviction for--Challenge to--Body of deceased carried nine injuries which were caused by two different types of weapons clearly indicate that two persons who individually and independently used their weapons. freely against deceased and participation of both appellants is proved beyond doubt-Eye witnesses though related to deceased yet have no reason to falsely implicate appellants--Their evidence is also corroborated by medical evidence even weapons recovered were found stained with human blood-If occurrence had taken place as accused states that deceased was on wintry night in bed with woman he liked enjoying having sexual pleasure, when he was taken unaware of accused and done to death-Whitish material on tip of penis of deceased was never analyzed positively to be semen and thus in absence of any Expert report it cannot be said to be that which defence wants to be believed-Held: Prosecution evidence adduced before trial court against appellants stands proved beyond reasonable doubt-Appeal without force is accordingly dismissed. [Pp. 1658, 1659 & 1660] A, B, C, D & E Mr. Javed Iqbal and Syed Liaquat Gillani, Advocate for Appellants. Sahibzada Farooq All Khan, Advocate for Complainant. Sh. Gul Muhammad, Advocate for State. Date of hearing: 14.5.1998. judgment Abdul Kareem aged 35 years and Muhammad Ramzan his nephew aged 28 years were challaned and sent up for trial in the said case before the learned Sessions Judge, Muzaffargarh. The learned trial court framed charge under Section 302/34 PPC against both the appellants/accused and after completion of trial the learned trial court vide judgment dated 19.6.1991 convicted both the appellants under the said charge and sentenced them to imprisonment for life and also directed to pay a fine of Rs. 5,000/-each or in default of payment of the said fine to further undergo R.I. for six months each. Both the convicts/appellants were also directed to pay Rs. 15,000/- each as compensation to the legal heirs of the deceased otherwise to further undergo R.I. .for 1/M years each. 2. Feeling aggrieved by the conviction and sentences both the appellants have preferred the present appeal against the impugned judgment while Muhammad Azam complainant has filed Crl. Revision No. 135/91 praying for the enhancement of the sentence. The appeal of the convicts and the revision petition shall be disposed of by this single judgment. 3. The unfortunate occurrence took place on 13.12.1989 at 11.30 A.M. in the area of Mauza Shah Jamal in front of the shop of Azhar Abbas Mechanic in which Khuda Bakhsh father of Muhammad Azam complainant lost his life. The place of occurrence is situated at a distance of four Furlong from Police Station Shah Jamal. Muhammad Azam PW-1 reported the occurrence to Bashir Hussain S.I. (PW-7) who recorded the statement Ex. PA at the Police Station at 12.03 noon. 4. Briefly the facts as narrated by the complainant in Ex. PA are that on 13.12.1989 he and his father Khuda Bakhsh deceased were going to Muzaffargarh on a motor-cycle when the motor-cycle developed some defect and they stopped at the sop of Azhar Abbas Mechanic situated in village shah Jamal. Since the mechanic was not available the complainant moved towards a hotel across the road where Muhammad Aslam PW-2 and Riaz Ahmad (given up PW) were present taking tea while Khuda Bakhsh ~ deceased stood in wait for the mechanic at the said shop. At about 11.30 A.M. Abdul Kareem accused armed with Chhuri and Muhammad Ramzan accused armed with iron rod appeared there and attacked Khuda Bakhsh. Abdul kareem gave Chhuri blow on the flank of the victim who fell down on the ground while he inflicted Chhuri blow on the abdomen of Khuda Bakhsh in the meanwhile Muhammad Ramzan gave iron rod blows on the fore-head of the deceased. The PWs. on seeing the occurrence rushed towards the occurrence but the accused made their good escape alongwith the weapons. Khuda Bakhsh deceased succumbed to the injuries and died at the spot. 5. The motive as narrated by the witnesses is that Abdul Kareem suspected that his sister Mst. Maqsood who is the mother of Muhammad — Ramzan accused had illicit relations with Khuda Bakhsh deceased and on that account both the accused in furtherance of common intention committed the murder of Khuda Bakhsh deceased. 6. The police reached the place of occurrence and prepared injury statement Ex. PG and inquest report Ex. PW in respect of the dead body of the deceased and despatched the same for post mortem examination. The blood-stained earth was taken into possession from the spot and it was made into a sealed parcel and secured vide Memo Ex. PD. Abdul Kareem accused was arrested on 15.12.1989. On the same day he led the police and the witnesses where on his pointation got recovered Chhuri PI from a Paiti Jisti lying in inside his residential house. It was found to be blood-stained. It was made into a sealed parcel and taken into possession vide memo Ex. PB which was attested by Muhammad Azam PW-1, Muhammad Aslam PW-2 and Bashir- Hussain I.O. (PW-7). On 18.12.1989 Muhammad Ramzan accused was arrested and on the same day he led the police and the witnesses and on his pointation blood-stained Sarya P2 was recovered from his residential Kotha. It was made into a sealed parcel and taken into possession vide memo Ex. PC in presence of Muhammad Azam PW-1, Muhammad Aslam PW-2 and Bashir Hussain PW-7. The blood-stained weapons and the blood-stained earth were sent for opinion to the Chemical Examiner and Serologist and vide report of Chemical Examiner Ex. PN and that of the Serologist Ex. PO, these articles were found stained with human blood. After completion of the - investigation the accused were challaned and sent up for trial before the learned trial court. 7. The autopsy on the dead body of the deceased was conducted on 14.12.1989 at 11.00 A.M. by Dr. Muhammad Younas, M.O. (PW-4). He found the following injuries on his person:- (1) A lacerated wound 7 c.m. x 1 c.m. on let side of head on frontal region 3 c.m. above hair region. Wound was fully blood-stained and was deep upto bone. Bone was found to be slightly depressed due to fracture probably. (2) A lacerated wound 3 c.m. x 1^ c.m. on left side of fore-head above left eye-brow. The wound was fully blood-stained. Its depth was to be observed on dissection of the dead body. (3) An abrasion 1 c.m. x % c.m. on left side of fore-head 2^[ c.m. away from Injury No. 2. (4) A stab wound 3 c.m. x 2 c.m. opening with clean cut margin 6 c.m. on superlateral on right side of the umblicus. Its depth was to be assessed on dissection. (5) A stab wound 4 c.m. x 2 c.m. opening size with clear cut margin 9 c.m. on left side of umblicus. Its depth was also to be assessed on dissection. (6) A stab wound 2 c.m. x % c.m. going deep upto subcutaneous fact when pulpated by finger. 16 c.m. from umblicus on superlateral position on left side. (7) A stab wound 6 c.m. x 2 c.m. going deep with clean margins on back of left side of the body. (8) A cut 1% c.m. x % c.m. on inner side of a root of left little finger. Wound was skin deep. (9) A ontusion mark 8 c.m. x 4 c.m. on front and middle of right thigh. (10) A small amount of whitish discharge was present on tip of penis. On dissection he found no mark of ligature on neck. There was depressed fracture of skull of 2 c.m. x % c.m. corresponding to Injury No. 2. There was linear fracture (opening of suture line between left frontal and left temporal bones) 8 c.m. in length which was corresponding to Injury No. 1. About 30 M.L. of blood was present in craneal cavity on left side on opening of skull, 'wound of Injury No. 4 had got subcutaneous. All abdomen muscles, peritoneum, ascending colon, longitudinally c,m. x 1 c.m. cut on the under surface of the liver. Mesentary of the area with its vessels was also cut. Wound of Injury No. 3 was so deep that it had cut all the layers of abdomen walls with 3 cuts at small intestines at different portions with all the mesentoric vessels which were bleeding. Wound of Injury No. 7 was so deep that it cut all the layers of abdomen walls with cutting of left renal vessels and 2 c.m. x % c.m. sized cut in left kidney on its middle level at the level of left renal vessels. Peritonial cavity was full of blood. In the opinion of the Doctor Injuries Nos. 1, 2, 3, 9 were caused with blunt weapon while Injuries Nos. 4, 5, 6, 7 and 8 were caused with sharp-edged weapon. The cause of death was due to head injury and sever bleeding leading into shock death. All the injuries were caused ante-mortem. The time between injuries and death was instantaneous and that between death and post-mortem examination was about 24 to 30 hours. 8. To prove the prosecution case they produced seven witnesses. The break up of the prosecution evidence is as follows:- • Muhammad Azam complainant (PW-1), Muhammad Aslam eye­ witness (PW-2), Faiz Bakhsh Patwari (PW-3), Dr. Muhammad Younas (PW- 4), Muhammad Rafique ASI/Moharrir (PW-5), Muhammad Rafique constable (PW-6) and Bashir Hussain S.I. (PW-7). Riaz Ahmed an eye­ witness was given up while the reports of the Chemical Examiner and serologist were tendered in evidence. The accused Abdul Kareem and Muhammad Ramzan were examined under Section 342 Cr.P.C. and in answer to question No. 8 Abdul Kareem accused has made the following statement:- "On 24.2.1989,1 had lodged a criminal case against deceased Khuda Bakhsh at Police Station Shah Jamal under Section 452 PPG vide FIR No. 28/89. Co-accused Muhammad Ramzan was the witness in that case. Khuda Bakhsh deceased was tied by both of us in our house. Deceased was an influential Zamindar and because of his fear we shifted from Chabhakpur to Shah Jamal town. Since the day we shifted, as stated above, Mst. Maqsood, my sister, also accompanied me and was residing in my house. I and my sister Mst. Maqsood used to live in Shah Jamal, but our relations were residing in village Chabhakpur. On the day of incident, a boy came at my shop and informed that an individual was present inside my house. I rushed upto the spot. I found that the door of the house was closed from inside but without any chain. I saw deceased Khuda Bakhsh committing zina with my sister. On seeing this spectacle suddenly I went into rage under grave and sudden provocation and lost control over my nervious. I caught hold of Khuda Bakhsh from his hair and dashed his head against the wooden frame of the door. He fell on the ground but scuffled and caught hold of my legs pulling me down on the ground. There was fight between deceased Khuda Bakhsh and myself in the room. I was lying under him during the fight. Suddenly I could lay hand on a Chhuri lying nearby at Pathari (cooking place). I apprehended danger to my life as well and inflicted injuries on the person of the deceased for the reasons above. I gave blows on Khuda Bakhsh's flank and abdomen. My sister, in the meanwhile, found an opportunity and descaped from crime spot. Since then, she is untraceable. I myself went to the Police Station alongwith the weapon of the offence. The incident was not witnessed by any one. Co-accused Muhammad Ramzan was also not present at the time of incident. Since the complainant party is quite influential, therefore, they have changed the place of incident and had also roped in the coaccused." He has also opted to produce defence evidence and to appear as his own witness on oath as required under Section 340(2) Cr.P.C. While Muhammad Ramzan accused in answer to question No. 8 has stated as follows:- "I am innocent. Since I was a PW against Khuda Bakhsh in a criminal case under Section 452 PPG, I have been implicated in this false case though I am innocent." And denied his presence at the spot. 9. Abdul Kareem accused in his defence has produced Mukhtar Hussain DW-1 a Head Constable of Police Station Shah Jamal and has proved FIR No. 28/89 dated 24.2.1989 under Section 452 PPC Ex. DC registered at the said Police Station on his statement. He has also appeared as his own witness and made a statement on oath and he has been subjected to cross-examination. Muhammad Ramzan accused declined to appear in the witness box and make a statement as required under Section 340(2) Cr.P.C. 10. With the assistance of the learned counsel for the appellants I have gone through the entire evidence recorded during the course of trial and also have perused the appended document which are pertinent and relevant for a just decision in the instant case. 11. The learned counsel for the State besides controverting the arguments of the learned defence counsel has supported the judgment and prayed that the conviction and sentences awarded to the appellants be maintained as the medical evidence corroborated by the recovery evidence proves the veracity of the eye-witnesses beyond reasonable doubt. From this point onwards the learned counsel for the complainant arguing the case for enhancement of sentence has emphasised that the motive in this case is established and strengthened by the statement of the accused. I am afraid this argument is neither tangible nor plausible as the prosecution has to stand on its own legs and prove its case beyond reasonable doubt. Statement of accused cannot be accepted piece meal neither it can be use to corroborate the prosecution case. Thus, it is very clear that in the present circumstances that motive does not stand proved beyond doubt. As far as the fact that whether the occurrence was committed by the one person or two persons the learned counsel has argued that since the body of the deceased carried nine injuries which were caused by two different types of weapons clearly indicates that two persons had individually and independently used their weapons freely against the deceased and thus, participation of both the appellants is proved beyond doubt. For reasons, I am of the view that it is not a case where capital sentence can be awarded. Therefore, the revision petition is dismissed the having no force in limine. 12. The learned counsel for the appellants has emphasised that the defence version put forward by Abdul Kareem appellant is plausible, cogent and should be
`cepted in toto and that the sentence awarded to Abdul Kareem appellant does not commensurate with the offence committed and it is severe. That the case of Muhammad Ramzan appellant is distinguishable, he has been involved as he was witness in the case FIR No. 28/89 lodged by Abdul Kareem appellant and that he is innocent. 13. The ocular account and evidence of recovery of weapons is supported by Muhammad Azam PW-1 son of the deceased and Muhammad Aslam PW-2 nephew of the deceased. The admitted facts are that the deceased lived in Chah Kumharwala while the accused were residents of Mauza Chabakpur and both are separated by three squares distance. Further that Mauza Shah Jamal where the accused runs a shop is not a distance of about 3% k.m. from Chah Kumharwala. The eye-witnesses though related to the deceased yet have no reason to falsely implicate the appellants and that their evidence is also corroborated by the medical evidence even the weapons recovered were found stained with human blood. The version of the appellant Abdul Kareem indicates that the alleged occurrence took place at night time and that also in his house where Mst. Maqsood also resided with him where he alone committed the murder. When both versions are put in juxta position and tested on the anvil of evidence and circumstances the version of the accused reeks with infirmities and improbabilities and the surrounding circumstances do not lend it depth and veracity. There is no evidence to show that the said occurrence ever took place as narrated by the accused. Till his statement in court the accused had never raised this objection before any Investigating Officer or court that the venue and time of occurrence had been changed. According to the doctor who performed the autopsy on 14.12.1989 at 11.00 A.M. the death of the deceased was instant while the duration between death and post-mortem was 24 to 30 hours which commensurates with time of occurrence the eye­witnesses have narrated and does not lend any support to the version of the accused. To strengthen his stance he has produced Mukhtar Hussain DW-1 to prove that he had lodged FIR No. 28/89 on 24.2.1989 under Section 452 PPC against the deceased for having trespassed into his house and that he was carught red handed at the place of occurrence and indeed if the deceased was there he should have been done to death on that night but that did not happen and is a circumstance against the accused. Be that as it may, this case was investigated and inspite of the fact that the deceased accused was shown to have been caught at the spot yet this allegation was found incorrect and the case was reported for cancellation. Further more, the blood-stained earth has been collected from near the shop of Azhar Abbas mechanic and not from the house of Abdul Kareem. If the occurrence had taken place as the accused states then the deceased was on a wintry night, in bed with a woman he liked enjoying having sexual pleasure, when he was taken unaware by the accused and done to death. This circumstance is again negated by the medical evidence because all the clothes were clad on the dead body when autopsy was conducted. All clothes were stained with blood and the clothes bore cut marks corresponding to the seat of injury and thus I it is discernible that the deceased was clad in accordance with the season and was not in a state as the accused says. The whitish material on tip of the penis 6f the deceased was never analyzed positively to be semen and thus in absence of any expert report it cannot be said to be that which the defence wants to be believed. Thus the only logical conclusion inferable which is corroborated by medical evidence, recovery evidence, ocular evidence and the surrounding circumstances is that on the day of occurrence as the shop of Abdul Kareem appellant is near the shop of Azhar Abbas mechanic both the appellants finding the deceased standing alone unarmed made an attack on him and caused his death there and then on account of the suspicion they carried in their minds. 14. Since the plea of the accused/appellants is not established nor has been accepted as discussed above. Thus believing the prosecution evidence adduced before the learned trial court the case against the appellants is held to be proved beyond reasonable doubt. Therefore, there is no force in the appeal which is hereby dismissed. The conviction and the sentences awarded to both the appellants are maintained. However, the benefit of Section 382-B Cr.P.C. which was not awarded to the appellants by the learned trial court is extended to them through this judgment. The learned trial court had inadvertently ordered the appellants to suffer 1% years imprisonment for making default in payment of compensation which is reduced to six months as provided by law. 15. The sentence of Muhammad Ramzan appellant was suspended by this Court vide order dated 20.1.1997. It is directed that he shall be taken into custody at once to serve out the remaining term of sentence. (B.T.) Appeal dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1660 Present: MANSOOR alamgir QAZI, J. ALLAH DITTA-Petitioner/Appellant versus STATE-Respondent Cr. Misc. No. 1 oM998 and Crl. Appeal No. 172 of 1997, dismissed on 19.5.1998. Criminal Procedure Code, 1898 (V of 1898)- —S. 426-Pakistan Penal Code (XLV of 1860), S. 302--Conviction and sentence—Suspension of-Prayer for--Learned Counsel for appellant/petitioner has stressed grounds with reference to evidence recorded which requires deeper appreciation, probe and evaluation- Tentative assessment of evidence produced hy prosecution also cannot be ignored at this stage-Held: There is no exceptional material to make base for suspension of sentence of appellant-Petition dismissed. [Pp. 1661 & 1662] A & B Sardar ALtaf Hussain Khan, Advocate for Appellant/Petitioner. Rana Nazir Saeed, Advocate for State. Date of hearing: 19.5.1998. order Allah Ditta petitioner/appellant is seeking suspension of sentence through this petition. He was tried in the court of learned Sessions Judge, Rajanpur. Through judgment dated 24.5.1997 he was convicted under Section 302(c) PPG and sentenced to 25 years R.I. and also directed to pay Rs. 50,000/- as compensation to the legal heirs of the deceased or in default of payment to further undergo six months R.I. 2. The report of the unfortunate occurrence was lodged by : JEareed Bakhsh PW father of Ashiq Hussain deceased, wherein it is alleged that on 14.7.1993 at evening time Allah Ditta appellant/petitioner took Ashiq Hussain deceased from his house and that on the following day the dead body of Ashiq Hussain was found lying in a Dhand and the matter was reported to the Police at Police Station Kot Mithan at 1.30 P.M. where FIR Ex. PB was recorded by Jahan Khan ASI. The petitioner/appellant appeared before Rasool Bakhsh PW-3 and Allah Bachaya PW-4 on 23.7.1993 and made an extra-judicial confession before them who produced him before the police and he was arrested. Thereafter he led the police and the witnesses and on his pointation got recovered blood-stained Kassi. The motive alleged was that about six months ago, Mst. Meraj daughter of Rasool Bakhsh PW has been engaged with Ashiq Hussain deceased. Her hand was being sought by llah Ditta accused etc. Allah Ditta had allegedly asked the complainant and the victim not to claim the hand of Mst. Meraj Bibi but they refused to oblige. The complainant strongly suspected that Allah ditta accused had committed the murder of his son Ashiq Hussain in order to remove him from the scene to achieve his object. According to the doctor (PW 10) the autopsy was conducted on 15.7.1993 and he found one incised wound on the top of the head measuring 14 cm x 1.75 x bone deep which proved fatal. 3. Learned counsel for the appellant/petitioner while arguing the case for suspension of sentence has stressed grounds with reference to the evidence recorded which requires deeper appreciation of the evidence, probe and evaluation. 4. Learned counsel for the State has argued that the prosecution evidence produced is cogent. The complainant has no reason to falsely implicate the appellant/petitioner and that there is strong likelihood that the sentence awarded to the appellant by the learned trial court could be upheld in appeal even though the case is based on circumstantial evidence yet the evidence is strong and unrebuttable. 5. I am not inclined to express anything on merits of the case. At this stage the grounds urged by the learned counsel for the appellant/petitioner require deepen appreciation which cannot be gone into. The tentative assessment of evidence produced by the prosecution also cannot be ignored at this stage. Therefore, under the circumstances at the moment there is no exceptional material to make a base for suspension of sentence of the appellant. Hence this petition is dismissed. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1662 Present: mansoor alamgir qazi, J. MUHAMMAD AKHTAR and another-Petitioners. versus STATE etc.-Respondents. Crl. Misc. No. 182/M of 1997, partially accepted on 19.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 439(5) & 417-Pakistan Penal Code (XLV of 1860), Ss. 337-F (vi), 337- A (ii) & 34-Revision petition against acquittal-Sent back to Sessions Judge by High Court-Remand of case for fresh decision-Challenge to- Complainant had adequate remedy to file appeal against acquittal under Section 417 Cr.P.C. which he failed to do-Revision Petition was not competent as it was filed without certificate from District Magistrate to effect that State had refused to file appeal against acquittal-Since it was entertained and allowed it was correctly sent to the learned Sessions Judge who had initial jurisdiction to decide revision petition-Grievance of petitioner is that superior court could not bound subordinate court to re-appraise and decide afresh within framework of observation and direction made-Thus apparently order would not be as by learned trial court after application of its own mind, but would be one which has been directed and dictated by superior court-Hence it is ordered that learned trial court while deciding shall not feel cramped or handicapped by order of learned Sessions Judge and shall be free to decide matter on its own merits after applying his mind independently and at same time shall keep in mind while assessing evidence legally lapses pointed out by learned Sessions Judge-Petition partially accepted. [P. 1663&1664JA&B Ch. Faqir Muhammad, Advocate for Petitioners. Mr. Waseem Mumtaz, Advocate for Complainant. Mr. Muhammad Anwar-ul-Haq, Advocate for State. Date of hearing: 19.5.1998. order Muhammad Akhtar and Muhammad Akram petitioners alongwith Maskeen Ali and Ashiq Hussain were sent up for trial in case FIR No. 144/90 dated 28.10.1990 under Sections 337- F( vi)/337-A(ii)/34 PPC Police Station City Rajanpur before the learned Judicial Magistrate Rajanpur who after concluding the trial gave the benefit of doubt to the accused and acquitted them vide judgment dated 31.8.1992. 2. The complainant feeling aggrieved by this order of acquittal challenged the same through a Revision Petition No. 214/92 titled Abdul Rashid vs. Muhammad Akhtar Etc. before this Bench which was sent to the learned Sessions Judge Rajanpur through order dated 30.1.1995, who was accepted competent to hear and decide the petition against acquittal. 3. Be that as it may, the requirement of law which the complainant was supposed to follow and required to be corrected in initial stage has been laid down in Section 439(5) Cr.P.C.:- "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed." In the. present case the complainant had an adequate remedy to file an appeal against acquittal under Section 417 Cr.P.C. which he failed to do. The revision petition in the present, case was not competent as it was filed without a certificate from the District Magistrate to the effect that the State had refused to file an appeal against acquittal. Anyhow since it was entertained and allowed, it was correctly sent by this court to the learned Sessions Judge, Rajanpur who had the initial jurisdiction to decide the revision petition. The revision petition was decided by the learned Sessions Judge on 14.7.1997, wherein the learned Judge remanded the case for a fresh decision in light of the observations made by him in his order. The petitioners have now challenged this order through this petition. 4. As Ashiq Hussain and Maskeen Ali accused were never summoned by this court in the revision petition and Mubarik PW 4 also did not implicate them in his evidence hence they were not sent to face the trial and the acquittal of both these persons stands finalised while the case against Muhammad Akhtar and Muhammad Akram petitioners has been remanded for reconsideration, fresh decision in light of the observations made by the learned Sessions Judge, Rajanpur. 5. The grievance of the petitioner is that the superior court could not bound the subordinate court to reappraise and decide afresh within the framework of observations and directions made. Thus, apparently the order would not be as by the learned trial court after application of its own mind but would be one which has been directed and dictated by the superior court The learned Sessions Judge should have pointed out the lapses made by the learned trial court in its order and left it open to the court to judiciously apply its own mind in an independent manner-reappraise the evidence in the light of the law without having the feeling of being bound down. Hence it is ordered that the learned trial court while deciding shell tiot feel cramped or handicapped by the order of the learned Sessions Judge and shall be free to decide the matter on its own merits after applying his mind independently and at the same time shall keep in mind while assessing the evidence legally the lapses pointed out by the learned Sessions Judge. The petition is disposed of. (B.T.) Petition partially accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. (Peshawar) 1664 Present: mian muhammad ajmal, J. KHAQAN and another—Accused-Petitioners versus THE STATE and another-Respondents Crl. Misc. No. 214 of 1998, accepted on 6.7,1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Offences Against Property (Enforcement of Hadd) Ordinance, 1979 S. 17(3)~Bail-Grant of-Prayer for--Petitioners were not subjected to any identification test nor any incriminating recovery had been made from them-Mere fact that petitioners have been named for commission of crime by co-accused in his confessional statement is not conclusive in attending circumstances of case as its evidentiary value is yet to be determined by trial court-Prosecution needs more material to connect petitioners with alleged offence-Held: Case is of further inquiry- Petition accepted. [P. 1666] A, B & C Mr. MM Idris, Advocate for Petitioners. Miss Nighat Afsar, Advocate for State. Nemo for the Complainant. Date of hearing: 6.7.1998. judgment After refusal of the bail plea from the court of Additional Sessions _ Judge Abbottabad vide his order dated 26.5.1998 the petitioners have approached this Court through this application for the concession of bail in case FIR No. 173 dated 25.4.1998. 2. According to the aforesaid FIR registered under Section 17(3) of the Offences Against Property (Enforcement of Hadd) Order, 1979, Police Station Havelian 4/5 persons looted Rabbani Filling Station at 4.30 AM and took away a double barrel shot-gun from Afzal Khan complainant and an amount of Rs. 25,000/30,000 from the cashier and confined them in a room and thereafter fled away. 3. Learned counsel for the petitioners contended that more than 40 persons were interrogated by the police but could not succeed to lay hand on the culprits. On 30.4.1998 one Abdul Aziz was examined who stated to the Investigating officer that he visited a cave on 25.4.1998 at afternoon time which he used as cattleshed where 5 person namely Mushtaq, Asif, Manan, Khakan and Riaz duly armed, who were known to him, were sitting there. On his inquiry Khakan told him that he had committed a murder in love affairs. Thereafter they went towards Khokher mera. The police arrested Mushtaq Ahmed who in his confessional statement recorded on 4.5.1998 stated that he alongwith Khakan, Asif, Shahzaman and Riaz committed the JT decoity of the Petrol Pump and looted a sum of Rs. 9,700/- out of which he was given Rs. 1,700/- whereas the others were given Rs. 2,000/- each. 4. Learned counsel for the petitioners submitted that no incriminating article had been recovered from the petitioners. He contended that the confessional statement of Mushtaq Ahmed which was recorded after a long police custody, cannot be used as evidence against the present petitioners. He urged that no identification parade was held therefore there re no reasonable grounds to connect the accused with the commission of the offence. 5. On the other hand the learned State counsel argued that the confessional statement of the accused coupled with statements of the accused under Section 161 Cr.P.C. can be taken into account for consideration of bail matter. 6. Admittedly large number of people were interrogated but no clue could I found from the interrogation. Abdul Aziz in his statement dated 30.4.1998 stated that he saw five persons named above sitting in his cattle shed who upon his arrival went towords Khokhar mera. According to police record Mushtaq and two others were arrested on 1.5.1998 while the remaining two were arrested on 3.5.1998 but their statements under Section 161 Cr.P.C. were recorded on 4.5.1998 when the confessional statement of Mushtaq Ahmed similar to his police statement was recorded. Afzal Khan complainant, Wajid and Zahid consistently stated that the decoits snatched a double barrel gun from the chowkidar (complainant) and Rs. 4,000/- from the helper (Wajid) and Rs. 25/30 thousand inclusive of Rs. 4,000/- from the cashier (Zahid). The chowkidar and the other staff of the pump could neither produce the licence of the allegedly snatched double barrel gun nor could provide any other information to the police about the said gun. After confessional statement of Mushtaq Ahmed the cashier had to modify and amend his statement regarding the looted money, which was brought in line with the confession vide his application dated 4.5.1998 to be Rs. 9,700/- and accordingly his supplementary statement was also recorded on 4.5.1998 i.e. the same date on which confession of Mushtaq Ahmed was recorded. The change in the version of the cashier after the confessional statement is very significant which has created serious doubts in the case. In the instant case the petitioners have not been named in the FIR and in so far as the statement of Abdul Aziz is concerned he has not said even a word about the implication of the aforesaid accused in the present case nor any commxmication was made to him with regard to the present offence. The petitioners were not subjected to any identification test nor any incriminating recovery has been made from them. The recovery of currency notes allegedly at the instance of the petitioners from the third person shall be examined at the trial as at this stage it does not, lend any link so as to connect the petitioners with the commission of the crime. Mere fact that the petitioners have been named for the commission of the crime by the co- B accused in his confessional statement is not conclusive evidence in the attending circumstances of the case as its evidentiary value is yet to be determined by the trial court. In view of the above, the prosecution needs some more material to connect the petitioners with the alleged offence and as such it is a case of further inquiiy. In the circumstances, the petitioners are admitted to bail in the sum of Rs. Two Lacs (Rs. 2,00,000/- with two sureties each in the like amount and to the satisfaction of Illaqa/Judicial Magistrate. The Magistrate must ensure that the sureties are local and men of means. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Quetta ) 1667 Present: amanullah khan yasinzai, J. SHAMRAZ KHAN--Applicant versus STATE-Respondent. Crl. Bail Application No. 181 of 1998, dismissed on 26.6.1998. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 498-Pakistan Penal Code (XLV of 1860), Sections 409/468/471/ 477-A/420/109-Prevention of Corruption Act (II of 1947), Section 5 (2)~ Non-delivery of wheat to PR Centres by Contractor causing loss tc exchequer-Grant of protective bail by High Court Sindh-Pre-arrest bail in High Court Quetta-Grant of-Prayer for-Whether Petitioner could by-pass Court of Sessions Judge in so doing-Question of-It is settled principle of law that when two courts enjoyed concurrent jurisdiction, lower court should be moved first and only under extra-ordinary exceptional and compelling circumstances, accused may be allowed to move High Court without approaching Sessions Court-After obtaining protective bail from Sindh High Court, petitioner was not virtually restrained and thus was nothing in his way to move Sessions Court for grant of anticipatory bail-Held : No exceptional grounds exist for by­ passing court of Sessions Judge and approaching High Court for grant of p re-arrest bail-Petition liable to be dismissed. [Pp. 1669, 1671 & 1672] A, B, C & E (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 498-Pakistan Penal Code (XLV of I860) Sections, 409/468/471/477/477-A/420/109-Prevention of Corruption Act (II of 1947), Section 5(2)-Pre-arrest bail-Grant of Prayer for-Prirna fade case is made out against petitioner and he has failed to point out mala fide of police and Food Department, to get petitioner involved falsely which is pre-requisite for anticipatoiy bail-Said conditions are lacking, right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fides or when no offence has been shown to be committed—Held : There are serious allegations of mis-appropriation of huge amount of Govt. money and bail before arrest cannot be considered. [Pp. 1672] D PLD 1993 SC 83; 199fi SCMR 71. Mr. Muhammad Riaz Ahmad, Advocate for Applicant. Mr. Malik Sikandar Khan, A.G. for Respondent. Date of hearing : 11.6.1998. judgment This petition for anticipatory bail was dismissed vide short order dated 11.6.98, for detailed reasons to be recorded which are mentioned herein below. 2. The relevant facts are that the Director Food Balochistan lodged a report with the Anti Corruption Establishment on 12.2.1997, under Sections 409, 467, 468, 471, 477, 477-A, 420,109, PPC read with Section 5(2) Act, II of 1947, alleging therein that a special audit team constituted by Government of Balochistan Food, Fisheries and Coastal Developments, Department and pointed out shortage of wheat during the period of 1994-95, 1996-97. It is further alleged that after examining record of dispatches from Karachi, ' Punjab and various other centers to PR centers at Balochistan about 156,042, bags of what were not delivered by the contractor and his allied irms and thus causing a loss of Rs. 147,101,479/-, to the exchequer. On this report, investigation of the case was started by the Anti Corruption Establishment. 3. The petitioner was nominated in the FIR; apprehending his arrest he got a protective bail order from High Court of Sindh at Hyderabad Circuit on 2.6.1998. The relevant portion of the said order is reproduced as below :- Keeping all factor in view I am inclined to grant protective pre-arrest bail to the applicant so as to enable him to approach the trail court i.e. court of Special Judge Anti- Corruption, Quetta/High Court of Balochistan. Accordingly the applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs. 300,00/- (Rupees three lacs) with P.R. bond in the like amount to the satisfaction of the Additional Registrar of this Court. This order shall remain operative for a period of ten (10) days from today and shall cease to have effect on the midnight of June 12, 1998 or till such time that the applicant appears before a Court in Quetta, which ever earlier. The above order is made without prejudice to the merits of the case, which would be considered by the appropriate Court. 4. The petitioner has filed this petition for pre-arrest bail before this court. I have heard Mr. Muhammad Riaz Ahmed, Advocate for the petitioner and Mr. Malik Sikandar, Advocate General for state. 5. The learned A.G, at the very out set apposed this petition inter lia on the following grounds :- (i) That without approaching the Sessions Court petition filed before this court is not maintainable. (ii) The petitioner remained a fugitive from law for the last about 6 months, thus entitled to the discretionary relief of this court. (iii) The mala fides of the police have not been spelled out which is a pre-requisite for grant of anticipatory bail. 6. Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner contended that jurisdiction of the High Court and Sessions Court in respect to grant of bail are concurrent, thus without approaching the Sessions Court would not make any difference and moreover, there are no hard and fast rules for not moving the lower court first and further contended that the petitioner was never a fugitive, he has been co-operating with the Investigation Officer and with Food Department and lastly stated that the arrest of the petitioner is based on mala fides which entitles the petitioner for grant of pre-arrest bail. 7. Mr. Malik Sikandar, learned Advocate General strenuously opposed the filing of the anticipatory bail application before High Court, instead of moving the Sessions Court. The learned A.G. contended that it has became matter of course with the accused persons to file pre-arrest bail petitioners, directly in the High Court, this practice not only burdens the High Court but is also against the accepted principles, that when two courts, have concurrent jurisdiction the subordinate court should be moved in the first instance. The learned A.G. contended that High Court has entertained pre bail petitions directly but under extraordinary, exceptional and compelling circumstances which are lacking in the case in hand, thus the petition is liable to be dismissed on this score. 8. The question to be determined is whether in case of concurrent jurisdiction, the petitioner should have moved the Sessions Court first before approaching this court for pre-arrest bail. It may be mentioned here that there are a chain of decisions by superior courts that in case of pre-arrest bail where the lower courts have concurrent jurisdiction with the High Court, ordinarily the Sessions Court should be moved first and accused person should not be encouraged to by-pass the Sessions Court. It is a settled principle of law that when two courts enjoyed concurrent jurisdiction the ower court should be moved first and only under extra-ordinary xceptional and compelling circumstances the accused may be allowed to move the High Court witiiout approaching the Sessions Court. The above question was examined in the case, Shaikh Zahoor Ahmed versus The State, PLD 1974, Lahore, 256 and another case, The State versus Malik Mukhtar Ahmad Awan, 1991 SCMR. In the former case it was held as below :- "After carefully considered the legal objection raised by the learned Assistant Advocate-General and going through the case-law on this point and taking note of the recent trend followed by this Court, I am of the view that petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal Procedure Code, shall not ordinarily be entertained directly by this Court. The exceptional circumstances, in which petitions might directly be entertained in the High Court, would depend upon several factors which might be of general type or those relating to a particular case. The general factors might, amongst others, include war, natural disasters and calamities, general political unrest including riots and socio-economic upheaval which might further include disturbance of lawful authority of temporary failure thereof. These general considerations from their very natural, it is clear would be relevant and material only very rarely. In ordinary times, the factors relatable to particular circumstances of each case would have to be considered in order to find out whether it (case) is so exceptional as to warrant to be enumerated nor can they be laid down with any exact specification. But it will not be out of place to visualise some board outlines in this behalf, for example :-- (a) where the high court has earlier dealt with any matter which has direct relevancy to the subjectmatter of the petition (for bail, revision) etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction; (b) where the presiding officer of the lower court is not available and his substitute it is either difficult to locate or even if locatable is unable to give substantial relief in matter; as sometimes, it happens when the Sessions Judge is no leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code; (c) Where the Presiding Officer of the lower court for any personal disqualification is unable to deal with the matter and during the time that the matter goes before another presiding officer of co-ordinate jurisdiction, there might be likelihood of irreparable damage or loss to the petitioner; (d) where the petitioner is physically incapacitated to go to the Court concerned and seek redress; e.g., if a person is ill or under genuine fear of bodily harm and travel up to the lower Court concerned is not without serious peril to his person he may move the High Court directly: (e) if there is serious and genuine apprehension of political victimisation at any levelled the atmosphere at the lower Court level is so vitiated against the petitioner that the lower Court would be embarrassed or prevented from giving relief, the High Court may be moved directly instead of an approach to the lower Court; (f) where the case is such that it combines several questions in some of which the High Court and the lower Court have concurrent jurisdiction but in others, there lower Courts have no jurisdiction e.g., if the matter requires exercise of jurisdiction under any specific provision of Criminal Procedure Code as also under the inherent power of the High Court under Section 561-A the matter may directly be moved in the High Court; (g) where cases are spread over several districts and/or there is dispute or doubt about jurisdiction. 9. In the latter case the following observations were made by Honourable Supreme Court as under :-- It is a matter essentially of propriety and not of law that a person accused of an offence should in the first instance move the Court of Sessions for pre-arrest bail before approaching the High Court. 10. In the case in hand, the arguments of Malik Sikandar, learned A.G. have force. The counsel for the petitioner has failed to point out any exceptional circumstances, whereby the petitioner to be allowed to by-pass the trial court and approach this court for grant of anticipatory bail. It may be stated that before approaching this court for grant of pre-arrest bail the petitioner obtained protective bail from Sindh High Court Hyderabad Circuit, wherein bail was granted to the petitioner to enable him to approach the trial Court. After obtaining protective bail from Sindh High Court, the petitioner was not virtually restrained and there was nothing in his way to move the Sessions Court for granting anticipatory bail. No doubt the superior courts have entertained petitions regarding pre-arrest bail under exceptional circumstances. In case of petition filed directly in High Court, it would be for the party to give cogent, and reasonable explanations for not moving the lower court in the first instance, as observed hereinabove, no such reasons were advanced by the learned counsel for the etitioner for not approaching the Sessions Court for grant of anticipatory bail. 11. In view of the case law cited above, I see no exceptional grounds or by-passing the court of Sessions Judge and approaching this court for grant of pre-arrest bail, thus the arguments of Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner are without force, the petition is liable to be dismissed as he failed to approach the Sessions Court in the first instance. 12. Reverting to the next limb of arguments regarding the petitioner being fugitive from the law, suffice to the observe, it may not be appropriate to dilate upon the same as in any case finding given on absconsion of the petitioner would prejudice the findings given by the trial court. 13. Reverting to the arguments that there are mala fides of the Police to arrest the petitioner un-necessarily to humiliate and harass him. It may bp mentioned here that the learned counsel for the petitioner, did,not dispute the shortage of wheat entailing registration of the case against the petitioner and his allied firms. Mr. Muhammad Riaz Ahmed, Advocate tried to argue that the petitioner was black listed by the Food Department without hearing him which order was set-aside by the High Court in C.P. NO. 14/98 vide order dated 15.5.1998, however, it was mentioned in the said order that the observations made in the order will have no bearing on the criminal case i.e. the case in hand. The learned counsel tried to show that registration of the case was based on mala fides however the shortage of wheat was not disputed by the learned counsel for the petitioner. The learned counsel failed to point out the malice of the police or the complainant towards the petitioner Mr. Muhammad Riaz Ahmed, Advocate while referring to the audit report stated that as far as shortage is concerned the department is not certain about the quantity. The learned counsel pointed out to various portions of the audit report wherein various quantity of wheat was shown to be short. Be that as it may, the shortage of wheat in any case has not been disputed irrespective of the quantity mentioned in the FIR. 14. From the perusal of record a prima facie case is made out against the appellant and the petitioner has failed to point out any mala fides of the police and the Food Department to get the petitioner involved falsely, with is a pre-requisite for anticipatory bail. In the case in hand the said conditions are lacking the right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fides or where no offence has shown to be committed, conversely there are serious allegations of mis­ appropriations of huge amount of Government money. In this regard I am forfeited with the view taken in the following cases. Murad Khan versus Fazal-e-Subhan, in PLD 1993, Supreme Court Page 83 and Muhammad Azam versus The State, 1996 SCMR, 71. 15. In view of the afore-stated facts the request for bail before arrest cannot be considered, thus for the foregoing reasons the petition is dismissed. However any observations made hereinabove will have no earing on the merits of the case. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1673 Present: jawaid nawaz khan gandapur, J. GUL GHAMEER-Petitioner versus JANE ALAM and 5 others-Respondents Crl. Misc. No. 77 of 1996, dismissed on 22.6.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A--Pakistan Penal Code (XLV of 1860), 366~Abduction-Discharge of petitioner by Magistrate on statement of abductee under Section 164 Cr. PC-Quashing of order of discharge-It appears that Judicial Magistrate acted just like Natory Public and totally ignored provisions of Section 164(2) Cr. P.C.-Magistrate had discharged accused under Section 169 Cr. P.C. on 15.8.1995 then in that case petitioner was legally bound to challenge legality/validity of said order before Sessions Judge within 30 days-Since petitioner did not do so, therefore, he was estopped by his own conduct to challenge same by any other means i.e. through this petition-Petitioner has adopted very novel procedure to defame Respondents No. 1 to 4 including Respondent No. 1 & 2 who are Advocates-Held : Petitioner seems to have been originated from tainted quarter, with mala fide intention and has misused process of High court-­ Petition dismissed and petitioner directed to pay Rs. 10,000/- as cost to respondents. [Pp. 1677 & 1678] A, B, C, & D Mian Mohibuallh Kakakhel, Advocate for Petitioner. Mr. Naeem Zada Saleem Dil, Advocate for accused/respondent and Khan Azhar Rashid, Asstt. AG for State. Date of hearing: 22.6.1998. judgment Nawabzada Saleem Dil Khan, Advocate, learned counsel for Respondents No. 1 to 3 submits, inter alia, that initially petitioner Gul Ghameer had charged Jan-e-Alam Khan, Advocate (Respdt. No. 1), Firdus Khan, Advocate (Respdt. No. 2) Mst. Hazratun Nisa (Respdt. No. 3) and Ayub Khan (Respdt. No. 4) for having kidnapped his (Gul Ghameer) daughter Mst. Sabrina, aged about 10/11 years. 2. During the course of Police Investigation statement of one Munir Ahmad was recorded in the Court of E.A.C/Magistrate 1st Class, Karak. Plea of alibi was taken by one of the respondents i.e., Jan-e-Alam Khan Advocate of Karak Bar Association. Similarly it was alleged that Mst. Hazrat-un-Nisa (Respdt. No. 3) was not present on the scene of occurrence. In this regard statement of quite a few persons were recorded by the concerned Magistrate. As far as Ayub Khan (Respdt. No. 4) is concerned he was stated to be in Peshawar and got his car repaired on the day of occurrence. Accordingly the statements of the concerned mechanic and 3 other respectable persons, who were present in the mechanic's shop, were also, recorded, in addition to the statement of a Major of the Army Supply Corps namely, Muhammad Ishaq, S.S.D. Kohat. ' 3. It appears that the theory of alibi prevailed with the Sessions Judge, Karak who by his order dated 19.10.1993 released the respondents on bail keeping in view the circumstances detailed above. 4. Dis-satisfied with the verdict of the Sessions Judge, the petitioner/complainant impugned (Cr. Misc: No. 907/93) the said order before this Court. However, the said petition for the cancellation of bail was dismissed by the then Chief Justice, His Lordship, Mr. Justice Abdul Karim Khan Kundi on 3.11.1993 in limine. 5. Later, when examined medically, it transpired that the alleged abductee was not less than 18 years of age, and, therefore, she being a major, had the right to contract a valid marriage with Firdus Khan i.e., accused Respdt. No. 2. 6. On 7.5.1995 the statement of Mst. Sabrina, the alleged abductee, was recorded under Section 164 Cr. P.C. without any apparent reason. On 25.7.1995, the Investigation Officer, once against produced her before the Magistrate 1st Class Kharak and get, recorded her statement under Section 164 Cr. P.C. The second statement was recorded within less than 3 months. 7. The abductee again stated, on oath, before the Magistrate, that her statement which she gave before the Magistrate three back was correct. 8. This fact, by itself, forced the Investigating Officer to recommend the case for cancellation under Section 169 Cr. P.C. as far as Respondents No. 1 to 4 are concerned. Ironically, the Prosecuting Agency did not agree with the Investigation Officer and insisted that the abductee should be recovered in the first instance and thereafter her statement be recorded by a Magistrate one again. The file was accordingly sent back to the Investigating Officer on 20.11.1993. Resultantly, the abductee was recovered and was made to remain in the Police custody for sufficiently long time. She was also allowed to consult/meet her parents. It was thereafter that she was produced before a Magistrate and her statement was got recorded under Section 164 Cr.P.C. on 25.7.1995. Interestingly, once again, the lady insisted that her previous statements, recorded by the other Magistrates from time to time ere correctly recorded and that she had never been kidnapped. She categorically stated on oath that she had contracted a valid marriage with her free will consent. This forced the Investigating Officer to again recommend for the cancellation of the case. 9. This time the Prosecutions Branch accepted the recommendation of the I.O. and the accused respondents were discharged under Section 169 Cr. P.C. The Magistrate also passed an order in this behalf, on 15.8.1995, which reads :-- "Fresh final report for cancellation of the case received from the Prosecution. Be entered in the relevant register. Brief facts of the case are that on 28.9.1993 the complainant Gul Ghamir son of Mashal Khan resident of Aya Khel charged Jan Alain, his brother Firdus Alam, his mother Mst. Hazratun Nisa and Ayub Khan for alleged abduction of his daughter Mst. Sabrin Bibi forcibly due to previous motive of "Sharm Mastoorat". All except accused Firdus Alam are recommended by S.H.O. for release under Section 168 Cr. P.C. and challan under Section 512 Cr.P.C. was submitted against him. The abductee could not be recovered. However on 25.7.1995 the alleged abductee appeared before E.A.C. Karak and gave her statement under Section 164 Cr. P.C. wherein she stated that neither she had been abducteed nor she was forced by any body to leave her house. She further stated that she performed valid Nikah with Firdus Alam and was living within as his legally shariah weded wife. Her Nikahnama was also placed on file. She declared her statement to be based upon facts, wilful and without any pressure of fear. As per certificate furnished by the Magistrate she was very happy and in smiling mood. Keeping in view the above circumstances and facts on record, the case is hereby cancelled and all the alleged accused are discharged. Their sureties also stand discharged from the liabilities of their bail bonds. Case file be consigned to Record Room Karak after its due completion." Sd/- Sub : Divisional Magistrate Karak: 15.8.1995. Announced: 15.8.1995. 10. The petitioner, Gul Ghamir, slept over the episode for about a year i.e., from 15.8.1995 to 15.6.1996 and thereafter suddenly chose to file Writ Petition No. 654/96 (Gul Ghamir. Vs. Jan-e-Alam Khan and others). This writ petition was however withdrawn by the petitioner with permission to file a petition under Section 561-A Cr.P.C. An Hon'ble Division Bench of this Court consisting of His Lordship Mr. Justice Mian Shakirullah Jan and Mrs. Justice Khalida Rachid accepted the prayer of the petitioner and recorded the following order :-- "10.7.1996. Mian Muhibullah Kaka Khel Advocate for the petitioner. The petitioner's counsel wants to avail the remedy under Section 561-A Cr.P.C. and requests to withdraw the writ petition. Allowed. Dismissed aswithdrawn. C.Ms. No. 811 and 8212 of 1996 also stand dismissed automatically. Sd/- Sd/- Judge Judge" . 11. Instead of filing a revision petitions against the order of the Magistrate dated 15.8.1995, Vide : which the Magistrate 1st Class had discharged the respondents-accused, the petitioner chose to file a private complaint in the Court of the Sessions Judge, Karak on 15.10.1995. 12. On a second thought, the said petition was withdrawn from the Sessions Court with permission to file the same hefore the fllaqa Magistrate. The permission was granted by the Sessions judge Vide : his order dated 15.10.1995. The complaint was accordingly filed in the Court of Sub : Divisional Magistrate who entrusted the same to the Dlaqa Magistrate with the directions to record the evidence and then forward his recommendations to the Sub : Divisional Magistrate. The Illaqa Magistrate, after doing the needful, sent his report/recommendations, alongwith the evidence recorded by him, to the Sub : Divisional Magistrate who by his order dated 6.6.1996 dismissed the complaint. 13. It may be mentioned here that the validity/legality of the said order of the Sub : Divisional Magistrate was never challenged before the District and Sessions Judge and, therefore, it obtained finality. 14. The record of the case however reveals that the lady, the alleged abductee, was some how or the other, taken from Karak to Kokat by her father (the petitioner) and it was here that she was produced before Senior ivil Judge, Kohat/Judl : Magistrate Mr. Anwar Sjjad, who without going through the relevant law, recorded her statement and that too in the absence of any record, which was available in the Courts at District Karak. This statement was recorded on 16.5.1996. 15. By this statement the alleged abductee charged Firdus Alam of having forced her to marry him. In other words, she negated all her previous statements recorded under Section 164 Cr.P.C. by various Magistrate, from ime to time, on oath. 16. Since Mr. Anwar Sajjad, Senior Civil Judge, Kohat/Judl: Magistrate did not know that to do with the statement which he ad recorded, therefore, he neither passed any order on the application of the " petitioner nor directed the Investigating Officer to register a case against Respondents No. 1 to 4 i.e., no action, as contemplated by the law (Section 164(2) Cr. P.C.) was directed to be taken. A copy of the statement recorded under Section 164 Cr. P.C. was however given to the petitioner/complainant. 17. I fail to understand as to why this was done and with what motive/intention. It appears to me that the Senior Civil Judge/Judl : Magistrate Kohat acted just like a Notary Public and totally ignored the provisions of Section 164 (2) Cr. P.C. 18. On the basis of the above mentioned statement recorded by the Senior Civil Judge/Judl : Magistrate Kohat, the petitioner has now approached this Court directly with the following prayer :- "It is therefore, respectfully prayed that in the light of the above submissions the impugned order of discharge of respondents No. 1 to 4 passed by Respondent No. 6 may be set aside and the said respondents may be directed to be put on trial in accordance with law. It is also respectfully prayed that pending decision of this petition/application Respondents No. 1 to 4 may be directed to be taken into custody. Any other oJder deemed appropriated in the circumstances of the case may also be passed. The petitioner may be allowed to put forward may other document/arugment petition/application." 19. On 10.9.1996 this petition was heard in motion wherein His Lordship, Mr. Justice Mian Muhammad Ajmal had passed the following - order :- "Contends that at the time of abduction of Mst. Sabreen Bibi daughter of Gul Ghameer petitioner, she was aged about 11 years. The order dated 15.8.1995 seems to have been passed without taking into consideration the statement of the girl recorded by judicial Magistrate/Senior Civil Judge, Kohat. Needs consideration. Admit. Notice. Sd/- Judge". 20. It may be stated at the very out-set that the Hon'ble Judge was mis-informed by the petitioner because the statement of the girl (the alleged abductee) was recorded by the Judl : Magistrate/Senior Civil Judge, Kohat on 16.5.1996 whereas the order impugned was passed much earlier than that i.e., on 15.8.1995. Accordingly, there was no question of taking into consideration the statement of the girl recorded by the Senior Civil Judge/Judl : Magistrate on 16.5.1996, i.e., 9 months after the impugned order was recorded. 21. The learned counsel for the respondents submits vehemently that this petition has no merit at all and needs to be dismissed straightaway and that the petitioner be directed to pay special costs to the respondents who are respectable persons of District Karack, including two Advocates. 22. The learned counsel for the petitioner was heard at length on 15.6.1998 and today when the learned Asstt: Advocate General representing rest of the respondents i.e, No. 5 and 6 was confronted with this situation he submitted that the contention of the learned counsel for Respondents No. 1 to 4 appears to be correct. He submitted that when the Magistrate had dis­ charged the accused under Section 169 Cr.P.C. on 15.8.1995 then in that _ case the petitioner was legally bound to challenge the legality/validity of the said order before the Sessions Judge within 30 days. Since the petitioner did not do so, therefore, he was estopped by his own conduct to challenge the same by any other mean i.e., through this petition. 23. Even otherwise, after having gone though the record of the case carefully, I am of the considered view that the petitioner has adopted a very moval procedure to defame Respondents No. 1 to 4 including Jan-e-Alam Advocate (Respdt. No. 1) and Firdus Alam Advocate (Respdt. No. 2). This petition seems to have originated from tainted quater, with malicious intention and has misused the process of this Court. The same is therefore, dismissed. 24. Since this petition was instituted maliciously, therefore, the petitioner is directed to pay Rs. 10,000/- (Rs. Ten thousand) as costs to the respondents within one month. (B.T.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1678 Present: MIAN MUHAMMAD AJMAL, J. AKHTAR HUSSAIN SHAH-Petitioner versus STATE-Respondent Crl. Misc. No. 215 of 1998, accepted on 6.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- -:-S. 497-Prohibition (Enforcement of Hadd) Order (1979), Section 9-- Control of Narcotics Substances Ordinance, <XII of 1997), Section 9-C-- Recovery of opium, wine and heroin from possession of petitioner-Bail- Grant of-Prayer for-Petitioner was apprehended from near house of 'Z ! who has also been charged in FIR under Art. 26(2) of Prohibition Order, 1979 and is alleged to have handed over narcotics to petitioner for sale-- He has been allowed bail by learned Sessions Judge, therefore, rule of consistency demanded that petitioner should also be allowed same concession-Petitioner has been charged under Prohibition Order as well as under Control of Narcotics Substances Act, 1997-Former law provides life imprisonment whereas later provides imprisonment for 7 years with fine under its Section 9(b)--It is well settled principle of law that where person is charged under two laws which provide different punishments, then rule is to extend benefit of statute to offender providing lesser punishment for purpose of bail-Held : SHO himself was complainant, ho levelled accusation against petitioner, was also recovery witness and Investigation Officer, who could not probe into case under any norm of justice-Chemical report despite lapse of over two months period has not . been received-Bail allowed. [P. 1680] A & B Mr. Saeed Akhtar, Advocate for Petitioner. Mr. Farzand Ali Shah, Advocate for State. Date of hearing: 6.7.1998. judgment The petitioner is charged in FIR 373 dated 30.4.1998 under Articles 3/4/26(2) of the Prohibition (Enforcement of Hadd) Order 1979 read with Section 9-c of the Control of Narcotics Substances Act, 1997 of Police Station City Haripur whereby charged weighing one kilogram, opinion weighing 100 grams, a 'kupi' of wine and heroin weighing 15 grams was recovered from the possession of the petitioner. After the refusal of bail from the court of Sessions Judge Haripur vide his order dated 26.5.1998 he has applied to this court for his release on bail. 2. Learned counsel for the petitioner contended that the report itself contains that the narcotics recovered from the petitioner belonged to coaccused Zulfiqar who had given the same to the petitioner for sale, and Zulfiqar has been released on bail by the learned Sessions Judge vide his order dated 6.6.1998. He further contended that the report on of the Chemical Examiner has not been received so far to show whether the narcotics recovered from the petitioner were 'charas', Opium, Wine and heroin. He further submitted that if a person is charged under two different laws providing different punishments then the law which prescribed lesser punishment would be taken into account for the purpose of bail. He urged that the complainant himself investigated the case which has prejudiced the petitioner's case. 3. The State counsel on the other hand opposed the bail on the ground that the petitioner is involved in a narcotics case which is punishable to life imprisonment under Article 4 of the Prohibition Order therefore the petitioner is not entitled to the concession of bail as the offences fall under the prohibitory clause. 4. The perusal of the FIR would show that the petitioner was apprehended from near the house of Zulfiqar who has also been charged in the same FIR under Article 26(2) of the Prohibition Order, 1979 and is alleged to have handed over the narcotics to the petitioner for sale. He has been allowed bail by the learned Sessions Judge therefore the rule of consistency demands that the petitioner should also be allowed the same concession. As per FIR the samples were separated from the recovered narcotics for their chemical examination but uptill now the report has not been received. The petitioner has been charged under the Prohibition order as well as under the Control of Narcotics Substances Act, 1997. The former law provide life imprisonment whereas the later provides imprisonment for 7 years with fine under its Section 9(b). It is well settled principle of law that where a person is charged under two laws which provide different punishments, then the rule is to extent the benefit of the statute to the offender providing lesser punishment for the purpose of bail. The SHO himself was the complainant who levelled accusation against the petitioner, was also a recovery witness and the Investigating Officer who could not probe into case under any norm of justice. The Chemical report despite the lapse of over two months period has not been received. In the circumstances, this application is allowed, the petitioner is admitted to bail in the sum of Rs. One Lac (Rs. 1,00,000/-) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate. The Magistrate must ensure that the sureties are local and men of means. (T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1680 Present : MANSOOR ALAMGIR QAZI, J. IBRAHIM-Petitioner versus STATE-Respondent Crl. Misc. No. 694-B of 1998, accepted on 12.5.1998. Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Pakistan Penal Code, 1960 (XLV of 1860), Sections 302, 148 & 149-Petitioner held deceased in a japha and co-accused fired at him- Charge against-Bail-Grant of-Prayer for-Only role attributed to petitioner is that he held deceased in japha-Prima facie, there are reasonable grounds to believe that case of petitioner is one of further inquiry, and that it is yet to be seen whether he facilitated main accused while committing offence and that also whether he was positively and correctly identified to be present at spot in absence of any means for correct identification-Petition accepted. [P. 1682] A Ch. Muhammad Atta-ul-Haq, Advocate for Petitioner. Syed Shamim Haider Zaidi, Advocate for Complainant. Mr. Kamran Bin Latif, Advocate for State. Date of hearing: 12.5.1998. order Ibrahim petitioner is seeking post arrest bail in case FIR No. 118/97 dated 11.7.97 registered under Sections 302/148/149 PPG at police station Kot Mubarak District D.G. Khan on the statement of one Noor Muhammad father of Ismail deceased for an occurrence which took place on 11.7.97 at 12.30 midnight in the area of Mauza Patti Tali which is at a distance of 22 K.M. from the police station. 2. The allegation against the petitioner is that he held Ismail deceased in a Japha while Muhammad co-accused who was armed with .30 bore pistol fired at the deceased. First, two fires missed but the third fire hit the deceased. Besides the petitioner and co-accused Muhammad, Moosa, Ismail, Abdul Kareem and Asghar were also named as accused in the FIR but then have been exonerated in the course of investigation and have not been challaned. This occurrence was witnessed besides complainant by Ghulam Yaseen son of the complainant and Sawan nephew of the complainant. 3. The motive attributed in the FIR is that Muhammad accused suspected this wife to have illicit relations with Ismail deceased. Both Muhammad and Ibrahim petitioner were arrested on 31.7.1997 and the. crime weapon was recovered from Muhammad accused on the same day. 4. Learned counsel for the State assisted by the learned counsel for the complainant have argued that the challan has been submitted in Court. The copies of documents even distributed to the accused, the next date is fixed for further proceedings on 23.5.1998 and that the accused who had not been challaned by the police have also been summoned by the learned trial court and are facing trial. It is further submitted that the seat of injury is such that it could only be caused if the movement of the deceased had been made ineffective only. The petitioner is the nephew of Muhammad coaccused. 5. On the other hand, learned counsel for the petitioner has argued hat it is a dark night occurrence and though the witnesses state that the occurrence was witnessed in a torch light yet according to the Investigating Officer present with record, the torch was never taken into possession and thus, the factum of identification at the spot and the specific attribution of any overt act becomes doubtful. Furthermore it is submitted that the house of the witnesses and the deceased is at a distance of about five acres from the place of occurrence. Muhammad accused is stated to have made three fires at the deceased out of which two missed and only one was an effective shot which hit the deceased. No crime empty has been recovered from the spot 10 corroborate the version of the complainant party. It is further stated that Ibrahim petitioner had no common motive to commit this offence with Muhammad accused. 6. Arguments heard. Record perused. 7. The only role attributed to Ibrahim petitioner is that he held the deceased in a Japha and that he is involved because he is nephew of Muhammad accused. Prima facie, there are reasonable grounds to believe that the case of the petitioner is one of further enquiry and that it is yet to be seen whether he facilitated the main accused while committing the offence and that also whether he was positively and correctly indemnified to be present at the spot in the absence of any means for a correct identification. Be that as it may, since the case of the petitioner falls within the scope of Section 497 Cr. P.C. being a case of further enquiry he is allowed bail subject to his furnishing bail bond in the sum of Rs. 1 ,00,OOO /- (Rupees one lac only) with two sureties each in the like amount to he satisfaction of the learned trail court. . (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1682 " Present: SARDAR MUHAMMAD RAZA, J. SHER ALI-Petitioner versus STATE and another-Respondents Crl. Misc. No. 494 of 1998, accepted on 10.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Pakistan Penal Code, 1860 (XLV of 1860), Section 161-- Prevention of Corruption Act (II of 1947), Section 5(2)--Bail--Grant of-- Prayer for--Offence is not complete unless committed by accused— Offence, if at all, was complete when tainted money was recovered from accused, but rider to FIR would indicate that FIR was chalked much before commission of offence and even before organizing trap-This putting of cart before horse and over-zealousness of Investigating Officer has been result of his having been unduly influenced or his having been harrassed by members of Khidmat Committee-All witnesses examined under Section 161 Cr. P.C., were made to sign their statements which is imperatively prohibited under Section 162 Cr. P.C.--It is fair contradiction in terms as well as in law that on one hand statement given under Section 161 Cr. PC is inadmissible in evidence and on other hand, after having been signed by witnesses it gives impression of having become binding-Held : Admissibility of statements of such prosecution witnesses remain yet to be determined-Held Further : Petitioner who is government servant and chances of his abscondence are very remote, is entitled to bail which is allowed under circumstances. [P. 1684] A & B Mr. Khalid Khan, Advocate for Petitioner. Mr. Khawaja Azhar Rashid, Asstt. AG for State. Date of hearing : 10.7.1998. judgment Sher Ali s/o Abdur Rehman of village Baghdada Mardan is apprehended under Section 161 PPC r/w Section 5(2) of the P.C. Act, on the strength of FIR # 2 dated 25.4.1998 of Anti-corruption Establishment Mardan. He was refused bail by the learned Special Judge, Anti-corruption. 2. The background of the case is that one Mirza Gul s/o Rahim Gul, on 3.3:1998, had obtained a decree from civil court Mardan, on the basis of which he wanted to get a mutation entered. Sajjad Gul, his son contacted Patwari Halqa but the latter demanded Rs. 5000/- for getting the mutation entered. Sajjad Gul complainant made a complaint before Member Khidmat Committee, Mardan. 3. Subsequently, a raid supervised by Mr. Dedan Gul Safi Executive Magistrate Mardan was organized, tainted money was passed to Sher Ali Patwari Halqa through the complainant who was eventually apprehended and a sum of Rs. 3000/- as such money was recovered from him. 4. Learned counsel for the petitioner assailed the whole proceedings on many-fold grounds. His objections were, firstly that no time and place of occurrence is shown in the FIR; secondly, that no date of registration of case is shown; thirdly, that the investigation is conducted by members of Khidmat Committee; fourthly, that the FIR was chalked before the commission of offence and before organising a trap and; lastly, that the signatures of the witnesses had been obtained on statements under Section 161 Cr. P.C. which are prohibited under Section 162 Cr. P.C. 5. A glance through the record indicates correctly that no time and place of occurrence is mentioned in the FIR and no date of registration of case is visible either, in the relevant column but, at the same time, it indicates the enthusiasm of the Investigating Officer who forgot to properly write the things at proper places, most probably because of the fact that members of Khidmat Committee were around. I have considered the matter and believe that the anxiety of the I.O. through not justified yet has caused no damage to the accused. The time and place of occurrence can conveniently be ascertained from the recovery momos as well as the site-plant and will be clarified by the witnesses concerned at the time of trial. For the moment no prejudice is caused to the accused. The date of registration is also not doubtful because the rider to the FIR indicates that the FIR was chalked there and then almost simultaneous to the writing thereof. 6. The last three submissions of the learned counsel cannot be ignored at least at bail stage because the application dated 25.4.1998 contains an endorsement in writing by to members of Khidmat Committee Mardan who have expressed in writing that the case had been enquired into by them and that it was perfectly genuine. Influenced by such endorsement, the anxiety of the Investigation Officer stands answered but the learned Assistant Advocate General could not explain before me as to under what law and under what authority the members of Khidmat, Committee had conducted investigation and in their mind had been satisfied that the charge gainst the accused was perfectly justified. The learned Assistant Advocate General also could not explain as to what authority they had to influence the investigation and to cause a deviation from the normal course of investigation. This is indicative of glaring illegalities committed during " investigation and under influence exerted by a Committee whose legal status ould not be explained or defined and whose action has led to mala fide investigation. 7. In cases like one in hand and even otherwise an offence is not complete unless committed by an accused. The offence in the instant ase, if t all, was complete when the tainted money was recovered from the accused but rider to the FIR would indicate that the FIR was chalked uch before the commission of offence and even before organizing a trap. This putting of the cart before the horse and the over zealousness of the Investigating Officer has been the result of his having been unduly influenced or his having been harrassed, by the members of the Khidmat Committee. 8. All the witnesses in the present case, examined under Section 161 Cr, P.C. were made to sign their statements which is imperatively rohibited under Section 162 Cr.P.C. It is a fair contradiction in terms as well as in law that on the one hand a statement given under Section 161 Cr. P.C. is inadmissible in evidence and on the other hand, after having been signed by the witness, it gives an impression of having become binding. That is why such signing of statement under Section 161 Cr. PC by the witness is prohibited under Section 162 Cr.P.C. The admissibility of the statements of such prosecution witnesses remains yet to be determined at trial. Till it is so determined, the petitioner, who is a Government servant and the chances of whose abscondence are very remote, is entitled to be released on bail. 9. Consequently, the petitioner is directed to be released on bail provided a bond in a sum of Rs. 80.000/- with two local, reliable nd resourceful sureties is furnished to the satisfaction of learned Special Judge, Anti-Corruption. (B.T.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1685 Present: jawaid nawaz khan gandapur, J. SULTAN SHER-Petitioner versus ATLAS KHAN and ancther-Respondents Crl. Misc. BCA No. 1125 of 1997, rejected on 11.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)--Pakistan Penal Code, 1860 (XLV of 1860), Section 302-Bail- Cahcellation of-Prayer for-Case of further inquiry-Mere fact that respondent-accused had fired at right knee of deceased would show that he had no intention to kill him, because if he had such intention then in that case he should/could have fired at his head/chest-Secondly, perusal of site plan would show that both eye-wintesses. allegedly present at time of occurrence at place from where they could not see Respondent No. 1 firing at deceased. Thirdly, confession of Respondent No. 1, would reveal that he had no intention to kill deceased or any body else-It appears from record that he had fired at odd hours of night only to scare persons who had gone to his house-Held : Reasonable grounds do not exist for believing that petitioner has committed offence charged with-Held Further : Case is of further inquiry-Bail cancellation application has no substance and is accordingly rejected. [Pp. 1686 & 1687] A, B, C & D 1968 SCMR 1168. Mr. Muzamm.il Khan, Mr. Tasleem Hussain, Advocates for Petitioner. . Kh. Azhar Rashid, AAG for State. Date of hearing: 11.5.1998. judgment Respondent No. 1 Atlas Khan stands charged, Vide : F.I.R. No. 521 dated 2.9,1997 registered under Section 302 P.P.C. in Police Station Xowshera Kalam, for having effectively fired at Sajid Mehmood, deceased, when the said deceased went to the house of Respondent No. 1 on 1.9.1997 at about 9.oO P.M. alongwith the complainant namely, Sultan Sher and his brother namely, Arshad Mehmood. Sajid Mehmood deceased was injured on his right k.iee, removed to the Civil Hospital , Nowshera for first aid and then shifted to the Lady Reading Hospital , Peshawar where he expired. 2. When arrested, the respondent-accused approached the Court of Illaqa Magistrate Nowshera (Alhajj Mazhar Sajjad) for bail. He was refused bail by the Illaqa Magistrate Vide: his order dated 10.9.1997. 3. The respondent-accused then approached the Sessions Judge, NowsHera (Mr. Ghulam Muhyuddin Malik) who Vide : his order recorded on 6.10.1997 enlarged bin on bail. 4. Aggrieved by the said order, the petitioner/complainant has challenged its legality before this Court by filing this bail cancellation application. 5. Mr. Muzammil Khattak Advocate, learned counsel for the petitioner/complainant, Mr. Tasleem Hussain, Advocate, learned counsel for Respondent No. I/accused and Khawaja Azhar Rashid, learned Asstt : Advocate General for Respondent No. 2 the State, present and heard. Record of the case perused. 6. Without dilating upon the merits of the case of this stage, I am of the view that the respondent-accused appears to have fired at the deceased under some mis-conception. The mere fact that he had fired at the right knee of the deceased would show that he had no intention to kill him because if he had such an intention then in that case he should/could have fired at his head/chest. 7. Secondly, a perusal of the site-plan would show that both the eye witnesses, allegedly present at the time of occurrence, were present at the place from where they could not see Respondent No. 1 firing at the deceased. Thirdly, the confession of Respondent No. 1, to which a reference has been made again and again by the learned counsel for the petitioner, would reveal that Respondent No. 1 had no intention to kill the deceased or any body else. It appears from the record that the had fired, at the odd hours of the night, only to scare the persons who had gone to his house. 8. In the circumstances, I am of the view that reasonable grounds do not exist for believing that the petitioner has committed the offence charged with and therefore, his case is that of further inquiry. To the same effect are the findings of the lower appellate Court. The said Court has given valid reasons for its conclusion and I see no justification to interfere with the same. 9. Besides, the Sessions Judge has recorded a speaking order and the conditions laid down in Section 497 Cr. P.C. for granting bail to Respondent No. 1 have been amply fulfilled. Therefore, on this score too there is no need to interfere with the impugned order. If an authority is needed I am fully supported by a case titled Ijas All Khan vs. The State reported as 1968 Supreme Court (M.R.) 1168 is this respect wherein it was held :- "Muhammad Yaqub Ali, J.-The petitioner who is charged with the offence of murder has been refused bail by the Courts below from which he now seeks leave to appeal. On examining the facts appearing in the order of the learned Judge in the High Court we are inclined to the view that the conditions laid down in Section 497 Cr. P.C. for refusing bail to the petitioner were amply fulfilled in this case. The petition is dismissed." 10. This bail cancellation application has no substance and is accordingly rejected. (B. T.) Application rej ected

PLJ 1998 Cr PLJ 1998 Cr.C. ( Peshawar ) 1687 Present :• SARDAR MUHAMMAD RAZA, J. MIR KAWAZ KHAN and 2 others-Petitioners versus DILNAWAZ KHAN & 2 others-Respondents Criminal Misc. Quashment Petition No. 5 of 1998, partially accepted on 19.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A-Tendering forged & fictious documents-Action on petition under Section 193/195 PPC read with Section 476 Cr. P.C. declined by trial Judge-Acceptance of revision petition by appellate court against order of trial court-Challenge to--It requires no stretch of arguments at all to comprehend that once trial court holds view that document was forged and fictitious, it would amount to strong expression of opinion and no room would be left for same court to hold otherwise while giving final judgment in original civil suit-Verdict of civil court in matter of deed is more pre-dominant and decisive rather than any proceedings taken in its criminal jurisdiction, it is advisable that former verdict should come first in light of evidence and latter proceedings should be taken subsequently-­ Held : Impugned order would amount to putting cart before horse- Proceodings proposed to be taken under Section 476 Cr. P.C. are not quashed but are directed to be kept pending till final judgment of civil. court-Petition partially accepted. [Pp. 1688 & 1689] A, B & C Mr. Gohar Zaman Khan Kundi, Advocate for Petitioners. Malik Hamesh Gul, Advocate for State. Mr. Abdur Rashid Khan, Advocate for Respondent No. 1. Date of hearing: 19.5.1998. judgment Sher Afzal Khan and others had filed a suit for possession of a disputed property through redemption against Mst. Rapay Jani, Mir Kawaz Khan and Rehmatullah Khan etc . which, at the first instance, was decreed by the learned Senior Civil Judge Bannu on 4.10.1996. It was subsequently remanded and the trial became pending once again. 1. During trial the plaintiffs brought on record in agreement deed dated 1.1.1989. The proceedings were pending before the trial court and the evidence also stood considerably recorded when on 4.6.1997. Dil Nawaz Khan filed a complaint under Sections 193/195 PPC r/w 476 Cr. PC that the opposite party had filed a forged, fictitious and bogus agreement deed dated 1.1.1989 and that they be prosecuted summarily and convicted under Sections 193/195 PPC with powers of the court derived from Section 476 Cr. P.C. . 3. The learned trial Judge/Senior Civil Judge, Bannu declined to proceed as per order dated 3.10.1997 on the ground that the trial was pending due to having been remanded and that unless the document was declared to be forged or fictitious by the trail court, no proceedings could be taken under Section 476 Cr. P.C. The opposite party went in revision, heard by learned Additional Sessions Judge, Bannu who, took the view, by accepting the revision petition, that the trial court should hold the proceedings under Section 476 Cr.P.C. Mir Kawaz Khan etc. through this petition under Section 561-A Cr.P.C. seek the quashment of the order dated 8.1.1998 passed by the learned Addl. Sessions Judge, Bannu. 4. It requires no stretch of arguments at all to comprehend that once the trial court holds the view that the document was forged and ictitious, it ould amount to a strong expression of opinion and no room would be left for the same court to hold otherwise while giving final judgment in the original civil suit. The holding of proceedings at this stage would not only amount to harassing one of the parties to the suit pending before the trial court but would rather put the trial court to a material embarrassment. 5. On the other hand, if the trial is completed and a judgment is pronounced with regard to the actual civil dispute between the parties and with regard to the agreement dated 1.1.1989, it would neither be embrassing for the court to take up proceedings under Section 476 Cr. P.C. nor would it be jeopardising for a party to the dispute. As the verdict of civil court in the matter of deed dated 1.1.1989 is more predominant and decisive rather than any proceedings taken in its criminal jurisdiction, it is advisable that the " former verdict should come first in the light of evidence and the latter proceedings should be taken subsequently. To uphold the impugned order would amount to putting the cart before the horse. ' 6 . Consequently, the proceedings proposed to be taken under Section 476 Cr. P.C. are not quashed but are directed to be kept pending till the final judgment of the Civil Court . The pronouncement of final judgment and the initiating of proceedings under Section 476 Cr. PC, in case it is justified in view of the verdict, can even be taken up simultaneously. The petition is accepted partially and accordingly. (B.T.) Petition partially accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. Quetta 1689 [DB] Present: amirul mulk mengal, C.J. and amanullah khan yasinzai, J. MEHR ALI-Petitioner versus SUPERINTENDENT CENTRAL JAIL MACH and another-Repsondents Habeas Corpus Petition No. 14 of 1997, decided on 22.10.1997. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 382-Petitioner convicted u/S. 13(e) Arms Ordinance, 1965 u/S. 311 read with Section 338-E Q & D/PPC and u/S. 307 PPC-His sentence u/S. 311 read with Section 338-E Q & D /P.P.C. set aside after remand of case to special Judge Suppression of Terrorist Activities—Whether petitioner can be given benefit of Section 382-B in remaining sentence- Question of-Courts in our country are competent to extend benefit of . Section 382-B Cr.P.C. in appropriate cases after considering entire circumstances of particular case-In some of cases this benefit has been declined whereas in others same has been extended to accused persons— This benefit cannot be extended to petitioner for simple reason that circumstances of case are such that discretion cannot be extended to him for reason that he has killed as many as 5 persons of his family only to grab their property-Deceased included women folk who after getting high education were posted on very high posts-Petition dismissed. [P. 1692] A & B 1991 P.Cr.L.J. 1030, 1991 SCMR 270, 1993 SCMR 224, 1994 MLD 1, 1994 MLD 1739 and 1995 SCMR 1523. Mr. K.N, Kohli, Advocate for Petitioner. Mr. Ahmad Khan Lashari, Advocate General for Respondents. Date of hearing: 7.8.1997. judgment Amirul Mulk Mengal, C.J.--This Habeas Corpus Petition has been filed under Section 491 Cr.P.C. by Mehr Ali who was involved in a case of killing 5 persons as well as in a case under Section 13(e) of Arms Ordinance. There was also a case registered under Section 307 PPC against-him. 2. The Special Judge Suppression of Terrorist Activities, Quetta sentenced him as under :- (i) under Section 13(e) Arms Ordinance 1965: 6 years R.I. with fine of Rs. 20.000/-, on default in payment of fine six months S.I. with benefit u/S. 382-B Cr.P.C. decided on 30.8.1992. (ii) u/S. 311 read with 338-E Q & D/PPC: 10 years R.I. as Tazir. "His previous conviction was also indirectly connected with this case", decided on 8.7.1993. (iii) u/S. 307 PPC: 7 year R.I. with a fine of Rs. 5,000/- on default in payment of fine 6 months S.I. "The sentence to this accused would run concurrently with benefit as provided u/S. 382-B, Cr.P.C. However, in a revision petition the case was remanded and his sentence under Section 311 R/W Section 338-E Q&D/PPC was set aside by Special Judge Suppression of Terrorist Activities, Sibi. It is case of petitioner that after setting aside conviction and sentence under Section 311 read with Section 338-E the remaining sentences were concurrent and benefit of Section 382-B Cr.P.C. was allowed in both the cases. However, the Superintendent Central Jail Mach did not accept the version of the petitioner and submitted that he can be given benefit of Section 382-B Cr.P.C. in one case when the sentences are concurrent. The petitioner has now filed this petition that he has already undergone his sentence and he is in illegal detention. Notice was issued to Superintendent Central Jail Mach as well as learned Advocate General. In pursuance of the notice Mr. Abdul Samad Niazi, Superintendent Central Jail Mach appeared and brought history ticket of accused. He submitted that benefit of Section 382-B Cr.P.C. can be given in respect of only one case as provided under Rule 34 of-the Jail Manual. The same has already been given to accused. However, Superintendent Central Jail taking benefit of the proposition in issue proposed that in many cases when petitioners approach this court the benefit is generally granted under Section 382-B Cr.P.C. whereas a large number of prisoners are unconscious of the procedure, therefore, instead of directly approaching this Court they raise hue and cry on every gusht Superintendent Central Jail Mach further submitted that he is facing acute problem in Central Jail Mach and matter can be resolved if this court would issue a general direction of giving benefit of Section 382-B r.P.C. to all the prisoners who have been convicted. The Superintendent was asked to move a proper application which he did on 7.8.1997. The matter then remained pending only to consider whether such an omnibus order can be passed. This required a thorough perusal of authorities on the point. We have perused the case of Ghulam Haider vs. The State reported in 1991 P.Cr.L.J. 471. In this case it has been observed that period during which accused had remained in custody as under-trial prisoner was not considered fit to be deducted from sentences awarded to him and the same were ordered to run full course. A further observation was made as under: "Merely by remaining in custody from a certain date an accused does not qualify for entitlement to the benefit of Section 382-B Cr.P.C. Section 382-B Cr.P.C. merely enjoins upon a Court, while passing a sentence of imprisonment to take into consideration the period during which the accused was detained in custody as an undeftrial prisoner. The clause 'it shall take into consideration does not mean that the Court has no choice and its hands are fettered and it must of, necessity reduce the substantive sentence by the period an accused has remained in custody as an under-trial prisoner. The clause just means, as is clear from its phraseology, that the Court should not ignore while awarding the sentence, the period of detention of the accused as an under-trial prisoner and should determine the length of imprisonment accordingly. When a Court awards a sentence,, it must be presumed that it has done so after taking into account the provisions of Section 382-B Cr.P.C. and therefore,- no further benefit is thereafter left to be computed and bestowed upon the accused." A similar view has been taken by Lahore High Court in case reported in 1991 P.Cr.L.J. 1030. It was observed therein that accused had no justification to pick up quarrel with his brother-in-law (deceased) for demanding, future share of his wife in the inheritance of her father who was still alive and thus accused was not entitled to the benefit of Section 382-B Cr.P.C. Another case on the point was of Abdul Malik vs. The State (1991 S.C.M.R. 270) in which benefit of Section 382-B Cr.P.C. was extended to the accused. In 1993 S.C.M.R. 224 while delating upon application of Section 382-B Cr.P.C. in cases of offences against property an observation was made that the principles of Section 382-B Cr.P.C. could be applied in such cases unless prohibited by any law or any principle having the force of law. Yet another important question as regards application of Section 382-B Cr.P.C. came before Lahore High Court in the case of Razia Bibi vs. Muhammad Arshad (1994 M.L.D. 1) and it was concluded that High Court under Section 561-A Cr.P.C. is competent to consider the entitlement of an accused to the benefit of Section 382-B Cr.P.C. at any stage even after the decision of the case and can extend such benefit to him if earlier omitted from consideration. It was further observed that Jail Authorities, cannot, however, give effect to Section 382-B Cr.P.C. for the benefit of an accused who was not allowed the same by the Court. This view was further confirmed by Lahore High Court in case of Khalil Ahmad vs. The State (1994 M.L.D. 1739). The interpretation of Section 382-B Cr.P.C., its object and history came for consideration before Supreme Court in case of Muhammad Rafiq vs. The State (1995 S.C.M.R. 1523). Perusal of the said case shows that the Hon'ble Supreme Court has dealt with in detail as regards the object of Section 382-B Cr.P.C. and out-lined the history of the same with corresponding sections of Indian Code of Criminal Procedure and Criminal Justice Act, 1967. It was observed that Section 67 of Criminal Justice Act, 1967 and Section 428 of the Indian Code of Criminal Procedure are pari materia and the object being recognition by the law makers of a more rational treatment of the pre-sentence period in jail. However, while concluding the Hon'ble Supreme Court desired that Section 382-B of the Code were also couched in language as clear and unambiguous as the sections in the Indian and the English enactments were, but unfortunately it does not. However, provisions of Section 382-B Cr.P.C. being a statutory limitations upon the court's discretion to determine the length of imprisonment, court must take into consideration the pre-sentenceperiod spent in jail. With this background and the illuminating judgments on the point we have no hesitation to conclude that the courts in our country are competent to extend benefit of Section 382-B Cr.P.C. in appropriate cases after considering the entire circumstances of particular case. The authorities as mentioned hereinabove would show that in some of the cases this benefit has been declined whereas in the others same has been extended to accused persons. Thus no omnibus order can be passed in this regard. However, every application moved by any convict can be considered on its own merits and keeping in view the circumstances of the case. Such applications could be filed through Superintendent Central Jail in the High Court for consideration. As for as present accused is concerned we are not inclined to extend this benefit for the simple reason that circumstances of the case are such that discretion cannot be extended to him for the reason that he has killed as many as 5 persons of his family only to grab their property. The deceased included the women folk who after getting high education were posted on very high posts. The petition is disposed of accordingly. Note: A copy of this judgment be sent to Inspector General Prisons Balochistan for onward transmission of the same to Superintendents Central/District Jails for information. (AAJS) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. (Quetta) 1693 Present: AMANULLAH KHAN YASINZAI, J. SHAMREZ KHAN-Applicant veruss STATE-Respondent. Cril. Bail Application No. 199 of 1998, dismissed on 17.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- -~S. 497-Pakistan Penal Code, 1860 (XLV 1860), Ss. 409/467/ 468/471/ 477-A/420/109-read with Section 5(2) Act II of 1947-Principle of consistency-Bail-Grant of-Prayer for-Case of co-accused released on bail is distinguishable from that of applicant-Only allegation agaisnt coaccused is that they received wheat after consdierable delay from applicant at various PR centres-In this regard statement of PW 'H' is very relevant who stated that after selling wheat in black market on higher rates, applicant used to deposit actual amount and would keep excessive amont for himself-It is high time to curb this evil in every nook of this society to save country from further economic disorder-Held : On basis of tentative assessment of evidence on record, prima facie case of misapproproation is made out against applicant and he does not. deserve any leniency-Bail application dismissed. [Pp. 1697 & 1698] A, B & C PLD 1997 Karachi 165. Mr. Muhammad Riaz Ahmad, Advocate for Applicant. Mr. Muhammad Noor Miskanzai, AAG for State, Date of hearing: 1.7.1998. judgment Applicant Shamrez Khan has been arrested in Crime No. 8/98 lodged by Director Food, Government of Balochistan with Anti-corruption Establishment; on 12.12.1997 under Sections 409/467/468/471/477- A/420/109 PPC R/W Section 5(2) Act II of 1947. 2. Prosecution case as narrated in the FIR is reproduced as below :-- Subject: NON-DELIVERY OF WHEAT STOCK BY CONTRACTOR MR. SHAMREZ KHAN AND ALLIED FIRMS I.E. M/S AMJAD AND SHAHID AND WASEEM AND JAVED. The special audit party constituted by the Government of Balochistan, Food, Fisheries and Coastal Development Department vide Order No. 225.97/Misc./audit 2236-48 dated the 6th June, 1997 has pointed out out-standing of 394,930 bags whining 39,550,396 Kgs wheat against the above named contractors for the period 1994-45 to 1996-97 (6/97). The detail of outstanding stock is annex-"A". However, on scrutiny of the audit report by the Food Directorate, it has been observed that actual shortage works out to be 351,153 bags of wheat. A copy of the comments on the special audit report is enclosed as Anex-"B". A comparative statement showing shortage and adjustment thereof as pointed out by special audit part as well as by this Directorate on security of record is also enclosed as Annex-"C". 2. This Directorate has further examined the record of dispatches from Karachi and various stations of Punjab during the period from 1st July, 1997 to September, 1997 and observed that the contractor and his allied firms have not delivered 156042 bags weighting 15671537 Kgs wheat (Annex-"D". The total shortages after adjustment of cost of what and stock delivered by the Contractor works out to be 230489 bags valuing Rs. 147,101,479.00. The Food Directorate is also examining the record of inter-province transfer of stocks on P.R. to P.R. basis for the period from 1st July, 1997 to 30th September, 1997, as the Contract of the Contractors for the year 1996-97 was extended for that period due to non-appointment of new contractors, the quantity of shortages of wheat can further be increased. It. is requested that S.P. Anti-corruption Establishment, Quetta may kindly be asked to register a case against the Contractor for rectory of amount of wheat and other actions to be initiated for default of terms of contract agreement under the relevant rules. Actions against officers/officials as per list attached (Annex-"E") may also be proceeded with." 3. After registration of the case, the applicant got protective bail form the High Court of Sindh Hyderbad Circuit on 2.6.1998 and applied for pre-arrest bail before this Court. Pre-arrest bail was declined to the applicant by this Court vide Order dated 11.6.1998. On the same day the applicant was taken into custody by the Anti-corruption Authorities. The applicant moved an application for grant of post arrest bail before Special Judge Anticorruption who rejected the same vide Order dated 26.6.1998; hence this application under Section 497 Cr. P.C. for grant of post-arrest bail. 4. I have heard Mr. Muhammad Riaz Ahamd Advocate for the applicant and Mr. Muhammed Noor Miskanuzai, learned Assistant Advocate General for the State. 5. Mr. Muhammad Riaz Ahmad Advocate for the applicant contended as follows :- 6. (i) That no incriminating material has come on record. The investigation is complete and accused applicant is no more required for investigation; hence he is entitled to grant of bail. (ii) That the stand of the Prosecution is not clear regarding shortage of wheat, (in) That at the most the case against the applicant is that of non-delivery of wheat which is breach of contract and the applicant is ready to deliver the wheat found short. (iv) That the case of the applicant is based on documentary evidence. The entire record is in possession of the I.O. Thus their is no question of tampering with the prosecution evidence. (v) That the other co-accused have been granted bail; thus on the principle of consistency the applicant is also entitled to grant of bail. (vi) That the applicant is a chronic patient of diabetes and is also a heart patient; thus he is entitled to bail on Medical Ground also. 6. Mr. Muhammed Noor Miskanzai, learned Assistant Advocate General opposing the bail applicant contended : (i) That sufficient material has been collected during investigation of the case prima facie connecting the applicant with the commission of the offence. (ii) That in any case shortage of wheat has not been disputed by the applicant and till today the wheat bags allegedly embezzled have not been accounted for by the applicant. (iii) That the applicant has embezzled a huge amount and has caused loss to the Government exchequer, thus he is not entitled to grant of bail. (iv) The the case of the co-accused granted bail is distinguishable from that of the applicant. %• 7. It is allegedly by the prosecution that during the period 1994-95 to 1996-97 about 230489 bags of wheat were not delivered at various PR centers causing loss of Rs. 147,101,479/- to government exchequer. The alleged fraud was detected after the Special Audit Committee submitted its reported and pointed out the above shortage of wheat. The contention of the learned counsel for the applicant that no case is made out against the applicant as no incriminating material has been collected against him, is without substance. It may be mentioned here that the FIR against the applicant was lodged after thorough checking and security of the PR centres wherein it was pointed out that the Contractor had not delivered the wheat which had been lifted by him from various places of Punjab and Sindh and Pascow Godowns for delivered to various PR centres in Balochistan. It has come on record that after a lapse of 7/8 months the said wheat was not delivered by the applicant despite various demands and approaches. Admittedly the price of wheat lifted by the applicant from various godown of Sindh and Punjab was paid in advance by the Government of Balochistan which was misappropriated and embezzled by the applicant. 8. During the course of investigation, the statements of witnesses were recorded who have directly nominated the applicant in the commission of the offence. In this regard the statements of Mehfooz-ur-Rehman, Sheikh Nisar-ul-Haque and Abdul Ghaffar are very material. They have categorically stated that the wheat lifted by the applicant from Punjab and indh for delivered at various centers of Balochistan was not delivered even after a lapse of 10 to 11 months and normally it takes 15 days from any corner of Pakistan for delivery of wheat at various PR centres in Balochistan. It has come on record that deposit non-delivery of the wheat, contract of the applicant was extended in June, 1997 for a period of further three months during this period the applicant further misappropriated a huge amount of wheat'bags, price of which had already been paid by the Government of Balochistan. 9. From the material collected by the prosecution, aprima facie case of misappropriation is made out against the applicant and there is reasonable ground to believe that the applicant has committed the alleged offence which is non-bailable does not entitle the applicant for grant of bill. 10. Reverting to the other contention of the learned counsel for the applicant that the entire record is in possession of the Investigating Officer and there is no question of tampering with the record. It may be added here that challan of the case has been submitted before the trial Court. As observed hereinabove a prirna facie case is made out against the applicant and apparently he has caused a loss of almost 140 million rupees to the government exchequer. 11. As far as the contention regarding principle of cone sistency is concerned, it may be mentioned that the case of the co-accused released on ail is distinguishable rom that of the applicant. The only allegation against the co-accused persons is that they received the wheat after a considerable delay from the applicant at various R entres. In this regard statement of PW-Haji Khan is very relevant who stated that the applicant used to deliver wheat after a considerable delay or would deposit the amount f heat incash with the PR centres and has further stated that after selling the wheat in black market on higher rates the applicant used to deposit the actual amount and ould keep the excessive amount for himself. The witness has further stated that late delivery of wheat or in case of money, the same was deposited at the instructions f igh officers who have so far not been arrested, though the Investigating Officer undertook to arrest the High Officers of the Food Department with whose connivance the pplicant mis­ appropriated and embezzled the alleged amount. 12. Coming to next contention of the learned counsel that the applicant is entitled to grant of bail on Medial rounds lso, it may be mentioned here that alongwith the application, the applicant has only filed certain documents and certificates of doctors to the effect that the applicantis a iabetic. ufficient it to observe that diabetes is not so dangerous that it cannot be cured/controlled in the Jail wherein facilities are normally 1 available for treatment, of uch ailments. As far as heart disease is concerned, no Medical Certificate was produced to show that the applicant is a heart patient or the same cannot be looked after in the ail. 13. From the above discussion, prima facie & ismj& is made out gainst the applicant wherein huge amount has been misappropriated causing loss to the exchequer. It may be added that corruption at this higher level has become so rampant in almost every institution of the country, and the wealth of the country has been ruthlessly plundered due to which country is at the verge of an economic collapse. It is high time to curb this evil in every nook of this society to save the country from further economic 8 disaster therefore, the applicant does not deserve any leniency. In this regard reliance is made to Sajjad Hussain vs. The State, PLD 1997 Karachi 165 wherein while dealing with a similar case it was observed as under :- "While following the above principles it would also be relevant to consider that our nation is overwhelmed with avalanche of corruption under whose weight it is being relentlessly cruched. Man, philosophers have said, is born innocent, it is the institutions of society that special him. Whatever the truth in the observations, we seem to have institutionalized corruption., The bloody putrescence of the viruzoozes out of every pore of the body politic and every segment of National Life, be it. Government, Politics, Business, Law, Medicine, Health or Education. The landmark judgment of the Hon'ble Supreme Court reported as Aljehad Trust through Raeesul Mujahideen Habib-ul- Wahab-ul-Kheri and others vs. The Federation of Pakistan and Others, PLD 1996 SC 324 (Popularly known as the Judges' Case) has raised hopes that the courts will no play a significant role in eradicating corruption and other social evils. Therefore, it is humbly submitted that in such a situation a more pragmatic approach than has been the case so far on the part of the courts is needed at the investigation as well as bail stages of corruption cases, because if the courts show almost motherly leniency towards people accused of high corruption, then it would be impassible to successfully investigate and help bringing the culprits to book or to check the ever increasing concern of corruption." 14. The upshot of the above discussion, keeping in view the facts and circumstances of the case on the basis of tentative assessment of the evidence available on record, I am of the opinion that prima facie a case of isappropriation is made out against the applicant. Therefore, I am not aclmed to admit he pplicant on bail. Consequently this bail Application is dismissed. However observations made hereinabove will have no bearing on the merits of the case. (B.T,i Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. Quetta 1699 [DB] Present: IFTIKHAR muhammad chaudhary and raja fayyaz ahmad, JJ. MUHAMMAD SIDDIQUE and another-Petitioner versus STATE and another-Respondents . Crl. Appeals No. 92 and 34 of 1998 decided on 15.7.1998. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/324-Murder-Offence of--Conviction for-Challenge to--Presence of most of ocular witnesses on place of incident is doubtful-Deposition of P.W-1 before court indicates that he has made substantial improvement-In order to come to a just conclusion it is obligatory to find out truth by sifting grain from chaff-Injured witness suppressed true facts and the manner in which incident actually occurred-It has been argued by complainants' counsel that case be remanded to trial court for examination of Fire Arm Expert-Argument repelled-It is case of dishonest investigation by police-There is inconsistency in motive part but it will not destroy other prosecution evidence available on record- Held: Prosecution has successfully established charge against accused u/S. 324 PPC only; conviction and sentence recorded against accused u/S. 302 PPC by trial Court for causing Qatl-e-Amd of deceased is not sustainable-Held further : For the foregoing reasons appeal is partly accepted, conviction and sentence recorded against appellant u/S. 302 PPC is set aside, accordingly appellant is acquitted of charge u/S. 302 PPC only-Conviction and sentence recorded against appellant u/S. 324 PPC by trial Court is maintained-Appeal partly accepted. [Pp. 1716,1718,1721, 1722, 1723 & 1724] A to J Mr. Muhammad Riaz Ahmad, Advocate for Appellant. Mr. Noor Muhammad Achakzai, Addl. A,G. for State Mr. M. Salahuddin Mengal, Advocate for Complainant. Date of hearing: 30.6.1998. judgment Raja Fayyaz Ahmad, J.--This appeal u/S. 410 Cr.P.C. has been preferred against judgment dated 25.3.1998, passed by the Sessions Judge, Lasbella at Hub in Sessions Case No. 39/1997 whereby the appellant has been convicted and sentenced u/S. 302 PPC to fourteen years RI and u/S. 324 PPC sentenced to five years RI respectively for causing Qatal-i-Amd of deceased Syed Asghar Ali Shah and for committing murderous assault on Muhammad Siddique ASI, directing that both the sentences to run concurrently with benefit of Section 382-B Cr.P.C. extended to the appellant. Muhammad Siddiuqe, ASI victim of the alleged murderous assault has also filed Criminal Revision No. 34/98 seeking for enhancement of the sentence awarded to the appellant. As both the matters i.e. criminal appeal and the criminal revision were heard together and as identical points of facts and law are involved which pertain to the same incident, therefore, we intended to decide the same together by this judgment. • 3. Briefly, the stated facts of the case are that on 11.12.1996, Ghulam Hussain, Constable PS Uthal (PW-1) lodged a written report (Ex. P/l-A) with the SHO PS Uthal to the effect that on 11.12.1996 at about 10:15 PM he alongwith ASI Muhammad Siddique in official vehicle proceeded on 'Gasht' and for the checking of guards at duty and ASI Siraj Ahmed also boarded in the said vehicle. According to the informant Hawaldar Muhammad Ali and a sepoy Abdul Sattar also boarded in the said vehicle from Bazar Uthal because Muhammad Ali was the guard incharge. It has been alleged in the report that on their way ASI Siraj Ahmed got down from the vehicle and fetched a 'Chadar' from his house situated near petrol pump and handed over the same to ASI Muhammad Siddique (PW-4) and himself went back to his house where-after they went to the bungalow of SP where guard incharge Muhammad Ali and Abdul Sattar constable alighted from the vehicle and at that time Muhammad Siddique constable No. 414 (convict) was found to be on duty in uniform equipped with service rifle and at that time the suspected person namely Ali Asghar Shah was also found to be sitting with the guard Muhammad Siddique and ASI Muhammad Siddique inquired from Muhammad Siddique guard, as to why on the mid of night on an important guard duty a civil man has been allowed to sit along, which was felt badly by guard Muhammad Siddique who stated that he was on duty for three hours, so that he can do whatever he likes and that nobody can check him and thereupon ASI Muhammad Siddique addressed to guard incharge Muhammad Ali as saying, to note such fact and that he would complain to the SP and thereupon constable Muhammad Siddique walked about 10/12 paces, loaded his rifle and fired an aerial shot, who fired second shot on ASI Muhammad Siddique which passed from his behind and he therew himself on the bush, whereas; third shot was fired at ASI Muhammad Siddique which hit Ali Asghar Shah who fell down on the ground and fourth bullet hit Muhammad Siddique ASI and thereafter accused Muhammad Siddique ran towards RCD road by making aerial firing. On the basis of written report case crime No. 25/96 registered with PS Uthal u/S. 324 read with Section 353 PPG arid consequent upon the death of injured Syed Ali Asghar Shah, Section 302 PPC was also added. On registration of the case Abdul Hameed SI PS Uthal (PW-14) commenced with the investigation of the necessaiy investigation and challan for the trial of the aforementioned offences against accused Muhammad Siddique constable was submitted in the court of learned Sessions Judge, Lasbella at Hub. The learned trial Court on 5.5.1997 indicted the accused for the commission of offence u/S. 302/324/353 PPC to which the accused did not plead guilty and the prosecution to substantiate the accusation against accused, examined 14, prosecution witnesses namely Ghularn Hussain constable (PW-1), who lodged the written report and an eye witness of the incident, Muhammad Ali Head constable PS Uthal and guard incharge (PQ-2) being the ocular witness of the incident in whose presence blood stained earth, sand and blood stained gravel besides crime empties secured from the place of incident, Siraj Ahmed ASI (PW-3) who initially accompanied ASI Muhammad Siddique and arrested the accused and in his presence service revolver of ASI Muhammad Siddique was taken into possession vide inventory and he is also witness to Ex. P/3-B whereby the blood stained clothes of deceased etc., were taken into possession, Muhammad Siddique ASI PS Uthal (PW-4) is also the ocular witness of the incident, who sustained bullet injury, Dr. Muhammad Amin, (PW-5) Medical Officer, District Headquarter Hospital Uthal examined the injureds Ali Asghar Shah and Muhammad Siddique ASI on 12.12.1996 and respectively issued MLCs Ex. P/5-A and Ex. P/5-B, Hizbullah, Qanoongo Tehsil Uthal (PW-6) prepared sketch of the place of incident on the pointation of Abdul Hameed SI/SHO PS Uthal, Dr. M.A. Qureshi, Professor Civil Hopspital/Dow Medical College, Karachi (PW-7) treated the injured Muhammad Siddique ASI in Anklesaria (Pvt.) Hospital, Karachi who produced the MLC issued by him as Ex. P/7-A and the other relevant documents pertaining to the treatment of the injured, Abdul Sattar constable PS Uthal (PW-8) and Muhammad Ayub constable PS Uthal (PW-9), are the cited ocular witnesses of the incident; Sanaullah head constable (PW-10) is the witness to the taking into possession of the revolver and the service rifle respectively from Muhammad Siddique ASI and accused Muhammad Siddique constable, Muhammad Din constable (PW-11) produced the blood stained clothes of the deceased to the SHO which were taken into possession vide Ex. P/10-B, Abdul Rasheed (PW-12) deposed about the motive and the mishap taken place between ASI Muhammad Siddique and accused Muhammad Siddique earlier to the incident, Allah Bakhsh (PW-13) in whose presence the dead body of deceased Ali Asghar Shah was taken into possession by the SHO PS Uthal and the articles recovered from the search of the dead body and (PW-14) is the Investigating Officer of the crime. After close of the prosecution case the appellant/accused was examined by learned trial Court u/S. 342 Cr.P.C. in the light of the incriminating pieces of evidence brought on record during the course of trial wherein the accused denied the case of prosecution as a whole, and in disproof of the charge opted to make statement on oath u/S. 340(2) Cr.P.C. The accused in his statement .on oath deposed that he performed guard duty at the residence of SP Lasbella at Uthal at 3:00 AM to 6:00 AM. According to him on the next day of the alleged occurrence he had to perform guard duty from 3:00 PM to 6:00 PM during the day and stated that he used to inscribe his signature on a register lying at the guard duty room of the SP bungalow and thereafter the guard incharge used to issue him the official gun. He further deposed that after finishing his duty again he used to put his signature before handing over the official giin to the guard incharge and that on the night of the alleged occurrence when he cam on his guard duty at 3:00 AM in the night, he was informed by the guard incharge that murder has been committed in front of the house of SP and he was directed by the guard incharge to go to the police station for lodging report. According to the accused on such direction when he reached to the police station, jSHO PS Uthal, Abdul Hameed directed him to stay at police station and on the next morning he.was informed that he has been arrested in the instant case. Accused pleaded to be innocent and stated that he had no connection with the murder of deceased Ali Asghar Shah who has been done to death by ASI Muhammad Siddique and such fact had been conveyed to him by the real brother of the deceased. The accused in defence produced only one witness riamely Amin Shah son of Syed Latif Shah, who is the real brother of the deceased Ali Asghar Shah and deposed that he was not present at the time of the incident but stated that the accused Muhammad Siddique did not kill his brother but he (Muhammad Siddique constable) has been wrongly implicated in the case. After close of the parties' case the learned Sessions Judge convicted and sentenced the appellant as hereinfore mentioned. 4. Ghulam Hussain constable PS Uthal (PW-1) deposed that on 12.ll.i996 he alongwith Siddique and Siraj ASIs left the Police Station and reached to Uthal Bazar where Muhammad Ali head constable (PW-2) and Abdul Sattar constable boarded in the Vehicle and thereafter ASI Siraj was dropped at his quarter situate near Uthal petrol pump and thereupon at about 10:15 PM they reached to the bungalow of SP Uthal where ASI Siddique (PW-4) inquired from accused Muhammad Siddique that as to why he has allowed civilian to sit with him during the guard duty hours, on which the accused responded that the civilian sitting with him is his guest and after finishing his duty at 12:00 M.N. will take him along. According to the witness the accused further stated to Muhammad Siddique ASI that he being on duty can allow any body to sit with him and thus, Siddique ASI told to the guard incharge namely Muhammad Ali that he to take note of such fact and to bring the same into the notice of SP tomorrow, which annoyed the accused who stepped back about ten paces loaded his official gun and fired in the air and second shot w ; as fired by accused on Siddiuqe ASI (PW-4) and on his third fire the witness jumped and concealed himself behind 'kiker' tree but on such fire, he heard voice of said civilian person and also heard three more gun shot reports. The witness further deposed that thereafter another police guard reached to the place of incident but he did not see him, however; he heard so that such guard had pushed the vehicle started the same and took the injured ASI Siddique to the Police Station and he also went to the police station, thereafter before his arrival to the Police Station they had left for hospital. He stated that report of the alleged occurrence was made by him to the police and stated that civilian Ali Asghar Shah was shifted to the hospital in Edhi Ambulance which he had seen at the main ROD Road. He produced his written report as Ex. P/l-A and identified the accused in court who had fired. Muhammad AM, Head Constable PS Uthal (PW-2) deposed that he /as performing his duty as guard incharge of the guards deployed at the SP's bungalow for a week's time when on 11.12.1996, constable Muhammad Siddique was performing his guard duty with service gun for 9:00 AM to 12:00 PM and on the same night of 11.12.1996 at about 10:00 PM he alongwith Abdul Sattar constable went to bus stop Uthal. where they had taken tea in a hotel and at that time he found Muhammad Siddique ASI, Siraj ASI and Ghulam Hussain constable coming out of the hotel after having dinner and on the request of constable Sattar, Muhammad Siddique ASI agreed to drop them in his vehicle at the bungalow of SP and according to the witness; when they in the said vehicle stopped at the bungalow of SP where they got down from the vehicle and noticed that the civilian person was sitting with Muhammad Siddique guard, on which Muhammad Siddique ASI inquired from accused constable, as to why he has allowed civilian person is sitting with him during guard duty; to which the accused replied that the said person is his guest, so he allowed him to sit with him and thereupon Muhammad Siddique ASI told to the accused that he is performing guard duty as such should not allow any civilian to sit with him during guard duty hours, to which the accused replied to Muhammad Siddique alighted from the vehicle and told to the guard Muhammad Siddique ASI told to the accused that he is performing guard duty as such should not allow any civilian to sit with him during guard duty hours, to which the accused replied to Muhammad Siddique Siddique ASI that he is on guard duty and it is for him to allow any person to sit with him during his duty hours. Thereupon; according to the witnesses, ASI Muhammad Siddique alighted from the vehicle and told to the guard Muhammad Siddique constable that previously he has also done so; which was not good on his part, on which the accused loudly spoke that not abuse who stepped back 10/12 paces and loaded his official gun and started firing. According to this witness accused Muhammad Siddique fired six shots which hit the said civilian person who fell down on the ground and a bullet also hit Muhammad Siddique, ASI (PW-4) thereupon; ASI Muhammad Siddique went to the Police Station on his vehicle and the accused alongwith the official gun proceeded towards the main RCD highway and in the meanwhile; Edhi Ambulance reached to the place of occurrence wherein the injured civilian Was taken to the Civil Hospital. The witness deposed that afterwards he, on telephone from the SP's office informed about the incident to the Police Headquarter. The witness further deposed that after occurrence, SHO PS Uthal came to the place of occurrence, who took into possession cap, Ckadar, six empties, blood stained earth and gravel vide separate memos Ex. P/2-A and Ex. P/2-B. He stated that empties were taken into possession vide inventory Ex. P/2-B. The witness identified articles in court taken into possession vide above mentioned memos. The witness identified accused in court who having resorted to firing. Siraj Ahmed, ASI (PW-3) deposed that on 11.12.1996 Muhammad Siddique ASI alongwith Ghulam Hussain constable was on 'Gasht' duty on which date Ali Asghar Shah was killed and ASI Muhammad Siddique was injured in the incident, SHO PS Uthal deputed him and Sanaullah head moharar for the arrest of accused Muhammad Siddique, who was arrested by them in front of the house of Deputy Commissioner. According to the witness at the time of arrest the accused had the service rifle and a bandolier the hospital in order to see the injured ASI Muhammad Siddique. He further deposed that SHO took into ossession, the official revolver of ASI Muhammad Siddique vide recovery memo prepared in the hospital on which he and Sanaullah head Moharar put their signatures as attesting witnesses. According to the witness the SHO also took into possession the blood stained concrete and earth besides six empties were also secured from the place of occurrence. The witness stated that the clothes, cap and Chadar of the deceased were also taken into possession by the SHO and recovery memos in respect of the above mentioned articles were prepared in his presence, which he produced in court as Ex. P/2-A and Ex. P/2-B. He roduced the parcel of the revolver as Article P/13 and identified revolver as Article P/14 and the bullets as articles P/16 to P/21 and the empty as Article P-23. He also produced the parcel of blood stained clothes of the deceased and identified the articles thereto in court. The parcel of the empties secured from the place of incident containing empties was also produced by this witness besides the parcel of the blood stained concrete and earth was produced by this witness and identified the contents thereof. Mxihammad Siddique son of Ghulam Muhammad ASI PS Uthal (PW-4) is the ocular witness of the incident wherein he sustained bullet njury. According to him on 11.12.1996 at about 10:00 or 10:15 PM he alongwith Siraj ASI and Ghulam Hussain constable (PW-1) was on 'Gasht' duty and checking of guards. He deposed that after leaving the Police Station they went to the bus stop where they took tea and on the meanwhile Head Constable Muhammad Ali (PW-2) and Constable Abdul Sattar reached there and asked him to drop them at. SP's house. The witness stated that he took them along, to the residence of SP Lasbella at Uthal and on his way ASI Siraj Ahmed was dropped and he reached to the destination where also the Head Constable Muhammad Ali and Constable Abdul Sattar got down. According to the witness at that time accused Muhammad Siddique was on guard duty at the residence of SP Lasbella and found a civilian person sitting with the accused, so he alighted from the vehicle and asked the accused that he was not supposed to allow any civilian to sit with him during the duty hours and the accused replied to him that since he is on duty, therefore, he is free to allow any person to sit with him, who further asked the witness that he is nobody to ask from him and thereupon; he directed the guard incharge Muhammad Ali Head Constable to note such fact and to bring the same into the notice of SP tomorrow; thus, the accused; according to the witness got annoyed who stepped back ten paces and in the meanwhile, the witness took the seat in his vehicle and was about to start the vehicle but the accused fired six shots, out of which one of the bullet fired by accused hit him on his leg and the other bullets crossed in front of his chest and right arm and he concealed himself under the dash-board of vehicle. The witness further stated that he also heard the voice of civilian sitting with the accused saying not to fire' addressing to the accused but thereafter this voice turned feeble. According to PW-4 who was in semi-conscious condition, asked Ayub constable to apprehended the accused. Further according to the witness the said constable pushed their vehicle which as such started and they went to the Police Station where he became unconscious. According to the witness he was shifted to the hospital at Uthal and from there to Karachi for further treatment. Describing about the motive of the occurrence he stated that on 31.10.1996 one Umer constable was chased by him, having a stolen motorcycle who made good his escape in the wild and such matter was reported by him to the SHO PS Uthal, who suspended constable Umer but after about 20, days of the aforementioned incident, the accused alongwith Umer constable came to him and told that being a local person of the area he has, done no good and the accused threatened him that he will see to the witness. The witness stated that for such reason in order to take revenue, he was attacked upon by the accused. The witness further stated that prior to the incident Sardar Abdul Rasheed Jamot (PW-12) alongwith his brother namely Akram met with the accused and asked him to refrain from extending threats to the witness but the accused did not pay any heed to such request and left the place. The witness stated that due to the intervention of the above said persons he did not report the matter to the SP and kept quiet but has been attacked. Dr. Muhammad Amin, Medical Officer District Headquarter Hospital Uthal (PW-5) on 11.12.1996 at about 11:30 PM examined the injured Ali Asghar Shah who was in serious condition and ASI Muhammad Siddique who was brought to the hospital by the SHO PS Uthal. The injured Muhammad Siddique ASI was provided first aid by PW-5 and was referred to the Civil Hospital, Karachi for treatment. After examination of the injureds the Medical Officer issued MLCs in respect of Syed Ali Asghar Shah deceased and Muhammad Siddique respectively as Ex. P/5-A and Ex. P/5-B under his signatures. PW-4 ASI Muhammad Siddique got treatment at Karachi from Dr. M.A. Qureshi in the Anklesaria Hospital who was examined by the prosecution as PW-7. Dr. M.A. Qureshi, Professor Dow Medical College, Karachi produced the MLC of the injured Muhammad Siddique besides treatment chart and other relevant documents pertaining to the 'treatment of the injured. The medical evidence brought on record by PW-5 Dr. Muhammad Amin and Dr. M.A. Qureshi has been dealt with hereinafter in the relevant part of this judgment. Hazbullah, Qanoongo, Tehsil Durreji (PW-6) has produced sketch of the place of the occurrence as Ex. P/6-A, who dep6sed that he was called by the SHO PS Uthal namely Abdul Hameed (PW-14) and visited to the place of occurrence alongwith PW-14 and cm his pointation he prepared sketch of the place of occurrence. Abdul Sattar constable Police Line Uthal (PW-8) deposed that on 11.12.1996 he alongwith Muhammad Ali head constable had gone to the bus stop Uthal for taking tea and ASI Muhammad Siddique also came there where upon they both seated in the vehicle because ASI Siddique ws going on Gasht' and they wanted to be dropped on his way. According to the witness from the bus stop ASI Siddique proceeded to the quarter of Siraj ASI who had taken a Chadar from there and thereafter they reached to the bungalow of SP where one civilian Shah Jee was found sitting with the accused on which ASI Siddique asked to the accused, as to why he had llowed the civilian to sit with him during guard duty, to which the accused replied that during his three hours duty he is responsible and he can allow any person to sit with him and further stated to ASI Muhammad Siddique that he is nobody to ask him about and then ASI Siddique directed to Muhammad Ali Head Constable to take note of such matter and to bring the same to the notice of SP tomorrow and thereafter hot words were exchanged between the accused and ASI Muhammad Siddique whereupon, accused Muhammad Siddique constable stepped back and made a fire in the air and second fire was missed and on third shot fired by accused, he heard scream of said Shah Jee and he concealed himself in the guard room where he heard three more shots having been fired. According to the witness thereafter the injured was taken to the hospital in Ambulance. Muhammad Ayub constable (PW-9) stated that on 11.12.1996 he was performing guard duty at National Bank of Pakistan, Uthal Branch and suddenly he heard gun shot reports towards west, on which he asked the guard of bank to see as to who is firing and the bank guard came down and told to him that constable Muhammad Siddique is firing and he thereupon; reached near to the said guard of the bank. The witness stated that 3/4 shots were fired earlier and he had witnessed only two fires having been shot by the accused Muhammad Siddique constable. According to the witness one fire hit a glass and other to a vehicle but he did not see by himself that the bullet hit glass and vehicle. He further stated that he had heard constable Abdul Sattar saying that 'don't fire brother Siddique' and thereupon he asked constable Muhammad Siddique (accused) that on whom he is making fire, to which accused replied there is some one. The witness stated that thereafter accused called him and told to him that, Ali Shah has fallen down as injured and to shift him to the hospital and thus, the witness reached to the place of occurrence where he found Ali Shah lying on the ground screaming as 'Allah 0 Siddique, died'. According to the witness at such time, he saw ASI Siddique inside the vehicle in injured condition to whom he asked about the reason for the firing on which he directed him to apprehend accused Muhammad Siddique constable and no sooner he stepped ahead towards the accused he was asked by the accused not to go to him and in the meanwhile ASI Siddique asked him to push the vehicle and while he was pushing the same Muhammad Salim Operator came there on motorcycle (not examined) to whom the accused asked to shift the injured Ali Asghar Shah to the hospital and Muhammad Salim said that he would bring Edhi Ambulance, for which purpose Muhammad Salim left the place and ASI Muhammad Siddique in his vehicle left the place of occurrence and thereafter accused called Muhammad Ali Head Constable and Abdul Sattar constable and stated that 'this person is dying here and you people are inside' on which Abdul Sattar constable stated that he would on telephone, convey the information to the Police Station from the bungalow. Further the witness stated that afterwards head constable Muhammad Ali directed the accused to hand over the rifle to him but he refused and stated that he will not hand over the rifle to any one and in the meanwhile Edhi Ambulance reached to the site, from where the injured was shifted, while accused alongwith rifle also left the place of occurrence. Sanaullah, Head constable (PW-1) deposed that he was present in the Police Station Uthal on 11.12.1996 when at, 11:30 PM., FIR was registered on the report of constable Ghulam Hussain and ASI Muhammad Siddique reached to the Police Station in injured condition who was shifted to the hospital. He stated the service revolver of ASI Muhammad Siddique lying in the vehicle alongwith six alive cartridges were taken into possession by the SHO in his presence and that of ASI Siraj vide inventory singed by him and ASI Siraj. The witness stated that he and Siraj ASI were directed by the SHO to arrest the accused and they apprehended the accused who was coming in front of the Deputy Commissioner's bungalow and brought to the Police Station alongwith his service rifle and the bandolier containing 40 alive cartridges, having four bullets in the magazine. According to the witness SHO after having unloaded the rifle took into possession the same alongwith the cartridges vide inventory separately prepared, signed by him and ASI Siraj. He further deposed that on the next date constable Muhammad Din produced the clothes of ASI Muhammad Siddique and a sweater was produced to the SHO which contained bullet holes which were taken into possession by the SHO, sealed into parcels in their presence -vide inventories produced by the witness. The witness identified the articles in court taken into possession in his presence. Muhammad Din constable PS Uthal (PW-11) deposed that on the night of the alleged incident he was on his duty in the Police Station, Uthal from where he had accompanied to the SHO who had taken the injured ASI Muhammad Siddique to Civil Hospital, Uthal and the Doctor at the hospital referred the injured to Karachi for treatment and he on the directions of SHO accompanied the said injured to Agha Khan Hospital, Karachi and from there he brought the clothes of the injuried ASI Siddique and handed over the same to SHO PS Uthal who took into possession the clothes of the injured, sealed the same into parcel vide inventory signed by him which he produced as Ex. P/10-B. He identified the parcel and the articles in Court secured vide above mentioned memo. Abdul Rasheed (PW-12) has disclosed about the strained relations between the deceased and ASI Muhammad Siddique (PW-4). He states that once he was going to the office of Deputy Commissioner, Uthal and on his way he met with ASI Muhammad Siddique and the accused constable who both were standing near to the quarter of ASI Siddique and in order to shake hand and to inquire about the well-being of ASI Siddique, he went to him and in the meanwhile accused demanded from ASI Siddique to return to him his motorcycle which has been taken into possession but ASI Siddique replied to him that the same has been rightly taken into possession, as a consequence whereof both of them had altercation and ASI Siddique pushed the constable accused from his shoulder directing him to stop and not to talk any more. The witness further stated that he and his brother who was accompanying him, separated both of them. Allah Bakhsh (PW-13) deposed that on 11.12.1998 he was present in the hospital where SHO PS Uthal took into possession the dead body of Ali Asghar Shah and on the search of the dead body one 'Tasbih' and a licence was recovered which were taken into possession by the SHO in his presence vide memo Ex. P/13-A and Ex. P/13-B respectively. He produced the inventories and identified the articles in Court. Abdul Hameed SI PS Gaddani (PW-14) is the Investigating Officer of the case who was posted as the then SHO PS Uthal. According to him on 11.12.1996 on the basis of Farde Bayan of constable Ghulam Hussain (PW-1) he registered the case crime No. 25/96 u/Ss. 302/324/353 PPC against accused Muhammad Siddique constable and commenced with the investigation of the case, during which he prepared the sketch of the place of wardat' prepared the parcels and the inventories hereinfore mentioned. According to the witness ASI Siddique was referred to Karachi by the Doctor for treatment and that he took into possession the dead body of the deceased Ali Asghar Shah and prepared the inquest report and thereafter handed over the dead body of the deceased to his relatives. He recorded the statements of PWs u/S. 161 Cr.P.C. and sent the parcels i.e. blood stained clothes of the deceased and the injured, crime empties, service rifle of accused and the revolver of ASI Muhammad Siddique to the FSL, Quetta for analysis and report. He produced Farde Bayan of the informant Ghulam Hussain constable as Ex. P/l-A, memo of blood stained earth and concrete as Ex. P/2-A, memo of empties Ex. P/2-B, memo service revolver Ex. P/3-A, memo of clothes of deceased Ex. P/3-B, sketch of the place of occurrence as Ex. P/6- A, memo of rifle as Ex. P/10-B and memo pertaining to the taking of dead body of the deceased into possession as Ex. P/13-A. He also produced the sketch of the place of occurrence without scale as Ex. P/14-A. Report of the chemical expert and that of fire arms expert of FSL were also tendered by this witness in evidence as Ex. P/14-B and Ex. P/14-E respectively besides the carbon copy of FIR produced by him as Ex. P/14-F. After completion of the investigation he submitted challan in the court as Ex. P/14-B. 5. The learned counsel for the appellant Mr. Muhammad Riaz Ahmed, the ASI Muhammad Siddique in Cr. Revision No. 34/98 and Mr. Noor Muhammad Achakzai. the learned Additional Advocate General have been heard at length. Mr. Muhammad Riaz Ahmed contended that :- (a) The testimony of ocular witnesses are inconsistent, contradictory and self-conflicting especially that of injured Muhammad Siddique and the version of such witnesses are not capable • to implicit reliance because of improbabilities. (b) Dishonest investigation has been conducted into the alleged crime in order to provide shelter to the real culprit (PW. 4) who in the circumstances of the case appears to have committed Qatl-e-Amd of deceased Syed Ali Asghar Shah, and; the medical evidence renders support to such plea, in as much as; the time of registration of FIR has not been mentioned. (c) The ocular evidence is in conflict with the medical evidence. (d) Delayed statement of PWs. Ghulam Hussain, Muhammad Siddique and Ayub (PW. 9) recorded under Section 161 Cr.P.C. without any explanation offered by these PWs or the I.O are liable to be kept, out of consideration (e) Motive described in'the FIR and by PWs are inconsistent, and not proved by the prosecution. (f) The site-plans of 'wardaf are inconsistent rather contradictory to ocular account, as such; the accused is entitled to due benefit. (g) Although the injured Ali Asghar Shah expired in the hospital but time of his death has not been mentioned nor post-mortem was conducted without any reason. (h) Report of the Fire Anns expert, has been tendered in evidence by the I.O. (PW-14) and because he is not the notified Fire Anus Expert by the Government, hence bis report is not admissible in evidence, hence the recovery of alleged crime empties is inconsequential. (j) The delayed recoveries in absence of any plausible explanation cast serious doubt on prosecution case, which otherwise in highly doubtful. The learned counsel in support of his contentions placed reliance on the reported judgments i.e. 1982 P.Crl.J. 2489; 1992 SCMR 372; 1993 SCMR 550 and PLD 1996 Pesh. 843. 6. The learned Addl. Advocate General contended:- (a) that ocular account of the PWs are consistent on almost all the material particulars of the prosecution case supported by medical evidence and the recoveiy of crime empties which matched with the service rifle of the accused. (b) There is no evidence on record to suggest that PW-4 used his service revolver, rather, the evidence of the prosecution reveals that the number of bullets issued to PW-4 ASI Muhammad Siddique were intact at the time when soon after the occurrence, the same alongwith the revolver was taken into possession by the police, in asmuch as; the accused in his statement under Section 340(2) did not disclose about the contention raised for the first time during arguments that the deceased was fired at by PW-4 which caused his death, and; even such plea was not suggested to any of ocular witnesses or to PW-14 (I.O.) (c) The version of the incident given by PW-4 is corroborated by the other ocular witnesses and the other circumstantial evidence. The immediate cause for the commission of the offence by the accused remains consistent and reliable, which in the circumstances of the case can not be doubted. He opposed the position seeking for enhancement of sentence. 7. Mr. M. Salahuddin Mengal, the learned counsel for injured Muhammad Siddique contended that the testimony of ocular witnesses are consistent, free from material contradictions and inherent doubt and in all probabilities reliance can safely he placed on the evidence of ocular witnesses, which get due corroboration from the medical evidence and the other circumstantial evidence available on record. According to the learned counsel the nature of injuries sustained by PW-4 and the deceased primarily depends upon the velocity, nature of the projectile of the fire arm used in the commission of the offence and the distance from which it has been fired and thus simply the nature of injuries alone would not be sufficient to determine about, the fire-arm used in the commission of offence, and; merely the use of word 'Rifle' in the MLC would not adversely affect the prosecution case. He further contended that the case may be remanded to the trial Court to examine the fire-arms expert in the interest of justice, to meet with the objection. According to the learned counsel charge against accused has been established beyond doubt, as such, he is liable to be punished, appropriately by enhancing the sentence of imprisonment recorded u/S. 324 PPC. 8. We, have considered the contentions put-forth on behalf of the parties counsel and the Addl. Advocate General in the light of the record of the case and the impugned judgment, which have been gone through carefully, including the case law cited by the appellant's counsel. The case of the prosecution as disclosed in the FIR (Ex. P/14-F) registered initially u/S. 324/353 PPC on the written report (Ex. P/l-A) of Ghulam Hussain constable (PW-1) submitted to the SHO P.S. thal on 11.12.1996 is to the effect that on the said date at about 10.15 P.M. he alongwith ASI Muhammad Siddique (PW-4) proceeded on 'Gasht' and for checking of guards at duty, and; ASI Siraj Ahmed also boarded in the said vehicle. According to the informant Hawaldar Muhammad Ali and sepoy Abdul Sattar rom Uthal Bazar also took seat in the vehicle, as Muhammad Ali happened to be the guard incharge. It is further the case of the prosecution that on their ay SI Siraj Ahmed alighted from, the vehicle and fetched a 'Chadar' from his house situate near petrol-pump and gave it to ASI Muhammad Siddique and himself went ack, whereafter; they came to the bungalow of S.P where guard incharge got down from the vehicle and at that time santri Muhammad Siddique (accused) ound to be on duty equipped with service rifle, with whom suspected person namely Ali Asghar Shah was also found sitting, and; ASI Muhammad Siddique inquired romguard Muhammad Siddique that as to why he in the mid of night allowed a civilian to sit with him, to which the accused felt badly who stated that he was on duty for hree hours, so he can do whatever he likes arid that no body can check him, whereupon; according to the informant PW. 4, addressing to guard incharge Muhammad li tated to take note of such fact and that he would' complain to SP, and; thereupon the accused walked about 10-12 paces, loaded his rifle and fired a shot in the air, and ired second shot on ASI Muhammad Siddique which did not hit him and the informant threw himself on the bush. The third shot fired on ASI Muhammad iddique, hit Ali Asghar Shah who fell on the ground and the fourth bullet hit ASI Muhammad Siddique and thereupon; accused ran towards RCD Road by making ariel firing. Consequent upon death of the deceased Section 302 PPC inserted in the case Crime No. 25/96. 9: evidence:- The case of the prosecution consists of following pieces of (i) Medical evidence. (ii) Ocular testimony of Ghulam Hussain (PW-1), Muhammad Ali H.C. CPW-2)' AS! Muhammad Siddique (PW-4). Abdul Sattar constable (PW-8) and Muhammad Ayub constable (PW-9), (iii) Motive/cause of incident disclosed by Ghulam Hussain (PW-1), Muhammad Ali (PW-2), Muhammad Siddique (PW-4), Abdul Sattar (PW-8\ Muhammad Ayub (PW-9) and Abdul Rasheed (PW-12). (iv) Circumstances evidence i.e. Recovery of crime weapon, empties etc., and fire arms expert report. 10. Preferably it would be convenient and appropriate to deal with the medical evidence at the first instance. Dr. Muhammad Amin (PW-5) Medical Officer District Headquarter hospital on 11.12.1996 at or about 11.30 pm. examined the injured Ah Asghar Shah (who thereafter expired) and Muhammad Siddique ASI. According to the Medical Officer on the afore mentioned date at or about 11.30 SHO/P.S. Uthal brought the injureds namely Muhammad Siddique and Ali Asghar Shah to the hospital for treatment who were attended by him and on examination he noted the injuries on the person of Ali Asghar Shah and isstied MLC Ex. P/5-A relevant part whereof is reproduced herein-below:- (1) One wound on th<j right illiac fossa, hole of bullet due to gun shot, the bullet entrance from the R.I. Fossa medically in the umbilical region cross the abdominal cavity, penetrated the lower segment of the intestine and got out from the left illiac fossa, the hole from entrance 1^" x 1", and from out about 1/2" x 1/2". The patient was restless, not able to orie-ited time and place due to severe internal bleeding. Duration - 'Fresh. Nature - Grievous. Weapon used - Rifle. Result: Patient is expired probably due to haemorrage tragic shock and severe internal abdominal bleeding. Cause of death: Severs haemorrage. Medical Officer (PW-5) in his deposition before the Court confirmed the fact that he examined the injured Ali Asghar Shah and Muhammad Siddique on the date and time above mentioned and issued MLCs respectively as Ex. P/5-A and Ex. P/5-B. According to PW-5 Muhammad Siddique received gun shot, woii.ul having entrance from the right illiace crest vertically and crossed the muscle straight with existence from the gluteas as muscle !}£' x 8%" in diameter. The injured was also found bleeding of his right eye due to broken glasses, who was also noticed to be conscious and well oriented of time and place. According to Dr. Muhammad Amin the above noted injuries were fresh and simple and the kind of weapon used was rifle, who after providing first aid was referred to Civil Hospital Karachi for treatment. The contents of MLC Ex. P/5-B are given below:- Injuries. In case of gun shot bullet is enter from the Rt: superior illiace crest, vertically and cross the muscle straight open and got out from the gluteal maximus muscle, 1^" x (ii) Bleeding from the Rt eye due to broken glass. Patient was conscious well oriented time and place. Duration. - Fresh. Nature - Simple. Weapon used - Rifle. Result: First aid given. Pat: referred to Civil Hospital, Karachi for management. It may be noted that prosecution also examined Dr. M.A. Qureshi (Professor of Surgery Dow Medical College Karachi and Ankle-saria (Pvt.) Hospital Karachi) as PW-7. According to the witness Muhammad Siddique s/o Ghulam Muhammad was brought to OPD of Ankle-saria Hospital, Karachi, he attended the patient and found him in shock who was resuscitated because of excessive loss of blood. The wound was found to 20 c.m in diameter long and 12 c.m. deep of fat muscles and Blood vessels. The lacerated injury to sciatic never was noticed as paralysing his right lower limb. The injured was operated on the same day by PW-7 and by adopting the operative procedure his wound was debirded neurotic skin, fat and muscles were excised, sciatic nerve and vessels repaired and; transpositional mycotanens flap was done by plastic surgery method in order to close the excessive wound. Thereafter PW-7 issued the MLC under his signature produced by him as Ex. P/7-A. He also observed a cornial abrassion on right eye of the injured. Relevant part of Ex. P/7-A is reproduced hereunder for convenience:- "Professor M.A. Qureshi consultant Orthopaedic Surgeon Karachi, dated 15.12.96. ASI Muhammad Siddique S/o Ghulam Muhammad. The above named patient was brought to us in a critical condition in the morning of Thursday, the 13th December, 1996. He is admitted in Anklesaria Nursing Home in Room No. 384. He was in shock, gasping and having low blood pressure. Initially we resuscitated him. He was operated upon by us in the afternoon of the was very day. Operative findings of grievous injuries are given below:- Right eye corneal abrasion. Right gluteal Area: High velocity missile injury blowing of 20 c.ms diameter long and 12 c.ms deep area of fat muscles and blood vessels. Laceration injury to sciatic nerve which was paralysing his right lower limb. He is still in hospital." According to PW-5 Dr. Muhammad Amin of District Headquaiter Hospital, injureds Ali Asghar Shah and ASI Muhammad Siddique were brought to the hospital on 11.12.1996 at about 11.30 p.m. and he attended to both of them; out of whom Ali Asghar Shah was found to be in precarious condition, who had sustained bullet injury with ts entrance on right illiac fossa, which crossed abdominal cavity medially in the umbilical region, penetrated the lower segment oi' intestive having exist wound on the left iliac fossa about I^f x 1" and 1/2" x 1/2" in diameter. The injuries were fresh -nul grievous, caused by Rifle. The cause of deaih has been described due to haemorrage shock and proiiist'ci uiira aUJummal bleeding. The injured was not subjected to post-mortem because according to PW-5 (as disclosed in the cross-examination part of his statement) application was submitted by relatives of the deceased. It is has been roved through medical evidence that the deceased suffered gun shot injury on the vital part of his body which in the ordinary cause of nature was ufficient o cause death. The gun shot injury sustained by the deceased has not been disputed by the defence during trial nor any other cause of death has been uggested. In view of medical evidence in has been established that the deceased expired on account of the fire-arm injury sustained by him. PW-5 Dr. Muhammad Amin on the same date and almost at the same time examined ASI Muhammad Siddique and noted one gun shot injury having enterance on the right superior illiac crest vertically and crossed the muscle straight open having its exist from the gluteal maximus muscle, 1M" x 8^". The defence has not challenged that Muhammad Siddique did not suffer fire-arm wound. The un-impeached testimony of PW- 5 establishes the fact that ASI Siddique received gun shot wound. According to the medical evidence the injury was fresh and grievous in nature. According to Dr. M.A. Qureshi consultant Orthopaedic Surgeon, Karachi: ASI Muhammad Siddique was brought to OPD of Anklesaria Hospital, Karachi in critical condition who was gasping, in shock with low blood pressure and was initially resuscitated. As per Ex. P/7-A tendered in evidence by PW-7 the patient had a high velocity missile wound, blowing 20 c.m. diameter long and 12 c.m. deep area of fat muscles and blood vessels on his right glueteal area with a laceration to sciatic nerve which was paralyzing ^" his right lower limb. The injured was referred to Karachi for further treatment by PW-5, who examined the injured and provided only first aid, and; thereafter the injured got treatment from an expert surgeon at Karachi. The evidence of PW-7 further abundantly proves the factum that ASI Muhammad Siddique received high velocity missile injury i.e. caused by some rifle bullet and the nature of injury coupled with the naked eye examination by an expert leaves no room to doubt that the victim did sustain high velocity bullet injury, and; the defence neither challenged nor could discredit the medical evidence. 11. It may be noted that constable Ghulam Hussain (PW-1), Head Constable Muhammad Ali (PW-2) • ASI Muhammad Siddique (PW-4), constable Abdul Sattar (PW-8) and Muhammad Ayub constable (PW-9) are the cited ocular witnesses of the incident, whereas; ASI Muhammad Siddique is the victim of the alleged murderous assault, who suffered fire arm injury discussed hereinabove. According to PW-1 on 11.12.1996 he alongwith ASI Muhammad Sididque (PW-4) left the Police Station and reached to bazar Uthal from where, Muhammad Ali HC, Abdul Sattar constable and ASI Siraj boarded in the vehicle and on their way Siraj was dropped near to his house, who gave his 'Chadar' to ASI Siddique and; thereafter at about 10:15. p.m. they reached to the bungalow of SP Uthal where ASI Muhammad Siddique inquired from the accused on guard duty at the SP's house, as to why he permitted a civilian to sit with him during guard duty hours, to which the accused replied that the said person is his guest and that he will take along his qxiest on the end of his duty at 12.00 mid-night, and; further the accused stated that he being on duty can allow any person to sit with him, whereupon; ASI Muhammad Siddique asked Muhammad Ali HC to note the said fact, and to bring the same into the notice of SP tomorrow; which annoyed the accused who stepped back about ten paces, loaded his service rifle and" fired a shot in the air, the second fire made on ASI Muhammad Siddique, on third fire the witness jumped and conceded himself behind the tree, however; on the 3rd fire he heard voice of civilian, whereafter he heard three more gun shot reports, and; further this witness deposed that he heard that ASI Muhammad Siddique went to the Police Station in the vehicle after pushing the same and on the R.C.D. Road, he saw the civilian being removed to hospital in Edhi ambulance. Perusal of the statement of PW-1 reveals that he himself did not see either of the civilian namely Ali Asghar Shah or the ASI Muhammad Siddique having shot injured or in injured condition except that he stated that accused fired 2nd shot on ASI Muhammad Siddique and on third fire he heard the voice of civilian (deceased Ali Asghar Shah). The informant (PW-1) in the crossexamination part of his statement deposed that after reporting about the incident he went to his house and in the morning he was called on to the Police Station for registration of the case, such version of the witness leads us to believe that the FIR was registered on 12.12.1996 some after 4.00 a.m. but dishonestly the FIR is shown to have been registered on 11.12.1996. Even the time of registration of the FIR, has not been incorporated although; it was obligatory on the part of the police officer to have had mentioned the time of the registration of the FIR and that as to at what time the report of the incident was made. According to the informant and PW-2 Muhammad Ali H.C. (guard incharge) after firing the accused left towards R.C.D Road, thus in this view of the matter when the accused left the place of occurrence and the informant who had hidden himself behind the tree, in the ordinary Bourse when his immediate superior officer was made subject to murderous assault; he at least should have come to the scene to see and help the victims of the alleged offence. Such a conduct on the part of the informant, who claims himself to be the eye witness of the incident creates doubt about his presence on the place of occurrence despite of the fact that the other cited eye witnesses have spoken about the presence of the informant on spot. The witness in the cross-examination admitted that he is an un-educated person and the report Ex. P/l-A was reduced into writing by Abdul Hameed SI/SHO P.S. Uthal (PW-14). The version of the incident as given in the report in substance is different to what has been deposed in court by PW-1. In the report it has been alleged that the 3rd shot fired by accused on ASI Muhammad Siddique hit the civilian Ali Asghar Shah who fell down and the fourth bullet hit ASI Muhammad Siddique but contrary to such version, the informant in his deposition before the trial Court did not state so; rather disclosed that the second shot was fired on ASI Muhammad Siddique and on third fire he concealed himself behind the tree and heard the voice of the civilian. In the report the name of the civilian has been given but in his deposition, the informant did not mention the name of the civilian. The version of PW-1 as contained in the report Ex. P/l-A and his deposition g about the incident is substantially conflicting, and; his deposition about the incident before the court indicates that he has made substantial improvement in such behalf. 12. Muhammad Ali Head Constable, the guard incharge of SP's Bungalow who statedly accompanied ASI Muhammad Siddique in his vehicle alongwith the informant to' the SP's house also contradict the informant (PW-1) with regard to the exchange of dialogue between the accused and ASI Muhammad Siddique, the witness added that ultimately the accused shouted on ASI Muhammad Siddique not to abuse and thereupon; the accused moved back 10/12 steps, loaded his service gun and fired six shots which hit the civilian who fell down on the ground and bullet also but ASI Muhammad Siddique. The version of the incident narrated by PW-2 is directly in conflict with the one given by the informant. It may be seen that according to PW-2 six bullets fired hit the deceased but as per medical evidence, the deceased received only one bullet, which means that the accused besides ariel firing had fired seven shots, out of which six hit the deceased and one received by the ASI Muhammad Siddique. PW-2 has also deposed that after the occurrence SHO/PS Uthal came to the place of occurrence and secured six empties besides blood stained earth and gravel vide separate inventories in his presence. Such memos are dated 12.12.1996 and from the evidence of PW-2 it appears that after the occurrence some time after 12: hours mid-night the SHO visited to the place of incident and for such reason the memos bear the date as 12.12.1996. On the close scrutiny of evidence of PW-1 and PW-2 one can prudently see the presence of PW-1 and PW-2 as doubtful on the place of incident. The testimony of these witnesses not only are inconsistent, rather contradictory and unreliable. It/ appears that since their officer in. the incident received bullet injury therefore, in order to strengthen the prosecution case they have been cited as ocular witnesses of the incident. The given version of these eye witnesses seems to be hardly convincing and not fee from inherent doubts. 13. Muhammad Siddique ASI is the principal witness of the occurrence who sustained gun shot injury, according to him on 11.12.1996 at about 10.30 p.m. he alongwith ASI Siraj and Ghulam Hussain constable (Informant) was on 'gasht' and checking of the guards on duty and they from the Police Station proceeded to the bus stop where they took tea and in the meanwhile Muhammad Ali HC (PW-2) and Constable Abdul Sattar (PW-8) reached there, who requested him to drop them at the bungalow of SP. According to the witness, he on his way dropped ASI Siraj and thereafter reached to the residence of SP where the above mentioned police personnels were employed for guard duty besides the accused. PW-4 noted that the accused being on guard duty has allowed a civilian with him, so he got down from hit, vehicle and inquired form the accused as to why he had permitted an outside to sit with him; to which the accused stated that since he is on duty therefore, it is his outlook to allow any person to sit with him, whereupon; the witness asked the guard incharge (PW-2) to note such a fact and to bring the same into notice of the SP tomorrow; which annoyed the accused who moved back about ten paces, loaded his rifle and in the meanwhile PW-4 (ASI Muhammad Siddique) occupied his vehicle when the accused fired six shots and one bullet hit on his leg whereas; the other bullets crossed in front of his chest and the arm, and; did not hit him because he had concealed himself under the dash board of the vehicle, and; PW-4 also heard the voice of the civilian quoted as saying 'don't fire' and such voice turned low, and the witness in the meanwhile became semi­ conscious, who asked constable Ayub to apprehend the accused. The witness further deposed that the constable pushed his vehicle which started and he drove to the police station, where he became unconscious and was removed to the hospital. Presence of PW-4 at the place of incident cannot be doubted because such version of the prosecution case could not be discredited nor even challenged by the defence. The injured from the place of incident went straight to the Police Station and from there he was removed to the hospital and was attended by Dr. Muhammad Amin (PW-5). The nature of wound sustained by PW-4 as per MLCs - Ex. P/5-B and Ex. P/7-A, proved respectively by Dr. Muhammad Amin and Orthopaedic surgeon ProfessorM.A. Qureshi establishes the fact that ASI Muhammad Siddique received high velocity missile injury and thus it can be safely concluded that PW-5 suffered bullet injury on his right luteal area. PW-4 has given altogether a different version of the actual incident, as according to the victim no sooner, the accused moved a few steps back where he was standing already he - occupied his vehicle and was about to put the ignition switch on; when the accused fired six shots, one bullet hit him and the other bullets did not hit ' him because he had concealed himself under the dash board of the vehicle. It is astonishing to note that none of the bullet struck on any part of the body of the vehicle, and; if the manner of the incident as given by PW-4 is admitted to be correct, the other bullets fired by accused necessarily woiild have had hit the vehicle because according to PW-4 such bullets had crossed near to his body. PW-4 has also not seen the accused firing upon the deceased. It is pertinent to note that as per case of the prosecution the deceased was the guest of the accused who was sitting with him thus; in absence of any other evidence available on record, in the given facts and circumstances of the case there was no probability on the part of the accused to have fired upon his guest. There is nothing on record to suggest that the deceased and the injured were present at the eventful time nearby as a result whereof the bullet fired on ASI, hit the deceased. 14. Medical evidence also negates the prosecution story that the bullet fired by the accused from his gun hit the deceased, because of the size and nature of injury mentioned in Ex, P/5-A, which ex-fade reveals that such an injury hardly can be result of high velocity bullet fire i.e. such as the service rifle of the accused having 7.62 bore whereas; the injury sustained by ASI Muhammad Siddique as per MLCs suggest that it was the result of high calibre bullet shot. The heavy and extensive wound suffered by PW-4 is suggestive of the fact that it was caused by some high velocity gun but no such indication emerges form the nature and size of injury sustained by the deceased; thus it can be safely concluded that the injury as per MLC sustained by the deceased was not caused by any high velocity bullet. Although the MLC Ex, P/5-A in respect of the deceased indicates that he suffered 'Rifle' wound but the such an opinion is not supported from the size of injury and as compared to that suffered by ASI Muhammad Siddique. Comparative study of the MLCs Ex, P/5-A, Ex. P/5-B and Ex. P/7-A keeping in view the size and the nature of injuries, indicate that one and the same fire arm was not used in causing the injuries rather different kinds of weapon have been used. Required findings have not been recorded in the MLCs i.e. Ex. P/5-A and P/5-B which could have rendered much assistance in determining the kind of weapon used in causing the injury noted in the medico-legal certificate. . 15. Adverting to the testimony of PW-4 ASI Muhammad Siddique referred to above, it may be noted that he asked PW-Ayub to apprehend the accused, such a version of the injured indicates that neither Ghulam Hussain (PW-1) nor Muhammad Ali (PW-2) who stated to have accompanied the injured to the place of occurrence was asked to apprehend the accused for the reason that, to us; their presence was doubtful on the spot; otherwise, in all probability in the given facts of the case, either of them would have been asked to apprehend the accused, or to help the injured moreover; none of these PWs accompanied ASI Muhammad Siddique (injured) after the incident, which fact further creates doubt about the presence of PW-1 and PW-2 on the spot. 6. ASI Muhammad Siddique stated that as he reached to the Police Station, he lost his senses and according to SHO the injured ASI was removed to the hospital, whereas; Dr. Muhammad Amin stated that PW-4 ASI Muhammad Siddique was conscious and well oriented to place and time but his statement in the hospital was not. recorded and thereafter he was shifted to Karachi for treatment. The injured was taken to the Anklesaria hospital on 13.11.1996 where he was ttended and remained under treatment of Dr. M.A. Qureshi. PW-4 has not stated that as to when he wasdischarged from the hospital and who however; admitted hat his statement as recorded on or about 27.12.1996 whereas; according to the investigation Officer CPW-14) statement of the injured was recorded on 27.12.1996 by im but he nor the injured has offered any explanation for such delay in recording the statement. On the direction of the learned trial Court Dr. M.A. Qureshi laced on record, the treatment chart, and other relevant documents pertaining to the injured ASI Muhammad Siddique. Perusal of these documents reveal hat uptill 18.12.1996 he remained under treatment in the said hospital. It is evident from the medical evidence that after providing first aid, he was immediately referred to arachi for treatment by the doctor because of the severe gun shot injury received by PW-4 on his right gluteal area which must have been bleeding profusely, therefore, n iew of thegravity of the injury PW-4 may not be in a position to or not justified to record his statement and to deprive him from the immediate medical treatment. According to PW-1] Muhammad Din constable; from the hospital at Uthal, he took the injured to Agha Khan Hospital Karachi and such version of the witness has not been challenged by the defence. It appears that from there, he was taken to Anklesaria hospital where he remained under treatment ptill 18.12.1996. PW-14 (1.0) did not go to Karachi for recording the statement of PW-4 nor he disclosed as to when he returned to Uthal. There is a considerable delay in recording the statement of PW-4 under Section 161 Cr.P.C. Ordinarily delay which goes un-explained in recording the statement of a witness u/S. 161 Cr.P.C, is excluded from consideration; as has been held by the Hon'ble Supreme Court of Pakistan in the case of Syed Saeed Muhammad Shah and another us. The State reported in 1993 SCMR 550 but in the instant case PW-4 is not the witness of the incident simpliciter, rather; he sustained bullet injury, and ; as above held that his presence on the spot cannot be denied, therefore, deposit delay in recording his statement, his deposition would not in the circumstances of the case be liable to exclusive, rather; the same has to be scrutinized with great care and caution keeping in view the entire facts and circumstances of the case, in order to come to a just -conclusion and to find out the truth. PW-4 ASI Muhammad Siddique has not deposed that the deceased was fired upon by the accused nor has alleged that the bullets fired by accused hit the deceased, who simply stated that the accused fired about six shots, one hit him on his leg and the other bullets crossed near to his body and he also heard voice of the civilian (deceased). The narration of incident by PW-4 unequivocally suggest that the accused fired only six shots, out of which only one bullet hit the ASI Muhammad Siddique who did not fire on the deceased. PW-14 (I.O) has admitted that no bullet was noticed to have hit on the vehicle, whereas; according to PW-4 he was fired upon while he occupied the vehicle and wanted to leave from the place of incident. PW-14 secured only six empties of 7.62 callibre. In the site plans Ex. P/6-A (prepared by PW-6 on the pointation of PW-14) and Ex. P/14-A prepared by the investigating officer, the place from where the empties were secured on the next day at 9.30 a.m. has not been shown. Ex. P/6-A reveals that in the same line on the RCD Road the vehicle in question was parked wherein, according to PW-4 he was sitting at the time of firing, and the dead body of the deceased has been shown as was lying at the relevant time on a very close distance from the vehicle whereas; in the same line towards south of the dead body at a distance of sixty feet, the accused resorted to firing. In the given site situation as per Ex. P/6-A and Ex. P/14-A, PW-4 in all probability must have been seen or noticed that one of the bullets fired by accused hit the deceased, more particularly; for the reason that he noticed that one bullet hit him, while the other out of the six fired by accused crossed near to his body, and; for such reason it appears that the deceased was not standing in between the accused and PW-4, otherwise nothing precluded him to say so. Ex. P/14-A (site plan) shows that PW-4 ASI Muhammad Siddique was standing near to his vehicle whereas; according to PW-4 firing was resorted to by the accused when he boarded into the vehicle. PW-9 Muhammad Ayub constable deposed that the noticed only two shots fired by accused, out of which one hit the glass and the other hit on a vehicle but PW-14 denied that the vehicle contained any bullet mark. This witness has not seen the deceased or PW-4 having been shot by the accused and according to him before reaching to the place of incident three/four shots were fired earlier; and he was told by the Bank guard on inquiry that accused was firing. It appears from the evidence of Muhammad yub that he reached to the place of occurrence after the incident. It may be noted that the statement of PW-9 Muhammad Ayub Constable was recorded after about 4/5 of the incident and no explanation for such delay has been offered by this witness or PW-14 (I.O) as such; his evidence is liable to be excluded form consideration. In the ncident one civilian Ali Asghar Shah guest of accused | and PW-4 ASI Muhammad Siddique sustained bullet injuries but PW-9 despite being a police-man, whose fficer was subjected to murderous assault did not bother to accompany at least to his injured officer nor cared to give statement about the incident till four/five days lapsed. Such conduct on the part of the witness creates doubt about his presence on the spot. 17. Abdul Sattar constable (PW-8) is also the cited ocular witness of the incident and according to him on the date of incident he, alongwith ASI Muhammad Siddique (PW-4) Ghulam Hussain (PW-1) and Muhammad Ali (PW-2) reached to the bungalow of S.P on the date of incident in th^ vehicle, where exchange of hot words took place between the accused and PW-4 because the accused was found as having allowed a civilian to sit with him during guard duty hours at S.P's residence and ultimately accused stopped back and fired shot in the air, second fire missed and on the third shot fired by accused, heard the scream of civilian Shahji and then he heard three more fire reports. The witness admitted that the did not see the deceased having been hit with the bullet because he was inside the guard room. This witness did not depose in examination-in-chief as to how the ASI Muhammad Siddique sustained gun shot wound but on cross-examination he disclosed the third fire made by accused, PW-4 Muhammad Siddique was shot but when confronted to his statement recorded u/S. 161 Cr.P.C. it has been noted that he did not state so. The witness has also not disclosed about the 'Hot-words' exchanged between the accused and PW-4 nor has stated as to whether the ASI Muhammad Siddique was inside the vehicle when the incident occurred. From the close scrutiny of the evidence of PW-8 it transpires that he either was not present on the spot or attracted to the place of occurrence after incident, as such; his evidence too is of no help to the prosecution. 18. The foregoing discussion and re-appraisal of the evidence of ocular witnesses of the incident, leads us to believe that except the presence of the deceased, accused and the ASI Muhammad Siddique; the presence of the other ocular witnesses on the place of incident at the time of occurrence becomes doubtful. Such ocular witnesses are police personnels of lower grade as compared to the injured ASI therefore, in the given circumstances of the case in all probabilities emerging from their depositions, they have been planted as the ocular witnesses of the incident. Thus; now it is to be seen as to whether in the light of the testimony of PW-4 coupled with the other circumstances of the case, charge against, accused has been established or otherwise. The evidence of PW-4 has been dilated upon hereinfore. The place of incident where the deceased and PW-4 received bullet injury respectively discussed above has not been disputed. The empties and the blood tained earth has also been secured from such site, which has not been challenged or could be discredited by the defence and soon after the occurrence, W-4 reached to the Police Station in the vehicle, who was taken to the hospital by SHO/IO (PW-14) and the accused some time thereafter on ; the same road was rrested in front of the DC's residence by PW-3 Siraj Ahmed ASI and PW-10 Sana-ullah constable, who were deputed by PW-14 to arrest the accused. The accused in is statement on oath has denied that he was on guard duty at, the residence of S.P at the relevant time, rather stated that he performed such duty from 3.00 p.m. to 6.00 .m. and on the next day same were his duty hours. It may be noted that the accused did not deny that he was not on guard duty at S.P's residence and what has been denied is the duty hours. In order to come to a just conclusion it is obligatory _ „ to find out truth by sifting grain from chaff. It is pertinent to note that to almost all the PWs suggestion has been given by the defence that the deceased was shot by ASI Muhammad Siddique (PW-4). Such a suggestion on the art of the defence in the circumstances of the case does not appear tobe without any significance because as above observed the entrance and exist size of the injury eceived by PW T -4 and by the deceased as premedical evidence carries hardly any resemblance, meaning thereby that both i.e. the deceased and PW-4 appear to ave ot suffered wound by means of thesame fire arm. PW-5 Dr. Muhammad Amin no doubt has opined that the

deceased suffered 'Rifle' bullet and in the cross-xamination part of his . statement disclosed that it was so mentioned because of the histoiy of the case given to him. It may be seen that according to PW-5 Ali Asghar as in precarious condition when brought to the hospital who expired some time thereafter due to the injury whereas; PW-4 ASI Muhammad Siddique according to the Medical Officer was fully conscious and well oriented to place and time, who himself drove to the Police Station from the place of occurrence, thus it can be safely inferred that the histoiy of gun shot firesmust have been given to the doctor (PW-5), by ASI Muhammad Siddique and he opined ccordingly. 19. In view of the facts and circumstances of the case discussed above, inference can be drawn that PW-4 and the accused (who suggested to the PWs that eceased was fired upon by ASI Muhammad Siddique) ' ' suppressed the true facts and the manner in which the incident actually occurred. There remains no oubt to conclude that the accused was on duty at the bungalow of S.P at the time of incident, as also for the reason that on the same night after the incident on the ROD road the accused was apprehended by the police with the service gun. taken into possession vide inventory Ex. P/10-A having four rounds in the magazine and forty rounds contained in the bandolier. The recovery of the service rifle and the rounds in a strong circumstance besides the evidence of PW-3 and PW-4, to prove the fact that the accused was on duty at the time of incident and otherwise he would not have been in the possession of service rifle, after his duty hours. The accused himself deposed that on joining duty he used to collect the service gun and used to return after his duty hours as guard. The — evidence of PW-4 independently established that on the date of incident when he reached to the residence of S.P., he found the accused on duty with a civilian (deceased) sitting with him, which was objected to by PW-4 but the accused stated that he being on duty" can allow any person to sit with him and that PW-4 is not body to ask him about and such cause as we understand eventually resulted into the incident. In such view of the matter there was no reason for the accused to have had shot his guest/companion sitting with him, from whom he had even harshly talked to his officer (PW-4). ASI Muhammad Siddique even has not alleged that the shot, fired on him hit the deceased and the true facts of incident are not disclosed by the prosecution and even the accused suppressed the same. It looks that on account of exchange of bitter dialogue between PW. 4 and accused, keeping in view the medical evidence in respect of injxiry sustained by deceased, coupled with the circumstances of the case it can be inferred that PW-4, ASI Muhammad Sididque either fired upon the deceased directly or mistakenly fire made by PW-4 hit the deceased, as a result, whereof, the accused fired on ASI Muhammad Siddique which hit him. 20. Ex. P/3-A indicates that the service revolver of PW-4 was also taken into possession by PW-14 in presence of PW-3 and PW-10 alongwith six bullets as 'case property'. No evidence has been produced by the prosecution to establish that only six rounds alongwith the revolver were ssued to PW-4 which alongwith the revolver were taken into possession. In view of the prosecution story there must be a reason with the I.O. (PW-14) to have had taken into possession the service revolver of PW-4 ASI Muhammad Siddique, and; such act on the part of PW-14 indicates that he had in mind that the same might have been used in the commission of offence. The revolver and rifle taken into possession alongwith the rounds were sent to Fire Arms Expert whose report Ex. P/14-E tendered in evidence by PW-14. According to this report, as there was no residue gun powder found in the barrel of the revolver therefore, no definite opinion can be offered as to when the same was used lastely, whereas; in respect of the rifle it has been opined that the crime empties matched with the test empties, as such ; it was concluded that the crime empties had been fired from the rifle. It is a stonishing to note that the expert did not give any finding of residue gun powder having been found in the barrel of the rifle or G otherwise, apart from the residue gun powder which may not be found in the barrel of the gun/revolver, the other prescribed methods have not been adopted or carried out to determine as to whether the same was used or not. Non adopting of the prescribed course for the purpose renders such report as inconsequential. Admittedly the Fire Arms Expert of the crimes Br. Police, Quetta is not the government appointed expert, as such; his report is not admissible in evidence without being formally proved by its another, hence the some cannot be relied upon for any purpose. It has been argued by the complainant's counsel that the case be remanded to the trial Court for examination of the fire arm expert but we see no reason to remand the case, because such course if adopted, will not be in consonance with the principles of natural justice and would also amount in making up the deficiency in prosecution case, and; secondly even in absence of such report, the case can still be decided effectively on the basis of available evidence. 21. There is no doubt that dishonest investigation has been conducted in the case by Abdul Hameed SHO P.S. Uthal, as he did not register the FIR promptly nor mentioned the time of the registration of FIR t or report made to him, who'inspected the place of incident next day at 9.00 a.m., sent the articles i.e. revolver rifle and the bullets to the Fire Arm Expert after a considerable delay, recorded the statement of ASI Muhammad Siddique and PW-9 very lately who also did not prepare the injury report of PW-4, and; did not conduct the investigation as legitimately expected, who was duty bound to un-earth the truth. It appears that deliberately the required investigation was not conducted for ulterior objects because as above discussed, PW^4 Police Officer appears to be involved for causing fatal injury to the deceased and the accused being a police constable had been held responsible for the whole crime. The dishonest investigation on the part of PW-14 would not effect the trial of the case nor the judgment passed by the court, unless it uprooted the entire structure and entailed mis-carriage of justice, which is not so in the instant case despite of dishonest investigation; golden principle to sift the grain from chaff applies classically in the instant case; as a result whereof the false hood part of the prosecution case/evidence has been slashed form the truthful one capable of implicit reliance in the light of facts and circumstances of the case. 22. The appellant's counsel contended that motive disclosed in the report and by the PWs is inconsistent and not proved therefore, the accused is entitled to due benefit. It is worth while to note that the motive disclosed in the report by PW-1 though gets support from the evidence of ASI Muhammad Siddique as being the immediate cause of the incident, but as it has been held hereinfore that the presence of PW-1 on spot seems to be doubtful, yet independently the cause leading to the incident has been proved by PW-4 ASI Muhammad Siddique, which emerged at the spur of moment between the accused and PW-4; fits in the circumstances of the case and thus it cannot be said that the cause of the incident has not been proved by the prosecution. Presence of PW-8 on the spot at the time of incident has been found to be doubtful therefore, his disclosure about the cause of incident remains inconsequential. ASI Muhammad Siddique the victim of murderous assault has disclosed that on 31.10.1996. Umar Constable was chased by him who was found in possession of a stolen motor-cycle but he made good his escape in the wild and PW-5 reported the matter to SHO, who suspended Umar Constable about 20 days thereafter, accused and Umar constable came to him stating that he has done no good by, having the constable Umar suspended and that the accused threatened him that he will see to him. PW-12 has concerning such matter narrated a divergent event, which • took place in presence of PW-4 but PW-4 did state so. Such a disclosed motive is not only remote but inconsistent as well, which in our considered view was not the cause of the incident, and; secondly such inconsistency about disclosed motive will not by itself destroy the other prosecution evidence available on record warranting conviction of accused. It is pertinent to note that PW-4 has also given the immediate cause of the incident which appears to be convincing and also fits in the circumstances, but as above discussed the manner in which the incident took place has been suppressed by PW-4, thus; for such and the hereinfore mentioned reasons the prosecution evidence has been scrutinized with great caution and care. 23. In our considered opinion the prosecution has successfully established charge against accused under Section 324 PPG only and the defence failed to impeach the same on any probabilities, thus; the conviction and sentence recorded against the accused u/S. 302 PPC by the trial Court for causing Qatl-e-Amd of deceased Ali Asghar Shah is not sustainable. 24. For the foregoing reasons appeal is partly accepted, the conviction and sentence recorded against the appellant u/S. 302 PPC is set aside, accordingly he is acquitted of the charge u/S. 302 PPC only. The conviction and sentence recorded against the appellant Under Section 324 PPC by the trial Court is maintained; consequently Crl. Revision No. 34/98 stands dismissed. We hereby further direct to the Deputy Inspector General of Police, Sibi Range, to re-investigate the case in respect of the homicidal death of deceased Ali Asghar Shah through an honest and competent Officer of the crimes Branch Police and to submit the challan in Court for trial of the offence against the one who may be found liable for commission of such offence. Copy of this Judgment be sent to Deputy Inspector General of Police, Sibi Range , Sibi for compliance of the above noted direction. (K.K.F.) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1726 Present: MUHAMMAD naseem CHAUDHRI, J. MUHAMMAD NAEEM etc.-Petitioners versus STATE-Respondent Crl. Misc. 4940-B of 1998, accepted on 29.9.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497 sub-section 1-Bail-Grant of-Prayer for-Offence u/Ss. 10(2)/13/14/18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Entry of police in a house in search of an absconder, who was not present there—However, two made arid a female were found while preparing for Zina-A case of zina was registered-Bail applications at Sessions level rejected-Challenge to-Theoiy coined by police has failed to impress High Court-Confession of Mst. R before Police, is inadmissible in evidence u/A. 38 of Qanun-e-Shahadat Order, 1984-Male accused have not been got medically examined for potency—Its a case of transgression of authority on the part of police-Case is also covered by proviso to sub-section 1 of Section 497 C/r.P.C.—Bail granted. [P. 128] A Mr. Aish Bahadur Ran and Sh. Muhammad Nasir, Advocates for Petitioners. Mr. Ashtar Ausaf Ali, A.G., Syecl Zulfh/ar All Bukhari, Asst. A.G. and Mr. Khadim Hussain Deputy Superintenden of Police (Legal) Lahore for State. Date of hearing: 29.9.1998. judgment This order is intended to dispose of the following bail applications:- (i) Cr. Misc. No. 4940-B/98 namely Muhammad Naeem and Muhammad Amir vs. The State (ii) Cr. Misc. No. 5034-B/98 namely Mst. Shabnam vs. The State. 2. Sultan Ali A.S.I. Police Station Tibbi City, Lahore was no 'gasht' of the area on 9.9.1998 at 2.15 a.m. in the company of Niaz Ahmad LHC, Zahid Younas HC and Muhammad Pervaiz LHC. He was present in Kucha Shehbaz when a secret information was imparted to him that house No. 2207-A, Fort Road, Gujjar Gall, Tibbi City, Lahore was generally visit«H by an absconder named as Muriir Ahmad son of Muhammad Sharif involved in crime case No. 205 registered on 26.4.1998 under Sections 399/402 Pakistan Penal Code at Police Station Tibbi City, Lahore. He raided that house where Munir Ahmad absconder was not present. However, two male persons named as Muhammad Naeem and Muhammad Amir (both petitionersaccused) alongwith one Mst. Shabnam petitioner-accused were found while preparing for zina by consent. The owner of the house Mst. Rehana was also present from whose person an amount of Rs. 400/- was recovered who informed the aforesaid Sultan Ali A.S.I that she had received the said amount for the male persons. He arrested the petitioners-accused as well as Mst. Rehana. Sultan Ali A.S.I, sent the complaint to the SHO Police Station Tibbi City, Lahore and on its basis FIR No. 488 dated 9.9.1998 was registered at 2.25 a.m. under Articles 13/14/18 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979. It is proper to express that police should have mentioned Article 10(2) of the said Ordinance, alongwith the said Articles. 3. The bail application of Mst. Rehana was accepted by the learned dditional Sessions Judge, Lahore on the ground that she was having a suckling baby. However, the bail application of these three petitionersaccused was dismissed on the ground that they were involved in a case of moral turpitude. The petitioners have filed this petition before this Court, for their admission to bail, 4. The learned Advocate General, Punjab, Lahore and the Deputy Superintendent of Police (Legal) were summoned to look into the matter as to how Sultan Ali A.S.I, could enter the house of Mst. Rehana co-accused. The S.H.O. brought the file of crime case No. 205 registered on 28.4.1998 under Sections 399/402 Pakistan Penal Code at Police Station Tibbi City, Lahore . The address of Munir Ahmad absconder is mentioned as "son of Muhammad Sharif caste Arain resident, of Chak No. 6-1-AL District Okara." His remaining accused, who alongwith him were preparing to commit the dacoity while armed with lethal weapons, were arrested. A perusal of the said case tile has made out that the police has nor gone to the residence of Munir Ahmad in District Okara to arrest him. Rather no independent efforts have been made and even the proceedings under Section 87/88 of the ('ode of Criminal Procedure have not been initiated and conducted. Till today the challan in the said case has not, been submitted. I have brought to the notice of the learned Advocate General Punjab and the Deputy Superintendent of Police ('Legal) Lahore that it is a common practice with the police within the area of Police Station Tibbi that on the pretext of the arrest of an absconder accused the police would enter the house without warrant from where the absconder is not arrested who rather is not found therein and that some males and females are apprehended/arrested on the alleged ground of the preparation for commission of zina by consent. The Deputy Superintendent of Police (Legal) Lahore conceded thai this practice is going on in Police Station Tibbi, Lahore . I express that, : two criminal cases of such type are registered every year by the Polic .: -rein the accused is shown as the absconder to exercise the free hand, however, it is not permissible by law. As expressed above no independent efforts were made by the police to arrest Munir Ahmad absconder. Even under Section 48 of the Code of Criminal Procedure the police has to grant the time to the ladies of the house to withdraw from the place and thereafter enter the house. Admittedly this procedural requirement was not followed and acted upon by the police. The Deputy Superintendent of Police (Legal) has assured this Court that this fact shall be brought to the notice of the Senior Superintendent of Police, Lahore for future working of police. When Munir Ahmed absconder was not present in the house the police was bound to leave the same without proceeding further in the matter and making search. Hence I hold that the entry of Sultan Ali A.S.I, in the house of Mst. Rehana was not legally justified. Learned counsel for the accused rightly argued that it is a case of attempt of zina by consent wherein maximum punishment provided is R.I. for five years, thirty stripes and fine which does not fall within the prohibitory clause and that even otherwise there is no evidence that any amount was paid by the male accused persons to the female accused Mst. Rehana for providing Mst. Shabnam for the commission of zina by consent for the » purpose of prostitution. The production of Rs. 400/- before the police by Mst. Rehana in her own house cannot be held to be the price of the person of Mst. Shabnam for the purpose of prostitution as every body is expected to keep some amount in his/her pocket. This theory coined by the police has failed to impress me. Further the aforesaid confession of Mst. Rehana before the Police, is inadmissible in evidence under Article 38 of the Qanun-e-Shahadat Order, 1984. The male accused have not been got medically examined for potency. My view is that it is a case of transgression of authority on the part of Sultan Ali ASI who entered the house of Mst. Rehana without legal and factual justification under the pretext of the arrest of Munir Ahmad absconder who was not present there. Mst. Shabnam petitioner is a female whose case is also covered by the proviso to sub-section 1 of Section 497 of'the Code of Criminal Procedure and I am at a loss to understand as to why this provision of law was ignored by the learned Additional Sessions Judge. I, therefore, hold that it a case of admission of the three petitioners to mil. 5. For what has been said above, I accept this application and admit Muhammad Naeem, Muhammad Amir and Mst. Shabnam petitioners to bail in the sum of Rs. 10,000/- (Rupees Ten Thousand only) each'with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Lahore with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel the bail of the absentee accused person(s). (K.K.F.) Bail granted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1729 ( Multan Bench) Present: M. javed BUTTAR, J. MUHAMMAD IRSHAD-Petitioner versus STATE-Respondent Crl, Misc. No. 712-B-1997, dismissed on 25.8.1997. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Bail-Murder Case-Petitioner is ascribed fatal injury to deceased, (a female) and prima facie, there are reasonable grounds to believe that petitioner is connected with offence-Petitioner is nominated in FIR— Allegation of repeated blows has been levelled against him-Petition dismissed. [P. 1730] A Sardar Riaz Karim, Advocate for Petitioner. Mr. Altaf Ibrahim Qureshi, Advocate for Complainant. Date of hearing : 25.8.1997. order The petitioner Muhammad Irshad is seeking post-arrest bail in case FIR No. 27/96 dated 13.2.1996 registered at Police Station Sadar Burewala for the offences under Section 302/334/337-F1 (iii)/337-L for an occurrence alleged to have taken place on 12.2.1996 at 11.00 a.m. in which Mst. Ramzan Bibi, the mother of the complainant, Muhammad Sarvyar, got killed by blunt weapon with the fatal injury on the head attributed to the petitioner. 2. The challan has been submitted against the petitioner in Court on 12.4.1997. Learned Additional Sessions Judge, Burewala dismissed the petitioner's application for the grant of bail on 17.3.1997. 3. It is contended by the learned counsel for the petitioner that the omplainant party is the aggressor party and on the same day for the same occurrence, FIR No. 25/96 was registered at the instance of the petitioner under Section 302/34 PPG for the murder of Muhammad Tufail, brother of the petitioner, the occurrence took lace in the field owned by the petitioner, it is a two version case which makes it a case of further inquiry, the belated recovery of hatchet is inconsequential, mala fide of the police is apparent from the fact that in FIR No. 25/96, the police failed to make any arrest and only one accused has been arrested so far, the petitioner is behind the bars for the last 17/18 months and in view of'the fact that it is a two version case, he is entitled to the grant of bail. 4. Learned counsel for the State and the complainant have vehemently opposed this application and have submitted that the petitioner is nominated in the FIR with specific role attributed to him and the allegation of repeated blows has been levelled against the petitioner and the fatal injury to the deceased Mst. Ramzan Bibi is also attributed to him. <5. I have heard the learned counsel for the petitioner, the State, the complainant and have also seen the record. 6. The petitioner is ascribed fatal injury to Mst. Ramzan Bibi, a female, and prima facie there are reasonable grounds to believe that the petitioner is connected with the offence charged and in these circumstances I am not inclined to enlarge the petitioner on bail. The application is, therefore, dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1730 ( Multan Bench) Present: MUHAMMAD NAWAZ ABBASI AND ZAFAR PASHA CHAUDHARY, JJ. KAHDIM HUSSAIN and other-Petitioners versus STATE-Respondent Murder Reference No. 112 of 1994, Criminal Appeal No. 336 of 1993, decided on 17.9.1997. Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34~Murder-Offenee of-Conviction for-Appeal against-Two eye witnesses revealed some changes in their statements at trial to avoid any conflict with medical evidence-Injuries allotted to M, appellant in FIR were not traceable in evidence of doctor-Sirmlalry role of causing injury to deceased by A. appellant with sota was introduced for first time at trial-Medial evidence qua said appellants running counter to story of FIR-Eviderice of PWs to the extent of these two appellants, is not proved beyond doubt-Cloudy situation favours them for extention of benefit of doubt-Appeal accepted. [Pp. 1736 & 1737] A to D (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302/24 Murder-Offence of-Conviction for-Appeal against-Pws having no previous enmity against appellants or motive to drag them in a false case, are truthful witnesses—But actual cause of occurrence being not known, motive is shrouded in mystery and in view of single injury attributed to K. appellant sentence of death converted into life imprisonment to his extent whereas sentence of life imprisonment to appellant M. maintained-orders accordingly. [Pp. 1738] E to G Ch. Pervaiz Aftab, Advocate and Khadim Nadim Malik, Advocate for Appellants. M. Ramzan Khalid Malik and Zafar Mahmood Anjum, Advocate for State. Date of hearing : 17.9.1997. judgment Muhammad Nawaz Abbasi, J.--This judgment will propose the disposal of Murder Reference No. 112-94 sent by the learned Additional Sessions Judge, Muzaffargarh, and Criminal Appeal No. 336-93 filed by the appellants, namely, Khadim Hussain, Muhammad Bakhsh alias Mamda, Ashiq Hussain, the real brothers, and Muhammad Iqbal Hussain son of Ghulam Qadir against their conviction under Section 302/34 PPC by the said learned Additional Sessions Judge through judgment dated 18.12.1993, whereby Khadim Hussain has been sentenced to death and the remaining appellants to imprisonment for life, for the charge of, committing the murder of Muhammad Iqbal son of Muhammad Ramzan. The appellants were also directed to pay Rs. 15,000/- each as compensation to the legal heirs of the deceased. 2. The occurrence in the present case took place near the Haveli of one Ghulam Qadir of Chah Dheranwala in the area of Police Station Qureshi, District Muzaffargarh. Nazar Hussain PW. 2, the maternal uncle of Muhammad Iqbal deceased, lodged report of the occurrence through his statement Ex-PA mad before Muhammad Sadiq SI/SHO PW 6 at 8 p.m. on 6.6.1991 on the basis of which the case was registered within less than one hour of the occurrence through FIR Ex-PA/1 on the same day. 3. The details of the facts in the background given in the complainant Ex-PA is that on 6.6.1991 at about 7.15 p.m. Nazar Hussain complainant and his brother Ghulam Sarwar were proceeding towards Chah Dheranwala. They on reaching the Pacca road noticed Muhammad Iqbal deceased coming from northern side who was confronted by Khadim Hussain, Muhammad Bakhsh alias Mamda, Muhammad Iqbal Hussain armed with Chhuras and Ashiq Hussain appellant empty-handed, near Basti Charhoiwali who having embushed themselves raising Lalkara opened attack upon he deceased. Khadim Hussain and Muhammad Bakhsh appellants allegedly inflicted one Chhura blow each on the chest and neck of the deceased respectively, whereas Muhammad Iqbal Hussain is attributed two successive injuries with chhrra on the head and ear of the deceased who ran into the Haveli of one Ghulam Qadir situated in the nearby but Ashiq Hussain appellant pulling the deceased dragged him in the court-yard of the Haveli where he succumbed to the injuries. The motive narrated therein was that 3 days before the occurrence there was exchange of hot words between Ashiq Hussain appellant and Muhammad Iqbal deceased at the shop of Abdul Rehman and in consequence thereof deceased slapped Ashiq Hussain. The matter was however patched up for the time being but Ashiq Hussain and Khadim Hussain and extended threats for taking revenge of their insult. 4. Muhammad Sadiq SI/SHO PW.6 reaching at the spot prepared injury statement (Ex-Pi) and Inquest report (Ex-PJ) of the deceased and despatched the dead body for post-mortem examination. During the spot inspection he secured blood-stained earth through memo Ex-PB. He after arrest the accused on 26.6.1991 except Ashiq Hussain who was arrested on 26.7.1991 effected recoveries of the weapons of offence from them However, the same having not believed by the learned trial Court need not to be described in detail. The Investigating Officer having completed the investigation challenged the appellants to face the trial for the charge of murder. 5. Dr. Tanveer Ahmad PW. 8 having conducted post-mortem examination of the deceased traced 8 injuries of the following description on the dead body. 1. An incised wound 5 x 1/2 cm going deep into left chest cavity on the left nupple extending to midline of chest between 5th and 6th intercastal space on front of left chest. 2. -An incised wound 4 x 1/2 cm on Rt.- back and base of neck going deep upto the muscles of neck clotted blood present in and around the margins of the wounds. 3. Two abrasions about 2 to 3 cm each on inner side of Rt knee joint. 4. Abrasion 5x2 cm oil back of Rt elbow joint inner side. 5. A small incised wound 2x2 cm on inner side Rt hand just nearer to wrist joint. 6. A swelling 4x6 cm on the Rt tamper parietal junction, of skull with laceration of 1 x 1 cm in the mid of it. 7. fi swelling about 2 cm diameter just on the Rt side of skull in the mid on occipital region. 8. Two abrasions 2.6 cm of each on front of left knee joint. The Injuries Nos. 1, 2 and 5 were found to have been caused with sharpedged weapon whereas the remaining were of blunt weapon. The injury No. 1 was found fatal to life. 6. The trial Court with the exclusion of evidence of recovery of weapons of offence and motive placing reliance on the ocular account and medical evidence, found the appellant guilty of charge. The eye witness namely Nazar Hussain complainant PW. 2 is maternal uncle of the deceased whereas Ghulam Sarwar PW. 3 is real brother of the complainant. Nazar Hussain complainant PW. 2 except making some change in his evidence to the extend of attributing the injury on the right hand of the deceased to Muhammad Iqbal Hussain appellant and that of causing of a sola blow on the head of the deceased by Ashiq Hussain appellant inside the Haveli, confirmed the story of FIR as such in his statement at the trail. Ghulam Sarwar PW. 3 deposed that first injury was inflicted by Khadim Hussain with Chhura on left side of the chest of deceased and then Muhammad Bakhsh alias Mamda caused Chhura blow on his neck. Thereafter Muhammad Iqbal Hussain appellant allegedly caused blows on right hand and 'ear of the deceased. Ashiq Hussain appellant has been assigned the role of ulling the deceased down on the ground and also causing of an injury on his forehead with sota. 7. Khadim Hussain appellant denying the charge has made the following statement, under Section 342 Cr.P.C. :- "Due to political enmity. Rai Mushtaq Ahmad Chairman Union Council AM Daha and Sardar Nawazish AM Qandrani belong to Peoples Party. Nawazish Ali Qandrani was a candidate in 1990 Elections. Rai Mushtaq Ahmad supported him. I, alongwith my Brathri and co-accused vehemently opposed Nawazish Ali Qandrani in the elections and supported the candidate of Islami Jamhori Ittehad, Malik Noor Rabbani Khar. Nawazish Ali Qandarani suffered a crushing defeat. The place of occurrence is the house of Ghulam Qadir Gazar which is situated in Basti Gazarwala (Basti Charhoiwali). It is a big Basti and majority of its population belongs to Gazar casts and profession. There are two big shops near the house of Ghulam Qadir Gazar and these shops belong to Ashiq Hussain Qandrani and Ghulam Qadir Qandrani. The whole of the Basti actively supports PPP and Nawazish Ali Qandrani and the leaders of this Basti Gazarwala, is, above mentioned Ghulam Qadir Gazar, Ashiq Hussain Qandrani and Ghulam Qadir Qandrani, is the active supporters of PPP. On 13.10.1989 Khuda Khan and Muhammad Iqbal deceased criminally trespassed into the house of Ghulam Qadir Gazar as Muhammad Iqbal deceased was carrying on illicit relations with the wife of Ghulam Qadir Gazar. Allah Bux son of Ghulam Qadir Gazar and Munir Hussain son of Ahmad Bux Gazar caught hold of Muhammad Iqbal deceased and Khandu Khan. Fight ensued between them as a result of which Khandu Khan, Allah Bux and Munir Hussain were injured while Muhammad Iqbal Gazar deceased escaped un-hurt from the house of Ghulam Qadir Khandoo Khan, Allah Bux and Munir Hussain were medically examined for their injuries. Due to the intervention of Sardar Nawazish Ali the matter was not reported to the police. It was particularly mentioned that Nazar Hussain PW is maternal uncle of Muhammad Iqbal deceased and he (Nazar Hussain) got Khandu Khan got medically examined from the hospital. Nazar Hussain PW, his nephew, Muhammad Iqbal deceased and his Brathri are the active supporters of the PPP and Nawazish Ali Qandrani. Sardar Nawazish Ali Qandrani and Rai Mushtaq prevailed upon Abdul Rahim PW who on 6.5.1991 in collusion with them, fabricated a false case against us. FIR and recovery memos of the weapons of the offence are not in the hand of Muhammad Sadik SI/SHO. All these documents are false. Muhammad Iqbal deceased was killed by Ghulam Qadir Gazar, his sons and his relatives in the house belonging to Ghulam Qadir Gazar. They have been saved by Nawazish Ali and Rai Mushtaq. The I.O. did not associate them with the investigation of the case at any stage. They have not been examined by the I.O. There is no evidence whatsoever that Ghulam Qadir Gazar were not present in the house at the time of occurrence. I produce photo-stat copies of medical certificates of Khandu Khan, Allah Bux and Munir Hussain. The eye witnesses are false. They had not seen the occurrence. Mark 'A', Mark 'B' and Mark 'C' are the MLRs of the above injured persons." The remaining appellants also denying the allegations and pleading their innocence made similar statements. 8. Messrs Malik Wazir Ghazi and Ch. Pervaiz Aftab learned Advocates for Muhammad Bakhsh alias Mamda and Ashiq Hussain appellants and Mr. Khadim Nadim Malik, Advocate appearing on behalf of Muhammad Iqbal Hussain appellant, challenging the conviction and sentence on the appellants raised the following contentions :-- (i) That according to the story of the FIR Muhammad Iqbal Hussain appellant having armed with chhura caused two successive blows to the deceased on his head and ear but no incised wound except Injuries Nos. 1, 2 and 5 attributed to Khadim Hussain and Muhammad Bakhsh appellants have been traced on the person of the deceased. According to them Injury No. 5 on the right hand was not specifically attributed to any of the appellants in the FIR but at the trial- the witnesses through dishonest improvement allocated the same to Muhammad Iqbal Hussain appellant. (ii) That as per initial version given in the FIR the deceased upon receiving the injuries run into the Haveli of Ghulam Qadir but at the trial changing the same it was stated that he was dragged into the Haveli by Ashiq Hussain appellant. (iii) That Ashiq Hussain appellant being empty handed was assigned the role of pulling down the deceased in the FIR whereas at the trial he allegedly caused sota blow on the head of the deceased in the court-yard of the Haveli. (iv) That as per statement of Nazar Hussain PW. 2 but was on his way to his well in Chan Dheranwala whereas Ghulam Sarwar PW. 3 stated that he and Nazar Hussain were coming to their house form Chah Dheranwala. The conflicting statement of the two eye witnesses regarding their claim of presence at the spot made the same reasonably doubtful. (v) That the recovery of dead body from the Haveli of Ghulam Qadir provided a strong circumstances for visualizing the possibility of the correctness of the version of indulgence of the deceased in immoral activities with wife of Ghulam Qadir which resulted into this fateful incident. (vi) That the possibility of the occurrence having taken place during dark hours of night being not ruled out, it was a blind murder and the appellants due to the political rivalry • in the local area were substituted for the real culprits, in a blind murder. (vii) That the inmates of the house i.e. Haveli, where the occurrence took place, being the natural witnesses were purposely not associated in the case and produced before the court who would be the best person to unfold the true story. The learned counsel with reference to some discrepancies and the contradictions in the statements of the eye witnesses contended that presence of the PWs at the spot being not free from doubt, the manner of taking place the occurrence as suggested by the prosecution is not proved. (viii) Taking the case of Ashiq Hussain appellant, individually it was argued that he being empty handed was not assigned the role of causing any injury to the deceased in the FIR and the subsequent improvement of causing injury to the deceased with soti would not be of worth consideration to be made basis for conviction. (ix) Mr. Khadim Nadim Malik, Advocate added that injuries attributed to Muhammad Iqbal Hussain through improved version at trail being not traceable in the medical evidence and mentioned in the FIR except on head and ear, his conviction is not safe in absence of positive proof of his guilt. 9. Conversely' the learned counsel appearing on behalf of the State argued that there being no background of enmity between the parties, there was no reason with the natural witnesses of the occurrence to substitute the appellants with the actual culprits or to implicate them in a false case and that no material contradiction or discrepancy was traceable to make their evidence shaky. He argued that the specific role of causing injuries with Chuura to the deceased assigned to Muhammad Iqbal Hussain, seeks full corroboration from medical evidence and similarly the blunt Weapon injury on the head of deceased attributed to Ashiq Hussain appellant having found by the doctor as such, he was an active party to the crime. He finally argued that the role assigned to Khadim Hussain and Muhammad Bakhsh his proved beyond doubt and the active participation of the remaining appellants namely Muhammad Iqbal Hussain and Ashiq Hussain, is also proved beyond doubt, therefore, all the appellant being equally responsible for commission of offence, do not deserve any leniency in the matter of sentence. 10. We have perused the record and gone through the evidence minutely with the help of the learned counsel for the appellants and also heard them at length. 11. The examination of the evidence of two eye witnesses undoubtedly revealed some changes in their statements at the trial probably to avoid any conflict with the medial evidence. Muhammad Iqbal Hussain appellant has been specifically attributed the role of causing injuries with chhura on the head and ear of the deceased in the FIR whereas an incised injury on the hand of the deceased not being found mentioned in his name in he first version given in the FIR, was also attributed to him at the trial. This is noticeable that the injuries allotted to him in the FIR were not traceable in the evidence of'the doctor. Similarly the role of causing injury to the deceased by Ashiq Hussain appellant with sofa was introduced for the first time at the trial. The medical evidence qua Muhammad Iqbal Hussain and Ashiq Hussain appellants running counter to the stoiy of the FIR, the evidence of the PWs to.the extent of these two appellants regarding the role allegedly played by them in the occurrence is not proved beyond doubt. The possibility of receiving the blunt weapon injuries by the deceased as a result of fall on the ground being not ruled out, and the prosecution having not explained the with holding these injuries in the FIR must suffer for the consequence. The case against Ashiq Hussain and Muhammad Iqbal Hussain appellant being of distinguishable feature and character despite their presence is established through the evidence on the record, the cloudy situation arising favours them for the extension of benefit of doubt. The incised wound on the chest and neck having specifically attributed to Khadim Hussain and Muhammad Bakhsh alias Mamda appellants, the incised wound on the head of deceased could also be at the hands of these appellants. The conflict of the eye witnesses with medial evidence viz-a-viz the role of Muhammad Iqbal Hussain and Ashiq Hussain being not ignorable, the same must be resolved in favour of them and consequently we extending the benefit of doubt to Ashiq Hussain and Muhammad Iqbal Hussain appellant accepted their appeal and set aside their conviction and sentence. They shall be released forthwith from custody if not required to be detained in any other case. 12. The case of Khadim Hussain and Muhammad Bkhsh alias Mamda appellants being distinguishable is dealt separately. 13. The learned counsel for the appellants criticising the conduct of the eye witnesses contended that they showing unnatural conduct of not interfering in the occurrence and to make efforts for rescue of the deceased, has made their claim of presence at the sport doubtful. The contention may take attention apparently but in view of the fact that, accused extended threats to them before opening the attack on the deceased, they with empty handed were not in a position either to make an attempt to rescue to deceased or to put resistance to the attack made by the appellants. Therefore, the non-interference of the PWs in the occurrence by itself is no reason to exclude their present at the spot, The PWs being resident of Chah Wassuwala were on this way towards Chah Dheranwala to look after their wheat crop lying at a shorted distance from the place of their residence therefore, they were the natural witnesses of the occurrence. It being still daylight at 7. p.m. in the month of June the assertion of the learned counsel for the defence that the occurrence having taken place during the dark hours of night, the presence of the witnesses was not possible, is repelled. 14. The medical evidence disclosing the time of occurrence in between 4 pm. to 10 p.m. confirmed the time of occurrence given by the PWs and there being no contradiction regarding the time, the place of occurrence, and the role assigned to these appellants, the evidence of the eye witnesses on the basis of minor contradictions, discrepancies or slight changes cannot be discredited. Much labour has been put to create dent in the ocular account on the basis of site plan Ex. PH raising contention that according to the changed version, the occurrence took place near the thrashing floor outside the Haveli and the dead body was dragged inside the Haveli but no trail of blood having found, the deceased definitely done to death in the court-yard, from where the dead body was found. The perusal of the site pan does not indicate any material contradiction of the nature to disbelieve the story and even if something material could be traced, the site plan being not a substantive evidence cannot be used to contradict or disbelieve the ocular account. Undoubtedly site plan is prepared at the pointation of the PWs yet it cannot be awarded the status of definite evidence prepared with no omission or mistake. Therefore, the discrepancies pointed out by the learned counsel for the appellants with reference to the site plan having no adverse effect to the prosecution case or beneficial to the deceased are not to be given any importance. It has been strongly agitated that the conflict in statements of eye witnesses regarding the direction of their reaching at the place of occurrence has made the story of their witnessing the occurrence doubtful. The direction of travelling of the witness either from their houses towards Chah Dheranwala or from Chah Dheranwala towards-their houses, the place of occurrence falling near the Haveli of Ghulam Qadir situated between the two places the claim of their witnessing the occurrence is not refutable for the above said discrepancy. The defence having not challenged the cultivation of land on lease by the PWs at Chah Dheranwala, and the availability of wheat crop at the said land, in the harvesting season the attendance of the land wheat crop by the witnesses at the evening time was natural. The PWs having no previous enmity against the appellant or motive to drag them in a false case are truthful witnesses. The appellant except putting the suggestions and making bare statement under Section 342 Cr. P.C. have not been able to bring on record anything in their favour either through the prosecute evidence or in defence to substantiate the plea of substitution. The possibility of addition of an innocence person is not ruled out but the substantiation of an innocent person with a real culprit is not possible. Therefore, this is not believable that the PWs at the instance of a third person would make bargain of the life of the deceased and involve innocent person in the charge of murder. The appellants did not take any step at any stage during the investigation or at the trail to bring any material in support of their version on the record. Therefore, visualising the situation in the light of evidence and attending circumstances no other inference except the gilt of the appellants can be drawn in the given facts. 15. The alleged motive of exchanged of hot words between the deceased and Muhammad Bakhsh appellant having not proved by the prosecution was not believed by the trial Court. There being no other reason or enmity between the parties and the actual cause of occurrence being not known, the motive is shrouded in mystry and in view of the fact that a single injury is attributed to Khadim Hussain the quantum of sentence qua him needs consideration. 16. In view of the what has been said above the appeal to the extent of Khadim Hussain and Muhammad Bakhsh alias Mamda appellants fails, which is dismissed with convertion of the sentence of death of Khadim Hussain into life imprisonment. The sentence of life imprisonment of Muhammad Bakhsh alias Mamda appellant is maintained. The compensation awarded by the trial Court to them is also maintained. The murder reference is answered in the negative. The appeal of Muhammad Iqbal Hussain and Ashiq Hussain is allowed. MYFK) Orders accordingly.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1739 Present: SHEIKH ABDUR RAZZAQ, J. KHIZER HAYAT-Petitioner versus STATE-Respondent Crl. Misc. No. 1646-B of 1998, dismissed on 25.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S .. 497~Bail--Offence under Sections 302/324/148/149/337-A(ii)/337-A (iii), 337F (iv) PPC-FIR clearly show that petitioner was present armed with hatchet at time of occurrence-He has been specifically assigned, role of causing injuries to victims-These Injuries find corroboration from (Medico Legal Report)--There is not doubt that petitioner has been found innocent as a result of investigation conducted at initial stage, yet case diary clearly show that complainant party was adamant regarding guilty of present petitioner-Witnesses have fully corroborated prosecution version that petitioner was at relevant time duly armed with hatchet which he used for commission of offence-His presence at spot-stands prima facie corroborated from oral as well as medical evidence-Finding of I.O. at this stage cannot be made a basis for granting relief of bailpetition dismissed. [P. 1740] A Ch. Khalid Mehmood, Advocate for Petitioner. Mr. Zafar Iqbal Chohan, Advocate for Complainant. Mian Shahid Rasool, Advocate for State with Mushtaq Ahmad ASI with record. Date of hearing: 25.5.1998. order Petitioner Khizar Hayat alongwith Akbar Ali, Muhammad Arshad and Pappu, Ijaz Ahmad («' Bagga, Ghulam Ghaus and Zawar Ali stand charged under Sections 302, 324, 148, 149, 337-A (II), 337-A (III), 337-F (VI) PPC for forming an unlawful assembly and in prosecution of their common object committing the murder of Amanullah, causing injuries to Khalid Mehmood, Hidayatullah, Muhammad Hussain and Riaz Ahmad vide FIR No. 218 dated 27.7.1997 registered at P.S. Kaso-ki District Hafizabad. 2. Bail has been sought on the ground that petitioner has got no relation with his co-accused, that he reached the place of occurrence after the death of the deceased and occurred, that thV name has been placed in Column No. 2 and that no recovery whatsoever has been effected from him. It is further argued that petitioner cannot be held responsible for the acts of his co-accused. Reliance is placed upon Nek Muhammad vs. The State (1991 SCMR 1630) and Muhammad Farooq and other versus The State (1991 P.Cr.L.J. 1319). 3. Conversely the bail application has been opposed by the learned counsel for the complainant assisted by learned counsel for the State on the ground that occurrence took place at 11.00 a.m. whereas FIR has been lodged at 12.30 noon, as such there is no delay in lodging the FIR, that name of the present petitioner alongwith specific role is mentioned in the FIR, that petitioner was armed with a hatchet at the relevant time and has caused injuries to PWs Khalid Mehmood, Hidayatullah. It is further contended that ole attributed to the present petitioner is in conformity with the injuries found on the person of injured as per MLRs. It is further argued that petitioner is vicariously liable as he accompanied his co-accused and actively participated in the occurrence. He has placed eliance upon Munawar vs he State (1981 SCMR 1092) and Liaqat Ali vs. The State (PLD 1994 SC 172). It is further contended that initially the petitioner was found innocent and his name has been placed in Column No. 2 of the challan, while as a result of subsequent investigation conducted by Haqdad DSP the petitioner has been found responsible for the commission of offence alongwith his coaccused and in spite of order of DSP that he be arrested and recovery be made nothing was recovered from the present petitioner. 4. The contents of FIR clearly show that at the time of alleged occurrence the present petitioner accompanied his co-accused out of whom Arshad («; Pappu and Ijaz Ahmad were armed with double barrel gun and single barrel gun whereas other co-accused of the petitioner were armed with hatchets. The petitioner has been specifically assigned the role of causing injuries on the person of Khalid Mehmood as well as Hidayatullah on the right side of his head as well as his left shoulder respectively. The injuries on the person of said injured find corroboration from the MLR as Khalid Mehmood and Hidayatullah were examined at 2.00 p.m. and 1.40 p.m. respectively on the same day. There is no doubt that petitioner has been found innocent as a result of investigation conducted at initial stage, yet the case diary dated 16.8.1997 as well as dated 17.8.1997 clearly show that complainant party was adament regarding the guilt of the present petitioner and the Investigating Officer found him innocent and complainant party had refused to take oath regarding his guilt. The witnesses examined by the prosecution and cited in the FIR have fully corroborated the prosecution version that petitioner was at the relevant time duly armed with hatchet which he used for the commission of offence by causing injuries on the person of PWs. His presence at the spot stands prime facie corroborated not only from the oral evidence but also from the medical evidence. Finding of the I.O. at this stage can not be made a base for granting the relief of bail as the said finding is in conflict with evidence which has already come on record. 5. In view of the facts stated above the case of the petitioner does not fall within the ambit of Section 497(2) Cr.P.C. as such the petition is dismissed. iT.A.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1741 (DB) ( Bahawalpur Bench) Present: shaikh abdur razzaq and dr. khalid ranjha, JJ. MUHAMMAD AHMED-Petitioner versus STATE--Respondent Crl. Misc. No. 213-M of 1998/Bail accepted on 27.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 382-B & 561-A-Offence under Section 302/34 PPC-High Court altered death sentence into imprisonment for life without giving benefit of Section 382-B Cr. P.C.--Petition against on ground that petitioner was entitled to said benefit under law—It is quite clear from language of Section 382-B Cr.P.C. that while passing sentence of imprisonment on accused for an offence, trial Court is bound to take into consideration the period, if any during which accused was detained in custody for such offence-Petitioner is, therefore, entitled to benefit of Section 382 Cr. P.C.-Petition accepted. [P. 1742] A & B PLJ 1995 SC 449 ref. Mr. AR. Tayyab, Advocate for Petitioner. Mr. Atta Muhammad Baluch, Advocate for State. Date of hearing : 27.4.1998. order The petitioner Muhammad Ahmad alongwith Ghulam Muhammad was tried by the learned Additional Sessions Judge-II, Bahawalnagar, on a charge under Section 302/34 PPC, vide FIR NO. 38/88, registered at P.S. Mcleod Ganj District Bahawalnagar, for committing the murder of Riaz Ahmad. Vide judgment dated 28.3.1989, he learned' trial Judge convicted both the petitioner Muhammad Ahmad and his co-accused Ghulam Muhammad under Section 302 PPC and sentenced them to death nd a fine of Rs. 10,000/- each, in default whereof to suffer R.I. for one year each. Halfof the fine, in the event of realisation, was to be paid to the legal heirs of the deceased as compensation. The petitioner and his co-convict filed an appeal which was registered as Criminal Appeal No. 49/89/BWP besides Murder -Reference o. 6/89/BWP. Vide judgment dated 2.12.1990 Mr. Justice Khizar Hayat and Mr. Justice Mian Allah Nawaz, JJ., dismissed the appeal of Ghulam Muhammad in toto, whereas partly allowed the appeal of Muhammad Ahmad and altered his death sentence to imprisonment for life and maintained the sentence of fine imposed upon him. However, no benefit of Section 382-B Cr. P.C. was awarded to the present petitioner. 2. The petitioner was moved the instant application for benefit of Section 382-B Cr. P.C. on the ground that he was entitled to said benefit under the law. 3. Learned counsel for the petitioner has relied upon Liaqat Ali vs. The State (PLD 1995 SC 485), Amjad etc. vs. The State (1992 SCMR 072) and Qadir and another us. The State (PLD 1991 SC 1065) and has submitted that it was mandatory on the part of this Court while passing order dated 2.12.1990 to extend benefit of Section 382-B Cr. P.C. to the petitioner. 4. The learned State counsel has conceded to this legal proposition advanced by the learned counsel for the petitioner. 5. It has been observed by their lordships in Liaqat All's case (PLJ 1995 SC 449) (PLD 1995 SC 485) supra that "it is quite clear from the language of Section 382-B Cr. P.C. that while passing sentence of imprisonment on an accused for an. offence, the trial Court is bo\wad to take into consideration the period, if any, during which the accused was detainedin custody for such offence." Similarly views have also been taken in other . authorities referred above. 6. In the present case, we find that the learned Judges of this Court while passing order dated 2.12.1990 did not point out any circumstance hich would justify the denial of extension of benefit of Section 382-B Cr. P.C. to the petitioner. 7. In the circumstances discussed above, we hold that the petitioner entitled to the benefit of Section 382-B Cr.P.C. Accordingly , petition is accepted and the petitioner is extended benefit of Section 382-B Cr. P.C. The Jail authorities are directed to make necessary computation in this behalf with any further delay. (MYFK) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1743 Present: shaikh abdur razzaq, J. FARHAT BIBI etc.--Petitioners versus STATE-Respondent Criminal Misc. No. 3727-B of 1998 accepted on 11.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- ....S. 497-Bail--Offence under Ss. 324, 452, 34 PPC and 10/11 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979-No empty of any pistol or rifle was recovered from spot-Had as many as 11 shots been fired, at least some empties must have been secured from spot—Absence of any such empty makes case of petitioners open for further enquiry-Both petitioners are daughter and father and are in jail for six months- Presence of petitioners at place of occurrence has not been denied-But their contention is that they had contacted complainant for marriage of Mst. S. in accordance with agreement—There is no denial of execution of such agreement on part of complainant-All these facts make case of petitioners open for further inquiry-Petition accepted. [Pp. 1744 & 1745] A Mr. Karim-ud-Din Khilji, Advocate for Petitioners. Mr. Khalid Ikram Khatana, Advocate for Complainant. Mr. Rafaqat Alt Kahloon, Advocate for State. Date of hearing : 11.8.1998. order Both the petitioners stand charged under Sections 324, 425, 34 PPC and 10/11 Offence of Zina (Enf. of Hudood) Ordinance VII of 1979 vide FIR No. 70/98 dated 19.2.1998 registered at P.S. Shorkot District Jhang. 2. Briefly stated the facts are that on 19.2.1998 at about 3.00 a.m. Mst. Farhat Bibi knocked at the door upon which Mst. Sakina Bibi mother of complainant got up and enquired, as to who was at the door, upon which Mst. Farhat Bibi told her mother that she was having some a pain in the abdomen. Her mother opened the door. As soon-as door was opened Muhammad Latif and Anwaar armed with Surryas, Altaf T« Tipu armed with .30 bore pistol and Mst. Farhat trespassed in the house and caught hold of Mst. Shamim Akhtar who was asleep and tried to take her out. The complainant Muhammad Aslam and her mother Mst. Sakina Bibi tried to rescue Mst. Shamim Akhtar from them. Altaf Hussain aimed his pistol upon them and Muhammad Latif and Anwaar started causing surya blows to Masood. The complainant and others raised cries upon which Sikandar and Bilal were attracted. They also tried to rescue Mst. Shamim Akhtar but Altaf and others issued threats of dire consequences and on pistol point made Mst. Shamim Akhtar to accompany them and took her to Bus stand where they hoarded a Bus of Shalimar Company bound for Multan. The complainant and others collected on the Adda and requested the driver to stop but infront of Police Station, as Mst. Shamim Akhtar was being abducted. Rab Nawaz Constable and Ayyub H.C. traveling in the same Bus also requested the driver to stop the Bus. However, Altaf Hussain caused harassment by firing with his pistol and refrained the driver rom stopping Bus in front of the Police Station. Ayyub Constable tried to catch hold Altaf Hussain who fired at him but it missed. In the meanwhile Muhammad Ayyub fired ten shots with his rifle and finally succeeded in apprehending the culprits and got MstShamim Akhtar rescued from them. Hence this FIR. 3. Contention of the learned counsel for the petitioners in that the etitioners alongwith others had gone into the house of the complaint, not or the urpose of abduction of Mst. Shamim Akhtar but in connection with marriage of Mst. Shamim Akhtar with Altaf Hussain as per agreement dated 5.3.1996 executed between the parties, according to which her hand was to - " be given within a period of two years of said agreement in lieu of arriage of Mst. Farhad Bibi with Muhammad Akram, brother of Muhammad Aslamcomplainant, that prosecution version stands falsified by the fact that o empty of pistol or rifle was recovered from the spot, though as many as 11 shots are said to have been fired from the pistol and rifle of Altaf Hussain accxised and Muhammad Ayyub Constable, that Muhammad Latif is an aged person and his case is covered under the provisions of Section 497 r. P.C., that this fact coupled with the fact that petitioners are in judicial lock up since 19.2.1998 makes the case of the petitioners open for further inquiry. Conversely bail application has been opposed by the learned counsel for the complainant assisted by learned counsel for the State. He submits that IR has been lodged promptly, petitioners have been nominated in the FIR, specific roleis attributed to each of them, both the petitioners are aughter nd father respectively and the entire occurrence revolves around the played by Mst. Farhat Bibi, that Muhammad Latif is aged 50 years and does not fall ithin the ambit of infirm and sick persons, that injuries on Muhammad Latif and Anwaar, prove their participation inthe occurrence, that offence xinder ection 10/11 Offence of Zina (Enf. of Hudood) Ordinance VII of 1979 and under Section 452 PPC fall within the prohibitory clause of Section 497 Cr. P.C.. 4. Both the petitioners Mst. Farhat Bibi and Muhammad Latif alongwith Anwaar and Altaf Hussain stand charged under Section 324, 452, 34 PPC read with Section 10/11 Offence of Zina (Enf. Of Hudood) Ordinance VII of 1979. The presence of the petitioners at the place of occurrence has not been denied. Their contention is that they had contacted the complainant for the marriage of Mst. Shamim in accordance with agreement dated 5.3.1996 whereby Muhammad Aslam complainant had agreed to give the hand of Mst. Shamim Akhtar for Altaf Hussain in lieu of marriage of Mst. Farhat Bibi with Muhammad Akram, brother of Muhammad Aslam complainant. There is no denial of this execution of agreement on the part of complainant. It appears that some misunderstanding developed between the parties on that score. The way in which occurrence is said to have take placed is not borne out from record as no empty of any pistol or rifle was recovered from the spot, Had as many as 11 shots been fired, at'least some empties must have been secured from the spot. The absence of any such empty makes the case of the petitioners open for further enquiry. Both the petitioners are daughter and father and are in jail since 19.2.1998. All these facts make the case of the petitioners open for further inquiry. Accordingly petition is accepted and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 20,000/- (Twenty thousands only) each with one surety each in the like amount to the satisfaction of the trial Court. iMYFK) . - Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1745 (DB) Present : shaikh abdur razzaq and dr. khalid ranjha, JJ. JTWAN KHAN-Petitioner versus STATE-Respondent Crl. Misc. No. 52-M/BWP of 1998, accepted on 27.4.1998. Criminal Procedure Code, 1898 (V of 1898)-- — -S. 382 (b) read with Section 561-A-Murder-Offence of-Sentence of death converted into imprisonment for life without giving benefit of Section 382-B Cr. P.C. --Petition against-It is quite clear from language of Section 382-B Cr.P.C. that while passing sentence of imprisonment on an accused for an offence, trial Court is bound to take into consideration period, if any, during which accused was detained in Custody for such offence-High 'Court while passing impugned order did not point out any circumstances which would justify denial of extension of benefit of Section 382-B Cr.P.C. to petitioner-Petitioner entitled to said benefit-­ Petition accepted. [Pp. 1746 & 1747] A & B \LJ 1995 SC 449 ref. Sardar Ahmad Khan, Advocate for Petitioner. Mr. Atta Muhammad Khan Baluch, Advocate for the State. Date of hearing : 27.4. 1998. order The petitioner Jiwan Khan alongwith Godha, Jan Muhammad, Abdul Shakoor and Ahmad Din was tried by the learned Additional Sessions Judge-Ill, Rahimyar Khan, on a charge under Sections 302/148/149 PPG vide FIR No. 11/85 dated 12.1.1998, registered with Police Station Zahirpir District Rahimyar Khan, for the murder of Abdul Karim. Vide judgment dated 7.8.1986, the learned trial Judge convicted all the accused under Section 302 PPG; Petitioner Jiwan Khan was sentenced to death under Section 302 PPG and a fine of Rs. 5,000/- or in default thereof R.I. for two years, whereas his co-accused were sentenced to imprisonment for life under Section 302 PPG with a fine of Rs. 5,000/- each or in default thereof R.I. for two years each. AH the accused, including the petitioner, were further convicted and sentenced under Section 148 PPG to undergo. R.I. for two years each and a fine of Rs. 500/- each or in default thereof to suffer R.I. for three months each. The appeal filed by the convicts and the Murder Reference were heard and decided by Mr. Justice Muhammad Munir Khan and Mr. Justice Sardar Muhammad Dogar, JJ., who, vide judgment dated 11.6.1988, acquitted Jan Muhammad and Ahmad Din; The present petition Jiwan Khan alongwith Godha and Abdul Shakoor were also acquitted under Section 148 PPG. The sentence of death awarded to Jiwan Khan as converted to imprisonment for life. The sentence awarded to Godha and Abdul Shakoor was, however, maintained. Both of them were granted benefit of Section 382-B Cr. P.C., whereas this concession was not extended to the present petitioner. 2. The petitioner has moved instant application with the prayer that benefit of Section 382-B Cr. P.C. be extended to him, to which he is entitled under the law. 3. earned counsel for the petitioner has relied upon Liaqat Mi vs. The State (PLJ 1995 SC 449) = (PLD 1995 SC 485), Amjad etc. vs. The State (1992 SCMR 2072) and Qadir and another vs. The State (PLD 1991 SC 065) and has submitted that it was mandatory on the part of this Court, while passing order dated 11.6.1988, to extend benefit of Section 382-B Cr. P.C. petitioner. 4. The learned State counsel has conceded to this legal proposition advanced by the learned counsel for the petitioner. 5. Admittedly, the learned trial Court, while passing order of conviction against Godha and Abdul Shakoor, co-accused of the petitioner, extended them benefit of Section 382-B Cr. P.C. and the same benefit has been retained by this Court while passing order dated 11.6.1988. The trial ourt convicted the petitioner Jiwan Khan under Section 302 PPG and sentenced him to death and fine of Rs. 5,000/-. The said sentence has been converted to life imprisonment by this Court vide judgment dated 11.6.1988. However, while passing order dated 11.6.1988, this Court did not extend benefit of Section 382-B Cr.P.C. to the present petitioner. It has been observed by their Lordships in Liaqat Ali's case (PLJ 1995 SC 449) = (PLD 995 SC 485), supra that "it is quite clear from the language of Section 382-B Cr.P.C. that while passing sentence of imprisonment on an accused for an offence, the trail Court is bound to take into consideration the period, if any, during which the accused was detained in custody for such offence." Similar views have also been taken in the other authorities referred above. 6. In the present case, we find that the learned Judges of this Court, while passing order dated 11.6.1988, did not point out any circumstance which would justify the denial of extension of benefit of Section 382-B Cr.P.C. to the petitioner. 7. In the circumstances discussed above, we hold that the petitioner is entitled to the benefit of Section 382-B Cr. P.C. Accordingly, petition is accepted and the petitioner is extended benefit of Section 382-B Cr.P.C. The Jail authorities are directed to make necessary computation in this behalf without any further delay. i T.A.F.) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1747 Present: MUHAMMAD ASD7 JAN, J. MUHAMMAD ASLAM-Petitioner versus STATE-Respondent Criminal Revision No. 128 of 1998, dismissed on 13.5.1998. Criminal Procedure Code, 1898 (V of 1898)--

— -Ss. 435, 439 & 540-Qanun-e-Shahdat Order, 1984, Article 129--Criminal trial-Evidence/Case of prosecution closed-Appliction by petitioner for placement on record medico-legal report of petitioner and report of Fire Arms Experts-Dismissal of-Revision against-Court must avoid filing of gaps left by either party but it must strive to reach a just decision of case-Court has to perform in the interest of justice and equity-Once, it appears to court that it is essential for just decision of case to summon or examine or re-call or re-examine a person, then it becomes mandatory for said Court to do so-Prosecution can call its witnesses in any order-­ Prosecution has right to choose its witnesses also and it is not required to examine every witness-Petition dismissed. [Pp. 1749 & 1750] A B & C PLJ 1996 SC 1759, PLD 1975 Lah 1431; PLD 1984 SC 95; AIR 1945 Lah. 21 ref Mr. Muhammad Ilyas Malik, Advocate for Petitioner. Qazi Muhammad Saleem, Advocate for Complainant. Mr. Zulfiqar Bokhari, A.A.G for State. Date of hearing : 13.5.1998. judgment Muhammad Aslam petitioner who is an accused in a case registered vide F.I.R. No. 13, dated the 10th of January, 1996, at Police Station Saddar Bhakkar, District Bhakkar and regarding which the trial is now pending in the Court of Mr. Irshad Ullah Khan Sial, Additional Sessions Judge-II of Bhakkar, wherein 20 prosecution witnesses have been examined and the case of the prosecution has been closed on the 26th of March, 1998 by the Prosecution, has brought this revision petition under Section 435 read with Section 439 of the Code of Criminal Procedure, against the order of the learned additional Sessions Judge-II, Bhakkar, dated the 3rd of April, 1998 whereby his application dated the 1st of April, 1998 was dismissed. 2. The petitioner's application dated the 1st of April, 1998 prayed inter alia that (i) the report of the Fire Arms Expert regarding a gun and two empties recovered from the place of occurrence, and (ii) the medico legal report of the petitioner given by the Doctor who examined him, be placed on record which the learned Prosecutor had not done. It was further prayed that the Doctor who examined the petitioner be produced in Court and his evidence be recorded. 3. Learned counsel for the petitioner submitted that there was a deliberate effort by the learned Prosecutor to with-hold evidence because the report of the Fire Arms Expert was in negative and argued that it was incumbent upon the Prosecution to do so. Learned counsel placed reliance upon the following two cases :— 1. Haji Ghulam Hussain alias Sharbat Khan v. The State (PLD 1976 Karachi 1160) and 2. Abdul Rashid v. The State (1980 P.Cr.L. J. 1119). 4. Learned counsel appearing on behalf of complainant Muhammad Pvarnzan brother of Sadiq Hussain deceased submitted that the advantage/benefit of the Prosecutor having not produced the report/opinion of the Fire Arms Expert will go to the accused/petitioner and, therefore, he cannot make a grievance out of it. Secondly it was submitted that nonproduction of the medico legal report qua the petitioner and the Doctor who allegedly examined him does not debar the petitioner from producing the same in defence, if so advised. Learned counsel places reliance upon the case of Muhammad Ahmad and another v. The State and others reported in 1997 S.C.M.R. page 89. 5. Section 540 of the Code of Criminal Procedure Code, 1998 provides that :- "Any Court mays at any stage of any inquiiy, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case." 6. There is a dichotomy in Section 540 Cr. P.C. the first portion gives a discretion to every Court which may or may not be exercised dependent upon the desertion of the Court, to summon any person as a witnesses or examine any person present in Court although he may not have been summoned as a witness or recall re-examine any person although he has already been examined as a witness. Wherever there is a discretion, may or it may not be exercised subject to the damental rule that it shall be exercised judiciously not arbitrarily. 7. However, in the second portion of Section Cr. P.C. there is no discretion provided that the Court comes to the conclusion that it is essential for the just decision of the case to summon and examine one not examined earlier or recall and 8. As the first portion of Section 540 Cr. P.C. is concerned, it is subject to the principle that a Court is not to fill up the gaps left by either the prosecution or the defence as laid down by this Court in the case of Muhammad Ehsan v. The State (P.L.D. 1975 Lahore 1431). 9. But, once it appears to a Court that it is essential to the just decision of the case that any particular person is to be summoned and examined or any person who has already been examined should be recalled and re-examined then it becomes mandatory for the said Court to do so as laid down by the Supreme Court in the case of-Muhammad Azam v. - Muhammad Iqbal and others (P.L.D. 1984 Supreme Court 95). 10. The conclusion as to whether or not it is essential to the just decision of the case has to be reached with due care and caution by the Court concerned. While on the one hand it must avoid the filling of gaps left by either party, on the other hand it must strive to reach a just decision of the case. It is a balancing act which a Court of law has to perform in the interest of justice and equity. 11. Article 129 of the Qanun-e-Shahadat Order, 1984, lays down that :- "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations '(a) .'. ................................ (b) ................................................................................ (c) .............................................................................................................................. (d) ................................................................................ (e) ........................................................................................................... (f) ' ............................................................................... (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; (h) (i) 12. It is settled law that the prosecution can call its witnesses in any order and this is the view of this Court since 1945 expressed in the case of Heman Ram alias Hem Raj v. Emperor, reported in A.I.R. 1945 Lahore 201. It is also settled that the prosecution has the right to choose its witnesses and it is not required to examine every witness. This was the view express by their Lordships of the Supreme Court in the following cases :- 1. Zar Bahadur v. The State (1978 S.C.M.R. 136) and 2. Muhammad Ahmad and another v. The State (PLJ 1996 SC 1759 = 1997 S.C.M.R. 89). 13. There is no merit in this petition which is dismissed. (T.A.F.) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1750 Present: raja muhammad khurshid, J. ZULFIQAR ALI alias ZULFA-Petitioner versus STATE-Respondent Criminal Misc. No. 2359/B of 1998, dismissed on 8.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Murder~Offence of-Bail an grounds of alibi and in-affective firing-There are four eye-witnesses linking petitioner with occurrence- Neither plea of alibi nor opinion of police on that point is very relevant particularly when petitioner remained at large having absconded for about 1% year after occurrence-Keeping in view statements of eye witnesses, linking petitioner with occurrence, it will not be possible to come to conclusion that vicarious liability of petitioner was distinguishable from his co-accused who are still absconders-Petitioner has no case for bail at this stage-Petition dismissed. [P. 1751] A Ch. Muhammad Nawaz Sulehria , Advocate for Petitioner. Mr. Najam-ul-Hassan Gul , Advocate for State. Date of hearing: 8.7.1998. order The petitioner was declined bail by the learned Sessions Judge, Sialkot vide his order dated 14.4.1998 in a case registered against him and others under Sections 302/148/149 PPC vide FIR No. 83 dated 3.8.1996 at P.S. Saddar Daska , District Sialkot for an occurrence in which Muhammad Imtiaz son of Muhammad Nawaz was murdered. At the time of occurrence, the petitioner made firing in the air while his co-accused armed with deadly fire arms such as .222 rifles had committed the murder. 2. The bail is prayed on the ground that the petitioner had been declared innocent by the police as he was allegedly not present at the spot during the occurrence and that he had not caused any fire arm injury to the deceased as admittedly, he had fired in the air. 3. Learned counsel for the state has, however, opposed the bail application on the ground that the police had declared the petitioner innocent on the basis of statement of two witnesses appearing in defence on 28.9.1997 i.e. after about one year and three months of the occurrence; that the petitioner remained absconder for about 1& year after the occurrence and was ultimately arrested on 22.9.1997 and that his co-accused are still at large having been deckred absconders. 4. I have considered the foregoing submissions and find that there are four eye-witnesses linking the petitioner with the occurrence. Hence plea of ali -bi at this stage, nor the opinion of the police on that point, is very relevant particularly when the petitioner remained at large having absconded for about 1^ year after the occurrence, the police opinion is based on statements of two witnesses examined in defence after more than one year and three months of the occurrence. Keeping in view the statements of eye witnesses, linking the petitioner with the occurrence, it will not be possible to come to a conclusion at this stage that the vicarious liability of the petitioner was distinguishable from his co-accused who are still absconders. The petitioner has no case for bail at this stage. 5. The petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C. ( Lahore ) 1752 Present: muhammad nawaz abbasi, J. DILAWAR KHAN BANGASH-Petitioner versus STATE-Respondent Criminal Misc. No. 19-B of 1998, allowed on 25.5.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497--Bail-Offence under Section 4/10 of Zina Ordinance, 1979 read with Section 420/468/471 PPC-Petitioner through a suit for jactitation of marriage, has refuted claim of marriage with complainant-A reasonable doubt is created .in mind regarding truth in claim of complainant as not-true Muslim will contract arriage with mother and her daughter (from her previous husband)~Unless alleged Nikahnama is proved by marginal witnesses through their statements in court, its genuineness being under challenge cannot be declared valid-Allegation for commission of offence under Section 4 read with 10 of Ordinance VII of 1979 would require further inquiry whereas alleged Nikahnama being relied upon by Complainant unless proved cannot possibly be declared as a valid document-Question that how and in what manner offence of forgery was committed by petitioner also needs detailed scrutiny-There are reasonable grounds to believe that petitioner has not committed offence with which he is being charged-He cannot be kept in jail for an idefinite period on basis of shaky allegations-Bail allowed. [Pp. 1754 & 1755] A to F Syed Zafar All Shah, Advocate for Petitioner. Raja Muhammad Ayub Kiani, Advocate for State Date of hearing: 25.5.1998. order The petitioner is under arrest in a case under Section 4/10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 (Ordinance No. VII of 1979), registered against him on the statement of Mst. Robina Iqbal daughter of Muhammad Iqbal Qureshi, a resident of Islamabad through F.I.R. No. 274 dated 25.9.1997 at Police Station Margalla Islamabad. After dismissal of his application for bail before arrest by the learned Sessions Judge, Islamabad vide order dated 13.12.1997 was taken into custody and thereafter he has approached this Court for the grant of post arrest bail through this application. 2. As per allegations contained in the complainant lodged by Mst. Robina Iqbal, she after obtaining divorce from Raja Tauqir Ahmad, contracted second marriage with the petitioner at Islamabad on 6.7.1991, and out of this wedlock a body, namely, Shozab Khan was born on 12.8.1992. The petitioner allegedly, during the existence of his marital-tie with Mst. Robina Iqbal complainant, contracted marriage with Mst. Tania, daughter of the complainant from her previous husband, namely Raja Tauqir Ahmad. Consequently, a case'under Article 4/10 of Ordinance VII of 1979 was registered against the petitioner at Peshawar and it was still under investigation, when the petitioner with a view to dislodge he factum of his marriage with the complainant, tempered his Nikahnama with the complainant as well as the record pertaining to the birth of her son, namely, Shozab Khan available in the PIMS, Islamabad. The bail application of the petitioner was dismissed by the learned Sessions Judge with the observation that Nikah Khawan has admitted his signature on the Nikahnama made available to the police and that the marginal witnesses also acknowledge the correctness thereof. Hence the remaining witnesses being not traceable, their signatures on the Nikahnama still required verification. It was further observed that the birth certificate of Shozab Khan Issued by PIMS on 20.4.1996 bear the name of the petitioner as his father. The documents in custody of police showing the stay of the petitioner with the complainant as her husband in Hotels and Rest Houses were considered as an additional proof in support of the claim of valid marriage between the parties. Learned Sessions Judge further taking into consideration the attending circumstances, observed that the complainant is legally wedded wife of the petitioner and his marriage with Mst. Tania daughter of the complainant from her previous husband was void. The certificate showing Raja Touqir as husband of Mst. Robina Iqbal who is in abroad has been disowned by Nasir Saeed his brother. 3. Learned counsel for the petitioner contends, (i) That the claim of marriage of the complainant with the petitioner was not found based on truth during the two successive investigations conducted by the local police and ' the D.S.P. Circle. (ii) That a suit for jactitation of marriage with permanent injunction filed by the petitioner against Mst. Robina Iqbal is pending in the Civil Court at Islamabad wherein the petitioner denying the claim of the complainant pleaded that motive behind the false claim of marriage was to black mail the petitioner and defame him through the use of machinery of criminal law with ulterior motive. (iii) That. Mst Tania Tauqir wife of the petitioner denying the claim of her mother filed a Writ Petition No. 66 of 1998 before this Court for the quashment of the F.I.R. in the present case. In view of the specific plea of preparing a forged Nikahnama by the complainant, the writ petition was disposed of with the observation on the assurance given by the learned Assistant Advocate General that the .Investigating Officer will also record the version of the petitioner before coming to some logical conclusion. (iv) That the application bearing Crl. Misc. No. 1101/B-1997 under Section 561-A Cr. P.C. filed by the petitioner for the quashment of the order of the learned Sessions Judge relating to the paternity test of the boy, was dismissed by this Court vide order dated 14.11.1997 and the same having assailed before the Honourable Supreme Court of Pakistan through Criminal Petition No. 163 of 1997, was not interfered and the leave petition was disposed of with the observation that the trail Court at subsequent state of the trail can decide whether the paternity test was necessary or not as the earlier order after filing challan has become ineffective. 4. The controversy between the parties regarding the existence of marriage between them at the time when the petitioner contracted marriage with Mst. Tania Tauqir daughter of the petitioner is an extremely dedicated matter to be looked into very carefully. There is no cavil to the proposition that the marriage with a woman within the prohibitory decree is not possible in Islam. Learned Sessions Judge has rightly placing reliance on Sora-Al- Nisa concluded that such marriages are void. However, this Qur'anic sanction being always^ subject to proof cannot be referred to merely on the basis of allegations. The complainant placing reliance on the documents of Nikahnama and birth certificate of Shozab Khan allegedly issued by PIMS, Islamabad has claimed her marriage with the petitioner, whereas the petitioner has refuted this claim through filing of a suit for jactitation of marriage. The claim and the counter claim being based on a disputed ^document, the question of fact cannot probably be ascertained in its true perspective with certainty, unless the respective stand is established by the parties before the concerned forum. The expression of definite opinion in terms of existence of a lawful marriage or a false claim of marriage in view of the specific pleas raised by the parties and the circumstances can be given and such opinion can cause serious prejudice to the cases of either party. The possibility of sexual relation of the with the complainant before entering into marriage with her daughter, namely. Mst. Tania Tauqir cannot be excluded, but visualizing the situation in totality a reasonable doubt is created in the mind regarding the truth in the claim of the complainant as no true Muslim will contract marriage with mother and daughter together and like to indulge in fornication as alleged by the complainant. It is not understandable that if actually the petitioner contracted marriage with the complainant, what protected him from indulging in a major sin through performance of Nikah with her daughter. Therefore, unless the alleged Nikahnama is proved by the marginal witnesses through their statements in the Court, its genuineness being under challenge cannot be declared valid. Similarly, the birth certificate of Shozab Khan as such is neither a proof of the marriage inter-se the parties nor the parentage of the body, unless the same is proved through the evidence and the factum of marriage is established on the record. The contention of the learned counsel that in the given circumstances the allegations of commission of offence under Section 468/471 P.P.C. are not attributable to the petitioner as the Nikahnama in question was in custody of the complainant and as per claim of the petitioner she on the basis of this fake document made of false claim of marriage is also a matter of scrutiny. 5. Application of offence under Section 4 of Ordinance VII of 1979 ead with Section 10 therefore cannot be pressed into service in view of the claim of the complainant of a lawful marriage. The petitioner has refused the contracting of marriage with the complainant and if ultimately it is found that he was in sexual co-habilitation with the lady in any manner he along with the complainant could be guilty of offence under Section 4 (ibid). The offence under Section 10 of Ordinance VII, 1979 relates to the commission of Zina or Zina-bil-Jabar which in the given facts is not applicable. The analysis of the matter would reveal that the allegation for the commission of offence under Section 4 read with 10 of Ordinance VII, of 1979 would require further inquiry whereas the alleged Nikahnama being relied upon by the complainant unless proved cannot possibly be declared as a valid document, consequently the question that how and in what manner the alleged offence of forgery was committed by the petitioner also needs detailed scrutiny. 6. Coming to the question that the complainant claiming herself to be legally wedded wife of the petitioner, it has been conceded that Section 420 PPC was not applicable. The resume of the above discussion is that apparently there are reasonable grounds to believe that the petitioner has not committed the offence with which he is being charged. The controversy regarding the existence or non existence of the marriage between the parlies and the legal status of the marriage of petitioner with Mst. Robina being in dispute, the liability of the petitioner for the alleged commission of offence will be subject to proof at the trial. 7. In this view of the matter, the case against the petitioner falling within the ambit of sub-section (2) of Section 497 Cr. P.C., he has earned a right of grant of bail .pending disposal of the case against him. The Sub- Inspectojr present in Court states that the final report is still under prepara­ tion and that the needful will be done soon after completing the formalities. The final report having not submitte for the last about eight months and it being no expected to be submitted sho tly, the petitioner cannot be kept in jail for an indefinite period on the basis of shaky allegations. I, therefore, allow this application and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the trail Court. (MYFK) Petition allowed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1756 Present: raja muhammad khurshid, J. Mst. RAZIA etc.-Petitioners versus STATE-Respondent Criminal Misc. No. 204/Q of 1998, dismissed on 29.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A-Quashment of proceedings-FIR was properly investigated and police found petitioners guilty and sent them to court for trial on basis of evidence shown in calendar of witnesses-Members of Punchayat mentioned in FIR had supported case of complainant in their statements under Section 161 Cr.P.C.-At this stage, it cannot be said that case of complainant was false or that FIR was misconceived-Petition dismissed. [P. 1757] A Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner. Date of hearing: 29.7.1998. order This petition is moved under Section 561-A, Cr.P.C. for the quashment of proceedings in the court below initiated on the basis of FIR No. 393/97 registered at Police Station, Jaranwala, for an offence under Section 379 PPG. 2. According to FIR a buffalo of the complainant was stolen during the night on 3.9.1996, when it was tied outside in front of his house. The complainant suspected the present petitioners to have stolen the aforesaid uffalos for which he managed to call them at the Dera of the Lambardar namely Mukhtar Ahmad in presence of Muhammad Shafi and Rahim Bukhsh PWs. After some reluctance the petitioners/accused admitted that they had stolen the buffalo in front of the assemblage. They promised to return the stolen buffalo within three days. However, they did not return the same, and were putting off the matter on one pretext or the other till the complainant was constrained to make a report to the police on 7.5.1997 on basis of which the present FIR was registered. 3. The learned counsel for the petitioners has submitted that the FIR is totally false and mis-conceived. He has further submitted that the trial on the basis of such an FIR would amount to mis-carriage of justice and as such is liable to be quashed. 4. Before coming for the quashment of FIR, in this court, the petitioners had instituted Writ Petition No. 11951/97 in which the same FIR was challenged with the prayer that the petitioners may not be harassed during the investigation. However, during pendency of that writ petition, investigation was finalised and challan was sent to the court concerned. The etitioners moved an application under Section 249-A Cr. P.C. before the learned trial court, which was dismissed on 13.6.1998 vide the impugned order. It is contended that after the dismissal of petition under Section 249-A Cr.P.C. the petitioners had challenged the impugned order dated 13.6.1998 before the learned Additional Sessions Judge, Faisalabad Camp at Jaranwala, but their petition was dismissed vide his order dated 10.7.1998. 5. It is contended that both the courts below failed to appreciate the facts of the case and passed erroneous orders by dismissing the petition under Section 249-A Cr.P.C. 6. I have taken into consideration the arguments addressed at the Bar and have also gone through the impugned orders, which do not suffer from any illegality so as to call for interference under the inherent jurisdiction of this court under Section 561-A Cr.P.C. The FIR in question was properly investigated and the police found the petitioners guilty and sent them to the court concerned for trial on the basis of the evidence shown in the calendar of witnesses. The members oipunchayat mentioned in the FIR have been cited as witnesses of the case in the calendar of witnesses as they had supported the case of the complainant in their statements under Section 161 Cr. P.C. As such it cannot be said at this stage that the case of the complainant was false or that the FIR was mis-conceived. This petition being merciless is dismissed in limine. (MYFK) Petition dismissed.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1757 Present: dr. munir ahmad mughal, J. AWUWU HAMID MUHAMMAD and other-Petitioners versus THE STATE-Respondent Criminal Revision No. 306 of 1998, accepted on 12.8.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 523 and 516-A read with Section 24, and Proviso to Section 63 of Control of Narcotic Substances Ordinance; 1995-Offence under Sections 2 and 4 of Hudood Ordinance IV of 1979 and Section 9 of Ordinance, " x 1995-petition for Superdari of money and articles-Rejection of-Revision against-Items, Superdari of which is being sought were neither a property regarding which an offence had been committed nor those had been used in commission of offence therefore, proviso to Section 63 of Ordinance, 1995 was not a bar in passing order of Superdari under Section 516-A Cr.P.C.-Impugned order set aside-Petition accepted. [P. 1759] A Cr. P.L.A. No. 174-L/1997 ref. Mr. Aftab Ahmad Bajwa, Advocate for Petitioner. Mrs. Tasneem Amin, Advocate for State. Date of hearing: 12.8.1998. judgment Through this Criminal Revision the petitioners have challenged the order dated 218.2.1998 passed by the learned Judge Special Court, Lahore rejecting the petition under Sections 523 and 516-A Cr.P.C. read with Sections 24 and 44 of the Control of Narcotic Substance Ordinance, 1995 • whereby the petitioners have sought Supcrdari of the articles taken into possession relating to ease FIR No. 17/95 dated 3.5.1995 registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with Section 9-C of the Control of Narcotic Substances Ordinance, 1995 with Police Station Anti Narcotic Force, Lahore. 2. The k'urned counsel for the petitioner has relied on judgment of the Hon'ble Supreme Court of Pakistan passed in Criminal Petition for Leave to Appeal No. 174-L/1997 passed on 23.6.1997 to contend that the articles and the money the Superdari of which is sought belong to the petitioners and are not the case property and are also not required to be produced before the Court on eveiy date of hearing. 3. The learned counsel for the State has opposed the petition. 4. I have respectfully gone through the judgment dated 23.6.1997 passed by their Lordships of the Hon'ble Supreme Court in Criminal Petition for Leave to Appeal No. 174-L/1997. It was a case where the accused moved a petition under Section 516-A Cr.P.C. before the trial Court for Superdari of certain articles which were allegedly recovered from them at the time their house was raided. The trial Court directed the return of the articles and the State filed a revision petition before the High Court which was dismissed on 21.5.1997 and the matter was taken up to the Hon'ble Supreme Court of Pakistan. Learned counsel for the petitioner before the Hon'ble Supreme Court vehemently argued that the goods recovered from the respondents could not be returned to them on Superdari in view of the proviso the Section 63 of the Ordinance which reads as under :- 5. "Provided that nothing contained in Section 523 of the Code of Criminal Procedure, 1898 (Act V of 1898), or any other provision of the said Code or any other law for time being in force, the custody of narcotic drugs, psychotropic substances, controlled substances, any material utensils used for production or manufacture of such drugs or substances or any conveyance used in import, export, transport or transhipment thereof or for commission of an offence under this Ordinance, shall not be given on custody to the accused or any of his associate or relative or any private individual till the conclusion of the case." But the contention was held to be misconceived and it was observed that the articles in dispute were recovered from the house of the respondents and were neither a property regarding which an offence had been committed nor these had been used in the commission of an offence, therefore, proviso to Section 63 of the Ordinance was not a bar in passing the order of Superdari under Section 516-A Cr.P.C. The petition was dismissed and the order of the learned trial Court giving Superdari was upheld. 5. The items, Superdari of which is being sought were neither a property regarding which an offence had been committed nor those had been used in the commission of offence, therefore, the above referred judgment of the Hon'ble Supreme Court on all fours applies to the facts of this case and respectfully following the same this petition is allowed and the order of the learned Judge Special Court, Lahore dated 28.2.1998 is set aside and as a result whereof the petition under Sections 523 and 516 of the Code of Criminal Procedure and Sections 24 and 44 of the Control of Narcotic Substances Ordinance, 1995 shall stand accepted subject to the petitioners' furnishing personal surety bonds to the satisfaction of the learned trial Court. (MYFK) Petition accepted.

PLJ 1998 Cr PLJ 1998 Cr.C ( Lahore ) 1759 Present: RAJA MUHAMMAD KHURSHID, J. MUHAMMAD ISHAQUE-Petitioners versus STATE-Respondent Criminal Revision No. 264 of 1998, dismissed on 3.7.1998. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 439--Offence under Sections 302/324/148/149 PPC--Placement of names in Column No. 2 of report under Section 173 Cr. P.C.-- Summoning of petitioners-Revision against-Specific role was attributed to petitioners who were present at the time of occurrence-View taken by trial court is supported by FIR, wherein petitioners are named and have been shown armed with 12 bore guns each-Two out of them were persistently exhorting other assailants to finish deceased who was done to death due to fire made by principal accused-Contents of FIR were supported by PWs. recorded under Section 161 Cr. P.C.-View taken by trial Court in summoning accused/petitioners remains unexceptionable- Petition dismissed. [P. 1760] A Ch. Muhammad Javed Ghani, Advocate for Petitioner. Date of hearing: 3.7.1998. order In this reivsion petition an order dated 30.3.1998 passed by Mr. Khalid Mahmood Cheema, learned Addl. Sessions Judge, Sheikhupura is challenged, whereby he had summoned the present" petitioners who were placed in column No. 2 of the final report submitted under Section 173 Cr.P.C. in a case registered under Sections 302/324/148/149 PPC. 2. It is contended that the petitioners were declared innocent in uccessive police investigations and as such were not liable to be summoned particularly when they were placed in column No. 2; Secondly it was urged that vide order dated 12.8.1996, the Illaqa Magistrate had discharged the present petitioners after they were found innocent by the police; thirdly it was contended that the learned trial Judge was not competent to summon the petitioners as accused in the case without recording any evidence. As such, it was alleged that the impugned order was beyond jurisdiction, illegal and void. Lastly, it was submitted that there was some sort of compromise on account of which, legal heirs of the deceased had sworn affidavit thereby exonerating the petitioners. 3. I have considered the foregoing submissions and have also perused the impugned order. It is true that the petitioners were found innocent but were ultimately placed in column No. 2 of the final report prepared under Section 173 Cr. P.C. submitted to the Court concerned. The learned trial Judge, after considering the material before him and on going through the FIR came to the conclusion that a specific role was attributed to each of the petitioners who were present at the time of occurrence and as such, they were summoned to face the trial. The view taken by the learned trial Gourt is supported by the FIR, wherein, all the three petitioners are named by have been shown armed with .12 bore guns each. Out of them, Usman Ghani and Muhammad Ishaque were persistently exhorting the other assailants to finish the deceased Shehbaz. In pursuance of the aforesaid exhortation, 'the deceased was done to death due to fire made by the principal accused. The contents of the FIR were supported by the PWs in their statements recorded under Section 161 Cr.P.C. As such, the view taken by the learned trial Court in summoning the accused/petitioners remains unexceptionable and does not call for interference in the revision petition. However, if there is any ompromise , of which no evidence is placed before this court in the form of alleged affidavit, etc. The petitioner, if so advised, may bring a proper petition before the trial court if the offence has already been compounded as claimed in the revision petition. 4. In view of the above discussion, the revision petition being without substance is dismissed in limine. (MYFK) Petition dismissed. THE END

PLJ 1998 Karachi 1 PLJ 1998 Karachi 1 Present: rana BHAGWAN das, J. SYED HABIB MAHMOOD-Plaintiff versus Mrs. BILQEES FATIMA-Defendant . Suit No. 444 of 1989 dismissed on 8.8.1996. (i) Benami Transaction-- —Criteria for determining question of Benami Transaction is (i) source of consideration (ii) From whose custody the original title deed and other documents came in evidence; (iii) who is in possession of property and motive for benami transaction. [P. 12] D (ii) Declaration-- —Declaration-Suit of-Plaintiff did not examine the vendor Mst, Z nor did he tender any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration from him as claimed-His assertion that defendant is benami owner of suit property is not supported by circumstantial or documentary evidence on record- Held: Neither property in suit w purchased by plaintiff from his own funds nor is defendant benami owner-Defendant had sufficient means and source of income to purchase suit, property-Suit dismissed with costs. [Pp. 5, 9, 10 & 13] A. B. C & E (iii) Limitation Act, 1908 (IX of 1908)-- —S. 120-Plaintiff contracted second marriage in 1978 and deserted thedefendant, whereas he brought suit for declaration and injunction in1989--Held: Suit is barred by limitation as the Act prescribes a period cf six years from the date when right to sue accrues. [P. 13] F Mr. Gulzar Ahmed, Advocate for Plaintiff. Mr. Abdul Muqtadir Khan, Advocate for Defendant. Dates of hearing: 23.4.1996, 15.5.1996 & 16.5.1996. judgment By this suit, the plaintiff seeks a declaration against the defendant that he is real and true owner of the Plot No. 349, Block 7 and 8, C.P. & Berar Cooperative Housing Society with a double storeyed bungalow thereon and that the defendant is only a benami owner. He has also asked for an injunction restraining the defendant from denying his title and ownership and from preventing him from exercising his right and dominion over the property. By way of consequential relief, he has prayed for handing over vacant possession alongwith all title deeds and documents in respect of the ground floor of the property in suit and delivery of first floor by way of token possession it being in occupation of a tenant. 2. Plaintiff was married to the defendant some times in 1956 at Hyderabad Deccan and brought her to Karachi. From his savings he purchased a plot measuring about 183 Sq. yards in Sahadurabad and built a double storyed house thereon in 1958 and started living therewith the defendant and a daughter. According to the plaintiff till 1965 defendant was a house wife when she took up her employment with the House Building Finance Corporation, as a clerk at Rs. 250.00 p.m. In 1967 plaintiff sold out his house in Bahadurabad for Rs. 60,000/- and added to it his other savings, purchased the plot in suit admeasuring about 487 Sq. yds in the name of the defendant and built thereon a double storeyed house. As there was mutual trust and harmony between the parties, the plaintiff placed all title documents and papers in custody of the defendant and started living in the ground floor of the property in suit. Sometimes in 1978 relations between the parties became strained consequently the plaintiff contracted a second marriage with Mst. Amina and took her to the house in suit and started living there. The plaintiff was blessed with a female baby Qurratul-ain from the second wife where the parties as well as second wife and newly born baby lived upto October, 1980. In October, 1980 plaintiff purchased flat No. D-l, Haq Bahu Plaza, Gulshan-e-Iqbal for Rs. 1,54,000/- in the name of his second wife as benami for himself and he alongwith the second wife and daughter shifted to the said flat where h-; was hlessed with another female haby. Later the plaintiff desired to shift Jo the property in suit for his comfort and better environment but the defendant declined to honour his desire and asserted her title to the property as exclusive owner thereof, hence this suit. 3. Defendant resisted the suit and filed written statement stating therein that she herself had purchased the plot in suit and raised construction thereon after obtaining House Building loan against the guarantee of her income and that she joined Happy Home English School in 1960 as a teacher. Prior to that she had been imparting private tuition to students and earning handsome amount, In 1965 she joined House BuildingFinance Corporation and rose to a position in National Pay Scale No. 20. It was denied that the property was purchased by the plaintiff from his own resources or in the name of defendant as a benami owner. She has given details showing as to how she acquired funds for the purchase of the plot andraising double storey construction thereon. She raised legal pleas as well. 4. On the pleadings of the parties following issues were settled:- 1. Whether the suit property was purchased by the plaintiff from his own funds in the name of the defendant? 2. Whether the defendant had means and source of income to purchase the property? 3. Whether the defendant is benami owner of the suit property? 4. Whether the suit is misconceived, bad in law, fabricated and without cause of action? What should the decree be? 5. In support of his case the plaintiff besides examining himself ledthe evidence of Badruddin Paracha working in Habib Bank Limited, Saddar Branch, Karachi while the defendant examined herself and her daughter Mst. Sajida Habib. While the evidence of Bank officer was recorded in court, remaining evidence of the parties was recorded on commission by Mr. Zahiruddin Khan Advocate appointed as Commissioner. 6. I have heard learned counsel for the parties and gone through the relevant evidence on record. My findings are as under for the following reasons. REASONS Issues No. 1 to 3. 7. These issues being interconnected and interrelated may be discussed and decided together for the sake of convenience and to avoid repetition of evidence and reasoning thereon. It is settled proposition of law that in a suit for declaration of title and right to property as real owner claiming it to be benami transaction, initial burden of proof is on the party who alleges that an ostensible owner is a benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof shifts from a plaintiff on a defendant and if he fails to discharge the burden of proof, the plaintiff shall succeed. (Refer Muhammad Sajjad Hussain v. Muhammad Anwar Hussain, 1991 S.C.M.R. 703). 8. There appears to be no serious controversy with regard to purchase of plot No. 253 measuring 183 Sq. Yds in Bahadurabad by the plaintiff from his own resources as well as house building loan and sale thereof for a consideration of Rs. 60,000/- by way of a registered conveyance deed dated 22nd January, 1968 Ex. 6/13. The whole controversy in the suit relates to the title and ownership in respect of plot No. 349 measuring 487 Sq. Yds in C.P. and Berar Cooperative Housing Society Limited. While the case of the plaintiff is that in our about 1967-1968 he purchased the plot in suit in the name of defendant as benami and built thereon a double storeyed house from his own resources, the stand of the defendant/wife is that she herself being a working lady purchased the plot in suit and raised construction thereon from her own resources as well as by raising loan from the House -Building Finance Corporation in the first instance and subsequently from Eastern Federal Union Insurance Company Limited. According to the plaintiff he served in the following organizations at different times. 1. Leaver Brothers Limited from 1st October, 1951 to 1st June, 1954. 2. The Swissboring Overseas Corporation Ltd. from June, 1954 to May, 1962. 3. Philips Electrical Co. Limited upto 26th November, 1962. 4. Standard Bank Limited from 26th November, 1962 to 1st August, 1964. 5. Swissboring Overseas . Corporation Ltd. from 14th January, 1965 to 26th April. 1965. Salary Rs. 80/- p.m.Salary Rs. 600/- p.m. Salary Rs. 325/- p.m.Salary Rs. 600/-- p.m. 6. Gandhara Industries Ltd. Salary Rs. 138/- p.m from 1st February, 1966 plus dearness allowance to 13th December, 1966. & transport equaliza­ tion. Hotel Midway House from Salary Rs. 115/-p.m. December, 1966 to October, 1976. 8. Saudi Arabian Airlines from November, 1976 to 18th April, 1988. 9. With regard to the purchase of the house in suit contention of the plaintiff is that he purchased the same from Mst. Zainab Bai for a consideration of Rs. 19,400/- paid by him through cheque No. 813761 dated 10.3.1967 drawn on Habib Bank Limited, Saddar Branch, Karachi. It is fuSfther his case that, after the purchase of the plot he paid admission and transfer fees amounting to Rs. 2,440/- to C.P. and Berar Cooperative Housing Society vide cheque No. 813762 dated 11.3.1967. He further paid a sum of Rs. 10/- to the said Society towards execution of sub licence fees and Rs. 600/ to S.M. llyah, Estate Broker through cheque No. 813764 dated 13.3.1967. In support of his statement plaintiff led the evidence of Shaikh Badruddin, an officer of Habib Bank Limited who produced four cheques issued by the plaintiff for Rs. 19,400/-, Rs. 2,440/-, Rs. 312.38 and Rs. 600/-Ex. 5/1 to 5/4 respectively, p^.-locopy of statement of Bank account from January, 1967 to 27th November, 1967 Ex. 5/5 tending to show that the aforesaid cheques were duly passed for payment arid debited to the account of the plaintiff. From the evidence of the Bank Officer as well as the plaintiff himself it transpires that amount of cheque for Rs. 19,400/- was collected by the plaintiff himself, the cheque for Rs. 600/- being a bearer cheque seems to have been encashed by S.M. Ilyas whereas two remaining cheques were cleared by way of transfer by C.P. and Berar Cooperative Housing Society Ltd. and House Building Finance Corporation respectively. The plaintiff also produced two receipts issued by C.P. and Berar Cooperative Housing Society acknowledging the receipt of Rs. 2,440/- and Rs. 10/- respectively both in the name of the defendant reflecting the payment towards admission-CM/ntransfer fee and execution of sub-lincence No. 2 fee respectively. 10. It may be observed that the plaintiff did not examine the so called vendor Zainab Bai nor did he produce any document tending to show that she had transferred the plot in suit in favour of the defendant at the instance of the plaintiff or received consideration of Rs. 19,400/- from him as claimed. According to the plaintiff during the construction of a double storeyed house on the plot in suit he found that amount received by him from sale of Bahadurabad house and House Building Finance Corporation was not sufficient for completion of construction, therefore he obtained a loan of Rs. 5,5000/- from Eastern Federal Union Insurance Company after redeeming the property form House Building Finance Corporation. He asserted that the repaid the loan amount to House Building Finance Corporation whereafter the property in suit was mortgaged with Eastern Federal Union Insurance Company and he spent this amount on the construction. Surprisingly no receipt for repayment of House Building Finance Corporation loan was produced by him as asserted. Besides no evidence with regard to redeeming the property from House Building Finance Corporation and mortgaging it with Eastern Federal Union Insurance Company by him was adduced. In December, 1967 on completion of the construction he alongwith his wife shifted in the ground floor and let out the first floor of the building on rent of Rs. 600/- per month. According to the agreement of sale in respect of the Bahadurabad house he received Rs. 30,000/- as earnest money on 1.3.1967, Rs. 6,000/- on 12.7.1967 as well as Rs. 4.000/- both by way of crossed cheque dated 3.10.1967 and Rs. 2,926/- in cash on 22.1.1968 when the conveyance deed was executed by him in favour of the vendee. In support of this submission, the plaintiff relied upon entries in the Bank Statement of Account Ex. 5/5 reflecting the credit of Rs. 30,000/-, Rs. 6,000/- and Rs. 4,000/- in his account soon after the aforesaid dates. 11. As regards the defendant's capacity to purchase the plot in suit and raising construction thereon f rom her own resources, the plaintiff asserted that in fact she did not have any funds because she used to spend her school salary on buying clothing, cosmetics and other items off fashion for herself. He maintained that, h had full faith and trust in the defendant, therefore, he purchased the plot aer name as benami for himself and all the documents and transactions placed all the documents and pap her custody. He however admit! Happy Home English School in e drawn and made in her name. He also :', pertaining to the purchase of the plot in •?d that the defendant joined service with une, 1960 as a teacher with a salary of Rs. 250/- per month and urged that while she'was in the school employment he continued to provide all her maintenance and the funds for the maintenance off the family as well as the house as he was earning sufficient funds form his service with Swissboring drawing a salary of Rs. 600/- per month and was also able to make sufficient savings out of his service income as well as rent received by him for the ground floor premises of Bahadurabad house. In his cross-examination quite inconsistent with his earlier affirmation he was obliged to admit that he kept his personal papers in his possession and in safe custody On being confronted with his loan application dated 7.6.1957 Ex. 6/19 he admitted that it indicated that the defendant had a monthly income of Rs. 200/~. While admitting another loan application No. 6965 dated 26.5.1994 Ex. 6/20 he conceded that the defendant was earning Rs. •'60/- p.m. aa shown in column No. 5(b). It may be pointed out here that in ' ;G4 he himsell being employed in Standard Bank Limited was receiving Rs. ''if>/- p.m. by way of salary. Subsequently he joined Gandhara Industries :suited in 19CW at a salary of Rs. 138/- p.m. and in 1967 he was serving in itel Midw:.M House for a salary of Rs. 115/- in addition to usual allowances. He reluctantly admitted that in 1965 the defendant obtained an employment in House Building Finance Corporation but dishonestly avoided to accept whether she was still employed with the said Corporation. However he was constrained to admit that the defendant mortgaged the plot in suit within the House Building Finance Corporation and obtained the loan. He expressed that he was unable to produce any receipt for payment of amount of Rs. 19,400/- to the vendor. He owned and admitted the contents of para 13 of his affidavit-in-evidence stating that when he purchased the plot in suit as a loving husband he had full faith and trust in the defendant, therefore, he purchased the plot in her name as benami, that all the documents and transactions were drawn and made in her name and that he had placed all the documents and papers relating to purchase of the plot in her custody. He denied the suggestion that the defendant had purchased the plot in suit for Rs. 8,000/- or paid a further sum of Rs. 3,165/- towards miscellaneous charges to the society through he did not dispute the acknowledgement receipt Ex, 6/22. Quite inconsistent with his earlier admission he denied the suggestion that all the documents and receipts were in possession ofr.be defendant and asserted that these were in his possession. According to the plaintiff there was no other loan except the House Building Finance Corporation loan and the Eastern Federal Union Insurance Company loan which is not correct on the face of it. He conceded that he did not possess sanction letter for the Eastern Federal Union Insurance Company loan and the redemption deed redeeming the property in suit from the said company. 12. In para 15 of his affidavit in evidence, he wrongly claimed that he had started construction in March, 1967 but in his cross examination on being confronted with the approved building plan Ex. 6/25 lie admitted that the bmkling plan was approved on 29.4.1967. He did not dispute defendant's letter dated 15.3.1979 Ex. 6/28 addressed to the House Building FinanceCorporation enclosing therewith original sub lease dated 3rd May, 1967, permission to mortgage, valuation certificate and the approved building plan. He conceded that defendant had been living in the house in suit since it wasbuilt, that she has been earning since 1960 and that she has been working in House Building Finance Corporation since 1965. He however wrongly and cleverly denied the suggestion that she had sufficient funds before and afterthe purchase of the plot in suit. 13, On her part defendant Bilqees Fatima in her evidence explained that when she was brought to Karachi after her marriage the plaintiff wasliving in rented house No. 278 at Hyderabad Colony. At the relevant time Miss Kauser Sultana aged about 25 years and not married or otherwise related to the plaintiff was being kept by him right from the first day on her arrival at Karachi. After marriage with the plaintiff relations and events took place in a manner that the confidence and understanding between the parties could never improve. She stated that the plaintiff being a person of uspicious character and conduct was never able to maintain her in a proper manner. She affirmed that she being a graduate in English Literature immediately after her arrival in Karachi in 1956-1957, started earning and maintaining herself and incurred the expenditure of the family as the plaintiff was in and out of job many a times. In the year 1956-57 she started impairing tuitions, in 1959 she joined Pater Pan English School and in the year 1960 she got an employment in Happy Home English School. She produced office order dated 20.6.1960 and a certificate dated 26.11.1965 from Happy Home English School Ex. 7/3 and Ex. 7/10 respectively. She produced two certificates in support of her statement with regard to imparting tuitions Ex. 7/1 and 7/2 which were not controverted in evidence. 14. She further asserted that on her arrival in Karachi since she started working and earning, plot No. 253 measuring 183 sq. yds in Bahadurabad was purchased in 1958 by the plaintiff from her savings and from money given by his father. According to her, the house was constructed with the assistance of House Building Finance Corporation loan which was made available on her guarantee. Ground floor construction on the plot wasraised in the year 1958 whereafter she herself and the plaintiff shifted in thesaid house. She added that in 1964 within the said of her income and HouseBuilding Finance Corporation loan obtain on her guarantee first floor of the said house was constructed. I would, however, refrain from giving much weight to this piece of evidence which is beyond the place of controversy and not the subject matter of issues for decision. On her own showing she was employed with House Building Finance Corporation on permanent basis in 1965 and she continued to be in the employment of the said Corporation. She produced initial order of her appointment as Assistant at Rs. 240/- per month dated 3/4.8.1965 and a certificate dated 25.2.1990 certifying that she joined the said Corporation on 5.8.1965 and was now holding the post of Executive Director (Operations) equivalent to BPS-20. 15. Adverting to the purchase of the property in suit it is her case that in the year 1967 she had sufficient funds and means therefore she decided to purchase the plot in suit from its owner and purchased it for a consideration of Rs. 8,000/-. She produced acknowledgment receipt to this effect dated 10.3.1967 Ex. 6/22 purportedly executed by Mst. Khairunnisa(as stated at the ar by learned counsel for the defendant since the signature of the vendor on the receipt is in Gujrati). She claimed that she being an employee of House Building Finance Corporation, was entitled to certain benefits including the benefit of availing loan without initial investment. VcouUngly she so'^ht permission to mortgage the plot in suit with the i oifioiation v ah db accorded by C.P. and Berar Cooperative Housing •m et'y Ltd L,. 6/ 4 Before the grant of such permission, the aforesaid i! \ execute 1 a <-ub licence No. 1 in Form "A" in her name Ex. 7/15 after i mce f ill es payable by her which was registered in the office of e , tehi mde S. No. 2468 on 7.4.1967. The certificate . . 5. u aiottgage issued by the said society further affirmed ilt u n i ad paid the dues in respect of the plot in suit on account of development and Government premium amounting to Rs. 3,165.50 and there was nothing outstanding against her. After the lease in her favour she engaged an architect for preparation of building plan which was approved by K.D.A. vide letter dated 29.4.1967 Ex. 6/25. Thereafter she obtained loan from House Building Finance Corporation in the sum of Rs. 40.000/- vide sanction letter dated 6th May, 1967 Ex. 7/16. Before the availment of the House Building Finance Corporation loan she mortgaged the plot in suit with House Building Finance Corporation vide registered mortgage deed Ex. 7/17 registered in the office of Sub Registrar on 17.6.1967. Subsequently she redeemed the property in suit from House Building Finance Corporation on 4th March, 1968 Ex. 7/18 and obtained a loan of Rs. 55,000/- from Eastern Federal Union Insurance Company vide mortgage deed dated 4th August, 1968. After the repayment of this loan the property was redeemed from State Life Insurance Corporation which succeeded Eastern Federal Union Insurance Company Ltd. vide Ex. 7/20 dated 9th December, 1980 whereafter the property was again mortgaged with House Building Finance Corporation for availing additional loan of Rs. 35,000/- vide mortgage deed Ex. 7/21. Besides she availed of over-draft facility form National Bank of Pakistan in the sum of Rs. 5,000/- vide letter dated 21st October, 1967 Ex. 7/23, over-­ draft limit of Rs. 2,000/- vide letter dated 8.2.1969 Ex. 7/23/1, over draft limit of Rs. 1,800/- vide letter dated 5.1.1970 Ex.7/23/2. The defendant also produced as many as 56 receipts for repayment of installments to State Life Insurance Corporation in order to prove the repayment of loan amount to Eastern Federal Union Insurance Conjpany Ltd. being predecessor in interest of State Life Insurances Corporation. Besides aforesaid oral as well as documentary evidence, her version is materially corroborated by the testimony of her daughter DW Sajida Habib which has not been impeached. 16. Onus of proof of issues No. 1 and 3 being on the plaintiff, he 1 utterly failed to discharge the same. His assertion that he purchased the plot in suit for a consideration of Rs. 19,400/- from Mst. Zainab Bai and paid the consideration through cheque Ex. 5/1 is not supported by the evidence on record. In the first instance there is no evidence showing Mst. Zainab Bai to be the owner of the plot in the records of C.P. Berar Cooperative Housing Society Ltd., secondly there is no agreement of sale between her and the plaintiff reflecting the transaction of purchase of plot in the name of the defendant, thirdly there is no evidence of passing of consideration to the said owner of the plot. Admittedly cheque for Rs. 19,400/- drawn on 10.3.1967 is a self drawn cheque and the amount thereof was received by the plaintiff himself which does not by any stretch of reasoning establish the payment of consideration by the plaintiff to the so called owner of the plot. Only circumstantial evidence produced by the plaintiff is the production of two receipts for payment of Rs. 2,440/- and Rs. 10/- to C.P. and Berar Cooperative Housing Society in the name of the defendant on account of admission-cum-transfer fee as well as execution of sub licence No. 2 fee. While the first payment was made through a cheque and there is evidence to show that the said cheque was received by the plaintiffs Bank for clearancepaltry amount of Rs. 10/- was paid in cash. In this context the explanation of the defendant is that in fact she being a working woman had paid this amount in cash to the plaintiff for payment of the Society in so much so that she had purchased the plot in suit for a sum of Rs. 8,000/-. In order to substantiate this statement she produced a receipt purportedly executed by Mst. Khairunnisa Ex. 6/22 followed by the aforesaid payments to C.P. and Berar Cooperative Housing Society Ltd. It may further be observed that according to the plaintiff construction on the plot was completed in December, 1967 and finances therefor were provided by him though the title documents remained intact in the name of defendant. It may however be observed that at the relevant period he being employed in Gandhara Industries Limited for a salary off Rs. 138/- per month plus dearness allowance and transport equalization and subsequently in Hotel Midway House for a salary of Rs. 115/- he could hardly save and substantial amount for the purchase of plot or raising construction thereon with a huge investment. No doubt he stated that on account of sale of Bahadurabad house he had received a sum of Rs. 30.00/- as advanced money from the vendor on 1.3.1967 which was credited to his bank account, he failed to show by any concrete and satisfactoiy evidence that in fact the lay out plan as well as the building plan were approved by concerned agencies at his instance or that the actual construction was carried out under his supervision and from his investments. Admittedly he had obtained a loan for raising construction on the plot in Bahadurabad therefore he was under a legal duty to repay the said loan. It is therefore difficult to accept that with the receipt of advance money he was able to invest the said amount in the purchase of plot or to raise construction thereon. Mere production of a receipt for payment of Rs. 2,440/- to C.P. & Berar Cooperative Housing Society in the name of the defendant on his part in my view is neither sufficient nor satisfactoiy evidence of his investment in the purchase of the property. At any rate, there is no plausible circumstantial or documentary evidence to show that the plaintiff purchased the plot in suit or raised construction thereon by his own finances. 17. On the contrary the defendant soon after her marriage arid arrival in Karachi being a working woman and receiving a handsome amount from tuitions, appointment as teacher and subsequent assignment in the House Building Finance Corporation was in a better position to save a substantial amount for investment in the plot in suit. There is adequate documentary evidence to support the view that she had in the first instance obtained house building loan from House Building Finance Corporation in the sum of Rs. 40,000/- and subsequently realising that the said amount would not be sufficient to meet the cost of construction, she after redeeming the plot mortgaged with House Building Finance Corporation obtained loan amount to Rs. 55,000/- from Eastern Federal Union Insurance Company Ltd. There is over-whelming documentary evidence to substantiate the version of the defendant that she had repaid the house building loan as well as the loan amount to State Life Insurance Company the successor of Eastern Federal Union Insurance Company whereafter she secured an additional loan amounting to Rs. 35,000/- from House Building Finance Corporation. There is ample documentary evidence to show that at the time of giving evidence a sum of Rs. 19,175/- was outstanding against her as on 31.7.1989 on account of the additional loan of Rs. 35,000/- obtained from House Building Finance Corporation in the year 1978. Despite lengthy cross examination and searching questions put to her in the cross examination her testimony could not be shattered. She also produced documents to show that at different imes she had availed of over draft facility from the National Bank of Pakistan in the year 1967, 1969 and 1970 in order to complete the construction riased on the plot in suit. Besides the above resources she produced an statement Ex. 7/22 showing the availment of G.P. Fund advance from her G.P. Fund account maintained in the House Building Finance Corporation from time to time, in all amounting to Rs. 67,400/-. The amounts drawn in this statement relate to the period from December, 1970 to 15th August, 1988 repayable in installments and deducted at source from her salary and allowances. These circumstances evidently tend to prove that on the one hand she had been pending heavily on construction of the house on the plot in suit and on the other hand making efforts to pay off the outstanding loan against her secured from different agencies in order to obtain discharge of her liability and encumbrance on the property. As observed earlier, the defendant, was completely unaware of the subsequent additional loan obtained by her from House Building Finance Corporation to relieve her of the liability of Eastern Federal Union Insxirance Company Limited. 18. As regards possession of the house in question it is logical and quite natural that upto 1978 the parties lived therein as husband and wife but in 1978 the plaintiff after contracting a second marriage shifted to flat No. D-l, Haq Bahoo Plaza purchased by him in the name of his second wife Mst. Amina Naz. He attempted to show that he had lived in the property in suit with the second wife upto October, 1980 but his statement does not inspire much confidence and this assertion is not borne out by the evidence on record. 19. Finding him on weak wicket learned counsel for the plaintiff contended that the averments made in para 10 of the plaint being not disputed in the corresponding para of written statement the facts stated therein are deemed to be admitted. In para 10 of the plaint plaintiff stated that after contracting second marriage with Mst. Amina Naz in 1978 he brought her in the ground floor of the house in suit and started living therein where a daughter named Quratul Ain was born to him from the second wife. He claimed his stay in the said house upto October, 1980 but it would not be correct to assume that the defendant did not controvert this statement in her written statement. A plain reading of para 10 thereof discloses a complete and emphatic denial of the averments made by the plaintiff. Besides denying the contents of para 10 specifically defendant stated that in fact the plaintiff at the relevant time was living in House No E- 1-9/12 Malir Extension Colony, Karachi as evidenced by the power of attorney dated 28.10.1980 executed by the previous owner of Flat No. D-l Haq Bahoo Plaza, Gulshan-e-Iqbal in favour of the plaintiff. It was further stated that before shifting to Malir Extension Colony he was occupying Flat No. 9-8/14 Maymar Square Gulshan-e-Iqbal, Karachi. In support of this submission learned counsel relied upon Trustees of the Port of Chittagong v. River Steam Navigation Co. Ltd. (PLD 1965 SC 352) which is hardly attracted in the circumstances of the instant case because there is specific and emphatic denial of the plaintiffs averments in the written statement filed by the defendant. 20. With regard to the purchase of the property in suit in the name of the defendant as benami transaction, learned counsel relied upon the following cases:- (1) Lakshmiah v. Kathand Rama (AIR 1925 PC 181). (2) Mirza Ahmed v. Model Mills (AIR 1926 Nagpur 262). (3) Muhammad. Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703). (4) Kishwar Malik v. Muhammad Sadiq Malik (PLD 1995 SC 457). In the Privy Council case, it was held that a purchase in India by a native of India of property in the name of his wife unexplained by other proved or admitted facts is to be regarded as benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is the wife. The reported case is hardly of any assistance to the plaintiff in view of overwhelming evidence adduced by the defendant to the contraryIn Nagpur case it was observed that in view of the extraordinary prevalence of benami transactions in India, even a slight quantity of evidence may suffice to prove it. The facts of the reported case are quite different and distinguishable from the fact of the instant case. As there was no sufficient evidence from the side off the defendant in the cited case therefore the observation made in the cited case are not attracted in this case In Muhammad Sajjad Hussain's case Hon'ble Supreme Court of Pakistan laid down the following factors as criteria for determining the question whether the transaction is a benami or not? There are:- (i) source of consideration; (ii) from whose custody the original title deed and other documents came in evidence; (iii) who is in possession of the property; (iv) motive for the benami transaction. Applying the said yard stick to the facts of this case, the authority supports the case of the defendant rather than the plaintiff. In Kishwar Malik's case Hon'ble Supreme Court of Pakistan declined to interfere with the concurrent findings of courts helow that the appellant was only a benamidar of the disputed property in the context of evidence on record and admitted fact of payment of entire price of the plot from the bank account of the respondent-husband. 21. Learned counsel for the plaintiff lastly contended that the defendant failed to lead definite evidence of investment of her finances in the construction of the house and mere sanction of house building loan by H.B.F.C. and Eastern Federal Union insurance Company as well as over draft facility by National Bank of Pakistan could not be treated as proof of the said amount having been spent on the construction of the house in suit. Be that as it may, the plaintiff failing to discharge the initial burden of proof of his own investments and purchase of the property in the name of the defendant is not entitled to depend on the so-called weakness of the case of the defendant which is otherwise sufficient and satisfactory to discard the testimony of the plaintiff. In this connection he also cited Ismail Dada Adam Soomar v. Short Banoo (PLD 1960 Karachi 852) and Muhammad Abdul Majeed v, Muhammad Jainul Abden (PLD 1970 Dacca 414). Both these cases were considered in the Supreme Court j udgment in the case of Muhammad Sajjad Hussain while laying down the principles for determining the issue whether a transaction is a benami or not ? On preponderance of the evidence however I find that the plaintiff has failed to establish his case by any reliable and satisfactory evidence. As a necessary corollary, I find that neither the property in suit was purchased by the plaintiff from his own funds nor is the defendant benami owner thereof. Likewise I am inclined to hold that the defendant had sufficient means and source of income to purchase the property in suit Issue No. 4. 22. On this issue, learned counsel for the defendant submitted that in view of the plaintiff deserting the defendant in 1978 after contracting the second marriage without the consent of the defendant and having no nexus with the property in suit, his claim for declaration and injunction brought in April, 1989 is time barred under Article 120 of the First Schedule to the Limitation Act which prescribes a period of six years from the date when the right to sue accrues. It is my considered vie that in fact and law no right to sue accrued to the plaintiff in March 1989 and the suit brought by him in April, 1989 is clearly misconceived, without any cause of action and barred by limitation. Learned counsel for the plaintiff did not bother the advance any argument on this issue but, in para 18 of the plaintiff, it has been stated that the cause of action arose in or about 1967 and 1968 when the plaintiff puichased the plot in suit in the name of defendant as benami for himself and in or about January, February and March, 1989 when the defendant denied the title and ownership of the plaintiff over the plot in suit and the bungalow built thereon. 23. From the evidence, it transpires that the parties are living separately from each other since 1978 when the plaintiff married a second wife and at any rate from October, 1980 when he shifted to Haq Bahoo Plaza in Gulshan-e-Iqbal after the purchase of the flat in the name of his second wife. Except the exchange of legal notices in February, 1989 and March, 1989 there is hardly any evidence to show that the so called right of theplaintiff was denied and disputed for the first time in January to March. 1989 as claimed. It seems that right to sue was not available to the plaintiff at any time after actual separation between the parties as reflected in the intimation sent by the plaintiff under section 7(1) of the uslim Family Laws Ordinance, 1961 and order passed by the Chairman, Conciliation Court thereon, dated 1.4.1978 Exh. 6/29 but in order to create imaginary cause of action, after the issuance of a legal notice Exh. 6/17 and receipt of its reply Exh. 6/18 he filed this suit which on the face of it is barred by time and in fact without any valid cause of action. Issue No. 5: 24. For the aforesaid facts and reasons and in view of my findings onthe foregoing issues, suit is dismissed with costs. (K.K.F.) Suit dismissed.

PLJ 1998 Karachi 14 (DB) Present: kamal mansoor alam and zafar hadi shah, JJ. DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS-Petitioner versus SINDH LABOUR APPELLATE TRIBUNAL and others-Respondents Constitutional Petition No. D-832 and Miscellaneous No. 1885 of 1997, decided on 30.5.1997. Constitution of Pakistan, 1973-- —-Art. 199 read with S. 25-A of IRQ, 1969 and S. 4 of Limitation Act, 1908- Dismissal-Grievance petition against-Re-instatement-Appeal against- Dismissal on point of limitation--Sindh Labour Court having passed order of re-instatement of respondent No. 3 on 30.11.1996, petitioner had time to file appeal up to 30.1.1996-Labour Courts observance winter holidays from 26.12.1996 to 3.1.1997 and re-opened on 4.1.1997 on which date petitioner applied for a certified copy of order which was supplied to it on same day and appeal was filed in Sindh Labour Appellate Tribunal also on same day-It is true that during winter holidays of Labour Appellate Tribunal its office remained opened but that cannot deprive petitioner of the benefit of section 4 of limitation Act which provides for extension of period of limitation if it expired on a day when court is closed-There is no mention of 'office' in section and there can be no justification to deprive petitioner of benefit of provision giving extending meaning to expression court used of therein so as to include 'office' also in the word 'court-Appellate Tribunal was not justified in dismissing petitioner's appeal on ground of limitation-Impugned decision sei, aside, case remanded to SLAT for decision on merit. [Pp. 16 & 1] A to C 1975 SCMR 452 ref Raja Shamsuzzaman, Advocate for Petitioner. M.A. Hassan Malik, for Respondent No. 3. order Kamal Mansoor Alam, J.--As the short point involved in this petition pertains to question of limitation only we heard the counsel for the parties earlier and today we have heard them again at length with a view to finally dispose of the petition Brief facts of the case are the respondent No. 3, Hamid Qadeer, applied for one month's leave form 10.10.1994 to 12.11.1994 on medical ground but he failed to report for duty after the expiry of leave and it appears that he reported for duty almost after twelve months. On 17.6.1995 a show cause notice was issued to him and later a domestic enquiry was conducted wherein he appears to have been found guilty of misconduct and was dismissed. The employee approached the Sindh Labour Court No. V under section 25-A of the Industrial Relations Ordinance, 1969, challenging his dismissal. His grievance petition was allowed by order dated 30.11.1996 and he was reinstated in service with full back benefits. This order of the Labour Court was challenged by the petitioner before the Sindh Labour Appellate Tribunal in appeal which was filed on 4.1.1997. It appears that a plea was taken before the Tribunal that the appeal was barred by time. The objection prevailed with the learned Tribunal who by decision dated 27.3.1997 iismissed the appeal as time-barred Learned counsel for the petitioner submits that the appeal was vithin time as the Sindh Labour Appellate Tribunal was on winter vacation rom 26.12.1996 to 9.1.1997 and the Labour Courts were closed for vacation rom 26.12.1996 to 8.1.1997. In support of bi.s contention he has filed copies of two orders, one of these issued by the Registrar of the Sindh Labour Appellate Tribunal, states that ".... Sindh Labour Appellate Tribunal will remain closed on account of Winter Holidays from 26th December, 1996 to 9th January, 1997 and will open on Saturday 10th of January, 1997. The office of the Tribunal will remain open during Winter Holidays." The second notification deals with the observance of winter holidays by the Labour Courts. It provides that, "The High Court has notified the Winter Holidays to the District and Sessions Judge from 26th December, 1996 to 3rd of January, 1997. As per orders of the Hon'ble Chairman the following Presiding Officers of Sindh Labour Court will remain in their offices and will do the urgent work of their Courts as well as of the other Courts on the dates shown against each." From the above notifications, it is apparent that while the Sindh Labour Courts were to observe Winter Holidays from 26.12.1996 to 3.1.1997, the Labour Appellate Tribunal was to remain closed for that purpose from 6.12.1996 to 9.1.1997. In the present case, the Sindh Labour Court having passed the order of re-instatement of respondent No. 3 on 30.11.1996, the petitioner had time to file the appeal up to 30.12.1996. However, as is . apparent form the notification, the Labour Courts observed winter holidays from 26.12.1996 to 3.1.1997 and reopened on 4.1.1997 on which date the petitioner applied for the certified copy of the order which was supplied to it on the same day and the appeal was filed in the Sindh Labour Appellate Tribunal also on the same day.The present case would appear to attract the provision of section 4 of the Limitation Act which reads as under:- "Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, or appeal or application may be instituted. preferred or made on the day when the Court reopens.' It is true that during the winter holidays of the Labour Appellate Tribunal its office remained opened but that cannot deprive the petitioner of _. the benefit of the abovementioned provision of section 4 which provides for extension of the period of limitation if it express on a day when the Court is closed. There is no mention of 'office' in the section and there can be no justification to deprive the petitioner of the benefit of the provision by giving extended mpaning to the expression 'Court' used of therein so as to include the 'office' also, all the more, when the word 'Court' as used in the section as also the notification is not synonymous with 'office'. It has been observed in the case of Fazal Karim and another v. Ghulam Jilani and others (1975 SCMR 452) were it was observed " From the plain reading of section 4 of the Limitation Act, it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision. Even otherwise, we find that there is no conflict between the notification and the provision contained in section 4 of the Limitation Act. According to the notification, the office was to remain open for receipt of petitions from persons who might choose to file. Surely, the word 'Office' as used in the notification is not synonyms with 'Court' as used in section 4 of the Limitation Act. The Court may be closed and yet the office might still be open." Accordingly, we are of the view that the learned Sindh Labour Appellate Tribunal was not justified in dismissing petitioner's appeal on the ground of limitation. As such, we set aside the impugned decision and remand the case to the learned Sindh Labour Appellate Tribunal for decision on merit. 2. In view of the above order, this application stands dismissed a shaving become infructuous. (MYFK) Case remanded.

PLJ 1998 Karachi 17 PLJ 1998 Karachi 17 Present: ali muhammad baloch and M.L. shahani, JJ. Syed ZAMIRUDDIN-Petitioner versus GOVERNMENT OF SINDH through SECRETARY, EDUCATION DEPARTMENT, SIDNH, KARACHI and 2 others-Respondents Constitutional Petition No. D-29 and Miscellaneous Appeal No. 541 of 1997, decided on 27.2.1997. Constitution of Pakistan, 1973-- -—Art. 199 read with Art. 212(2)-Civil servant-Suspension of-Challenged under writ jurisdiction-Maintainability-Petitioner has only assailed order of suspension-Order of suspension is neither punishment nor causes any harm to petitioner in relation to his terms and conditions of service-Article 212(2) reinforces ouster of jurisdiction of High Courtunder Art. 199-Moreover, when provisions of constitution then the controlling provisions have absolute authority and impact and ouster is complete—Held: Even if there is any harassment which effects terms and conditions of service of petitioner, same fall within exclusive purview of Service Tribunal, as such, jurisdiction of High Court is barred under Article 212(2) of Constitution-Petition dismissed as misconceived and not maintainable. [P. 19] A & B Rasool Bux Unar, Advocate for Petitioner. Muhammad Ibrahim Soomro, Addl. A.G. for Respondent No. 1. Naimatullah Qureshi, Advocate for Respondents Nos. 2 arid 3. order 1. The petitioner has filed this petition and has prayed for the following relief:- Declare that the harassment and humiliation created by the respondent No. 3 is mala fide motivated to destroy anddamage the meritorious career of the petitioner. Direct the respondent No. 3 to withdraw the incompetent orders of suspension and harassment and further direct the respondent No. 3 not to create any harassment againstthe petitioner. Pass any other order as deemed fit including grant, of special cost against res'pondent No. 3. The learned counsel for the petitioner has stated that the petitioner is an employee of Sindh Textbook Board as Audit Officer. According to the learned counsel for the petitioner that he incurred displeasure of respondent No. 3 as the payments were not released to M/s. Zeenat Printers owned by the wife of respondent No. 3. According to him that when the respondent No. 3 took over as Chairman of Sindh Textbook Board, he started harassing the petitioner and put him under suspension. He has, therefore, challenged the suspension and has prayed for above-stated relief.The learned counsel for respondents Nos. 2 and 3 has filed parawise comments and has raised the legal objection that the petition relates to the terms and conditions of service for which remedy is available to him before the Sindh Service Tribunal and the present petition is specifically barred under Article 212 of the Constitution of Islamic Republic of Pakistan The petitioner has only assailed the order of suspension. The order of suspension is neither punishment nor causes any harm to the petitioner in relation to his terms and conditions of service. Moreover, if the suspension of the petitioner leads to any order of punishment (both either minor or major) then it will affect his terms and conditions of service. The terms and conditions of service could be enforced through Sindh Service Tribunal as the Sindh Service Tribunals Act has been amended through Act No. XXI of 1994, published in the Gazette on January 16, 1995 and the employees of Corporation have been declared to be the civil servants under section 3-E of the amended Act. The other contention of the learned counsel for the petitioner was that since he is harassed and the terms and conditions of his service are being arbitrarily changed to his disadvantage, therefore, he has invoked the Constitutional jurisdiction of this Court. It is well-settled legal principle once the jurisdiction is expressly barred by any provision of the Constitution then the bar so contained is conclusive. Article 212(2) is couched in negative language which reinforces ouster of jurisdiction of this Court under Article 199. Moreover, when the provisions of Article 199 of the Constitution are controlled by the other provisions of the Constitution then the controlling provisions have absolute authority, and the impact and the ouster is complete. The Courts being creation of the Constitution could only exercise such jurisdiction conferred on it by the Constitution. Now if the petitioner maintains that is terms and conditions of employment are being changed then obviously the case is within the exclusive domain of the Service Tribunal and where the jurisdiction for Service Tribunal extends the jurisdiction of this Court is barred. Learned counsel for the petitioner relied upon 1990 PLC (C.S.) 313 and has contended that if the order is passed without jurisdiction the jurisdiction of High Court was not barred under Article 212 of the Constitution. He has further contended that the order which has been passed by the respondent No. 3 is coram non judice the Constitutional jurisdiction under Article 199 can be invoked. This argument conveniently overlooks the Full Bench decision of this Court reported as Abdul Bari v. Government of Pakistan and others PLD 1981 Karachi 290 wherein his Lordship Mr. Justice Zafar Hussain Mirza (as his Lordship then was) has ruled that even the grounds of mala fides and coram non judice could be urged before the Service Tribunal. In the case of LA. Sherwani and others v. Government of Pakistan 1991 SCMR 1041 it has been ruled that even the question of enforcement of fundamental rights could be urged before the Tribunals Since we hold that the order of suspension is not a punishment order, and even if there is any harassment which affects the terms and conditions of service of the petitioner, the same fall within the exclusive purview of Service Tribunal, as such, the jurisdiction of this Court is barred under Article 212(2) of the Constitution, therefore, this Constitutional petition is misconceived and not maintainable and the same is dismissed in limine. 2. Consequent upon the dismissal for the petitioner this application is also dismissed. (K.K.F.) Petition dismissed.

PLJ 1998 Karachi 20 Present: rashid ahmed razvi, J. GLOBAL PRODUCE LIMITED, Karachi-Plaintiff versus HABiB CREDIT AND EXCHANGE BANK LTD.-Defendants Suit No. 685 of 1983, dismissed on 4.8.1997. Civil Procedure Code, 1908 (V of 1908)-- —O. 7 Rule 11-Suit for declaration, prohibitory injunction and recovery- Application for rejection of plaint on point of maintainability-Plaint is silent as to what were terms and conditions of deposit of amount with BCCI at London, what is date of deposit and who deposited amount on behalf of plaintiff and who was its beneficiary etc.-Plaintiff was not able to demonstrate that any cause of action was accrued within jurisdiction of High Court—No cause of action is available to plaintiff, as regards territorial jurisdiction to file a claim at Karachi for recovery of £200,000/- deposited at London—A plaintiff can seek declaration regarding his right to any legal character or with respect to any right as to property claimed by him-He has also to show that he apprehends infringement of his legal status, whereas plaintiff is seeking declaration that transfer of management of BCCI to defendant No. 1 and its subsequent merger with defendant No. 3 and 4 be declared unlawful-He furthers seeks to declare that defendants No. 1 and 2 are neither legal successors of former BCCI in Pakistan nor entitled to receive and recover any of assets/money pertaining to former BCCI, which does not fall within any of legal characters or status of plaintiff which is a body corporate and cannot maintain suit-Suit being incompetent, patently time barred and barred for want of jurisdiction and without cause of action-Plaint rejected. [Pp. 26, 27 & 28] A to F PLD 1968 Kar. 222, PLD 1978 Lah. 113 ref. Mr. Mansoorul Arifeen, Advocate alongwith Mr. Yawar Farooqui, Advocate for Plaintiffs M/ S.A. Sarwana, Mr. Afsar Abidi, Mr. Khalid Jawaid and Mr. Zahid Burhani, Advocates for Defendants.Dates of hearing: 19.11.1996, 20.11.1996, 12.5.1997, 23.5.1997, and 27.5.1997 . order This is a suit for declaration, prohibitory injunction and recovery of Rs. 6,32,096/- wherein plaintiffs have filed two applications, one under Order XXXIX Rules 1 and 2 CPC read with section 151 CPC (CMA 10842/93) and another application under section 151 CPC (CMA 10842/93) and another application under section 151 CPC read with Order XI Rule 16 CPC (CMA 1417/95). Defendant, No. 3 namely, M/s. louche Ross has also filed an application under Order VII Rule 10 read with Rule 11 CPC challenging the maintainability of the suit as well as jurisdiction of this Court (CMA 4578/95). I, therefore, propose to deal with the last application at the first instance as it questions the maintainability of the suit. 2. Plaintiff is a company incorporated and registered xmder theCompanies Ordinance, 1984. Sometime in the year 1984 former Bank of Credit and Commerce International (Overseas) Limited, (hereinafter referred as "BCCI OS"), filed a suit bearing No. 495/84 in this court, against the plaintiff company and its directors for recovery of Rs. 79,832,124.20. Subsequently, two other suits were also filed by the BCCI OS against, theplaintiff. One of the defence raised by the plaintiff is in that suit was that a sum of Pound Sterling 200,000/- was lying in deposit, with BCCI OS in London which was liable to be adjusted against the claim of the BCCI OS. Leave to appear and defend in that suit was granted by this court to the present plaintiffs and its directors. On 31.5.1988 Suit No. 495/84 was decreed on the basis of compromise as the defendants No. 1 to 5 in that suit admitted the claim of BCCI OS. Another suit bearing No. 539/87 filed by BCCI OS against the present plaintiffs was also decreed on the same day on the admission made by the defendant (now plaintiff hereinabove). On thesame date another Suit bearing No. 540/87 was also decreed as a result of compromise and on the admission of defendant No. 1 therein (now plaintiffin the present suit). 3. It is further case of the plaintiffs that the amount of Pound Sterling 200,000/- was deposited with BCCI OS at London in trust on the promise and assurance extended to the plaintiffs that the said amount shall be remitted from London to Karachi but BCCI OS in London failed to remit the same. Therefore, it is claimed by the plaintiffs that the defendants are liable to pay the said amount to them in Pakistan . In addition to the refund of the above mentioned amount, the plaintiff has also challenged the amalgamation policy formulated by the Federal Government of Pakistan under sections 47/48 of the Banking Companies Ordinance, 1962 through which the three branches of BCCI OS working in Pakistan were amalgamated with Habib Bank Limited. Plaintiff has also challenged establishment and incorporation of defendant No. 1 as a subsidiary of defendant No. 2 namely, Habib Bank Limited. It has been admitted by the plaintiff that BCCI OS as well as Bank of Credit and Commerce International (S.A.) went under liquidation on the orders of a Foreign Court. In order to understand the exact nature of plaintiffs attack on amalgamationof BCCI OS with H.B.L., it would be advantageous to go through paras 7, 8 and 9 of the plaint which are reproduced below:- "7. The plaintiff states that the said agreement/understanding and the purported take over of the business of BCCI in Pakistan is based on the aforesaid agreement by Defendant No. 2, not being in accordance with the established law and procedure is invalid, void and of no legal effect. Significantly, no scheme which is alleged to have been framed by the State Bank of Pakistan under section 47 of the Banking Companies Ordinance 1962 and no order of Defendant No. 5 was ever furnished to the customers or the public at large and there is no legal basis for the alleged transfer in favour of Defendant No. 2 and which position is not only challenged by the plaintiff but by several other parties in pending litigation, in this Hon'ble Court. 8. Thereafter, Defendant No. 2 after illegally and unlawfully purporting to have taken over the business of the former BCCI in Pakistan with all assets and liabilities committed a further illegality by incorporating and registering Defendant No. 1 as its subsidiaiy and procuring for Defendant No. 1 a Banking Licence as a Scheduled Bank. This action on the part of the Defendant No. 2 was and is in violation of the Banking Companies Ordinance and the incorporation andregistration of Defendant No. 1 is invalid, void and of no legal effect... 9. The defendant No. 2, thereafter illegally, unlawfully and without jurisdiction purported to transfer the business of former BCCI in Pakistan alongwith all assets and liabilities, loans, deposits and customers to Defendant No. 1 are illegal, unlawful and in violation of law purported to assume and take over the same from Defendant No. 2. The Plaintiff challenges both the assumption and take over of the former BCCI business, assets and liabilities by Defendant No. 1 aswell as the alleged transfer of the same by Defendant No. 2 to Defendant No. 1. The Plaintiff states that neither Defendant No. 1 nor Defendant No. 2 are the legal successors-in-interest of the former BCCI in Pakistan and the said Defendants Nos. 1 and 2 have no legal right or status to the business, assets and liabilities of the former BCCI in Pakistan and the only alleged legal successorinterest to such business, assets and liabilities is the Defendant No. 3 whose rights are subject to and control by the laws of Pakistan." 4. In view of the facts as narrated in the plaint, the plaintiff has prayed for the following reliefs:- (a) Declaration that the alleged/purported agreement/ arrangement for transfer of banking business with assets and liabilities of the former BCCI in Pakistan to Defendant No. 2 as a result of the Tripartite agreement/ arrangement allegedly entered into between the Defendant No. 3, Defendant No. 4 and Defendant No. 2 as illegal, unlawful, mala fide, without lawful authority and jurisdiction, invalid, void and of no legal effect; (b) Declaration that the incorporation and registration of Defendant No. 1 as a subsidiary of Defendant No. 2 and the alleged transfer of the business of the former BCCI with assets and liabilities by Defendant No. 2 to Defendant No. 1 is illegal, unlawful, mala fide, invalid void, without lawful authority and jurisdiction and of no legal effect; (c) Declaration that the Defendants Nos. 1 and 2 neither work nor are the legal successors-in-interest of-the former BCCI in Pakistan and are not entitled to receive and recover any of the assets/monies allegedly due and payable to the former BCCI and that the legal successors-in-interest of the former BCCI, if any, and subject to the laws of Pakistan is only Defendant No. 3 and no other person or company; (d) Without prejudice to the above, for an order directing Defendant No. 3 to furnish account of the sum of Pound Sterling 200,000/- lying deposit/trust with the former BCCI in London for an order/direction/mandatory injunction directing the said efendant to remit and transfer the said sum of Pound Sterling 200,000/- together with interest earned there upto date to Pakistan and for a further order/direction/mandatory injunction directing the said Defendants Nos. 1 and 2 to give credit and consequential adjustment to the Plaintiff in their account for a sum being the Pakistani Rupees equivalent of PoundSterling 200,000/- with interest thereon at the rate of 20% per annum w.e.f. the date the said amount was deposited with BCCI, UK, till its remittance to Pakistan in the account of the Plaintiff by Defendant No. 3; and/orFor a decree against Defendants Nos. 1, 2 and 3 in the sum of Rs. 6,32, 35, 096/- being the Pakistani equivalent of thesaid deposit of Sterling Pound 200,000/- with interest upto 30.9.1993 and for further interest on the said amount with20% mark up from the date of the Suit until udgment and decree and further mark-up at the same time until realization of the entire decretal amount; (e) Permanent injunction restraining Defendants Nos. 1 and 2 from remitting the said amount of Rs. 6,32,35,096/- or its equivalent in foreign exchange out of the funds lying with Defendants No. 1 and 2 and agreed to be remitted by Defendants No. 1 and 2 to Defendant No. 3 under the alleged and questionable arrangement/agreement as aforesaid " 5. I have heard Mr. Mansoorul Arifeen and Mr Yawar Farooqui, advocates for the plaintiffs and Mr. S.A. Sarwana, Mr. Zahid Burhani and Mr. Afsar Abidi, advocates for the defendants. At the very outset, it was strenuously argued by Mr. Sarwana that the plaintiff is not entitled for the declaration as of the instant case as the same does not fall within the purview of section 42 of the Specific Act. He has further stated that the plaintiff has raised the so-called claim of Pound Sterling 200,000/- in the previous suits filed by BCCI OS but did not press the same at the time when the suit was decreed on the basis of compromise, thus it was argued that now estoppal runs against the plaintiffs which has surrendered/waived its right of claiming or seeking adjustment of this amount in the previous suits. It was further argued that the same has also become time barred. Then, it was/contended by Mr. Sarwana that there was no branch of BCCI OS in London and if there was any branch of BCCI, it was BCCI (SA), therefore the proper remedy, if any, available to the plaintiff, would be to file its claim before the Liquidator of BCCI (SA). In alternate, it was submitted that if, for the sake of arguments, it is presumed that any amount was deposited by the plaintiff with BCCI OS at London, then the cause of action was accrued at London and it would be the courts at London before which the claim of the plaintiff could be entertained. In support of his lea of limitation, the learned counsel for the defendant No. 3 has referred to Article 62 of the Limitation Act, 1908 and has placed reliance on the cases of Asmy Trading Company, Karachi vs. Shadra Pioneer Co-operative Multi-Purpose Mill Society Ltd. Lahore (PLD 1975 Karachi 209) and Muhammad Akbar Khan vs. Province, of West Pakistan (PLD 1961 S.C. 17). 6. On the point of estoppal, Mr. Sarwana has placed reliance on the cases of Muhammad Sama Mondal vs. Muhammad Ahmed Sheikh and others (PLD 1963 Dacca 816) Sailendra Narayan Bhanja Deo vs. The State of Orissa (AIR 1956 S.C. 346) and Shankar Sitaram Sontakke and another vs. Balkrishna Sitaram Sontakke and others (AIR 1954 S.C. 352). 7. It was vehemently argued by Mr. Mansoorul Arifeen that the claim of the plaintiffs for refund of Pound Sterling 2,00,000/- is neither in the shape of set of nor in the mode of counter claim, therefore, it was submitted that this, being an independent claim, the present suit is maintainable and is not barred by the provisions of section 47 of the Civil Procedure Code, 1908. However, from the documents filed with the plaint as well as with the written statement of the defendant No. 3 which are the orders passed by this Court in the three earlier suits as mentioned hereinabove, it appears that the plaintiffs who was admittedly one of the Defendant in those three suits had raised this plea of depositing Pound Sterling 2,00,000/- with the BCCI at London and claimed its adjustment but subsequently at the time when all those three suits were being decreed on the basis of compromise, when the present plaintiff admitted the claim of BCCI OS but against different amounts, there the adjustment of this amount was not claimed. The nature of claiming a set of and its effects are provided in Rule 6 to Order VIII CPC as well as in Rule 19 to Order XX CPC. The nature of counter claim was elaborately defined by Justice (Retd.) Zafar Hussain Mirza in a Full Bench case decided by the Honourable Supreme Court i.e. Syed Nairnat AH and 4 others vs. Dewan Jairarn Dass and another (PLD 1983 S.C. 5) in the following words ".... A counter claim, on the other hand, is essentially a weapon of offence and is not really relevant, as a plea in defence to the claim of the plaintiff. It enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action. Its essential nature is that of a cross suit pleaded through the means of the written statement in the same suit. Having regarded to these essential features of the character of a counter claim, it is plain that a right to make a counter claim is not admissible if it does not fall within the ambit of Order VIII rule 6. C.P.C. or qualify as an equitable set-off. The right to make counter claim has been always held to be a statutory right and as already observed there is nothing in the ("ode of Civil Procedure conferring the right, to plead such counter claim, upon a defendant. Thus it has been held in certain decisions of the Privy Council and of the High Courts that a counter claim was not admissible in the Muffasil Courts ...." 8. In view of the above discussion, I am inclined to hold that the nature of claim to the extent of recovery of £200,000/- is neither in the nature of set of nor counter claim as the present suit has not been filed in the circumstances as discussed in the case of Syed Niamat All (supra). However, this will preclude plaintiff from raising adjustment of this amount in the execution proceedings of the three suits as mentioned in the earlier part of this order. I have made this observation in line with the provisions of section 47 C.P.C. This view leads me to another question whether the claim of plaintiff for recoveiy of £200,000/~ is barred by Article 62 of the Limitation as argued by Mr. Sarwana. In alternate, Mr. Sarwana has also relied upon Article 115 of the Limitation Act. However. I am of the considered view that it would be Article 60 of the Limitation Act which, in the circumstances of the case, is attracted. It is pertinent to note that plaintiff has pleaded an agreement and understanding through which the aforesaid amount was deposited with B.C.C.I. at London in trust and as a result of violation of that agreement he has filed the instant suit at Karachi, Mr. Arfeen and Mr. Sarwana, both have made reference to Annexure 'A" to the plaint which is an order dated 5.10.1987 passed by a learned single Judge of this Court in Suit No. 495 of 1984 (BCCI (OS) v. Global Procedure Ltd. and 5 others). It is an order through which leave to defend and appear was granted to the defendants in that case on the consideration, inter alia, that an amount of £200,000/- was deposited with the plaintiffs bank at London. Subsequently, the said suit was compromised and the amount as claimed by the plaintiff of the present s\iit, who at the relevant time was one of the defendants, did not claim adjustment at the time when the former suits were being decreed. On these admitted facts of the case, it was argued by Mr. Sarwana that the claim of the plaintiff has become time barred. It is, therefore, doubtful whether the plaintiffs claim of pound sterling deposited with B.C.C.I. in London sometime much prior to the year 1984 and the demand for its adjustment was made in the Suit No. 494/85 during the year 1987 can be claimed through present suit which was filed in the year 1993, six years after the claim of adjustment of that amount was made by the plaintiff. It is being so held on the ground of the rule laid by a learned single Judge of this Court in Government of Pakistan v. S.M. Hasan and another (1992 MLD 1810). In that case, one of the controversy involved was whether the suit was barred in view of Article 60 of Schedule I of the Limitation Act, 1908. It was admitted that respondent S.M. Hasan had opened a fixed deposit account with the Post Master General, Southern Circle, Karachi and on 28.11.1978, through a notice demanded its encashment. It was argued on behalf of petitioner that the time for filing of suit commenced from the date when Post Office refused to make payment on the ground that drawer's signature were different. This contention was not upheld. In respect of Article 60, following view was held by this Court:- There can be no doubt that a suit for recovery of money deposited under an agreement that it will be payable on demand, including money of a customer in the hands of his bankers so payable, can only be filed within a period of 3 years when the demand is actually made under Article 60 of Schedule I to the Limitation Act. Article 60 of Schedule I of the Limitation Act specifically prescribes a period for filing of suits relating to transactions of a Bank and its customers. Time so prescribed would run when the demand is made. Section 10 of the Limitation Act will have no application to the facts of this suit." I am also conscious of the rule that in the case of mutual, open and current account, a suit for recovery of balance due on such account, is generally governed by Article 185 of Limitation Act, 1908.1 am fortified in my view by the case Muhammad Naeem Butt v. Allied Bank of Pakistan, Peshawar (PLD 1985 S.C. 298). 9. Reverting to the question of cause of action, it is pertinent to note that even if the contents of plaint are accepted to be correct that the said amount of pound sterling was deposited with BCCI at London and a claim is rightly made at Karachi after amalgamation of BCCI (OS) with the Habib Bank Ltd., still the entire plaint is silent on the point as to what were the terms and conditions of such deposit; what is the date of such deposit; who has deposited the said amount on behalf of plaintiff; who was its beneficiary; and what was the nature of such deposit? I am unable to subscribe to the submission of Mr. Arfin that no receipt is required when an amount is deposited in trust with any schedule bank in the U.K. Neither any law, rule or regulation nor any manual of instructions was cited in support of such contention. Be that as it may, I am of the considered view that the plaintiff was not able to demonstrate that any cause of action was accrued within the jurisdiction of this Court. Even if the provision of Explanation II to Section j 20, C.P.C. is applied, for which I have reservation, on the grounds that BCCI was having branches at London and Karachi , again it would not advance the case of plaintiff as admittedly no cause of action was accrued at Karachi . (Please see Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Saved Saigol Industries Ltd. 1981 S.C.M.R. 494). To conclude, no cause of action is available to the plaintiff, as regards territorial jurisdiction, to file a claim at Karachi for recovery of £200,OQO/-. 10. It was also argued by the defendants that in resect of prayer (a), (b) and (c) in the plaint, such relief are barred by virtue of section 42 of the Specific Relief Act. It is settled law that in a suit under section 42 of the Specific Relief Act, 1877, a plaintiff can seek declaration either regarding his right to any legal character or with respect to any right as to property claimed by him. In order to bring such suit within the scope of section 42, a plaintiff has to further show that he apprehends infringement of his legal status or character which forms part of any of the 15 legal conditions as envisaged by Professor Holland and as referred in the case of Alvi Sons Ltd. v. The Government of East Pakistan and 2 others (PLD 1968 Karachi 222. It would not be out of context if the observation of a learned Division Bench of Lahore High Court in the case of Abdur Rahman and 3 others v. Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113) is referred. In the said illustrious judgment several case law on the point of section 42 of the Specific Relief Act was considered including the cases of Alavi So,ns (supra), M.D. Shaft & Sons v. Kotah State Glass Factory (AIR 1930 Lah. 753), Naubahar v. Qadir Bakhsh (AIR 1930 All. 753), Ori Lai v. Muhammad Iqbal (25 1C 908), Rai Keshwar Singh v. Shayurn Bihari Singh (AIR 1927 Pat. 826) and Muhammad Yaqub v. Mangru Raj (7 1C 318). It was held as follows:- "36. It is clear from these authorities that section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must be one which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not therefore entertain suits in which no benefit accrues to the plaintiff or W 7 here the plaintiff sets up merely an abstract right to satisfy his ago or satisfy the' grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vindication of the plaintiffs title to status and property." (Underlining is mine). 11. In the present suit, the plaintiff is seeking declaration to the effect that the transfer of management of BCCI to defendant No. 1 and its subsequent merger with defendants No. 3 and 4 be declared unlawful.Secondly, declaration to the effect that the defendants No. 1 and 2 are neither legal successors of the former BCCI in Pakistan nor entitled to receive and recover any of the assets/money pertaining to former BCCI which does not fall within any of the legal characters or status of plaintiff and, therefore, the plaintiff which is a body incorporated under Companies Ordinance, 1984 cannot maintain such suit. This being the legal position, the plaintiffs suit upto the extent of reliefs (a), (b) and (c) in the prayer clause of the plaint completely appears to be barred. I am, therefore, inclined to hold that this is an incompetent suit patently barred for want of jurisdiction, barred by limitation and without cause of action. 12. As a result of the above discussion, the defendants' application under Order VII, Rule 11, C.P.C. (CMA-4578/95) is accepted and the plaint in the above suit stands rejected with no order as to cost. Consequently, remaining two applications have become infructuous which are also dismissed. ' (MYFK) Plaint rejected.

PLJ 1998 Karachi 28 PLJ 1998 Karachi 28 Present: RAHSID AHMED razvi, J. MUHAMMAD HANIF ABBASI-Plaintiff versus M/s GHARIB NAWAZ CONSTRUCTION OCX-Defendant Civil Suit No. 705 of 1991, decided on 04.8.1997. Civil Procedure Code, 1908 (V of 1908)-- —-O. DC Rule 13 read with section 151-Arbitration award-Made rule of Court ex parte and objections filed by defendant were dismissed-- Application for setting aside ex parte decree-There is no bar for filing application under O.DC R. 13 CPC in an arbitration matter—However, such application may not be entertained where decree was passed on merits and after due consideration of objections by other side-But where an award is made rule of court in a summary manner without considering objections of other side or on grounds of non appearance ofother party then such aggrieved party is entitled to file an application under O.IX R. 13 CPC for seeking setting aside of exparte decree-Recenttrend of Superior Courts is to decide a Us on merits and not to knock out one party on technical grounds-Such practice may also save parties from further round of litigation-Defendant has shown sufficient cause for setting aside exparte decree as his counsel was busy before other bench- Application accepted. [P.32] A PLD 1966 SC 461 ref. Chaudhry Muhammad Jamil, Advocate for Plaintiff. Mr. S. Irtiza H. Zaidi, Advocate for Defendant. Dates of hearing: 23 and 26.5.1997 and 26.6.1997. order This is an application under Order EX Rule 13 read with section 151, C.P.C. filed by the defendant praying that the order dated 30.1.1995 be recalled/set aside and that the objections filed by the defendants against the award dated 1.9.1992 be restored. On 30.1.1995 this Court dismissed the objections filed by the defendant to the award as none appeared on behalf of the defendant and proceeded to make the award, given by the arbitrator Official Assignee as rule of the Court. Thus the suit was decreed in terms of award. Instant application is filed against the said order. 2. In support of this application, Mr. S. Irtiza H. Zaidi, Advocate has filed his personal affidavit that on 30.1.1995 he was busy in other Court and that at 9.30 a.m. he appeared in Court when the order as mentioned above was passed by this Court. It is stated by him in his affidavit that his absence was neither intentional nor deliberate. Plaintiff has filed his counter affidavit but did not specifically deny assertion of the learned counsel that he appeared on the said date at 9.30 a.m. when the said order was passed. Without going into the merits of the allegations and counter allegations of the parties, the moot question which requires consideration is whether after passing of decree as a result of award made rule of the Court, an application under Order IX Rule 13, C.P.C. is maintainable. 3. I have heard Mr. Choudhry Muhammad Jamil, Advocate for plaintiff and Mr. S. Irtiza H. Zaidi, Advocate for defendant. It was strenuously contended by Choudhry Muhammad Jamil that the Instant application being in the shape of a review application is not maintainable as the right to seek review is a right created by the statute and that no such right is provided in the Arbitration Act, 1940. Reliance was placed on thecase Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 S.C. 1), Muzaffar Ali v. Muhammad Shafi (PLD 1981 S.C. 94), S,A. Rizvi v. Pakistan Atomic Energy Commission and another (1986 S.C.M.R. 965) and the case of Riaz Hussain and others v. Board of Revenue and others (1991 S.C.M.R. 2307). There is no cavil to the proposition of law that a right to seek review of an order is a statutory right. I may also like to observe that at the same time a Court, for a Trilr. ial of special or limited jurisdiction is competent to suo mato recall or review and order obtained from it by fraud as fraud vitiates the most solemn proceedings and that no arty should be allowed to take advantage of such fraud. i'For any reference see the case of The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 S.C. 331). However, the instant application cannot be termed to be a review application as it has been filed under Order IX Rule 13, C.P.C. which has never been treated at par with a review application. 4. It was submitted by Mr. S. Irtiza H. Zaidi that under the provisions of section 41(a) of the Arbitration Act, 1940 an application under Order IX Rule 13, C.P.C. is maintainable as Code of Civil Procedure, 1908 is made applicable to all proceedings before this Court as well as before appellate Court. On the other hand, it was argued by Choudhry Muhammad Jamil that once a decree is passed, this Court becomes functus officio and cannot review the same, the only remedy available to the defendant was by way of appeal which he has not availed and, therefore, the instant application is not maintainable. Reference was made to the case of Arbab Abdul Qadir v. Mst. Bibi Fatima and another (1984 S.C. 546) wherein a learned single Judge of Baluchistan High Court held, inter alia, that provisions of section 41(a) of the Arbitration Act have no application to proceedings where reference has already been made by the court to arbitrators and tr^c provisions of section 23(2) and section 41 of the Act 1940 are to be read together, riu.vtjver, iacib »i i'ne present case are different as the instant application has been tiled after the award was made rule of the Court. Reference was also made to the case of Abdul Ghaffar v. Mirza Muhammad Hussain (1984 CLC 3023) where a learned a single Judge of this Court allowed Civil Miscellaneous Appeal and set aside the order rejecting an application under Order IX Rule 13, C.P.C. In that case learned Vlth Senior Civil Judge, Karachi made an award rule of the Court against which an application under Order IX Rule 13, C.P.C. was filed praying for setting aside the decree which application was dismissed by the learned Senior Civil Judge. It is pertinent to note that before dismissing application under Order IX Rule 13, C.P.C. the learned Senior Civil Judge directed the judgment debtor to furnish security by a certain date which he failed and as a result application of J.D. under Order IX Rule 13 was dismissed. Although there is no direct finding of this Court on the point whether an application under Or;U;i IX Rule 13, C.P.C. is Tmin". : .;«uiie after a decree is passed in terms of an award but implied),/ coi.reiiijon of the appellant in that case to the extent that such an application would be maintainable was upheld. 5. It has not been denied by any of the parties the order of this Court dated 30.1.1995 was passed under section 17 of the Arbitration Act, 1940 and the award was made rule of the Court. With due respect of the learned Judge who passed the said order, it is not a speaking order and the decree was ordered to be passed on one single ground i.e. since the defendant failed to appear as such his objections were dismissed for non prosecution. In my considered view, even if the learned counsel for the defendant was not there, this Court should have examined the objections filed by the defendant and then to have passed any order according to law. Provisions of section 17 of the Arbitration Act cast a duty upon Court to see that (i) no cause exists to remit the award, (ii) any of the matters referred to arbitration for reconsideration (iii) to set aside the award even in absence of any objections. It further empowers the Court to see whether the award is nullity because of the invalidity of the arbitration agreement or is prima facie illegal. I am fortified in my view by the case of M/s Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another (1992 S.C.M.R. 65). The rule laid down by the Hon'ble Supreme Court in the case of Awan Industries was retirated by another Full Bench of the Supreme Court in the case of Muhammad Tayab v. AkbarHussain (1995 S.C.M.R. 73). 6. There are other cases where an award was ex parte made rule of the Court and which was set aside. The first case is of Meer Muhammad Sharif v. Mirza Muhammad Ashraf and 4 others (1980 CLC 1984) where a learned single Judge of Lahore High Court, Aftab Hussain, J. (as his lordship then was) allowed a Civil Revision filed under section 115, C.P.C. and set aside the decree through which an award was made rule of the Court on the ground that no notice was served upon the petitioner about the filing of award. In Ram Chander and others v. Jamna Shankar and others (AIR 1962 Rajasthan 12), it was held in line with the rule of case Ganeshmal Bhawarlal v. Kesoram Cotton Mills Ltd. (AIR 1952 Cal. 10) that where an ex parte decree is passed in terms of an award under section 17 of the Arbitration Act, it should be set aside on a summary application where such decree was passed without duly giving the notice of filing of the award or without allowing time to expire for applying to set aside the award. It was further held by a learned single Judge of Rajasthan High Court in that case that the Court has inherent power and duty to do justice and to set aside a judgment and order passed ex parte without notice to the interested party. 7. The direct authority on the point in question is the case of Tasiruddin Brothers v. Faizullah Gungjee & Co. Ltd. PLD 1966 Dacca 145) where an objection was raised before a learned Division Bench of erstwhile Dacca High Court that since the suit in that case was in connection with an award passed by the Tribunal, application under Order IX, Rule 13, C.P.C. was not maintainable. Reliance was placed on the case of Lai Marwari and others v. Firm of Bridhi Chan Sri IM (AIR 1924 Pat. 603). The submission of advocate for the respondent in that case was not upheld, appeal was allowed, the ex parte judgmentwas set aside and the application under Order IX, Rule 13, C.P.C. was granted by the said Division Bench of Dacca (now Dhaka) High Court with the following observation which being complete answer to the objection of learned counsel for the plaintiff is reproduced as follows The above grounds require investigation of the provisions of Arbitration Act. and the Code of Civil Procedure. Section 41 of the Arbitration Act, and the rule made thereunder, the provisions of the Code of Civil Procedure, 1908, shall apply to ail proceedings before the Court and to ail appeals under this Act and the Court shallhave, for the purpose of and in relation to, arbitration proceedings the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings beforethe Court. From the aforesaid provisions of section 41 of the Arbitration Act, we find that the Code of Civil Procedure shall apply subject to the provisions of the Arbitration Act and the Rules made thereunder. No provisions of the Act or any rule made thereunder have been shown to us which can stand against the application of the provisions of Order IX. rule 13, of the Code of Civil Procedure, to the proceedings in a suit arising out of an Award made by the Arbitrators " (Underlining is mine.) 8. In so far as application under Order IX, Rule 13, C.P.C. in an arbitration matter is concerned, I see no specific bar. However, such application may not be entertained where decree was passed on merits and after due consideration of objections by the other side. But where an award is made rule of the court in a summary manner as of instant case without considering objections of the other side or on the grounds of non appearance of other party then such aggrieved party is entitled to file an application under Order EK Rule 13, C.P.C. for seeking setting aside of exparte decree. I am saving so as the recent trend of our superior Courts is to decide a lie on merits and not to knock out one party on technical grounds. Such practice may also save the parties from further round of litigation. In the instant case, this Court has not considered the objections of defendant on merits nor considered the legality or otherwise of the award which act is violative of the provisions of sections 17 and 31 of the Arbitration Act 1940. I may add here that the defendant has shown sufficient cause for setting aside exparte decree as it has not been rebutted that Mr. I.H. Zaidi, Advocate, was busy before other Bench and had reached this Court at 9.30 a.m. Instant application was filed on the next date of passing of impugned order. Pre-occupation of an advocate before other Bench has been held to be sufficient cause. For any reference see Babu Jan Muhammad & otherK v. Dr. Abdul Ghafoor & others (PLD 1966 S.C. 461). 9. As a result of above finding application under Order IX Rule 13, C.P.C. filed by the defendant is accepted but subject to payment of cost of Rs. 10,000/- (Rupees ten thousand, only) which the defendant shall deposit with the Nazir of this Court within thirty days. (MYFK) Application accepted.

PLJ 1998 Karachi 33 PLJ 1998 Karachi 33 Present: raja QURESHI, J. Mrs. Z. SHIRAJEE-Appellant versus ABDUL QADIR-Respondent F.R.A. No. 40 of 1994, accepted on 29.10.1997. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 21—Ejectment application on ground of default-Ground of default admitted but application dismissed-Appeal against-Whether acceptanceof defaulted payment of rent amounts to waiver on part of landlord-­ Question of-A landlords acceptance of rent paid to him at irregular intervals does not in any way, show that he does not accept it to be paid regularly every month, as the reason for receiving delayed payment mightbe his decency, his desire to accommodate his tenant, his pre-occupation with his work, hesitation to go to court of law or his reluctance to incurexpenses and hazards of litigation-Tenant cannot be allowed to take advantage of his own negligence-Premises is a commercial one and landlady is getting only Rs. 210/- in an area like Tariq Road Karachi, which would be more pittance—No discretion would be available to trial court once a finding has been arrived in terms of default-Impugned judgment set aside. [P. 35] A to PLJ 1981 SC 214 ref. Mr. M.A.M. Namazi, Advocate for Appellant Mr. S. Ahmed Farooqui, Advocate for Respondent. Date of hearing 29.10.1997. judgment This appeal is directed against the judgment dated 12.12.1993 passed by the learned Vth Senior Civil Judge/Rent Controller (East) Karachi, wherein the ground of default though admitted by the learned trial Court has resulted into the dismissal of the ejectment application The brief facts of the appellant's case are that the respondent is his tenant in respect of demised premises vide agreement dated 13.3.1972 at a monthly rent of Rs. 210/- payable before the 5th of each calendar month. It has been further stated that the respondent had failed and neglected to pay or tender monthly rent to the appellant for the month of June 1992 to August 1992 and had paid the same through money order on 1.9.1992 while rent for the month of September and October had not been paid till the filing of the ejectment application before the trial Court. The respondent through their written statement and evidence having been brought on record have taken a position that the agreement in question in respect of the disputed premises had expired and was not validated by execution of a fresh agreement and consequently the respondent's status was converted to that of a statutory tenant. Upon perusal of the written statement filed by the respondent it has been conceded that the agreement relates to a tenant and not a lessee. Default has been denied by the respondent. It was contended that the rent for the months of June to August 1992 was remitted through money order on 1.9.1992, upon failure of the appellant's to have accepted the rent for two months. The respondent is stated to have attempted to make such payment to the appellant which was refused and it was only thereafter that the money order was stated to have been sent on 11.11.1992 for a period of four months. Plea of waiver on part of the appellant has also been raised by the respondent. Only one issue has been framed by the learned Controller as to whether the respondent had wilfully defaulted in the payment of rent. On this issue the learned Rent Controller has arrived at a finding that there seems to be default at the most for the months of September and October, 1992 till the filing of the case before him. The learned Rent Controller has relied upon the acceptance of rent by the appellant upto the month of December 1992 without any objection, which according to the learned Controller amounted to waiver which has resulted into his finding that no wilful default has been committed by the respondent. Learned Rent Controller has relied upon CLC 1990 Kar. 1729 wherein it has been held that default once made cannot be washed away by subsequent tender unless and until the landlord accepts the same and thereby waives the default. The above facts have led me to determine as to whether there was a waiver on part of the landlord or not. The record reveals that the landlord continued to receive, and the respondent tenant has continued to send rent for the past eight years only through one mode, that is, by money order. As such the learned Controller has arrived at a positive finding of default of two months much against the contention of the appellant that the default was of five months instead of two months. Mr. M.A.M. Namazi has contended that the law does not in any manner given discretion to the Controller to be exercised in favour of the tenant, after he has arrived at a finding of default which has been so done in the present case. Such discretion lias been contended to be available in the earlier Rent law on the subject. Reliance has been placed on PLD 1971 Lah. p. 610 whereby at page 615 the terms and conditions of an expired agreement in relation to tenancy of premises continues to remain the same unless altered by mutual consent. Further reliance has been placed on PLD 1988 S.C. 190. At page 192 the Full Bench of the Hon'ble Supreme Court has specifically laid down that the terms and conditions of tenancy agreement between the parties will continue to operate, notwithstanding the termination of the said agreement. Such terms and conditions will govern the continuance of tenancy as visualized in the definition clause. Further reliance has been placed on PLJ 1981 S.C. 214 and 215, where it was held: "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A . landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not accept it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, hesitation to go to Court of law or his reluctance to incur the expenses and hazards of litigation. The tenant cannot be allowed to take advantage of his own negligence or of his having taken advantage of deliberate non-payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent. During the course of arguments Mr. Namazi made a statement at bar that the landlady has now become a widow. Mr. Farooqui, however, has expressed unawareness and does not deny or confirm the same. The premises is a commercial one and the landlady is getting only Rs. 210/- in an area like Tariq Road Karahci, which would be mere pittance. Mr. S.A. Farooqui offered to double the rent, which was not accepted by Mr. Namazi.In view of the aforementioned and also that no discretion would be available to the trial Court once a finding has been arrived in terms of default upon my careful consideration and being in respectful agreement with the law laid down by the Supreme Court the impugned judgment is set aside, and the appeal is allowed. The respondent is directed to vacate the premises within 90 days from today Before parting with this judgment I would like to place it on record that vide order dated 20.5.1997, a sum of Rs. 1,000/- was imposed as costs on the respondent for not proceeding with the matter. The same was not claimed by the counsel for the appellant on the condition that the matter proceeds today. As such claim of cost of Rs. 1,000/- having been waived, the same may not be deposited by the respondent. (MYFK) Appeal accepted.

PLJ 1998 Karachi 37 PLJ 1998 Karachi 37 Present: HAMID ali mirza, J. K.M.C. and another-Applicants versus LAL MUHAMMAD-Respondent R.A. No. 36 of 1997, dismissed on 29.5.1997. Civil Procedure Code, 1908 (V of 1908)-- —S. 115-Suit for recovery-Decreed to-Revision against-Delay in refund of bid money for 2% years-There are concurrent findings of two courts below and there has been no mis-reading and non-reading of evidence on record-Court has decreed specific amount claimed towards profits which ordinarily respondent could have earned on amount which was deposited by him and was delayed in repayment by applicants for 2^ years- Respondent though did not claim interest in plaint yet court in the interest of justice would be competent to grant the same as ancillary relief-Revision application dismissed in limine. [P. 37] A 1995 SCMR 446 ref. Mr. Manzoor Ahmed, Advocate for Applicants. Mr. Sh. Riaz Ahmed, Advocate for Respondent. Date of hearing: 29.5.1997. order This is a civil revision application under Section 115 CPC directed against the judgment and decree dated 9.9.1996 passed by IV-Additional District Judge, Karachi South, in Civil Appeals No. 42/95 and 37/95 KMC & another vs. Lai Muhammad and Lai Muhammad vs. KMC & another, whereby judgment and decree passed by Vl-Senior Civil Judge, Karachi- South, in Suit No. 1115/89 dated 30.1.1995 were maintained been this revision Brief facts of the case are that the respondent Lai Muhammad filed suit for recovery of Rs. 99,516/- against KMC and Deputy Director Zoological Garden on the ground that an amount of Rs. 3,08,750/- was deposited by him being % of bid money for Rs. 12,35,000/- towards entry fee in the Zoological Garden K.M.C. in open auction but the said contract was not finally approved by Government of Sindh on 21.7.1988 and an amount of Rs. 3,08,750/- was refunded on 23.8.1989 with the delay of two and a half yeai-s from the date of deposit of amount. According to statement in plaint in the first instance ,. KMC had recommended the offer of the respondent on 9.2.1987 being highest and forwarded the same for confirmation to the Government of Sindh where it remained pending and ultimately it was not confirmed/approved as per letter dated 21st July 1988. The respondent has filed suit for recovery of Rs. 99,516/- against the applicants on the ground that his ^th amount of Rs. 3,00,750/- out of total bid money of Rs. 12,35,000/- refunded after two and a half years and if he had kept or invested the said amount with the bank he could have earned at least 10% of profits over the said amount which would come to Rs. 83,516/- plus an amount of Rs. 16,000/- as damages. The contention of learned counsel for the applicants is that the two courts below have erred in awarding interest of 14% over the amount of Rs. 3,08,750/- for one year." Counsel for the applicants further contends that as there was no prayer in the plaint with regard to the interest therefore the both courts below could not have granted interest. There are concurrent findings of two courts below and there has been no mis-reading and non-reading of the evidence on record. The Court has decreed the specific amount claimed towards the profits which ordinarily respondent could have earned on the amount which was deposited by him which was delayed in repayment of the applicants. So far the damages the both courts have disallowed and the Appeal No. 37/95 filed by the respondent was also dismissed. So far the grant of interest granted by both courts below, there appears nothing wrong to such finding. Reference may be made to a case Pakistan Railways vs. Javed Iqbal (1995 SCMR 446) wherein it was held that plaintiff though did not claim interest, yet Court in the interest of justice would be competent to grant the same as ancillary relief. I do not find merits in the contention of the learned counsel for the applicants, consequently the revision application is dismissed in limine alongwith listed application. (MYFK) Application dismissed.

PLJ 1998 Karachi 38 [Constitutional Jurisdiction] PLJ 1998 Karachi 38 [Constitutional Jurisdiction] Present: muhammad roshan essani, J. NASEEM SAIGOL, EMPLOYER M/s PEL SERVICE CENTRE, KARACHI and other-Petitioners versus ALTAF HUSSAIN, LABOUR OFFICER & INSPECTOR OF FACTORIES, KARACHI and another—Respondents Constitutional Petition No. S. 6 and S. 7 of 1997, accepted on 1.11.1997. Criminal Procedure Code, 1898 (V of 1898)-- —S. 243—Constitutional Petition—Conviction on admission—Challenge to—It is crystal clear that not only trial Court was obliged to record admissionas nearly as possible in words of accused/petitioners but was duty bound to ask petitioners as to why they should not be convicted despite their admission of guilt-Merely recording statement in words "pleads guilty" isnot sufficient—Held: Admission allegedly made by petitioners was not recorded as nearly as possible in words used by them and also they were not given opportunity to show why they should not be convicted-Both petitions allowed and cases remanded to trial Court for proceeding against petitioners in accordance with law. [P. 40] A, B & C Mr. Rana M. Aslam, Advocate for Petitioners. Date of hearing: 30.10.1997. judgment Through this single order I propose to dispose of two Constitution petitions bearing Nos. S-6/97 and S-7/97 filed by the petitioners against the conviction passed by the learned Presiding Officer, Sindh Labour Court No. 5, Karachi. The facts giving rise to the present petitions are that Assistant Director & Inspector of Secretaries Central Division Karachi filed complaints under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 against accused/petitioners Naseem Saigul the employer and Mansoorul Haq the Manager M/s. PEL Services Centre Karachi alleging therein that on 21.5.1996 on inspection complainant found that appointment letters were not issued to the workers, permanent workers were not provided permanent cards, temporary workers were not provided temporary cards, notice showing the pay vas not displayed, holidays notice was not displayed, notice showing unclaimed wages pay day was not displayed, leave refused registered was not maintained, leave passes were not issued to the workers and notice showing rate of wages payable to all classes of workers for all classes of work was not displayed, therefore, complaint under Sections 2(g) read with Order 2(A), Section 2(g) read with Order 2(2) Section 2(g) read with order 2(4), Section 2(g) read with Order 4, Section 2(g) read with Order 10, Section 2(g) read with Order 8, Section 2(g) read with Order 10, Section 2(g) read with Order 8(2) and Section 2(g) read with order 5 of the Standing order Ordinance, 1968 punishable under Section 7(2) of the Standing Orders Ordinance, 1968. Trial Court framed the charge accordingly and on the "plea of guilt" convicted the petitioners to pay a fine of Rupees 75 per day from 21.5.1996 till date in 9 cases jointly and severally amounting to rupees 3,40,200/- in impugned judgment in petition No. 6/1997 and they have to pay a fine of Rs. 100 each in impugned judgment in Petition No. 7/1997. Being aggrieved by the aforesaid judgment they have preferred the present petitions.The petitioners/accused both common in the two petitions, have contended that they are Chairman arid Regional Manager respectively of a joint Stock/Limited Company, registered under the Companies Ordinance, 1984 and are carrying on its manufacturing process at Lahore and Gadoon Amazai and the manufactured goods re sold and delivered by them all over the Pakistan and they have office for sales at Karachi. The petitioners have opened their "after sales service centre" being separate entity which has been registered as commercial establishment vide Registration No. V-10 under the provisions of West Pakistan Shops and Shipment Ordinance, 1969 since 24.9.1994, and they have also opened another separate establishment in the name and style of PEL Sales Office at 22-A, Anum Pride, Block-7/8,K.E.S.C. Karachi for the sales of spare parts. This office is quite separate from the workshop of "after sales sendee centre" and it has also been registered separately as commercial establishment vide registration No. V-41 under the provisions of West Pakistan Shops and Establishment Ordinance, 1969 since 24.9.1996. It is alleged that one Inspector, namely, Faiz Muhammad visited PEL/Sales Office and the PEL "after sales service centre" on 2.10.1996 carried out the inspection of the petitioners' company. In his report he categorically stated that during inspection no violation of law was detected. Respondent Altaf Hussain, Labour Officer and Inspector of Factories, Central Division, Sindh Secretariat, Karachi , visited the office and workshop of the petitioner on 21.5.1996 and found the petitioners committing the alleged offences. Respondent No. 1 on the basis of his alleged findings filed the complaint Nos. 99 to 107 of 1996 and complaint No. 98/1996 in the ('mm tif Presiding Officer, 5th Sindh Labour Court, Karachi. As stated above the learned Judge framed the charge against the accused petitioners on the basis of alleged "admission of guilt" by the petitioners/accused. It is the further case of the petitioners that at the relevant time they were at Lahore when the process of the complaint was served upon the accused/ petitioners through their Establishment at Karachi. Accused/petitioners requested one Muhammad Iqbal Shah, Advocate, on the evening of 5.1.1997 from Lahore to look after the case of the petitioners. Subsequently petitioners came to know when their counsel informed them about their presence in Court on 7.1.1997 for "pleading guilty" whereas both the petitioners were at Lahore on the said date. It is further alleged that some unauthorised persons appeared in the Court on 7.1.1997 and represented themselves to be the petitioners and pleaded guilty as being petitioners. On the basis of pleading guilty the learned judge convicted them. I have heard the learned Advocate for the petitoners Mr. Rana Muhammad Aslam and Mr. Haleem Siddiqui appearing on behalf of the respondents latter does not support the prosecution case. On perusal of the record, I find that the admission allegedly made by the petitioners was not recorded as nearly as possible in the words used by them and also they were not given opportunity to show why they should not be convicted as contemplated under Section 243 Cr.P.C. which is reproduced hereunder:- "Conviction on admission of truth of accusation. If the accused admits that he has committed the offence with which he is charged his admission shall be recorded as nearly as possible in the words used by him; and, if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly." It is thus crystal clear that not only the trial Court was obliged to record the admission as nearly as possible in the words of the accused/petitioners but was duty bound to ask the petitioners as to why they should not be convicted despite their admission of guilt. Merely recording the statement in the words "pleads guilty" is not sufficient. In view of my above conclusion. I allow both the petitions and set aside the conviction and sentence of the petitioners/accused dated 7.1.1997. The cases are remanded to trial Court for proceeding against the petitioners in accordance with law. (B.T.) Petitions accepted.

PLJ 1998 Karachi 41 PLJ 1998 Karachi 41 Present: kamal mansur alam, J. ANWAR HABIB-Appellant versus Mrs. DURDANA YOUSUFI-Respondent F.R.A. No. 509 of 1993, decided on 11.8.1997 . (i) Cantonments Rent Restriction Act, 1963 (XI of 1963)-- -—Ss. 17 & 24-Tenant-Ejectment of-Case of-Tenant taking plea before Appellate Court that such application having not been filed before Rent Controller was liable to dismissal for having been filed before Additional Rent Controller-Status-Filing of application for ejectment before appropriate forum, being mixed question of law and fact—Stamps andsignatures in the margin of first page of ejectment application, however, indicated that same was first placed before Rent Controller and then assigned to Additional Rent Controller—Ejectment application was, thus, properly filed before competent forum. [Pp. 42 & 43] A (ii) Cantonments Rent Restriction Act, 1963 (XI of 1963)-- —-S. 17-Rent-Acceptance of--Refusal by land-Status-Money order sent by tenant to landlady was refused by landlady-By the time money order was despatched, default had already occurred in respect of rent for specified months. [P. 44] B 1987 SCMR 1313 and 1990 MLD 1667 re.f. (iii) Cantonments Rent Restriction Act, 1963 (XI of 1963)-- —S. ll-Bona fide personal need-Pre-conditions for-No hard and fast rule could be laid down with regard to evidence that landlord should produceto prove his case of personal requirement of premises for his own use- Where huge capital was needed for setting up of proposed business, evidence on availability of requisite funds would be of importance-Where however, landlady had stated that she required premises in question ingood faith, for her personal use to start her own business of tailoring therein, she would be deemed to have established her good faith for her personal need of premises. [Pp. 45 & 46] C & D 1991 CLC 1047; 1987 CLC 686; 1992 CLC 1753; 1992 CLC 2235; 1984 CLC 2837; 1989 SCMR 1366; PLD 1976 Kar. 832 and 1980 SCMR 593 ref. Mumtaz Ahmad Shaikh, for Appellant. Muhammad Afzaal, for Respondent. Date of hearing: 4.8.1997 JUDGMENT This rent'appeal is directed against the order dated 23-10-1993 passed by the Additional Controller of Rents, Clifton Cantonment, in Rent Case No.38 of 1992, whereby he allowed the application filed by the respondent against the appellant for his eviction from the shop premises in question and directed the appellant to vacate the premises within sixty days. The respondent as one of the co-owners of the shop situated on Plot No.76-C, 'A' Commercial Area, Phases II and III, Defence Housing Authority, Karachi, filed the aforesaid rent case against the appellant seeking his ejectment from the premises on the grounds that the appellant had failed to pay rent for the premises for the month of February, 1992 and subsequent months and that the premises was required by the respondent for her own use. The case was contested by the appellant and the parties examined themselves in support of their respective cases. Respondent's eviction application was ultimately allowed by the impugned order The first point urged by Mr. Mumtaz A. Shaikh, the learned counsel for the appellant, was that the eviction application was filed by the respondent before the Additional Controller of Rents who had no jurisdiction to entertain the same, as under section 6-A of the Cantonment Rent Restriction Act every application for eviction under that Act had to be filed with the Controller of Rents and it was then for the Controller either to hear the case himself or to assign it to the Additional Rent Controller. Mr. Muhammad Afzal, the learned counsel for the respondent, denied that the eviction application had been filed with the Additional Rent Controller. He submitted that though in the title of the application the Court mentioned is that of Additional Controller of Rents, that was so, as almost invariably the Controller of Rents assigned the case to the Additional Controller of Rents for trial. He submitted that as a matter of routine eviction applications are accepted only in the office of Controller of Rents and thereafter, it is assigned to the Additional Controller of Rents. In the present case too, he contended, that the application was submitted in the office of the Controller in the normal course who then assigned it to the Additional Controller of Rents, as was evident from the stamp and signature of the Controller in the margin of the first page of the application followed by that of the Additional Controller of Rents to whom the application had been assigned. He submitted that had this objection been raised in the trial Court he would have called for the concerned officer to prove his contention". I agree with the contention of the respondent's counsel that this is a mixed question of law and fact and should have been taken up before the trial Court so that the respondent had opportunity to produce evidence to meet theobjection. As the position stands now, it does appear from the stamps and signatures in the margin of the first pa,ge of the eviction application that it was first placed before the Controller of Rents and then assigned to the Additional Controller, for, had this not been so there could be no occasion for the Controller to put his stamp and signature on the application.Next it was contended by the appellant's counsel that the appellant had not committed any wilful default in the payment of rent and that rent was offered by him but the respondent herself did not accept the same as she was then very busy in looking after her ailing husband, as such, the rent was sent to her through money order but that too was refused. This, he stated was apparent from respondent's following admissions in her cross-examination:-- "It is correct to suggest that I have been collecting accumulated rents for number of months on numerous occasions in the past." and, "It is correct to suggest that the payment of accumulated rent was due to my involvement in the treatment of my husband till he died on 22-5-1992."and further "I did not receive the money order of rent for the months of February, March, April, 1992." The counsel submitted that it was obvious from above admissions that the accumulation of rent was due to respondent's own failure to accept rent regularly by reason of her remaining busy in connection with her husband's illness. He argued that where default is committed by reason of acts of the landlord or where the landlord creates difficulties in the way of payment of rent by the tenant, the default cannot be considered as wilful and cannot be a ground for eviction. Reliance was placed on the cases of Inayatullah v. Zahoor-ud-Din and another (1987 SCMR 1313) Dost Muhammad v. Mst. Ramzan Bibi and 9 others (1990 MLD 1667). In the first case, it seems that at the time the eviction application was filed the tenant was not in arrears of rent and on evidence the learned Court found that the landlord created difficulties in the way of the tenant, by not accepting the rent, that the landlord failed to prove default, that as soon as the rent was refused by the landlord the tenants started depositing it with the Rent Controller and that there was no element of negligence on the pan of the tenant. In the other case, it appears that not only the alleged default in payment of rent had become time-barred but that the said rent had been offered by the tenant but was refused. On the facts of that case the learned Coun found that the tenant was not liable to eviction. There is no dispute that rent for the shop was not paid to the respondent after January, 1992, but, the case of the appellant is that rent for the month of February and subsequent months was offered by him to the respondent which she refused to accept and later the rent tendered through money-order too was not accepted, consequently the alleged default being the result of respondent herself creating difficulties in the way of the appellant, she was not entitled to take advantage thereof. In so far as the money order is concerned, it is true that this was refused by the respondent, but, perhaps, no exception can be taken to such refusal as by the time the money-order was admittedly dispatched on 9-6-1992 default had already occurred in respect of rent for the months of February and March, 1992. However, I am unable to agree with the plea that the respondent had admitted in her cross-examination that she refused to accept the rent when tendered personally before it was sent through money-order. The portions of the respondent's cross-examination relied upon by the appellant's counsel in support of the plea do not at all support him. On the contrary, the cross-examination shows that the appellant was not regular in payment of rent and on some occasions accumulated rents were paid but as the respondent was preoccupied in connection with the illness of her husband she "could not notice the deviation in the payment of rent". It was not even suggested to the respondent during her lengthy cross-examination that rent had been offered to her in time but was refused by her. In fact, it appears from the concluding portion of the cross-examination that the suggestion made to her was that under law there would be no default if rent is deposited in Court or remitted by any other mode, to which she replied that,"I am not aware of the legal position there is no default if the tenant deposit the rent in the Court or remits the rent to the landlord by any other mode." Had the rent been offered by the appellant personally in time and refused by the respondents as alleged, there could be no justifiable reason for the inordinate delay in sending money order. As such, it is not possible to agree with the contention that he respondent created difficulties in the way of payment of rent by the appellant. The cases cited by the respondents are.clearly distinguishable. On the basis of the material on record in my view, the appeHant is liable to be evicted on the ground of default in payment of rent As to the ground of personal requirement of the respondent, appellant's counsel's submission was that such ground had to be established by cogent evidence and mere desire or even statement on oath that the landlord needed the premises for his own use was not enough for the eviction of the tenant. It was submitted that where the premises was required for business purpose the landlord not only had to disclose the details of the business that he proposed to establish in the premises but had also to how that he had necessary experience in such business and funds for setting up the same. Support for the proposition was sought from the cases of Mukhtar Ahmed v. Muhammad Saleem Bukhari (1991 CLC 1047); Muhammad Aslam v. Muhammad Aslam (1987 CLC 686); Malik Islam Akbar v. Mustafa Hussain (1992 CLC 1753); Messrs Bara Imam Bara Trust v. Messrs Hakim & Co. (1992 CLC 2235); and Muhammad Azizullah v. Abdul Ghaffar (1984 CLC 2837). It was argued that here the respondent landlady failed to make out the ground of personal requirement of the premises for her own use, as she did not produce any evidence about the availability of funds for establishing the proposed business and admitted in her cross-examination that she had neither any business experience nor was skilled in the tailoring work proposed to be carried on in the premises. It is not possible to agree to the learned counsel's contention that above criteria would be of general application to be applied in every case where the landlord requires the premises of his own use. I think no hard and fast rule can be laid down with regard to the evidence that the landlord should produce to prove his case of personal requirement of a premises for his own use. May be in a case where huge capital is needed for the setting up of the proposed business, evidence on availability of the requisite funds may be of importance. Similarly, where the work to be carried on in the premises is of technical nature and to be done by the landlord personally, his experience and skill in the work may be relevant. Normally, in a case where the capital required for starting the business is small mere failure to state that the landlord had the necessary funds for the business would not be of much consequence. Likewise where the proposed business is to be of general type, not involving any technical know-how or where the technical work is to be performed by skilled and experienced employees, landlord's lack of experience or skill in the work would not be significant. It was held in the cast of Mst. Saira Bai v. Syed Anisur Rahman (1989 SCMR 1366) that, 1 "Regarding the non-mentioning the nature of the business in application it may be observed that an applicant has to state in his application, the material facts i.e. facts which constitute cause of action. In a case of present nature the applicant has to state those facts which prima facie show that the requirement is according to law, and is made in good faith. This has been so stated in the application. It is not essential as it is not part of the cause of action to state the nature of business which the applicant intends to carry on. Take a case where the applicant states in the application that she requires the shop for her son for carrying on a particular business but lateron pending hearing of the application or after eviction of the tenant, the applicant thinks that the Y siness can no more suitably on profitably be carried on in the shop, the question might arise, could be change the nature of business or not? The choice of doing a particular business also depends on many other factors such as the nature of the locality or the nature of business being carried on in other shops in the neighbourhood. It also depends on the flow of customers and class of people residing in the area. Therefore, if there is any change in circumstances, the nature of business could also be changed. Accordingly, the answer would be that the applicant could change the nature of business with the change of circumstances because in law no restraint or bar is provided. Therefore, the mentioning of the nature of business was not a material fact or so essential that without it the application must fai Reference may also be made to the case of Hassan Khan v. Mrs. Munawar Begum (PLD 1976 Karachi 832) where the mode of assessing the bona fide requirement of the landlord has been laid down in the following words, "that the assertion or claim on oath by the landlord that he required the premises for his personal use, should be accepted by the Rent Controller as bona fide, if such claim or assertion, although by itself may be insufficient, yet is consistent with his averments in the application and is not shaken in cross-examination or disproved in rebuttal." The above opinion was approved by the Supreme Court in the case of Mst. Toheed Khanum v. Muhammad Shamshad (1980 SCMR 593).In the present case, the respondent landlady specifically stated in paras. 4 and 6 of her eviction application that, "4. That the Applicant's husband died on 22-5-1992, as such, she urgently needed the said shop in occupation of the Opponent for her personal use to start her own business of tailoring in the said shop." 6. That the applicant's demand for personal use of the said shop is bona fide and in good faith and she has no intention to let-out the said shop to any other person on higher rent. The Applicant is not occupying any commercial premises inside or outside the Cantonment area or have vacated any such premisesShe reiterated theabove averments in her affidavit-in-evidence and remained unshaken in her cross-examination. In reply to a question about her skill in the proposed work she stated that- "That I do not have the skill but I will hire the tailors for the purpose and supervise the same." Respondent's failure to mention anything about the availability of funds for the proposed business is insignificant in the circumstances of the present case, for, having regard to the nature of the proposed business it is obvious that only small capital was required. The upshot of the above discussion is that the respondent landlady has established that she requires the said shop in good faith for her own use, and therefore, the appellant is liable to be ejected therefrom and the respondent is entitled to be put in possession thereof In the result, this appeal is dismissed and the appellant is directed to handover vacant possession of the said shop to respondent within 60 days provided the appellant continues to deposit the monthly rent of the premises with the Controller as is being done at present. In case of any delay or default in the deposit of rent or in handing over possession of the shop to the respondent, writ of possession would issue without notice. (K.K.F.) Appeal dismissed.

PLJ 1998 Karachi 47 Present: RANA BHAGWAN DAS, J. MUZAFFAR ABBAS MALIK and 25 others-Petitioners versus M/s PAKISTAN PVC LIMITED, KARACHI-Respondent. J. Misc. No. 219 of 1996, decided on 6.11.1997. Companies Ordinance, 1984 (XLVII of 1984)-- —Ss. 305 & 306-Company's inability to pay its debts-Petition for winding up of the company by creditors-Object of law-Respondent company hasnot disputed its ^ability to pay dues of at least 24 petitioners in terms of statement filed in Court-Technically it may be said that company is not unwilling to discharge such liability, but exception put forward on behalfof respondent company is that this amount is payable in full and finalsettlement of claims of petitioners which however, remains unpaid andundisbursed-Notwithstanding fact that balance sheet of company reflects incurring losses and its liabilities exceed assets of company-Held: Spiritand object of law is to save industry rather than to destroy it-Company wound up conditionally and order shall remain suspended in case respondent company deposits amount of Rs. 31,98,473.53 with official Assignee of this Court within period of 30 days-Petition disposed of accordingly. [Pp. 53 & 54] A & B Mr. TasawurAli Hashrni, Advocate for Petitioners. Mr. Obaidur Rehman, Advocate for Respondent. Date of hearing: 29.10.1997. judgment Petitioners who are the Ex-employees of the respondent Industry seek an order for winding up of the company under the provisions of Section 305,306 of the Companies Ordinance, 1984 (hereinafter referred to as the Ordinance). 2. Essentially case of the petitioners is that the respondent is a public limited company with a total paid up capital ftf Rs. 50 million. It is their grievance that they had been employed in respondent Industry at Karachi and Gharo for the last several years in different positions when they were sent on forced leave w.e.f. 16.8.1995 whereas their services were not terminated in accordance with law. 3. According to the petitioners on account of dishonest motives and mismanagement in the affairs of the company it started showing acute losses and as on 30.6.1994 total liabilities accelerated to Rs. 155.694 million as against total assets of Rs. 89.39 million. The balance sheet as on 30.6.1994 for the financial year 1993-94 reflects accumulated loss of Rs. 164.33 million. It is said that financial crisis reached to a point where the company failed to pay its dues to K.E.S.C. and Karachi Water and Sewerage Board to the tune of Rs. 35 million and Rs. 1.50 million respectively with the consequence that electric and water supplies were disconnected. Besides the company is heavily indebted to United Bank Limited and even Corporate Law Authority issued notices to the company to show cause as to why Annual General Meeting for the year 1994-95 was not held. It is maintained that the respondent incurred a deferred tax liability for Rs. 29 million in the year 1993-94. Asserting that the petitioners being the employees of the respondent company are entitled to all rights including salary, provident fund, gratuity, medical allowance and leave fare assistance they alleged that the company did not pay the salaries for the month of November, 1994 and subsequently from March, 1995 till the filing of this petition. Petitioners have enumerated their outstanding amount of salary amounting in all to Rs. 46,42,101/-. Ultimately the petitioners issued a statutory notice under section 306 of the Ordinance to the company on 12.6.1996 calling upon it to pay up their debts but the company by its reply took the position that their services were terminated on 7.1.1996 on the charge of misconduct after observing disciplinary procedure as laid down in the law. However non payment of the salaries for November, 1994 and thereafter from March, 1995 onwards was admitted. Accordingly the petitioners averred that the company be wound up for the reasons firstly that it is unable to pay its debts, that liabilities of the company far exceed its assets and it is not financially viable, that it is impossible to achieve the objects for which the company was incorporated and lastly that it is just and equitable to wind up the company. 4. In the counter-affidavit respondent company denied various allegations and took the position that the employment of the petitioners was dispensed with in January, 1996. With regard to the statutory notice it is said that the claim is neither justified nor payable. According to the -company there is a bona fide dispute as regards the alleged debt, thus the provisions o sections 305 and 306 of the Ordinance are not attracted. It is urged by the respondent that, the petitioners should ha ;e taken their dispute to a Court of law for adjudication rather than pressurising the company to submit to their illegal demand. With regard to dishonest motives and mismanagement in the affairs of the company allegations were denied with the explanation that on 31.1.1995, Chief Executive of the company was arrested alongwith Senator Saeed Qadir for political reasons. On 15.8.1995 the management was left, with no option but to send such officers on forced leave who were indulging in sabotaging the smooth functioning of the factory resulting in low production and wasts of raw material. On 8.11.1995 the officers were instructed to report for duty at the plant w.e.f. 16th November, 1995. The dispute with regard to over billing with K.E.S.C. was amicably settled while advances by Banks and D.F.Is. were rescheduled. Negotiations with U.B.L. for settling the controversy were in progress. It is asserted that the company is being managed efficiently and its unit at Islamabad is functioning whereas its unit at Karachi was temporarily shut down for unavoidable circumstances. With regard to allegations leading to unlawful dismissal the company took the stand that the petitioners did not challenge their removal from service in any competent court of law. It is urged that the company is functioning in accordance with law, holding its Annual General Meeting running the unit and attempting to switch on the unit at Karachi. It is claimed that it has not only protected the substratum of the company but also added to its capital assets. 5. An affidavit-in-rejoinder was filed on behalf of the petitioners reiterating their averments and controverting the respondent's stand. 6. When this petition came up for hearing before me on 13.8.1997 respondent was directed to place on record all original postal registration receipts in token of despatch of dismissal orders sent to the petitioners and a list of emoluments duly verified by a responsible officer of the company which they are inclined to pay to the petitioners by way of their legal dues. 7. Statement of dues according to respondents and payable to thepetitioners as reflected in the dismissal orders dated 7.1.1996 was filed in respect of 24 petitioners out of 26 petitioners. The petitioners filed a reply affidavit to this statement and there appeared to be a controversy as regards the amount claimed and the amount agreed to be paid by the respondent. A short adjournment was granted to consider the proposal offered by the respondent in full and final settlement of the claims to the petitioners. 8. Letter both the learned counsel addressed this Court on merits of the case. While the main contention of Mr. Obaidur Rehman, learned counsel for the respondent is that there is bonafide dispute with regard to the liability of the respondent to pay the dues of the petitioners in as much as the company has worked out their dues and shown its willingness to pay a sum of Rs. 31,98,473.53 in full and final settlement of their claims, the debt according to the petitioners is Rs. 46,42,101/- in addition to contributory general provident fund and other allowances. There was a controversy whether this Court could pass an interim order directing the respondent to deposit the admitted amount with the Nazir for disbursement to the petitioners. While Mr. Hashmi is interested in such order without prejudice to the rights of the petitioners to take a course of action that may be available to them under the law, learned counsel for the respondent is inclined to deposit this amount on behalf of the respondent only in full and final settlement of the claims of the petitioners. 9. The next argument advanced on behalf of the petitioners is that the respondent having admitted its liability and neglected to pay the same tothe petitioners is deemed to have been unable to pay the debt. Moreover the respondent's factory at Karachi is closed since January. 1996, while their unit at Islamabad is operational. 10. Further ground urged in support of the petition is that the company is rendered insolvent and it appears to have lost its substratum in as much as its liabilities far exceed its castes as reflected in the latest annual report ending 30.6.1996. Learned counsel for respondents Mr. Obaidur Rehman has submitted arguments to the contrary. 11. In support of his contention. Mr. Hashmi has cited Parke Davis & Co. Limited v. Bliss & Co. Limited, Karachi (PLD 1982 Karachi 941. Smith Kline & French of Pakistan Ltd. v. Spencer & Co. Pakistan Limited (NLR 1989 Civil 29), Trade & Industry Publications Limited v. Industrial Development Bank of Pakistan (PLD 1990 S.C. 768), Sindh Glass Industries Ltd. v. N.D.F.C. (PLD 1996 SC 601) and unreported judgment by Syed Haider Ali Pirzada (as he then was) in J. Misc. No. 72 of 1989 decided on 23.5.1990. 12. At the hearing learned counsel for the respondents did not cite any judgment which having been reserved, he has cited Abdullah Bhai v. Saria Rope Mills Ltd. (PLD 1971 Karachi 597), Hashmi Can Company Ltd. v. K.K. & Co. (Pvt) Ltd. (1992 SCMR 1006), Kaikobad Pestanjee Kakalia v. M/s Almas (Pvt) Ltd. (1997 MLD 149) decided by me on 2.10.1996 and Metito Arabia Industries Ltd. v. Gammon (Pakistan) Ltd. (1997 CLC 230). 13. It will appear from narration of this judgment that while 26petitioners have claimed a sum of Rs. 46,42,101/- as their debt due and payable by the company in addition to contributory provident fund and otherallowances, respondent company has worked out legal dues of 24 petitioners as against 26 petitioners in the sum of Rs. 31,98,473.53 inclusive of contributory provident fund less advances availed of by such employees. It would further appear that the respondent company is willing and inclined topay up this amount to such petitioners directly as well as by depositing such amount in court but with the condition that such payments shall be made in full and final settlement of their claims. With regard to petitioner No. 25 it is urged that he has already accepted a sum of Rs. 89,448.96 on 1.6.1996. As regards inability of the respondent company to pay legal dues of the petitioners it is vehemently and strenuously urged on behalf of the respondent that the company has been ever ready and willing to pay such dues subject to full and final settlement of the dues. 14. Adverting to the case law cited on behalf of the parties, it may be pertinent to observe that in Parke Davis Limited case late Naeemuddin, J.(as he then was) observed that it is settled law that when there has been a failure to pay a debt in accordance with the statutory notice of demand, insolvency is to be presumed, though no doubt it may also be proved in other ways. In the reported case learned Judge observed that there appeared to be no dispute as to the liability of Rs. 63,00,000/- on account of stocks supplied but what was claimed was that the company had filed a suit for recovery of Rs. 49,17,OOO/- and it was therefore submitted by learned counsel for the company that there was a bona fide dispute. As regards the claim made in the suit filed by the company even if it was assumed that it would fully succeed in the suit, still there remained in amount of Rs. 14,00,000/- plus interest, on Rs. 63,00,000/- to be paid by the company. Learned Judge proceeded to observe that even if it was assumed that the company would succeed in its suit for damages and would get a decree for the whole amount and such a contingency could be taken into consideration in a winding up petition still there was no explanation why the company did not at least pay the amount of rupees over 14,00,000/- which was more than 2% time of the paid up capital of the company. This was without taking into consideration the amount of interest on Rs. 63,00,000/- which was also claimed by the creditors. Apart from the presumption the company had not placed on record any balance sheets, profit and loss accounts or statement of assets and liabilities showing what assets it had and whether it was earning any profit or not. The company had also not stated anywhere what were its assets and liabilities. Learned Judge therefore concluded that the company was unable to pay its debts and therefore insolvent and accordingly directed its winding up. In Smith Kline & French of Pakistan Ltd.'s case, Saeeduzzaman Siddiqui, J. (as he then was) dealing with a somewhat identical question passed a conditional order of winding up the company by appointing the Official Assignee as Official Liquidator subject to a condition that in case the respondent company deposited specified sum in court within specified period which amount may be withdrawn by the petitioner company when the .' petition shall be deemed to have been refused. However in case this amount was not deposited within the prescribed period the order of winding up shall take effect and further proceedings for winding up of the company shall be taken by the Official Liquidator in accordance with the law. In this case learned Judge had recorded a finding that the respondent company had deliberately failed to pay the amount of Rs. 19,53,492/- to the petitioner for which they were not only liable to pay legally but for which they had admitted their liability. On inquiry by the court, learned counsel for the respondent after obtaining instructions from his clients had made an statement that they were willing to deposit this amount subject to the condition that were allowed to contest their liability to pay this amount in appropriate proceeding. In Trade and Industry Publications case. Supreme Court held that unless a debtor bona fide disputes the claim of the creditor or was able to say that notwithstanding the dispute he was in a position to pay his debts, the plea that I.D.B.P. should have proceeded under section 38 of the I.D.B.P. Ordinance, 1961 and not by way of a petition for winding up of company was not of much substance. It was ruled that when there had been a failure to pay debt in accordance with the statutoiy notice of demand in solvency is to be presumed though of doubt it may also be proved in other ways. In Sindh Glass Industries Ltd. case Honourable Supreme Court observed that where the indebtedness has not been denied but the allegation was levelled that winding up petition was not bona fide, burden to prove such allegation was on the party alleging the mala fides. The inability to pay an undisputed debt as a rule may lead to conclusive proof of the fact that the company is unable to pay debts. However when the company disputes any debt it should bring forth sufficient material to rebut the presumption arising from section 306 that the debt is either not due or there is a bona fide dispute. Mere flat denial without showing that there exists bona fide and genuine dispute about the indebtedness will not displace the presumption of liability to pay. In Chase Manhatten Bank v. Firdous Spinning Mills Limited decided by Syed Haider Ali Pirzada, J. (as he then was), respondent company was directed to make payment of the debt within specified time, company wound up and Official Liquidator appointed in order to supervise the implementation of the order and the order of winding up to stand suspended till the specified period, in this case respondent company had categorically admitted the debts and liability to make payment with undertaking to discharge the liability if reasonable installments were allowed and time was granted. In Abdulla Bhai's case late Qadeeruddin Ahmed, C.J. (as he then was) dealing with an application for winding up under the Companies Act, 1913 expressed the view that winding up proceedings are not a substitute for a suit to recover debts. In the expression "company is unable to pay its debts" the word "unable" does not mean "unwilling" and the word "debts" refers to all the creditors as a class and not separately to the interest of each individual creditor. The basic object of the scrutiny in such proceedings is the solvency or insolvency of the company and not truth of claims of the creditors. There may be a company which is in reality under the obligation to pay huge debts but may be honestly disputing them and therefore refusing to pay them. In such circumstances if the winding up proceedings were continued they would be converted into proof and disproof of the debts and the main object which is scrutiny into the solvency or insolvency of the company will be relegated to the background. If a debtor is merely unwilling to pay his debts, then the normal remedy is a suit. If a creditor, instead of instituting a suit against the debtor company, files an application for winding it up and if he simply desires to save court fee, then the consideration of loss to the State revenue may not be in his way, but he involves himself in the problem of proving insolvency of the company which is different from a temporary misfortune of a company. If on the other hand the object of a creditor in applying for winding up a debtor company is to bring pressure on it, then it is an abuse of legal process and by itself sufficient to displace the prima fade position that a creditor is entitled ex debit o justiiiae to a winding up order. In Hashmi Can Company' case, Supreme Court of Pakistan held that the Company Judge has a discretion to order winding up of a company if it is unable to pay its debts and inspite of demand made by the creditor the debts remain unpaid. Obviously debt refers to the undisputed amounts payable by the company and not those which may be in dispute bona fide. Moreso when immediately on receipt of notice under section 306 of the Ordinance the creditor is informed of the reason why alleged debet is disputed and the matter is taken to the court of law foradjudication. Refusal for cause to pay such debts cannot be regarded as negligence to pay as contemplated under section 306. In Metitio Arabia Industries Limited case, Rashid Ahmed Razvi, J. took the view that mere unwillingness on the part of the company to pay its debts would not mean inability. Where company had persistently failed to pay its debts, only then it was liable to be wound up at the instance of its creditors. Where, however, claim of the creditor was doubtful and where company was disputing such claim bona fide then in such circumstances creditor was not entitled to seek winding up of company. In the last case decided by me and referred at the bar, I had taken the view that settlement of disputed claims between the parties, however, could not be undertaken in exercise of company jurisdiction which being unique in its nature, debts or claim of party against company could not be settled in winding up proceedings which were not substitute for sorting out dispute before court of plenary jurisdiction. In the reported case I had observed that presumption drawn by petitioner in terms of section 306(8) of the Ordinance was completely misconceived From the resume of the case law discussed above, following principles are spelt out: (i) Winding up proceedings are not a substitute for a suit to recover a debt. (ii) Expression "unable" does not necessarily mean "unwilling" while word "debt" refers to all creditors as a class. (iii) Basic object of scrutiny in winding up proceedings is to ascertain solvency or insolvency of a company and not to investigate into truth or otherwise into claims of creditors. (iv) Winding up proceedings filed with intention to pressurize the company to settle disputed debts amounts to abuse of process of law. (v) Presumption arising under sections 305 and 306 of the Ordinance that a company is unable to pay its debts would not arise in the event of bona fide dispute as to liability. (vi) Where liability to pay debt was not denied but allegations of mala fide were raised against the petitioner, heavy burden lay on the company to establish the allegations. (vii) Any debt which cannot be disputed on legitimate and bona fide grounds, in the event of inability to pay, would furnish a valid ground for winding up. 15. Judged in the backdrop of the controversy between the parties, and in the light of principles enumerated above, it would seem that the respondent company has not disputed its liability to pay the dues of at least 24 petitioners in terms of the statement filed in this court. Technically it may be said that the company is not unwilling to discharge such liability but the exception put forward on behalf of the respondent company is that this amount is payable in full and final settlement of the claims of the petitioners which however remains unpaid and disbursed. Notwithstanding the fact that the balance sheet of the company reflects incurring losses and its liabilities exceed the assets of the company, I am of the definite view that the spirit and object of law is to save industry rather than to destroy it, Technically, this may not be a fit case for winding up but in order to foster the ends of justice and equity and with a view to save the parties from unnecessary litigation. I direct conditional winding up f the company by appointing Official Assignee of Karachi to act as Official Liquidator of the respondent company. Winding up order however shall remain suspended in case the respondent company deposits an amount of Rs. 31,98,473.53 with the Official signee of this Court within a period of 30 days which may be withdrawn by each of the petitioners in terms of the statement filed in court. The petition is disposed of. (B.T.) Petition disposed of

PLJ 1998 Karachi 54 PLJ 1998 Karachi 54 Present: SYED DEEDAR HUSSAIN SHAH, J. THE STATE-Petitioner versus Syed MUZAFFAR HUSSAIN SHAH-Respondent Ehtesab Reference No. 9 of 1997, decided on 9.8.1997. Ehtesab Ordinance, 1996 (CXI of 1996)-- —-Ss. 2(f) & 3 read with S. 265-K of Cr.P.C. and Rules of Business (Sindh), para. 7(iii)-Reference against accused by Chief Ehtesab Commissioner- Allegation that accused as Chief Minister (as per terms of Reference) had prevailed upon Chairman and Members of District Council to arrange and execute schemes of face lifting of his personal family farm-Evidence produced by prosecution clearly showed that road in question which was electrified was public road which was used by public at large and that same was not in the exclusive use of accused and his family-Witnesses examined by prosecution had not in any way implicated accused- Resolution for electrification of road and area in question, was tabled by Chairman, District Council which was carried out unanimously—Area which was electrified was not only farm of accused/respondent but whole Village was electrified-Prosecution's plea that accused had prevailed upon District Council and concerned Department to carry out such project was not borne out from evidence on record-Order passed by Chief Minister for sanctioning of funds for project in question would be deemed to be the order of Government as per Rules of Business—Prosecution had failed to implicate Chief Minister for misuse of funds—Case against Chief Minister was, thus, fully covered by provisions of S. 265-K, Cr.P.C.- Facts, circumstances and evidence did not constitute offence in terms of S. 3, Ehtesab Ordinance, 1996 to have been committed by accused and there was no probability or possibility of accused being convicted for the acts, omissions and commissions of corruption and corrupt practices on this account-Accused acquitted. [Pp. 67, 68 & 69] A, B, C & D 1993 SCMR 523; PLD 1993 SC 399; 1994 SCMR 798, PLD 1961 SC 523; PLD 1961 (W.P.) Lah. 1049; PLD 1965 SC 681 and PLD 1990 Kar. 271 ref. SyedMamnoon Hassan, Special Prosecutor for the State. Choudhry Iftikhar Ahmed, for Respondent. judgment The present Ehtesab Reference against Syed Muzaffar Hussain Shah was received in this Court from the office of the learned Chief Ehtesab Commissioner, Islamabad, dated 26.1.1997 under section 14(1) of the Ehtesab Ordinance, 1996. The brief facts are that Syed Muzaffar Hussain Shah, Ex. Member Provincial Assembly of Sindh, while holding the office of the Chief Minister Sindh, accused, in his capacity as Chief Minister Sindh, prevailed upon Chairman and Members of District Council Mirpur Khas, Provincial Highways Department and Deputy Commissioner Mirpur Khas to arrange and execute schemes of face lifting of Hyder Farm Taluka Umerkot, District Mirpur Khas.Accused Syed Muzaffar Hussain Shah and his family members own and possess agriculture land, in and around village Hyder Farm situated in Deh Diat Bah, Taluka Umerkot, Mirpurkhas. The District Council Mirpurkhas had no funds for electrification included within aforesaid scheme, nor particular function formed part of Schedule-Ill of the Sindh Local Government Ordinance, 1979 yet accused got executed electrification work of Hyder Farm at the cost of Rs. 24,27,378 by diverting Rs. 2 millions allocated by the Government of Sindh for repairs of buildings and roads and Rs. 4.47,378 from the District Council Mirpurkhas and the entire funds were utilised for Hyder Farm illegally and further that no work for repairs of buildings or roads were carried out for which this amount was allocated.It is further case of the prosecution that accused ordered diversion of public money by abusing his official position and power and misapplied Rs. 2 millions by ordering reappropriation by allocating the funds from buildings and roads to Hyder Farm electrification. Since the accused was holder of public office within the meaning of section 2(f) of the Ehtesab Ordinance, 1996, under the circumstances, the above acts of omission and commission amounted to corruption practise within the meaning of section 3 of the Ehtesab Ordinance. After the receipt of the reference accused Syed Muzaffar Hussain Shah appeared and was granted bail on 13.2.1997, thereafter on 28.5.1997 charge Exh. 2 was framed, which reads as under:- We, (1) Wajihuddin Ahmed, (2) Saiyed Saeed Ashhad andMushtaq A. Memon, JJ. do hereby charge you accused 1. Syed Muzaffar Hussain Shah as under:- That you accused Syed Muzaffar Hussain Shah, being a holder of Public Office in your capacity as Ex-Chief Minister of Sindh, at the relevant time in abuse of your official position and with mala fide, illegal and dishonest intention with a view to obtain illegal, fraudulent and dishonest gain, profits and favour for yourself and your family members directed and prevailed upon the then Chairman and Members of District Council Mirpurkhas, Provincial Highways Department's Officers and the then Deputy Commissioner, Mirpurkhas for face lifting of the area around your family farm known as Hyder Farm as well as of Hyder Farm as a result of which electrification work of Hyder Farm at the cost of Rs.24,27,378 was undertaken and this amount was procured by taking out Rs.2 million from the budget allocation provided for repairs of buildings and roads and Rs.4,47,378 was taken out from the funds of District Council Mirpurkhas and by your above act you got diverted public money for electrification and face lifting of your personal property; And that your above acts of omission and commissions amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance and punishable under section 4 of the Ehtesab Ordinance within the cognizance of this Court, and we hereby direct that you be tried by us for the aforesaid offence. Given under our hands and seal of this Court, this 28th day of May, 1997." Plea of the accused was recorded Exh.3 to whcih he pleaded not guilty to the charge and claimed to be tried. Prosecution adduced evidence in support of the prosecution case. On 8-7-1997 P.W. Muhammad Yousuf Gill son of late Muhammad Ibrahim, Chief Officer of Zila Council Mirpur Khas was examined as Exh.4, on 9-7-1997 Ghulam Muhammad son of Haji Muhammad Suleman, Sub-Engineer District Council Mirpur Khas was examined as Exh.5 and on 11-7-1997 Iqbal Ahmad son of Abdul Aziz, Assistant Director, Anti-Corruption Establishment, Hyderabad, Investigating Officer was examined as Exh.6. Subsequently, learned Special Prosecutor submitted Application bearing No. 115 of 1997 which was granted and Investigating Officer was re-called who submitted the report dated 10-2-1994 as Exh.6/4. In the meanwhile on 11-6-1997 the accused/applicant submitted application bearing No.85 of 1997 and Miscellaneous Applicaion No. 109 of 1997 on 9-7-1997. Notices of both these applications were issued to the Special Prosecutoi. On 15-7-1997, Iqbal Ahmad, Investigating Officer submitted his report mentioned hereinabove and after his examination and crossexamination Mr. Syed Mamnoon Hassan Special Prosecutor closed his side on behalf of the prosecution. Thereafter, by consent for hearing of Miscellaneous Applicaion No.85 of 1997 and Miscellaneous Applicaion No. 109 of 1997 filed on behalf of accused/applicant, were adjourned for hearing on 17-7-1997. I have heard Mr. Ch. Iftikhar Ahmed, learned counsel for the accused and Mr. Syed Mamnoon Hassan, Special Prosecutor for the State. The learned counsel for the accused/applicant contends that the scheme for installation of street lights was on a public road in front of Hyder Farm, and was initiated through a resolution moved by the then Chairman District Council Mirpurkhas, the late Haji Ghulam Rasool Junejo. The resolution was adopted unanimously, the work was let out as per rules to the company which offered lowest tender. That after the dissolution of local bodies, the Administrator District Council Mirpurkhas had requested the Provincial Government for change of head, and for re-appropriation of the amount in question which subsequently was allowed by the Chief Minister (accused Syed Muzaffar Hussain Shah) as per rules of business of the Government of Sindh. That the road on which the street lights were installed was a public road which leads to Taluka Chachro and about 10/15 villages, besides leading to the Basic Helath Unit, the Rural Health Centre, the school and office of the Union Council Khejrari. That the statement of Ghulam Muhammad was recorded by Anti-Corruption Establishment as an accused in F.I.R. No. 18 of 1993 under sections 406/34 read with section 5(2) of the Prevention of Corruption Act, 1947 and that no other statement under section 161, Cr.P.C. was recorded, nor he was associated with any inquiry pertaining to the Ehtesab Reference. That statement of Muhammad Yousaf Gull does not make out any case against the accused in terms of section 3 of the Ehtesab Act, 1997. Mr. Ch. Iftikhar Ahmed, learned counsel for the accused Syed Muzaffar Hussian Shah contends that P.W.2 Ghulam Muhammad has only supervised the work of street installation and is a formal witness and his testimony will not in any way improve the case of the prosecution. So far accused cannot be convicted on the evidence of Muhammad Iqbal Ahmed, P.W.3, who is also a formal witness, being the Investigating Officer of Crime No. 18 of 1993. That according to statement of P.W. Yousaf Gull, his statement was not recorded as a witness but as an accused in Crime No. 18 of 1993 of the Anti-Corruption Establishment and that actually in fact no statements of any witness had ever been recorded in relation to any inquiry in so far as the present reference is concerned, inasmuch as Yousu-f Gull and Ghulam Muhammad were examined as an accused persons on 8-4-1994, whereas the Ehtesab Ordinance was promulgated on 18-11-1996 after a period of more than two years and nine months. That it has come in the evidence that according to the Sindh Local Bodies Ordinance, District Council Mirpurkhas was/is competent to sanction/recommend development schemes and the installation of street lights on the public road in front of Haider Farm was carried out in pursuance of the resolution of the District Council Mirpurkhas. The order for re-appropriation was also issued on the request of the Chief Officer Muhammad Yousaf Gull P. W. 1 who in his letter had stated that because of paucity of funds, and because of the heavy rains, funds could not be utilised for maintenance/construction of roads, the amount for installation of street lights may be granted by Government, by re-appropriating the amount lying with the District Council Mirpurkhas for repairs of Roads, since the District Council is a semi- Government and independent body was established under the Provincial Act, had so desired and expressed through its unanimous resolution that the scheme was executed. In view of the evidence so recorded under the circumstances there is no iota of evidence whatsoever to support the charge of the corruption under section 3 of the Ehtesab Ordinance, even otherwise there is no evidence to substantiate the charge and in any case there is no possibility/probability of the accused, being convicted on the evidence so adduced/recorded and referred hereinabove.Mr. Ch. Iftikhar Ahmed, learned counsel for the accused has referred in support of his contentions the following case law. (1) The State v. Accused Syed Muzaffar Hussain Shah Ehtesab Reference No.23 of 1997 forwarded by the learned Chief Ehtesab Commissioner and the learned Ehtesab Bench consisting of my Lord Justice Wajihuddin Ahmed the senior puisne Judge, Justice Saiyed Saeed Ashhad and Justice Mushtaq Ahmed, Memon, on 28-5-1997 was pleased to acquit the accused with the following observations :-- 'From the above discussions we are unable to understand and comprehend as to how the name of accused Syed Muzaffar Hussain Shah could have been included in the Reference as one of the accused being responsible for illegal order of sale of fertilizers on credit to accused Nos.2 to 8 and we are satisfied beyond any shadow of doubt that there is not an iota of evidence in the material and documents available with the prosecution to warrant the slightest possibility of involvement or incrimination of accused Syed Muzaffar Hussain Shah in the above offence and proceeding with the trial against him will be nothing but causing him uncalled for harassment, hardships and miseries, which is not the object of law." (2) The learned counsel has referred section 7(iii) of Rules of Business framed by the Government of Sindh in which power of Chief Minister has been mentioned which is as under: - S.7(iii): Any order passed by the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Governinent. (3) Learned counsel for accused referred the case of State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523). This was an appeal through leave of the Court by the State against summary acquittal of the respondent in a corruption case. Leave to appeal was granted for the consideration of the question; as to whether, without recording any prosecution evidence the trial Court was justified in law to hold that charges against the respondent were groundless. The provision of law tinder which the Special Judge acquitted the accused is section 249-A of the Cr.P.C.. but as stated by the learned counsel it appears to be under some inadvertent mistake that section 249-A, Cr.P.C. was mentioned, and that it should have been section 265-K, Cr.P.C. In this background of the matter their Lordships of the Supreme Court considered the provisions of section 249-A, power of Magistrate to acquit accused at any stage and section 265-K power of Court to acquit accused to any stage and their Lordships were pleased to dismiss the appeal filed by the Government. (4) Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 SC 399). Their Lordships of the Supreme Court consisting of Nasim Hasan Shah, Ajmal Mian and Sajjad Ali Shah, JJ. have held that under section 249-A Cr.P.C. order of acquittal can be passed by the Court without recording of evidence provided the Court is satisfied that peculiar facts of that case justify such order. (5) The State v. Asif Ali Zardari and another (1994 SCMR 798). Division Bench decision of their Lordships of the Supreme Court consisting of Saad Saood Jan (as his Lordship then was) and Sajjad Ali Shah, the judgment was authored by his Lordship Sajjad Ali Shah. The State filed leave to appeal against the Judgment dated 26-9-1991 of the High Court of Sindh at Karachi whereby Criminal Miscellaneous application filed under section 561-A, Cr.P.C. was allowed and in consequence proceedings against respondent No.l (Asif Ali Zardari) in a case under section 420/468/471, P.P.C. and section 5(2) of the Prevention of Corruption Act of 1947 pending in the Special Court (Offences in Banks) Karachi, were quashed. Their Lordships, after hearing the learned counsel for the parties and analysing and discussing the evidence so adduced by the prosecution in the case, finally came to the conclusion and observed as follows:-- " Learned Advocate-General Sindh was unable and at pains to point out any flaw or legal infirmity in the conclusions drawn by the High Court, which is done after lair appraisal of evidence and discussion of correct legal position as is enunciated in the case-law cited and relied upon in the impugned judgment for and against the proposition which are elaborately discussed in detail. We find no justifiable reason to disagree with the High Court and, therefore, we consider that it is not a fit case for grant of leave. In the result leave is refused and this petition is dismissed as having no merits." Mr. Syed Mamnoon Hassan, learned prosecutor contended that prosecution has adduced evidence which shows that accused Syed Muzaffar Hussain Shah and his family members own and possess agriculture land in and around village Hyder Farm situated in Deh Dial Bah, Taluka UmerkOt and that accused in his capacity as Chief Minister Sindh prevailed upon Chairman and Members of District Council Mirpurkhas, Provincial Highways Department and Deputy Commissioner Mirpurkhas to arrange and execute schemes of face lifting of Hyder Farm Taluka Umerkot, which is his family land and private property. That District Council had no funds for electrification included within the aforesaid scheme, yet accused got executed electrification work of Hyder Farm at the cost of Rs.24,27,378 by diverting Rs.2 millions allocated by the Government of Sindh for repairs of buildings and roads and Rs.4,47,378 from the District Council Mirpurkhas and the entire funds were utilised for Hyder Farm illegally and no work for repairs of buildings or road were carried out for which the amount was allocated. That accused ordered for diversion of public money by abusing his official position and power and misapplied Rs.2 millions by ordering reappropriation by allocating the funds from buildings and roads toHyder Farm electrification. Under the circumstances the accused was holder of public office within the meaning of section 2(f) of the Ehtesab Ordinance, 1996, committed the above acts of omission and commission amounting to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance 1996 and that in view of the evidence of P.W. Muhammad Yousuf Gull, the Chief Officer Exh.4, Ghulam Muhammad, Sub-Engineer Exh.5 and Iqbal Ahmed, Assistant Director, Anti-Corruption Establishment Hyderabad and Investigating Officer who also produced report of Mukhtiarkar dated 10-2-1994 Exh.6/4, the case against accused/applicant has been made out and accused Syed Muzaffar Hussain Shah can be convicted as required under section 4 of the Ehtesab Ordinance. Learned Special Prosecutor in support of his contentions cited decision of learned Ehtesab Bench of Lahore High Court in Ehtesab Reference No.3 of 1997, in which Shafi Sehwani, former member Planning and then Chairman, C.D.A., accused, alongwith co-accused Abdul Qadir Shaukat was convicted by the learned Ehtesab Bench of the Lahore High Court. Learned counsel has also referred Ehtesab Reference No.3 of 1997, decision of learned Ehtesab Bench of this Court headed by my Lord Wajihuddin Ahmed, the Senior pusine Judge, consisting of my learned brothers Saiyed Saeed Ashhad, J., and Mushtaq Ahmed Memon, J. In Reference No.3 of 1997 Shafi Sehwani, former member Planning and then Chairman, C.D.A. The brief history of the Reference is that C.D.A. decided to have a swimming pool in Markaz F-6, Islamabad and a plot of 2200sq. yards was allocated for this purpose. It was initially allotted to M/s. Abdul Majeed Farooqi and Ch. Muhammad Najeeb at the rate of Rs.50 per sq. yard on 8-8-1974 as a lease for 33 years extensible for two more similar terms. The allottee failed to show proper interest in the completion of the project as per condition of the allotment and in pursuance of the request of Abdul Qadir Shaukat, accused, the plot was transferred to Abdul Qadir Shaukat on 18-5-1980. According to the conditions of allotment the plot was meant for the construction of swimming pool with heating arrangements so as to control the temperature of water at a reasonable degree and also to provide allied facilities such as massage, physiotherapy, cabin for change of clothes, public shower baths etc. The construction of a few cabins for refreshment was also permissible inside the premises of pool. The accused No,2 in violation of the plan envisaged by CD.A., constructed as many as 18 shops and committed many other visible violations and that building was to be completed by 1-2-1981 as per approved plan. However, in view of the violations and deviations made in the approved plan and failure of the allottee to complete the swimming pool according to the terms and conditions that the allotment was withdrawn on 23-1-1985 and the agreement terminated. Abdul Qadir Shaukat, accused No.2, however, submitted request for restoration of plot and during this process Deputy Director, Buildings and Buildings Control submitted that either the authority should stand firm on cancellation of allotment and resume the possession of the plot or restore the plot on the condition of removal of construction on the first floor and the swimming pool alongwith attached facilities must be completed and put into operation within a period of three months. Deputy Director, Buildings and Building Control further suggested that the price difference, if any, between the price of the commercial plot and swimming pool in Markaz F-6 should be charged from.Abdul Qadir Shaukat, the allottee Shafi M. Sehwani accused No.l, where authority appeared to be next to that of the Chairman, asked for that difference of price from the Deputy Director and consequently Director Estate Management reported that the prevalent rate for restoration in Markaz was Rs. 1,000 per sq. yard and that further correspondence continued and Shafi M. Sehwani observed "yes, it should not be less than Rs. 1,000 and this is to best advantage of the allottee," and added, "please discuss.". According to the prosecution case, Shafi M. Sehwani visited the site and At-ui Qadir Shaukat also met him there. Thereafter, Shafi M. Sehwani completely suppressed the mention of Rs. 1,000 per sq. yard as restoration charges and put the case entirely on different track and continued to write notes showing deviations and irregularities and proposing regularisation of these irregularities on payment of certain charges and quoted wrong precedents. According to the prosecution case and the observations of the learned Ehtesab Bench, ultimately, Mazhar Rafi, who was Additional Secretary in the Interior Division and was holding additional charge of Chairman, C.D.A. agreed to the wrong suggestion of Shafi M. Sehwani that sum of Rs.100 per sq. yard may be charged from the allottee for violations committed by him in construction on the plot. This was done intentionally by Shafi Sehwani accused to provide undue benefit to his co-accused, Abdul Qadir Shaukat. The Chairman was thus clearly misled by the wrong suggestion of Shafi M. Sehwani accused and eventually a loss of Rs. 18,70,000 was caused to the state exchequer. In so for the proof of the above allegation, prosecution examined 7 witnesses in order to substantiate its case and consequently learned Ehtesab Bench found that both the accused guilty of offence under section 4 of the Ehtesab Ordinance, 1997 and they were convicted and sentenced to suffer R.I. for 5 years each and a fine of Rs. 10,00,000 each and in case of default to further undergo 1 year R.I. In Ehtesab Reference No.3 of 1993, the case of the prosecution is that Muhammad Shabbir, the accused applying for raising construction of a building on Plot No.8/2, RY-4, Railway Quarters, Karachi, and obtaining approval for a basement plus ground plus four floors by the Karachi Building Control Authority. Accused having raised construction beyond the approval, the KBCA issued a show-cause notice and allegedly, sealed the building. According to the prosecution case, Muhammad Shabbir thereafter is claimed to have approached Syed Abdullah Shah, accused No.l, the then Chief Minister of Sindh, through the accused No.2, Ghulam Mustafa Bozdar, an Ex-member of the Sindh Provincial Assembly. In the resulting application allegedly, the un-authorised construction was .admitted. It is further case of the prosecution, that Syed Abdullah Shah, in response not only ordered descaling but also allowed regularisation by stopping further action at the level of the K.B.C.A., thus, exhibiting favouritism to M. Shabbir, on the recommendation of Ghulam Mustafa Bozdar. It is further case of the prosecution, that in cases of similar nature additional floors applied for by other builders were regretted by the then Chief Minister Sindh. Syed Abdullah Shah and Ghulam Mustafa Bozdar were holders of public offices, within the meaning of the Ehtesab Ordinance and Muhammad Shabbir was benefited, as beneficiary, by misuse of powers and through abetment, committed the offence Prosecution adduced the evidence consisting of Syed Muhammad Hussain, Controller of Buildings K.B.C.A., Ahmed Hussain Siddiqui, former Director General, K.D.A.. P.W.2 Badrus Salam, Deputy Controller of Buildings K.B.C.A., P:W.3 Aijaz Ahmed, Controller of Buildings K.B.C.A. P.W.4, and Abdul Rahim Shoro, Inspector Anti-Corruption, the Investigating Officer in the case, through whom P-18 to P-33 were exhibited. The learned Ehtesab Bench was pleased to acquit Ghulam Mustafa Bozdar by giving the benefit of doubt and case against accused Syed Abdullah Shah was consigned to reccrd, to be re-acrivated in course of time, whereas convicted Muhammad Shabbir for an offence under section 3(1 )(d) of the Ehtesab Ordinance, 1996 mere seeking of a 'pecuniary advantage' or 'undue favour' through 'improper means' and was found guilty of offence and was awarded imprisonment for a period of three years and pay fine to the tune of Rs.10 million, default in payment of fine to suffer further for one year Mr. Syed Mamnoon Hassan, learned Special Prosecutor has cited (1) Sugni Chand Dayaram Jatwani v. Pakistan (through the Ministry of Rehabilitation Karachi) and others (PLD 1961 SC 523-530) (2) Akhtar v. The State (PLD 1961 (W.P.) Lahore 1049) (3) The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) and (4) Sher Muhammad alias Shera v. The State (PLD 1990 Kar. 271) in rebuttal to the contentions of Ch. Iftikhar Ahmed, learned counsel for accused Syed Muzaffar Hussain Shah mentioned in Misc. Application No.85 of 1997 and paragraphs 9, 10 and 11 of the Application No. 109 of 1997 in question stating herein that the Ehtesab Ordinance, 1996 has lapsed and a new law i.e. Ehtesab Act of 1997 (Act IX of 1997) which through section 31 of the said Act repealed P.P.O. 16 and P.P.O.- 17 and the Ehtesab Ordinance 1997, and saved the proceeding under P.P.O. 16 and P.P.O. 17, and that of the Ehtesab Ordinance of 1997, but did not save the proceeding initiated under the Ehtesab Ordinance of 1996. That Ehtesab Ordinance, 1996 was a temporary statute and expired after four months from the date of its promulgation and both the successor laws, i.e. the Ehtesab Ordinance, 1996 and the Ehtesab Act, 1997,. intentionally omitted to save proceedings initiated under the Ehtesab Ordinance, 1996. That section 6 of the General Clauses Act cannot be invoked in regard to statutes, which are of a temporary nature. That general rule is that where a temporary statute expires, the proceedings against a person under it will ipso facto terminate, and further trial and proceedings would be coram non judice. At the time of hearing of the arguments, the learned counsel for the accused Syed Muzaffar Hussain Shah did not press the application containing the above contentions, accordingly, application was dismissed as not pressed. The case law cited by Mr. Syed Mamnoon Hassan, Special Prosecutor referred hereinabove mainly pertains to the authorities of the Hon'ble superior Courts to the effect that under General Clauses Act, the proceedings so initiated can come to a logical end and proceedings by lapse of Ordinance automatically does not abate though there may not be a clause to save the proceedings initiated under the Ordinance. With due respect to the authorities referred by Mr. Syed Mamnoon Hassan, further, discussion, to these authorities is not necessary, in view of the fact that learned counsel for the accused/applicant at the very initially stage did not press the application. On 15-7-1997, after examination of Iqbal Ahmed Investigating Officer, who was re-called on the application of learned Special Prosecutor, under the circumstances, after his examination, the Special Prosecutor closed the side on behalf of the prosecution and by consent, hearing of Miscellaneous Applications Nos.85 of 1997 and 109 of 1997 was adjourned for 17-7-1997. I would like to refer the evidence adduced by the prosecution in support of the case as stated hereinabove, prosecution has been able to produce three P.Ws. The star witness of the prosecution is Muhammad Yousuf Gull, P.W.I his examination-in-chief is very short which is reproduced as follows:-- "I was Chief Officer of Zila Council, Mirpur Khas from 21st November, 1989 till some time in the year 1993. I am aware of the facts of the case. In the year 1992, one Haji Ghulam Rasool Junejo was Chairman of the Zila Council, Mirpurkhas, who tabled a Resolution before the Council that the electricity should be provided to Haider Farm. He further informed the Council that the funds for such electrification will be provided by Provincial Government. 1 was present in that Session. Haider Farm is owned by accused Syed Muzaffar Hussain Shah, who at the relevant time was Chief Minister of Sindh." In support of his case he produced the resolution of the District Council, estimate and orders for re-appropriation of the amount. In his entire examination-in-chief this witness or other two witnesses have not stated that either at the instance or pressure, directly or indirectly was exercised by accused Syed Muzaffar Hussain Shah in tabling the resolution before the District Council which according to record produced by the prosecution was unanimously carried over. Syed Muzaffar Hussain Shah, the accused was not even present during the session of the District Council, the re-approrpriation orders were passed by the accused Syed Muzaffar Hussain Shah at the request of Muhammad Yousuf Gull, the Chief Officer who says in his examination-in-chief as follows:- "On my last representation (Exh.4/10-C dated 21-1-1993 accused passed orders for re-appropriation. I also received a letter from Additional Secretary to Chief Minister Sindh dated 15-3-1993 disclosing the order of accused for re-appropriation So far the allegation of the prosecution is that electrification and face lifting of the area around the area, being the family farm known as Hyder Farm of accused Syed Muzaffar Hussain Shah, as a result of which electrification work of Hyder Farm at the cost of Rs.24,27,378 was completed. It would be pertinent to point out that electrification was provided in accordance with the resolution unanimously adopted by the District Council Mirpurkhas and according to Muhammad Yousuf Gull, Chief Officer, District Council in his crossexamination has stated:— Q. "I suggest it to you that Zila Council Mirpurkhas was fully authorised to approve a development scheme as of the scheme involved in this case. A. It is correct that Zila Council was competent to approve such scheme through any resolution." The Zila Council being an elected b"dv of the Zila was competent to pass the resolution and carried out the scheme, moreover the electrification and street lights provided to the road, fall within the territorial limit of Zila Council, furthermore according to Muhammad Yousuf Gull the road on which electrification was provided was constructed by Highway Department, the same road leads to Taluka Chachro and also leads to Union Council Khajrari where one school, one public health office, one basic health unit and one rural health centre are also situated on this road, to establish this fact specific question in cross-examination was put to the witness and for the decision of this case I would like to reproduce the actual words of the witness deposed in Court in his cross-examination which reads as follows "It is correct that the electric connections/street lights provided to the road fall within the territorial limits of Zila Council. It is correct that it is a public road and was constructed by the Highway Department some five/six years ago when resolution was passed for its improvement. It is correct that this road leads to Taluka Chachro. This road also leads to Union Council Khajrari. It is corret that one school, one public health office, one basic health unit and one rural health centre are also situated on this road. It is correct that the main road to Umer Kot and Kunri also starts from this road. It is correct that this road also passes through 10 to 12 villages. It is correct that in order to reach rural health centre the only route available is through the road on which the street lights were provided." According to the witness, this road is a public road which is used by the public at large and it is not in the exclusive use of the accused Syed Muzaffar Hussain Shah and his family. Moreover according to Exh.4/10-A Muhammad Yousuf Gull himself requested the Provincial Government for change of head and reappropriation of the funds in order to complete the scheme approved by Zila Council. A specific question was put to the witness in cross-examination to the following effect. Q. "You have suggested change of head as well as re-appropriaticn of the amount on the ground that due to heavy rains, the funds could not be utilised for the maintenance/construction of roads.A. It is incorrect. My communications were in furtherance of resolution (Exh.4/l-A). Furthermore, in another question he replied as follows:- Q. "Is it correct that there are other instances for re-appropriation and change of heads. A. It is correct. During my tenure as Chief Officer there were several instances when re-appropriation and change of head were ordered." The witness No.2 Ghulam Muhammad, Sub-Engineer District Council, Mirpur Khas has stated in examination-in-chief which is as follows--- "In this case, I supervised electrification work. This project was meant for Hyder Farm. I was instructed by my Engineer Idrees to prepare estimate in respect of providing electricity to Hyder Farm or village. Voluntarily adds that I am not aware whether it is a farm or village. I produce estimate which was prepared by me as Exh.5/1. This work was assigned to M/s. Manzoor Electric Works. I also produce Tender Form (consisting of two pages), comparative statement and agreement (consisting of eight pages) as Exh.5/2, Exh.5 3 and Exh 5'4 respectively. I also produce seven contractors bills which were accordingly paid as Exh.5/5 to Exh.5/1 i. I produce payment rece:pt through which payments were made to WAPDA alongwith if challan as Exh.5/12-A and Exh.5/12-B respectively. This work was successfully completed. All the required payments were made to the contractor." In cross-examination this witness has stated as follows :-- "Whether the street lights which were provided were on a public road or on private road?I am not aware whether it is a public road or private road. Court Question. "Arc you aware of the difference between a public and a private road?Yes, Sir. I am aware of such difference. A public road is used by public at large and the private road is used by the person who owns the same. The road where street Sights are installed is being used by public as well as by private persons."The third witness P.W. Iqbal Ahmed has stated in his examination-inchief as follows: — "On 12th January, 1997 1 received a Letter bearing No.837, from my Deputy Director to prepare a report in respect of former Chief Minister Syed Muzzaffar AH Shah. I produce copy of my report as Exh. 6/1. I have incorporated all my efforts and actions in Exh. 6/1. On the basis of Exh. 6/1 Chairman Ami-Corruption Establishment forwarded a report to the Chief Ehtesab Commissioner vi,-i? iv? . dated 21st January, 1997,-jvhkh I produce as Exh, 6/2." On 15-7-1997 he was" re-called and he produced report as Exh.6/4 in unequivocal terms he has suited in cross-examination to Mr. Ch. Iftikhar Ahmed, learned counsel for the accused, which is as under:-"It is correct that 1 have b:"-ed my report Exh. 6/1 on the investigation of Crime No. 18 of 1993, It is correct that I have not examined myself any of the witnesses in the present case. It is correct that the contents of ray report Exh. 6/1 are based on the findings of the investigation in Crime No. 18 of 1993." Furthermore he has also stated that he has not examined accused Syed Muzaffar Hussain Shah while preparing his report Exh,6/l. In cross-examination this witness has stated as folio ws:--"It is correct that I have remained in Mirpur Khas. I have seen the road where the street lights are affixed. It is correct that there is basic health centre, middle school, rural health centre situated on the said highway, I am not aware whether a water storage and pumping station are also situated on the said highway."According to him to a Court question he has stated:-- "I have not examined P.W.I Yousaf Gull and P.W.2 Ghujam Muhammad Leghari, in the present case." This is the entire case of the prosecution which has already been reproduced hereinabove. 'The witnesses so far examined by the prosecution in any case have not implicated the accused, if examination-in-chief and crossexamination are taken in juxtaposition. The resolution was tabled by the elected Chairman of the District Council which was carried on unanimously and it falls within its jurisdiction. The Hyder Farm is not only a farm but it is also a village where people of Hari class are living which apparently manifests from the report of the Mukhtiarkar which has been produced by Iqbal Ahmed, Investigating Officer as Exh.6/4 on 15-7-1997. It is a report prepared by Mukhtiarkar Umerkot bearing No.59 dated 10-2-1994, the relevant portion of the report shows as under:--"Village Hydef Farm is situated in Deh Diat Bah which is unsurveyed state land." According to Mr. Ch. Iftikhar Ahmed, learned counsel for the accused usually in Mufasal Area villages are established on un-serveyed State land, villages approximately consist houses of different caste of people ranging from 50 upto few hundreds. Unfortunate aspect of this case is that the report of the Mukhtiarkar was produced by Investigating Officer and Mukhtiarkar was not produced by the prosecution to enter the witness-box and face the cross-examination, so as to get the proper number of the houses of the village Hyder Farm, because crossexamination is the only source through which truth can be had from the mount of a witness but this report was produced through Iqbal Ahmed who has stated in cross-examination to the effect that:- "I have not prepared the report which I have submitted. 1 have taken out this report from the file of Criminal No. 18 of 1993. The report is dated 10-2-1994. The report which I have submitted, was prepared 2 years prior to its presentation." The whole emphasis of the prosecution is that accused Syed Muzaffar Hussain Shah prevailed upon the District Council and Provincial Highways Department and Deputy Commissioner Mirpurkhas for the above acts whereas from the perusal of the record and the evidence produced referred hereinabove there is no ir»a of evidence to connect the accused Syed Muzaffar Hussain Shah with the commission of the crime. According to the Rules of Business referred here in the earlier part of this order. Chief Minister under the Rules is competent to pass orders which are deemed to be orders passed by the Government. The ° electrification was provided to a public road which is used by public at large which fact has even been admitted by the prosecution witnesses including Investigating officer. Moreover the sanction for re-appropriation of the funds was allowed by the accused Syed Muzaffar Hussain Shah as Chief Minister, on receipt of correspondence and the frequent requests made by Chief Officer Muhammad Yousuf Gull P.W.I, the relevant portion of his deposition has already been reproduced above Ch. Iftikhar Ahmed, learned counsel for the accused very rightly pointed out that in the under developed rural areas of the Province of Sinclh especially Mirpurkhas and its surrounding area, including Tharparkar large number of the public have not yet been able to see, observe and use the electricity. Moreover, in their lives they have not even seen bulbs themselves, as the process of development so far carried on has not been brought at ;he door steps of the people of the rural area. The people C;f far away areas especially in Tharparkar, Mirpurkhas and Umerkot are not having the facility of even potable water. There are numerous people who have not even seen the hand pump from where potable water could be taken by them and their women-folk are getting water from the water-courses and ponds which are in the common use of human beings and animals together. In this state of affairs at the instance and unanimous resolution of District Council, the electrification and face lifting work of a road to village Hyder Farm was carried on for the benefit of the people of the area and if sanction of the re-appropriation of the funds was allowed by the accused Syed Muzaffar Hussain Shah as the Chief Minister, who according to the Rules of Business referred and re-produced hereinabove framed by the Government was competent to sanction, clearly shows that prosecution has not been able to 'produce the evidence which can be considered for awarding conviction.i The authorities cited by Ch. Iftikhar Ahmed, the learned counsel for the accused are relevant and applicable to the facts of the present case, whereas references and authorities cited by Mr. Syed Mamnoon Hassan, Special D Prosecutor arc quite different and distinguishable from the facts of the present case. In Ehtesab Reference 3 of 1997 decided by the learned Lahore High Court and Ehtesab Reference No.3 of 1997 decided by learned Ehtesab Bench of this court, in both these references prosecution was able to produce sufficient evidence so as to prove the case against the accused. Resultantly, the accused in both these cases were convicted, whereas the other authorities on legal point cited by Syed Mammon Hussain, learned Special Prosecutor in my humble opinion are not applicable to the circumstances of the present case inasmuch as the counsel for accused/applicant did not press the Application Miscellaneous No. 85 of 1997 and did not press the clauses of Miscellaneous Application No. 109 of 1997 referred hereinabove. Consequently the Miscellaneous Application was dismissed as not pressed and paragraphs Nos. 9, 10, 11 and 12 were not pressed by the learned counsel for the applicant, whereas learned counsel vehemently placed the submissions totally on the evidence so far recorded by this court. I am of the considered opinion that this case is fully covered by the provisions of section 465-K of Cr.P.C. which provides "S. 265-K. Power of Court to acquit accused at any stage.- Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence." I have gone through the material placed with the case and have applied my mind, I am of the firm opinion that in view of the facts, circumstances, evidence and the case law referred and discussed hereinabove, which I most respectfully follow, as such in the circumstances, there is no portability or possibility of the accused being convicted for the acts, omissions and commissions amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance. Consequently, I allow the application and acquit the accused. Reference stands disposed of. After hearing the parties at length on 17.7.1997, by short order application was granted and accused was acquitted and these are reasons for the same. (K.K.F.) Accused acquitted.

PLJ 1998 Karachi 69 PLJ 1998 Karachi 69 Present: DR. ghous MUHAMMAD, J. FAROOQ ALI CHUGHTAI-Petitioner versus FAZLURREHMAN and 3 others-Respondents Civil Revision No. 296 of 1994, decided on 28.11.1996. Specific Relief Act, 1877 (I of 1877)-- —-S. 9 read with Civil Procedure Code, 1908-(V of 1908), S. 115-Suit for possession-Pre-requisites-In suit for possession of property in terms of S. 9 of the Specific Relief Act plaintiff must prove that he had been dispossessed: such dispossession was from immovable property; dispossession was without his consent; and dispossession was otherwise than in due course of law—Possession of plaintiff in respect of disputed property had been fully established by evidence on record—Possesison of property in question, having been forcibly taken during absence of plaintiff, he had made out case for restoration of possession—Suit decreed. [P. 73] A, B & C 1982 SCMR 741 rcf M. Zia Qurcshi and Fandul Haq. for Petitioner. Abdul Muqtadir Khan, for Respondents Nos. 3 and 4. Date of hearing: 21.4.1996. judgment This revision application under section 115, C.P.C. arises out of the proceedings commenced by the applicant who filed Suit No. 437 of 1979 (New No. 438 of 1988) for possession and the other Suit No. 1920 of 1981 (new No. 2385 of 1985) for mesne profits and damages. 2. The facts as stated by the applicant are that he was tenant of the house bearing No. 25/5/B/IV Nazimabacl Karachi (herein after referred to as the disputed property) owned by one Mst. Qaiser Jehan Begum by virtue of an agreement dated 1.6.1976. He paid three installments in advance and also gave money towards fixed deposit and obtained receipts from the landlady. On 10.9.1978 the applicant left for Peshawar where his father had died but when he came back on 5.12.1978 he found that his locks were broken and the house was unlawfully occupied by the respondents Nos, 1 and 2. The goods lying in the house were also misappropriated by them. He was not allowed to enter the house in dispute. 3. The applicant thereafter wanted to lodge F.I.R, with Nazimabad Police Station but the S.H.O. refused to register the same and it was only after representation to the Home Department, Government of Sindh that his F.I.R. dated 15.12.1978 was registered and respondents Nos. 1 and 2 were also ehallaned. The respondents, thereafter, filed Suit No. 437 of 1979 mew No. 438 of 1988) on 30.1.1979 for recovery of possession of the disputed property. Subsequently, in the year 1981 he filed another Suit No. 1920 of 1981 (New No. 2385 of 1985) for recovery of mesne profit and damages, Both these suits were amalgamated and common issues were framed on 19.3.1991. 4. From the pleadings of the parties it appears that the disputed property had been the centre of serious dispute amongst, the persons claiming its ownership. The house in dispute amongst the persons claiming its ownership. The house in dispute belonged to Shafi Muhammad and after his death it developed upon his wife namely Mst. Kubra Bibi who was his sole surviving heir. She sold a portion of this house and gifted the remaining, which is subject-matter of the instant proceedings, while Mst. Qaiser Jehan let out the same to the applicant. 5. The respondent No. 2 on the other hand claims that MuhammadShafi was his uncle and he adopted him as his son. According to him, Mst Kubra, who was a very old, ill andpardanashin lady, was fraudulently made to execute the gift in favour of Mst. Qaiser Jehan Begum. 6. The learned Senior Civil Judge framed as many as 11 issues out of which the one relevant for the purpose of disposal of other issues is: "Whether the plaintiff was in possession of suit house?" 7. The learned Senior Civil Judge held that the applicant was not inpossession of the said property and subsequently dismissed both the suits by the impugned judgment dated 25.8.1994. According to the trial Court, the applicant failed to appear and led his case in person and did not examine any witness of the locality and the persons examined by him were interestedwitnesses. Further more, the landlady was not examined in Court and as observed by the learned Judge the applicant did not produce any documentary evidence to establish his tenancy. It was, therefore, held that the applicant failed to discharge his burden to prove that the disputed property was in his possession. 8. I have heard the learned counsel for the applicant and learnedcounsel for the respondents Nos. 3 and 4. The latters submitted statement that they have no interest in the suit or this revision application. The respondents Nos. 1 and 2 were called absent. I have also perused the record. 9. It has been contended by the learned counsel for the applicant that the findings of the subordinate Court is based on misreading of evidence and that the jurisdiction vested under section 9 of the Specific Relief Act hereinafter referred to as the Act) has not been exercised according to law. The documents produced by the applicant were not looked into and the statement of his witnesses were not considered. It was further contended that the trial Court while coming to its conclusion was guided by extraneous consideration. 10. From the record of the case, I find that the applicant produced among others the following documents through his attorney, Zamir Ahmed Ansari:- (1) Tenancy agreement dated 1.6.1976 executed by the applicant and Mst. Qasier Jehan Begum. (2) Receipts showing payment of three months advance and fixed deposit. (3) Extract from Excise and Taxation Department showing Mst. Qaiser Jehan Begum as owner and the applicant as occupant. (4) Letter of Habib Bank sent to the applicant at his address being the disputed property. Copy of the F.I.R. (5) F.I.R. certificate dated 6.5.1986 issued by Income Tax Department and showing residential address of the applicant at the said roperty The applicant examined the following witnesses:- (a) Zamir Ahmed Ansari. (b) Masood A. Abbasi. (c) Wazir H. Rizvi. (d) Saeedur Rehman. 11. Zamir A. Ansari is the general attorney of the applicant and also one of the witnesses to the tenancy agreement executed between the applicant and his landlady. He also produced the documents mentioned above and similarly Masood Ahmed Abbasi is the general attorney of the landlady. Mst. Qaiser Jehan Begum and he is also her husband. He admitted tenancy agreement and also the possession of the said premises by the applicant. Wazir H. Rizvi and Saeedur Rehman both of whom are independent witnesses stated that they had visited the disputed premises and met the applicant there in connection with some work which they wanted to assign to the applicant there in connection with some work which they wanted to assign to the applicant who was a petty contractor. The statements of these witnesses as well as the documents produce by Zamir Ahmed Ansari go to prove that the applicant had been in possession of the suit property. It is established legal position that in a suit for specific performance under section 9 of the Act what is relevant is his possession and not the title although contrary has been erroneously observed and concluded by the learned trial Couit 1L. The provisions of law contained in section 9 of the Act has four ingredients:- (1) persons suing must have been dispossessed; (2) such dispossession must be from immovable property; (3) dispossession should be otherwise without consent and (4) dispossession should be otherwise than in due course of law. 13. As was held by the Hon'ble Supreme Court, in Dr. Riaz v. Razi Muhammad, 1982 SCMR 741 that section 9 of the Act in no way controls the operation of section 26 of Qanoon-e-Shahadat Act and has no concern whatsoever with title, but is merely a law for restoring possession which has been disturbed otherwise than in due course of law. It may be emphasised that no question of title either of the plaintiff or of the defendant can be raised or gone into in this case. Furthermore, the possession of the applicantin respect of disputed property has been fully established by the evidence onrecord. I also find that the general attorneys of the applicant as well as of the land lady appeared in court and examined themselves as witnesses. Their statements would therefore be as good as the statements of the applicant and his landlady. Mere fact that the applicant did not appear in person or that the landlady did not herself attend the Court will not in any manner prejudice the case of the applicant. 14. After having found that the applicant was in possession of the suit property the next question which arises is whether he was dispossessed according to law? It is established by the material on record that the respondent Nos. 1 and 2 forcibly occupied the disputed property during the absence of the applicant who has clearly made out a case for restoration ofthis possession. Therefore, Suit No. 437 of 1979 (New No. 438 of 1988) is decreed as prayed. 15. So far Suit No. 2385 of 1985 (for mesne profit and damages) is concerned, it was pointed out by the learned counsel for the applicant that an appeal against the dismissal of this suit was preferred before the learned Ilnd Additional District Judge, Karachi Central and that appeal is stillpending. Therefore, on disposal of this revision no further comment is required as the learned appellate court is seized of the matter and would be at liberty to dispose of the same according to law. Since the respondents Nos. 1 and 2 did not come forward to contents this revision application there would be no'order as to costs. (K.K.F.) Order accordingly.

PLJ 1998 Karachi 74 PLJ 1998 Karachi 74 Present: MRS. MAJIDA RAZVI, J. UNITED BANK LIMITED-Plaintiff versus GHAFFAR AZIM KHAN--Defendant Suit No. 1 of 1978, decided on 13-9-1995. Contract Act, 1872 (IX of 1872)-- —S. 221-Agency-Termination of-Status-Agent had pledged goods with plaintiff (Bank) from whom he had borrowed money to conduct businessof agency; agent had further agreed to keep goods in warehouse of his principal (a corporation) wherefrom principal could not remove goods andsame could be removed only on requisition slip signed by plaintiff (bank) with whom goods in question, were pledged--Principal violated terms of contract between his agent and plaintiff and thereby caiise of action accrued to plaintiff against principal-Agent although denied execution of promissory note and other documents, yet he had not denied his signatures thereon—Failure of Agent to appear and produce his evidence in support of his assertions that he had not executed documents in question, would not raise presumption that he had not executed suchdocument specially when he had not denied his signatures on those documents-Plaintiff having advanced money to Agent for carrying on business of his principal both of them i.e., Principal and Agent were jointly and severally liable to pay specified amount of such loan alongwith interest. [Pp. 80, 81] A, B, C & D PLD 1972 SC 25; 1988 CLC 425; 1988 MLD 440; PLD 1958 Kar. 251 and ref. S. Mamnoon Hasan for Plaintiff. A.H. Mirza for Defendant. Dates of hearing : 12 and 13-9-1995. judgment This suit inter alia is filed for recoveiy of Rs. 428,045.54. The brief facts as per plaint are that the plaintiff is a Banking Company known as U.B.L. Airport Branch, Karachi, defendant No. 1 a businessman and defendant No. 2 P.I.A. a Corporation having its Head Office at the Karachi Airport. The defendant No. 2 had arranged to open Duty Free Shops at the Karachi and Islamabad Airports and appointed the defendant No. 1 as its Managing Partner. The arrangement between the two was that the defendant No. 1 will equip the said duty free shops exclusively with his own finances. The plaintiff agreed to grant a loan/cash credit to the defendant No. 1 to import goods to be kept and sold at the Duty Free Shops at. Karachi and Islamabad Airports. The defendant No. 2 had issued a certificate dated 21-11-1972 to the effect that the defendant No. 1 was its managing partner/managing agent who will manage the Duty Free Shops at Karachi and Islamabad Airports for and on behalf of defendant No. 2. The defendant No. 1 requested the plaintiff to open L.C. for import of goods and for this purpose the plaintiff granted loan/cash credit to the extent of Rs. 5,12,348.01 on the condition that goods will be kept in the bonded warehouse of defendant No. 2 and will be released on the requisition of the plaintiff. The defendant No. 2 by its letter dated 26-7-1973 confirmed that the duty free items being imported by the defendant No. 1 will be kept at the bonded warehouse of defendant No. 2 and will not be released unless a requisition is signed by the plaintiffs nominee The defendant No. 1, in consideration of the loan/cash credit advanced to him by the plaintiff executed a Power of Attorney dated 31-7- 1973 in favour of the plaintiff authorising it that in the event of termination of the agency under orders or instructions of the Government or due to happening of events beyond control of man's power, the P.LA. shall pay the balance of the sale price to the plaintiff after making deductions as per clause 24 of the agreement. The contents of this power of attorney were communicated to, and were confirmed by the defendant No. 2 by its letter dated 1-8-1978. The plaintiff by its letter dated 4-8-1978 addressed to the defendant No. 2, confirmed that a payment, of Rs. 12,348.01 is being made to the defendant No. 1 on its request and that the defendant No. 2 will store the goods in the Customs Bonded Warehouse under plaintiffs lien as per arrangements mutually agreed between the plaintiff and the defendant No. 2 by letter dated 26-7-1973 and the Power of Attorney dated 1-7-1973. This position was also confirmed by the defendant No. 2 by its letter dated 4-8-1974. The loan/cash credit was renewed ip October, 1974 to Rs. 4,00,000. Subsequently, the plaintiff opened two more Letters of Credit for Rs. 2,58,695 in pursuance to defendant No. 2's letter dated 1-4-1974 and for Rs. 1,70,000 on the same terms as mentioned in the letter dated 6-7-1973. The defendant No. 2 once against confirmed that the goods imported under these L/Cs will be kept under plaintiffs lien in their bonded warehouse. In accordance with the terms and conditions agreed between the parties, the defendant No. 2, from time to time, had sent inventories of goods, stored in their bonded warehouse, to the plaintiff. The plaintiff, to secure repayment of the loan/cash credit or any balance that might at any time be "ound due and payable by the defendant No. 1 to the plaintiff, got the defendant No. 1 execute a Promissory Note dated 19-2-1975 for Rs. 3,50,000 payable on demand to the plaintiff with interest at 4% per annum above theBank rate with a minimum of 13% per annum and also the other documents which were Agreement for Pledge dated 19-2-1975, Letter of Continuity, Letter of Acknowledgment and Letter of Disbursement, all of even date. The defendant No. 1 fully utilized the said loan/cash credit from the account maintained by the said defendant with the plaintiffs Airport Branch, Karachi. The goods which were imported by defendant No. 1 were released from the warehouse of the defendant No. 2 on requisition vouchers duly signed inter alia by the plaintiff, and the defendant No. 1 deposited the sale proceeds of the said goods with the plaintiffs Airport Branch. On 30-9-1976 the account of defendant No. 1 reflected a debit balance of Rs. 3,74,669. After coming to know that the defendant No. 2 had terminated the agency agreement with the defendant No. 1 the plaintiff, by its letters dated 30-8-1975 and 26-11-1975, requested the defendant No. 2 to deposit with the plaintiff the sale proceeds of the goods imported and sold but instead of depositing the sale proceeds the General Manager. P.I.A.. Duty Free Shops, by his Letter No. GM/DES/56/76/25, dated 27-11-1975 informed the plaintiff that the sale proceeds against the stocks of the Duty Free Shops cannot be deposited for any so-called adjustment of the plaintiff as they were not aware of any such dealings which were existing between the plaintiff and defendant No. 1. The plaintiff by its letter dated 26-11-1975 again requested the defendant No. 1 to adjust his liability in the said account but the defendant No. 1 failed and neglected to do the same. Again the plaintiff by its letter dated 27-5-1976 addressed to the Managing Director of defendant No. 2 made it clear that the goods imported under the different Letters of Credit by the defendant No. 1 were kept in P.I.A.'s. bonded warehouse under the pledge/lien of the plaintiff and the same could not be removed without the consent and written authority of the plaintiff as was agreed between them and if the goods have been removed from the said bonded warehouse and sold through the Duty Free Shops, the sale proceeds of the said goods must be deposited with the plaintiff in the account maintained by the defendant No. 1. The defendant No. 2, by its letter dated 5-11-1976, replied to the plaintiffs letter that under the agreement between the defendant No. 1 and defendant No. 2, the defendant. No. 2 has the first lien on the goods lying in the bonded warehouse and that the plaintiffs claim is only secondary and can be settled after the defendant No. 2's dues have been fully paid. This contention was denied by the plaintiff vide its letter dated 15-12-1976 and requested defendant No. 2 to pay it the sum of Rs. 3,62,906 due and outstanding from the defendant No. 1 to the plaintiff as on 30-10-1976. A reminder was also sent to the defendant No. 2 but the said defendant refused to comply with the request made in the letter of 15-12-1976, hence the present suit was filed for the recovery of Rs. 4,28,045.54 which was the sumdue as on 30-9-1977 with the prayer to pass judgment and decree against the defendants jointly and severally for the said amount with interest at 14% per annum from 1-10-1977 till realization, cost of the suit and any other relief which may be deemed fit and proper in the ircumstances of the case. In response to the notices issued, the defendants Nos. 1 and 2 filed their written statements dated 24-3-1980 and 7-10-1978 respectively. The defendant No. 1 while generally admitting the contents of the plaint, denied having executed any Promissory Note and also denied the verification of the contents of para. 15 for the reasons that the defendant No. 2 had taken over all the documents, memorandum, accounts books etc. The defendant No. 2 in its written statement contended that it strictly complied with and fulfilled its commitment relating to the release of the goods on requisition vouchers signed by the plaintiff but denied its liability to the plaintiff in any manner whatsoever. It also denied that the plaintiff had the first lien and charge on the goods imported by defendant No. 1 and lying in the bonded warehouse of defendant No. 2, as claimed by the plaintiff. It claimed that the claim of the plaintiff in respect of the said goods is only secondary as P.I.A. has the first charge over the goods as per agreement which was reached between the defendants Nos. 1 and 2. On the basis of the pleadings of the parties, the following issues were framed and adopted : (1) Whether the defendant No. 1 was partner of the defendant No. 2? Whether the defendant No. 2 was aware of the amounts advanced to the defendant No. 1 by the plaintiff for the import of goods in question? (2) Did the defendant No. 2 confirm to the plaintiff that the goods imported under the Letters of Credit in question will be stored in the bonded warehouse of the defendant No. 2 under the plaintiffs lien? or whether the defendant No. 2 had a first charge or lien on the goods ? (3) Whether suit is not maintainable against the defendant No. 2 as stated in para. 16 of its written statement ? Whether the documents referred in paras. 14 and 15 of the plaint were not executed by the defendant No. 1 as alleged by him ? (4) Whether the plaintiff is entitled to the decree in the suit? Ifso, against which of the defendants and to what extent? What should the decree be ?" By an order dated 20-10-1994 which was passed with the consent of the counsel for the plaintiff and the defendants, it was agreed that the plaintiff will file affidavit-in-evidence of its witness on which he will be cross examined. By another order dated 11-4-1995, Mr. Akbar Mirza, appearing for the defendant No. 2, stated that he does not wish to cross-examine the witness and as such the case was fixed for arguments.I have perused the pleadings, documents produced in evidence and have heard the arguments of the learned counsel and my findings on the ssues are as under : Before I proceed any further, the admitted position is that the agreement reached between the defendant No. 1 and defendant No. 2 was never communicated or its contents made known to the plaintiff except that after the cancellation of the agency the same was mentioned in the correspondence addressed to the plaintiff. The said so-called Agreement has not been produced even during the present proceedings. Mr. Mamnoon Hasan the learned counsel for the plaintiff has contended that as against defendant No. 1 a decree can be passed under Order 22, Rule 4(3), C.P.C., as in spite of the mandatory provisions the defendant No. 1 failed to file the List of Legal Heirs and though he filed written statement but the said defendant failed to appear subsequently and no evidence was led by him. He has relied on the case of Khairunnisa v. Muhammad Ishaque PLD 1972 SC 25, wherein the Court was pleased to hold that "under the provisions of section 27(b) of the Specific Relief Act, 1877 a contract can be specifically performed against any other person claiming title to the property arising subsequently to the original contract but an exception has been made in the case of transferee for value who has paid him money in good faith and without notice of the original contract". According to him, the only reference to the original contract made between the said two defendants was made in the Power of Attorney executed by defendant No. 1 in favour of the plaintiff. But, neither the said agreement nor its copy was ever produced by the defendant No. 1 or the defendant No. 2. According to the learned counsel, the document Exh. 6/5 was executed after the credit was made available to the defendant No. 1 on the representation of the defendant No. 2 and this was made in good faith without knowledge of any existing contract between the said two defendants As regards to a decree against defendant No. 2, he has relied onthe representation/undertaking made by the defendant No. 2 through various letters written to the plaintiff. According to him under section 8 of the Partnership Act, a partner can be taken even for a single venture. He has further relied on section 128 of the Partnership Act in regard to doctrine of holding out' and partnership by estoppel'. He has also relied on section 114 of Qanun-e-Shahadat and section 115 of Evidence Act as well as on the following cases : (1) Pakistan Insurance Corporation v. United Liner Agencies 1988 CLC 425, (2) Abbasin Limited v. Metal Exports 1988 MLD (Kar.) 440, (3) Province of West Pakistan v. G. C. Ratanchand Pir Mehfooz PLD 1958 Kar. 251, and Sarshar Ali v. Roberts Cotton Association Ltd. PLD 1963 SC 244. According to the learned counsel, the defendants are liable jointly and severally for the amount advanced to defendant No. 1 by the plaintiff.Mr. Akbar Mirza, the counsel appearing for the defendant No. 2, has contended that the case of the plaintiff is that, the loan was advanced to defendant No. 1 as an individual and not to a partnership firm or to the Duty Free Shops, or to the defendant No. 2 and that the plaintiff had never asked the defendant No. 2 to repay the loan but had made a request to sell the goods belonging to defendant No. 1 as they were under the lien of the plaintiff. According to him the letter dated 21-11-1972 Exh. 6/3 stating that the defendant No. 1 is the managing partner of the defendant No. 2, was not addressed to the plaintiff but was a general letter and if the plaintiff had advanced loan on this letter it was not the responsibility of the defendant No. 9 His next contention was that in Exh. 6/4 the defendant No. 2 did mention of a contract between the P.I.A. defendant No. 2 and Ghaffar Azeem defendant No. 1 but the plaintiff never inquired in regard this contract. According to him, the only undertaking which was given by the defendant No. 2 to the plaintiff was that it will not release the goods, belonging to defendant No. 1 and kept in the bonded warehouse of defendant No. 2, without the requisition slips signed by the plaintiff. Now coming to the issues Nos. 1 and 2 the letter dated 7-11-1972 Exh. 6/2, addressed by defendant No. 2 to the Secretary, Central Board of Revenue, clearly indicate that Ghaffar Azeem defendant No. 1 was appointed as Managing Partner for the Duty Free Shops at Karachi and Islamabad and as such he was authorised to deal with all matters concerning the Duty Free Shops with the Government Agencies and outside parties on behalf of P.I.A. defend a «t No. 1. Exh. 6/3 is a letter dated 21-11-1972 which is as under :"This is to advise all concerned that Mr. Ghaffar Azim Khan is associated with us as a Managing Partner of our Duty Free Shops, which will be totally equipped by him with the entire saleable stocks from his own finances. These goods will be bounded by P.I.A. as per our contract. However, for banking transactions Mr. Ghaffar Azim Khan being the sole buyer of these goods, can pledge these to any bank he wishes (Sd.) M. AQUIL, Deputy Director Ground Services. These two exhibits survey clearly show that the P.I.A. defendant No. 2 had authorised the defendant No. 1 as its Managing Partner to deal with all matters concerning Duty Free Shops and this was addressed to "all concerned". In Exh. 6/3 it is further clarified"that for banking transactions Ghaffar Azim, being the sole buyer of the goods, could pledge the same to any bank he wished. These two documents did not indicate at all that there any contract between the said two defendants which restricted the powers of the defendant No. 1 in regard to the financial matters or the repayment of any advances in regard to the pledged goods by any financial institution. The subsequent correspondence also indicate that a clear understanding was reached between the defendants and the plaintiff that the imported goods, for which finances were advanced by the plaintiff were the sole property of the defendant No. 2 and will be kept in the bonded warehouse of defendant No. 2 which could be released only on the requisition slip of the plaintiff. In pursuance to the agreement between the parties, the P.I.A. also supplied to the plaintiff from time to time inventories of the stock lying with in this bonded warehouse. In the entire dealing nowhere the P.I.A. defendant No. 2 had made it clear to the plaintiff bank that it had a first charge over the goods of the defendant No. 1 under some existing contract. In the absence of any such information to the plaintiff; either by defendant No. 1 or by defendant No. 2, the plaintiff advanced the cash credit facilities to the defendant No. 1 which were fully availed by the said defendant who was managing the Duty Free Shops as the managing partner of the defendant No. 2. As such, after the termination of the agency of the defendant No. 1, the defendant No. 2 could not lay a claim on the goods to pledged with the plaintiff. The defendant No. 2 did not even had the authority to remove the said goods from its bonded warehouse as under the agreement between the parties, the said goods could only be removed on the requisition slips signed by the plaintiff As such my answer to issues No. 1 and 2 in the affirmative. Issue No. 3: In the light of the discussion under Issues No. 1 and 2 the first part of Issue No. 3, if the defendant No. 2 confirmed to the plaintiff that "the goods imported under the Letters of Credit in question will be stored in bonded warehouse of the defendant No. 2 under the plaintiffs lien" is also answered in affirmative, while in regard to the second part of the same issue, i.e., "whether the defendant No. 2 had a first charge or lien on the goods" is answered in negative as the alleged agreement between the two defendants was never produced and as such cannot be considered in deciding this issue. Issue No. 4: As already discussed, there existed an agreement between the plaintiff and the defendants to the extent that the goods imported by the defendant No. 1 will be kept in the bonded warehouse of defendant No. 2 and will be released only on the requisition of the plaintiff, the defendant No. 2 violated the said terms by removing the pledged goods from the bonded warehouse without the requisition of the plaintiff, and after the sale of the same, failed to deposit the sale proceeds in the account maintained by the defendant No. 1 with the plaintiffs Airport Branch and as such a cause accrued to the plaintiff against the said defendant. Answer to this issue as such is in affirmative. Issue No. 5: Although the defendant No. 1 has denied the execution of the promissory note and other documents. But he has not denied his signatures, on these documents which have been produced by the plaintiff. The reply to para. 15 of the plaint is that the execution of any of the documents alleged in para. 15 will be without consideration as the duty free shop and goods therein belonged to defendant No. 2. The above qualifying reply cannot be termed a denial of the execution of documents. The said defendant has also failed to appear and produce any evidence in the rebuttal. As such, answer to this issue is that the said documents were executed by the defendant No. 1. Issues No. 6 and 7: As answers to the previous issues have been given in affirmative. I find that the plaintiff is entitled to a judgment and decree for Rs. 428,045 54 with interest at 6% per annum jointly and severally against the defendants from the date of filing of the suit till payment. The said decree as against the defendant No. 2 will be to the extent of the value of goods which were lying in the bonded warehouse of defendant No. 2 at the time when the said agency was terminated and the said defendant took over the control of the Duly Free Shop at Karachi. However, there will be no order as to costs.The above are the reasons for the,short order dated 13-9-1995. (K.A.B.)' Suit decreed

PLJ 1998 Karachi 81 (DB) PLJ 1998 Karachi 81 (DB) Present : WAJIHUDDIN AHMED AND HAMID ALI MlRZA. ALI, JJ. Begum BUSHRA HYDER-Appellant versus Raja GHULAM HYDER and another-Respondents High Court Appeal No. 100 of 1995, heard on 7 8-1996. (i) Civil Procedure Code, 1908 (V of 1908)-- —-O. XLV, R. 1 & O.XXXIX, Rr. 1 & 2 read with Law Reforms Ordinance (XII of 1972), S. 3-Receiver--Appointment of-Plainiff s application for appointment of Receiver and defendant's application seeking restraint against plaintiff from using part of house in his occupation-Single Judge in context of appointment of Receiver implicitly denied relief-Single Judge in effect, through impugned order, had proceeded to decree wholesuit which itself was for appointment of Receiver in final analysis to implement agreement in question-Receiver having been appointed at interim level pursuant to impugned order there was nothing left for trial- -Specific portion of appointment of Receiver objected to by defendant was, thus, recalled. [P. 84] A (ii) Civil Procedure Code, 1908 (V of 1908)- —-O.XXXIX, Rr. 1 & 2-Defendant's application seeking order of restraint against plaintiff from using part of house in possession-Any order relating to restraint against plaintiff from using part of house in his possession would amount to dispossessing plaintiff at judicial level-­Defendant's application would amount to curtailing his possessory rights. [P. 84] B Choudhry Muhammad Jameel for Appellant. J.H. Rahimtoola for Respondent No. 1. Date of hearing : 7-8-1996 judgment Wajihuddin Ahmed, J.--On 18-9-1995, the following ad interim order in this High Court Appeal was passed :--"Mr. J.H. Rahimtoola says that copies of all annexures to the memo, of appeal have not been provided. Let the needful be done within three days. Adjourned, by consent, to 27-9-1995 but till then the Receiver appointed by the learned Single Judge shall not take steps to dispose of the property though, at the same time, he may take action to complete the title in relation to the same." LTpon further hearing of the parties, on 27-9-1995, yet another order to the under-noted effect was passed :-- "2. Contention of the learned counsel for the appellant is that by appointing Receiver in the case the learned SingleJudge has virtually decreed the suit inasmuch as in place ofthe machinery envisaged in the Agreement it would now be the Receiver who shall implement the Agreement in suit. In d so far as the respondent No. 1-plaintiff is concerned, Mr. J.H. Rahimtoola has stated before us that the plaint in the suit should be read as one whereby the plaintiff-respondent has shown his absolute willingness to honour his part of the contract under the Agreement in suit. On our part we have noted that there is no express revocation of the Agreement from the side of the plaintiffrespondent No. 1 and all that happened was that at one stage the respondent No. 2, Dr. Mansoor Dar, who was assigned certain responsibilities under the Agreement, expressed his unwillingness to continue as the Agreement had remained unexecuted for a period of one year and as according to such Dr. Mansoor Dar, the plaintiff-respondent No. 1 had been taking shifting stands. This apparently was followed by a revocation of the Agreement from the side of the appellant-defendant per letter dated 17-5-1993 (page 107). In this view of the matter where one of the parties to the transaction has rescinded the Agreement, rightly or wrongly no one knows at this stage, ex facie a Receiver to implement such an Agreement may not have been properly appointed. We would, therefore, admit this appeal to regular hearing but no notices shall issue except to the respondent No. 2 to whom notices would go in the ordinary course by registered post A/D and under certificate of posting. In so far as the respondent No. 3 is concerned, who was the Receiver appointed by the learned Single Judge, there was no justification legal or otherwise to irapiead him as a respondent. We would, therefore, direct the appellant to forthwith delete the name of such respondent in red ink in presence of the Superintendent of the Branch. 3. Notice as above but till the next parties would maintain status quo except as regards their personal relations in the context of which a suit for dissolution of marriage is stated to be pending. The Receiver appointed by the Court would abide by the order passed by us on 18-9-1995."At this stage, we are informed that in Civil Petition No. 587 of 1995. where the matter was taken by the respondent No. 1, their Lordships of the Supreme Court observed "that Receiver will not take any further step in the matter" with the resiilt that since then the Receiver has stayed off his hands. Taking up the controversy, while the learned Single Judge in the impugned order had recorded a contention of Mr. J.H. Rahimtoola for the respondent No. 1-plaintiff "that since the parties have failed to bid by the terms and conditions of the settlement deed, the same is no more in existence", Mr. J.H. Rahimtoola has drawn our attention to a proceeding entitled "Submissions on behalf of the respondent No. 1" submitted in this appeal on 25-9-1995, wherein it was maintained that "counsel did not say settlement was no more in existence as mistaken or misunderstood and mentioned in the order under appeal". What is more, it was recorded in the order dated 27-9-1995, reproduced above, that the respondent No. 1-plaintiff fully subscribed to the substance of the entire agreement including that po^'in of it. regarding which relief was sought in the suit. Indeed, it is inconceivable that a party would come to seek enforcement of a substantial term in an agreement and at the same time resile from it, saying that such had become inoperative. We are, therefore, constrained to conclude that there was some misunderstanding which led to the above observation of the learned Single Judge in the impugned order. Accordingly, we would act on the above-referred statement and undertaking recorded from the side of the respondent No, 1-plaintiff in this appeal As to the merits of the controversy, Choudhry Muhammad Jameel has contended that, in effect, the learned Single Judge, through the irapugned order, has proceeded to decree the whole suit which itself was for an appointment of Receiver, in the final analysis, the Receiver to implement the agreement having boen appointed at the interim level pursuant to the impugned order. In this view, nothing is left for trial. The learned counsel appears to be right and, on such basis, the relevant portion of the impugned order warrants recall and we recall it. Yet another argument of the learned counsel for the appellantdefendant No. 1 is that the other application before the learned Single Judge, nameiy that which was filed by the appellant-defendant No. 1 seeking restraint against the respondent No. 1-plaintiff (husband of appellant) from using the part, of the house in his occupation, had remained undisposed of and may be adequately dealt with. It seems to us that in the context of the order of appointment of Receiver, the learned Single Judge, relative to such application, appears to have implicitly denied relief to the appellantdefendant. On our part, even though we have recalled the order of the learned Single Judge, as above, we also see no justification, even in the current stage of facts, to issue an order of restraint in the terms claimed because that, in effect, would amount to dispossessing somebody or at least curtailing the possessory rights of somebody who admittedly is in possession. Such kind of relief cannot be granted in this manner, moreso, when the controversy is alive and is being dealt with at the judicial level. This application, therefore, we expressly dismiss while disposing of this appeal The upshot of the above discussion is that the case would now go back to the learned Single Judge for decision according to law and such decision would be arrived at upon framing due issues on hearing the parties That being done, as far as possible, the suit would be expeditiously disposed of because such is a controversy between a husband and a wife and .apparently the peace of the entire family is at stake in the proceedings Subject to the foregoing, the appeal is disposed of (K.A.B.) Order accordingly

PLJ 1998 Karachi 85 PLJ 1998 Karachi 85 Present: RASHEED A. razvi, J. M/s MONA LISA FRUIT JUICE INDUSTRIES LTD.-Plaintiff versus GOVT. OF SINDH through its SECRETARY, HOUSING TOWN PLANNING & LOCAL BODIES, KARACHI and 5 others-Respondents Suit No. 963 of 1991, decided on 20.11.1996. Civil Procedure Code, 1908 (V of 1908)-- -—Order 1 Rule 10-Suit for declaration and injunction-Jntervenors to beimpleaded as defendants-Application for-Whether intervenors, who were allotted plots after passing of interim injunction are entitled to join in suit as defendants-- Question of—It is a settled law that a party, even if not a necessary party, is to be impleaded, if it appears that such party is aproper party and in his absence all issues and questions involved in a suit cannot he effectually and completely adjudicated and it is not necessaiy that plaintiff must seek relief against such proposed defendant--If a suit is to be decreed and by such decree any party is going to be adversely affected then such ^srty is necessary party and it is essential that it should be present before court-It is also a settled principle of law that court should avoid multiplicity of proceedings and shorten litigation—If intervenors ar;? not impleaded as defendants there exists every likelihood that they may file separate .-aits to protect their rights which would amount to promoting litigation and may also result in conflicting judgments-Held: For purpose of full and fair adjudication of all issues and questions involved in suit; in order to avoid multiplicity of proceedings; to shorten litigation and to avoid conflicting judgments, intervenors appear to be necessary parties are entitled to be joined as defendants-Application granted. [Pp. 89, & 92] A & B Mr. Muhammad Sharif, Advocate for Plaintiff. Mr. Hassan Inamullah, Advocate for Defendant No. 1. Mr. Dasti Muhammad Ibrahim, Advocate for Defendant No. 2. Mr. Suleman Kassim, Advocate for Intervenor/ Proposed Defendant. Dates of hearing: 4.9.1996, 19.9.1996 and 6.10.1996. order I intend to dispose of through this common order, two miscellaneous applications under Order I, Rule 10, C.P.C. (CMA 1626/92 & CMA- 3139/93), filed by the Intervenors, who are now being represented by Mr. Suleman Kassim, Advocate This is a suit for declaration and injunction in respect of a piece of land measuring 5600 square yards, situated opposite the plot of plaintiff in Sector 15, Korangi Industrial Area, Karachi. The plaintiff is seeking declaration that may be declared entitled to allotment of the said land in view of the order passed by the Chief Minister of Sindh vide Annexure 'B' to the plaint. The plaintiff has also prayed for interim injunction, restraining the defendants from allotting the said piece of land to any other person except the plaintiff, till disposal of this suit. This suit was filed on 3.9.1991 when ad interim order was passed against the defendants, restraining them from dispossessing the plaintiff from the suit plot. Subsequent, defendants were served and filed their respective counter affidavits and written statements on 3.11.1991. Plaintiffs application under Order XXXIX, Rules 1 and 2, C.P.C. (CMA-4038/91) was allowed on 3.11.1991 and the injunction as prayed was granted till disposal of this suit. Since the present controversy revolves against the order of interim injunction passed by this Court on 3.11.1991, it would be advantageous if the contents of CMA No. 4038/91 are reproduced: "It, is prayed on behalf of the plaintiff above named that this Hon'ble Court may be pleased to grant an ad-interim injunction, restraining the Defendants or anybody in their name or on their behalf from allotting the Plot measuring 134 x 380 sq. ft. equalling to 5600 sq. yards situated in front of the factoiy premises of the plaintiff to anybody except the plaintiff and also restrain the Defendants from causing forcible dispossession of the plaintiff therefrom, till the final decision of the above suit." (Underlining is mine). CMA No. 1626/92 has been filed on behalf of the Intervenors, namely, Nawaz son of late Haji Muhammad Safdar, Muhammad Ibrahim son of Gulzar Khan and Mst. Farida Khanum w/o Muhammad Ali on the ground that they were allotted plot from suit land, i.e. Plots No. 119, 121 and 116 in Sector, 15, Korangi Industrial Area, Karachi, each measuring 997.60 sq. yards. Their claim is that they are lawful allottees of these industrial plots which were allotted to them by the defendant No. 2, namely, K.D.A. and therefore, for all legal intent and purpose they are necessary and proper parties. C.M.A. No. 3139/93 is filed on behalf of M/s Pak Leather Crafts Limited which is a duly incorporated company. Its case is that two industrial plots bearing Nos. 117 and 118 were allotted on 17.3.1992 by the K.D.A. i.e. defendant No. 2 after observing all legal formalities and, therefore, the applicant/intervenor is also necessary and proper party. I have heard Mr. Muhammad Sharif, Advocate for the plaintiff, Mr. Suleman Kassim for She intervenors/proposed defendants, Mr. Hassan Inanrullah, Advocate for defendant No. 1 and Mr. Dasti Muhammad Ibrahim, Advocate for defendant No. 2/K.D.A. It is strenuously contended by Mr. Muhammad Sharif that these intervenors were allotted plot after 3.11.1991 in violation of this Court's order dated 3.11.1991 through which the defendants were restrained from allotting suit property to any other person/party. In support of his contention Mr. Muhammad Sharif has referred to paras 3, 14 and 15 of the written statement filed by the defendant No. 2, namely, K.D.A.. as well as written statement of defendant No. 1. According to the learned counsel for the plaintiff since the defendant No. 2 has allotted this land in violation of this Court's order and since these intervenors are also parties in violation of this Court's order, they being contemners, are not entitled to be impleaded as defendants in this suit. It is further argued by Mr, Muhammad Sharif that the so called intervenors/defendants through the instant application want to introduce a fresh cause of action, which is not permissible either in equity or under law. It was contended that the allotments granted to the intervenors by the K.D.A, are in violation of the allotment rules and that by virtue of this fact they cannot be considered as necessary parties. Mr. Sharif has referred to the following cases:- 1. Abdul Rasul and 6 others v. Province of Sindh and 20 others (PLD 1973 Karachi 606); 2. Muhammad Ramzan and another v. Nazeer Ahmed and 2 others (1979 CLC 95); 3. Hussain Mills Ltd. u. Abdul Rasheed Khan and another (1984 CLC 2452); 4. Altaf Parekh v. Deiments Construction Company (1992 CLC 700); 5. Mst. Huma Ghauri v. Zahiruddin and 4 others (1985 CLC 762); and 6. Ahmed Din v. Muhammad Bashir and 6 others (N.L.R. 1992 Civil 250). Mr. Suleman Kassim, Advocate for the intervenors has taken me through several documents in support of these applications, indicating that the present intervenors are allottees of several industrial plots carved out of suit property. It has not been denied by any of the iutervenors that the plots allotted to them by the K.D.A. are not the property in suit. According to the learned counsel, since these intervenors are lawful and bonafide allottees of the properties, they would be adversely affected, in case the suit of the plaintiff is decreed and, therefore, they being necessary parties are entitled to be joined as defendants. In alternate, it was argued that in case of any violation of this Court's order the alleged contemners are liable to be punished, but the transaction is protected and, therefore, according to the learned counsel, the intervenors who were not aware of this Court's order and they being lawful allottees are necessary parties and entitled to be joined as defendants. In support of his contentions he has referred to the following cases: 1. Mst. Saeeda Akhtar and others v. Lai Din and others (PLD 1981 Lahore 623); 2 Shadi Muhammad etc. v. Abdur Rasheed etc. (1994 Law Notes (Lahore) 577); 3. Suleman Zulfiqar Mehdi v. Habibur Rehman and others (1986 MLD 195); 4. Mst. Jannat and others v. Arab and others (1987 MLD 2266); 5. Muhammad Humayun Khan and others v. Ali Asghar and others (1991 MLD 1957); 6. Muhammad Siddique v. Yahya Khan (1994 CLC 1374); and 7. Muhammad Arshad and another v. Mst. Firduasia Begum and 4 others (1994 CLC 1967) I have gone through the pleadings of the parties as well as through the documents filed by the proposed defendants/intervenors. There are certain facts in this case which have not been specifically denied by the present defendants which may be summarised as follows:- (i) That a piece of land about 134 x 380 sq. ft. measuring to 5600 sq. yards was lying vacant in front of the factory premises of the plaintiff, for which the plaintiff approached the then Chief Minister, who passed the orders for allotment of the said piece of land without "summary'. These facts were alleged by the plaintiff vide paras 9, 11 and 14 of the plaint. Although, the defendant No. 1 has denied in its counter affidavit about the allegations made in these paras but have admitted contents of para 14 of the plaint to the extent that the Chief Minister of Sindh, who is the competent authority, has passed the orders as claimed by the plaintiff. The defendant No. 2 has taken two mutually destructive pleas. In reply to paras 9 and 10 of the plaint, it is claimed by the defendant No. 2 that the area, as pointed out by the plaintiff, was kept for railway reservation as per approved plan, however, it was admitted by the Defendant No. 2 that the Chief Minister has passed orders for allotment of this land to the plaintiff without summary. In the same para, this defendant has also admitted that vide drawing No. K. 768 dated 15.7.1990 the said defendant has created an industrial plot of about 1000 sq. yards. Nowhere in both these written statements or even in the counter affidavits to the injunction application, these defendants have stated how, and in what manner these five industrial plots carved out of the suit land, which was earlier marked allocated for railway reservation, were allotted to the present intervenors. (ii) That all the intervenors were allotted these industrial plots after 3.11.1991 when CMA No. 4038/91 was granted, as prayed by this Court. It is an admitted position that intervenor Nawaz son of Late Haji Muhammad Safar was allotted industrial plot No. 119 on 7.1.1992, intervenor Muhammad Ibrahim was allotted Plot No. 121 on 19.8.1992, intervenor Mst. Farida Khanum was allotted industrial plot No. 116 on 7.3.1992 and intervenor M/s Pak Leather Crafts Limited acquired rights of industrial Plot Nos. 118 and 117 on 17.3.1992 as both these plots were transferred to this intervenor which were initially allotted to M/s Noor Traders and M.K. Traders in the month of January, 1992 In view of the above noted facts, the question which .arises for consideration is that whether these intervenors, who were allotted the plots . after passing of interim injunction are entitled to join in the suit as defendants? With this view, I would like to examine the case law cited at bar by both the learned counsel In Abdul Rasul and others (PLD 1973 Karachi 606), a learned single Judge of this Court allowed the civil revision application and set aside the order of the appellate court, through which certain persons who were not parties to the suit in the trial court were joined as respondents at the appeal stage. It was held that by impleading said persons at the appellate stage would enlarge the controversy in appeal and would set up an independent claim against the plaintiff. In Muhammad Ramzan (1979 CLC 95), a learned single Judge of Lahore High Court held that impleading or joining any person as defendant under Order I, Rule 10, C.P.C. is for the purpose of settling all the questions involved in the suit and not to introduce new controversy in the suit or to change its character altogether "even though controversy may be relatable to the property in dispute." (Underlining is mine). In this case the learned single Judge of Lahore High Court followed the case of H. Sitaramaya v. Ramappay & others (AIR 1980 Madras 1137). In Hussain Mills Limited (1984 CLC 2452), a learned single Judge allowed the Civil Revision Petition and set aside the order of the Civil Judge, through which application under Order I, Rule 10, C.P.C. was dismissed. It was alsoobserved that the application of such nature must not be granted if its grant impleads a person through which the nature of suit is altered. In Huma Ghauri (1985 CLC 762), it was held by a learned single Judge of Lahore High Court that striking out or adding of necessary parties must not be allowed to change the character of suit and that while considering such application, contents of plaint could only be noticed. In Ahmed Din (N.L.R. 1992 Civil 250), a writ petition was dismissed by the Lahore High Court It was held that where a person has become interested in the suit property by some chance was not treated good ground for joining such person in the suit. In the last cited case by the plaintiff Altaf Parekh (1992 CLC 700), a learned single Judge of this Court, Mr. G.H. Malik, J. (as he then was) after considering nearly all the cases as discussed hereinbefore, dismissed an application under Order I, Rule 10, C.P.C. filed in a suit for declaration, permanent injunction, possession and damages. In this last reported case one lady Mst. Shamim Fatima prayed to the Court that she be joined as defendant on the ground that she has purchased this property from the plaintiff and further claimed that the defendant K.D.A. has allotted the suit plot to her. Her application was dismissed on the consideration, inter alia, that it amounts to introducing new cause of action and that such person cannot be permitted to become a party to the suit; that plaintiff is a dominus litis and that no party should be added as party to a suit against the wishes of the plaintiff. Following is the relevant para in the case of Altaf Parekh:- "It appears from the above cases that the expression "questions involved in the suit" in Order I, Rule 10(2), C.P.C. has reference to only those questions which arise between the parties to the suit. It may, however, be necessary in order to effectually and completely determine all such questions to consider points or material which have not been raised or brought before the Court by the parties to the suit but by third parties; and in that case the person who raises such points or brings such material before the Court as is relevant for determining the question involved in the suit is a proper party and may be impleaded as such. Such points or material, however, should not be such as will extend the scope of the controversy between the parties or add a new cause of action unconnected with the original cause of action. The question involved in the present case is whether the plaintiff is the owner of the property and whether he is entitled to the possession thereof; and, as stated above, it is not clear what question arises on the allegations contained in the application of the intervenor/applicant. The only possible question, if any, that may arise is whether the applicant has derived any interest in the property from the plaintiff or the defendant. That, however, is an entirely separate matter and is not a question involved in the suit. Further, the question raised by the applicant is not relevant for determining the controversy between the parties to the suit. The applicant is, therefore, neither, necessaiy nor proper party to the suit." (Underlining is mine). Now, I proceed to examine the case law cited by Mr. Suleman Kassim. In Mst. Saeeda Akhtar (PLD 1981 Lahore 623), it was held by a Division Bench of Lahore High Court that a sale effected in violation of Court's prohibitory orders merely entail penal consequences for the purchaser of such property but the orders do not detract from validity of the sale. In this case a learned Division Bench of Lahore High Court made reference to the case ofBeli Ram & Brothers v. Ram Lai & others (AIR 1925 Lahore 644). In the case of Suleman Zulftqar (1986 MLD 195) it was held by a learned Division Bench of this Court comprising of Mr. K.. Ghani and Mr. Naeemuddin, JJ., (as their lordships then were) that where a party is in possession of the property in lieu of an agreement to sell and is having a vital interest in the property such party is entitled to be impleaded in the suit for fair and just adjudication; for the purpose of avoiding multiplicity of proceedings; to advance cause of justice; to shorten litigation and to eliminate chances of fraud and collusion. The rule laid down by the Hon'ble Supreme Court in the case of Mst. Khursheed v. Malika and others (1983 SCMR 534) was followed by the said Division Bench. In Mst. Jannat and others (1987 MLD 2266), a learned single Judge of this Court defined the expression "proper party" as a party whose presence before the Court is necessary to enable the Court to effectually and completely adjudicate and settle all questions involved in the suit. It was further held that the term "question involved" includes all matters material to a proper decision of the case with the purpose to prevent multiplicity of proceedings. The learned single Judge followed the dictum laid down by the Hon'ble Supreme Court in the case of Pakistan v. Abdul Wali Khan (PLD 1975 S.C. 463). In Muhammad Humayun (1991 MLD 1957) the Lahore High Court dismissed a writ petition and upheld the order of Additional District Judge impleading respondent No. 1 as one of the defendant in the suit. In this case, it was held by a Division Bench of Lahore High Court that one Ali Asghar Khan's presence before the Court was necessaiy to effectually and completely adjudicate upon and settle all points involved in he suit as the said person was a proper party. In Muhammad Siddiq (1994 CLC 1374) it was held by a single Judge of Lahore High Court that in a matter of University, Provincial Government was necessary party and, therefore, the Court was obliged to implead the government as necessary party in the case and was not justified to decree the suit without first impleading the Provincial Government as one of the parties and that no party should be saddled with liability without affording an opportunity to defend itself. It was further held that the adjudication of the dispute is to be done in one forum to avoid any conflicting or contradictory decisions. In Muhammad Arshad (1994 CLC 1967) it washeld by a single Judge of Lahore High Court that a defendant who was a party to a previous litigation was necessary and proper part)' and impleadment of such party was necessary even to decide the plea of res judicata raised by the other defendants. In this reported case, the party seeking to be joined as one of the defendants was also a joint owner/cosharer of the property in suit. It is a settled law that a party, even if not a necessary party, is to be impleaded, if it appears that such party is a proper party and in his absence all the issues and questions involved in a suit cannot be effectually and completely adjudicated. It is not necessary that the plaintiff must seek relief against such proposed defendants. In my view, if a suit is to be decreed and by such decree any party is going to be adversely affected then such party is necessary party and it is essential that it should be present before the Court. It is also a settled principle of law that the Court should avoid multiplicity of proceedings and shorten the litigation. In the case ofMst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 S.C. 220), it was held that a discretion is vested in this behalf in the courts to be judicially exercised in proper cases in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice. In the instant case, if the intervenors are not impleaded as defendants there exists every likelihood that they may file separate suits to protect their rights which would amount to promoting litigation and may also result in conflicting judgments. As far as Mr. Muhammad Sharif s objection that a contemner is not entitled to any relief, including the relief to be impleaded as defendant is concerned, it would suffice to observe that this would be an issue before the Court during the trial as to what should be the consequence of all such allotments/transfer of the properties in violation of an order of injunction granted by this Court. Even this issue cannot be decided in absence of these intervenors. Therefore, I am of the considered view that it would be in the interest of justice, equity, and good conscious that these applications be granted. I am also of the view that for the purpose of full and fair adjudication of all issues and questions involved in the suit; in order to avoid multiplicity of proceedings; to shorten litigation and to avoid conflicting judgments, the intervenors appear to be necessary parties and are entitled to be joined as defendants. As a result of this finding, I grant both the applications (CMA-1626/92 & CMA-3139/93) subject to all just exceptions Four weeks' time is granted to the plaintiff to file amended plaint. The plaintiff is further directed to supply copies of the amended plaint to the respective defendants, who, if choose so, may file their amended written statements. (AAJS)

PLJ 1998 Karachi 93 PLJ 1998 Karachi 93 Present: rasheed A. razvi , J. MARRIAGE HALL ASSOCIATION-Plaintiff versus CHAIRMAN CBR and two others-Respondents Civil Suit No. 594 of 1996, dismissed on 27.6.1996. Civil Procedure Code, 1908 (V of 1908)-- —-O. 1 R. 8 r/w Section 151-Suit pending for permanent injunction and refund of amount of Central Excise duty realised by CBR from members of association—Maintainability—Whether a registered association can file and maintain a suit on behalf of its members as representative suit when association itself has not suffered any personal injury-Question of-It wasnot disclosed by plaintiff that suit is being filed by it in representative capacity-Resolution as well as plaint no where indicated that suit was brought by all members of association or on their behalf-Suit was filed on 27.6.1996 while application for representative was filed after a delay of nearly six months-Held: It was not intention of the plaintiff at time of filing their suit that they intended to file it as a representative suit and for reason that application under order I, Rule 8 CPC was filed at belated stage with defective and incomplete list of members on whose behalf suit was filed-Application dismissed. [Pp. 93, 95, 98 & 100] A, B, C & D Mr. Farogh Nasim, Advocate for Plaintiff. Mr. Makhdoom All Khan, Advocate for Defendants. order This is a suit filed by a registered Association seeking declaration, permanent injunction and refund of the amount realised by the defendants as Central Excise Duty from the members of plaintiff Association. In their written statement, defendants raised several objections to the maintainability of the suit including locus standi and competency of the plaintiff to maintain this suit. In reply to such objections, plaintiff filed an application under Order I, Rule 8, C.P.C. read with section 151, C.P.C. with the following prayers: (a' clarify that the plaintiff, a registered body, can enforce the rights of its members and seek injunction/declaration on their behalf without the necessity of impleading the same or converting the suit into a representative cause; (b) without prejudice, in default of (a) above and if so required, this Hon'ble Court may kindly be pleased to allow the plaintiff/applicant to convert the instant suit into a representative suit by impleading the members of the plaintiff as co-plaintiffs as specified in the attached list (Annexure X-l) after compliance of necessary formalities. By consent of the parties, it was decided that the above application alongwith legal objections raised by Mr. Makhdoom Ali Khan be heard first. The case of the plaintiff is that it is a duly registered body and its members are owners of several marriage halls, lawns and gardens which they are running for the purpose of holding functions, ceremonies, parties and other gatherings on commercial basis. It is claimed in the plaint that the owners of such premises in no manner render services to their respective customers while arranging functions of marriages or of like nature; that in furtherance of powers conferred on defendant No. 1 under section 37 of the Central Excise and Salt Act, 1944 (hereinafter referred to as the Ace 1944). the Rule .176 of the Central Excise Rules, 1944 (hereinafter referred as the Rules 1944) was amended and SRO 65KD/90 dated 26.6.1990 was issued through which marriage lawns and gardens were equated with hotels and restaurants and excise duty was imposed on marriage halls situated within Metropolitan Corporation at the rate of Rs. 10,000/- (rupees ten thousand only).per year; that the defendant No. 1 again issued another SRO 590(l)/93 dated 15.7.1993 levying fixed amount of Central Excise Duty; that on 11.10.1994, through Notification SRO 1015(l)/94, the defendant No. 1 prescribed fixed amount of Central Excise Duty on marriage halls against which the members of the plaintiff association protested and issued several communications including public advertisements. It is further case of the plaintiff that all such amendments in the Act 1944 and the Rules 1944 with a view to impose Excise Duty on marriage halls and gardens are without jurisdiction, without any lawful authority and illegal and that the defendants are not entitled to recover the same. The plaintiff has prayed for the following relief in the plaint:- 1. declare that the plaintiff and its members do not render any service and accordingly could not be made subject to payment of the central excise duty; 2. declare SRO 65KD/90 dated 24.6.90, SRO 590(I)/93 dated 15.7.93, SRO 59KD/93 dated 15.7.93, SRO 1003 (D/94 dated 10.10.94, SOR 1015(I)/94 dated 11.10.94, SRO 1016(I)/94 dated 11.10.94, letters dated 19.3.96, 22.3.96 and 10.6.96 and others marked as Annexures D-l to D-8 and SOR 460(I)/96 dated 13.6.96 and offending parts thereto and any other consequential order, letter or notice as unconstitutional, illegal, without jurisdiction, void ab initio and of no legal effect, and inapplicable to the plaintiff and its members; 3. direct the defendants to administer the refunds of centralexcise duty illegally collected thus far and hereafter plus additional refund, mark up or indexation till the date of payment; 4. permanently restrain the defendants from charging central excise duty from the plaintiff and its members in pursuance of letter dated 19.3.1993 issued by defendant No. 1 or any other such letter/which issued as a follow up by any defendant or SRO 460(I)/96 dated 13.6.96 issued by defendant No. 1 or any other letter, notice or notification in this regard; 5. pending disposal of the main suit grant temporaryinjunction restraining the defendants from charging central excise duty from the plaintiff and its members in pursuance of the letter dated 19.3.1993 issued by the defendant No. 1 or any other such letter or notice issued as a follow up by any defendant or SOR 460(I)/96 dated 13.6.96 issued by defendant No. 1 or any other letters, notices or notification in this regard; 6 I have heard Mr. Farogh Nasim, Advocate for plaintiff and Mr. Makhdoom Ali Khan, Advocate for defendants. The moot question is whether a registered Association as of the plaintiff can file and maintain a suit of the instant nature when the plaintiff association has not suffered any personal injury. Mr. Farogh Nasim has referred to Section 6 of the Societies Registration Act, 1860 which provides that every society registered under the said Act may sue or be sued in the name of President, Chairman or Principal Secretary as provided in the Rules and Regulations of the Society. Likewise, this section further provides that any person can also sue the registered Society through its President, Chairman or Principal Secretary. There is no cavil to the proposition that a registered Society being a juristic person/sai juris can file and maintain a suit but such suit should be filed through its President, Chairman or through its Secretary as provided by the Rules and Regulations of the Society. Where rules and regulations of a registered society do not authorise any of its office bearers then in the name of any person/member as may be appointed by the governing body of the said society. In the instant case, the title of the plaint is silent as to through whom this suit is being filed? However, in para 1 of the plaint it is submitted that one Shaikh Riazuddin, General Secretary, is authorised to verify the plaint/pleadings and to institute the suit. In support, a resolution dated 27.6.1996 is filed which says that one Shah Riazuddin (not Shaikh Riazuddin) is authorised to institute this suit, to sign and file documents and verify pleadings. The plaintiff has not filed any copy of rules and regulations or memorandum or Articles of Association in order to show whether suchrules, regulations or memorandum of association confers authority on the Secretary to institute this suit. In support of his application, Mr. Farogh Nasim has referred to the case of The Sakharkherda Education Society, Sakharkherda v. The State of Maharashtra (AIR 1968 Bombay 91) where a Division Bench of Bombay High Court while dealing with the objection that a registered society which is not a citizen has no right to make an application claiming enforcement of its fundamental rights as provided under Article 19 of the Indian Constitution. Reference was made to the case of State Trading Corporation of India Ltd. v. Commercial Tax Officer (AIR 1963 S.C. 1811). It was held by the Bombay High Court that a petition filed by a registered educational society be treated as one made on behalf of the members of the society who are all citizens of India. Mr. Farogh Nasim has also referred to the case of Pak Steel Re-rolling Mills Association v. Province of West Pakistan (PLD 1964 Lahore 138) and contended that the rule laid down by a Division Bench of Lahore High Court is not applicable in the present case as the petitioner was registered under the Trade Organization Ordinance, 1961 which has no parallel provision as of section 6 of the Act, 1860. He also referred to the case of Muntizma Committee Al-Mustafa Colony (Regd.), Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others (PLD 1992 Karachi 54) where a Division Bench of this Court comprising Syed Hyder Ali Pirzada and Imam Ali G. Kazi, J. (as they then were) formulated two points for consideration, one of which is identifical to the issue involved in this suit but, according to Mr. Farogh Nasim, it was not answered. This position is disputed by Mr. Makhdoom Ali Khan, Advocate for defendants who argued that such question was answered, however, it would be advantageous if the said question is reproduced:- "(1) Whether an association of persons, registered or unregistered, can maintain a petition under Article 199 of the Constitution for the enforcement of the rights of its members as distinguished from the enforcement of its rights?" Reference was also made to the cases Mst. Fidai Zuhra and others v. Deputy Commissioner and Deputy Settlement Commissioner (Land), Sukkur and others (PLD 1966 (W.P.) Karachi 79) and Madina Masjid Committee and 3 others v. Anjuman Ghulaman-e-Mustafa through President and another (1993 CLC 2227). The rule laid down by the learned Division Bench of this Court in the case of Fidai Zuhra (supra) is not relevant for the determination of present controversy as it deals with the principles laid down in Order I, Rule 1, C.P.C. In the second case, a learned Single Judge of this Court while dealing with a Civil Revision Application, considered the impact of section 6 of the Act, 1860 and Order I, Rule 8, C.P.C. and held that a suit by a large group of persons having common interest such as the plaintiff Anjuman can institute suit under Order I, Rule 8 ibid. It was further held that since Anjuman was dispossessed from the shop in question as such, it was interested in the above suit and was rightly claiming physical possession. Mr. Farogh Nasim has also referred to the case from Indian Supreme Court, The Chairman Tamilnado Housing Board, Madras v. T. and Ganpati (AIR 1990 S.R. 642) in order to convass that the provisions of Order I, Rule 8, C.P.C. was enacted in the public interest with a view to avoid multiplicity of litigation, but in that case, suit was initially filed by respondent against Tamilnado Housing Board seeking injunction restraining the Board from demanding and collecting additional amount from other allottees. Application filed by respondent under Order I, Rule 8, C.P.C. was granted which view was upheld by the Indian Supreme Court. It was rightly contended by Mr. Makhdoom Ali (Khan that the rule laid down by the Indian Supreme Court in the above referred case is neither relevant nor attracted inasmuch as through an amendment in Indian C.P.C., major changes were brought in Order I, Rule 8, C.P.C. which now totally differs from Order I, Rule 8 of the Pakistan's C.P.C. I have compared provisions of Civil Procedure Code of both the countries and found that following new provisions were added in Rule 8 to Order I of Indian C.P.C. vide C.P.C. (Amendment) Act, 1976:- "(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so intereste: .......... (4) No part of the claim in any such suit shallz be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3) of Rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under Rule 3 of that Order, unless the Court has given at the plaintiffs expense, notice to all persons so interested in the manner specified in sub-rule (2). (5) Where any person suing or defending in ar, such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be. Explanation.-For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessaiy to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be. In view of the amendments made in Indian C.P.C. in the year 1976,1 am of the view that the case of Chairman Tamilnado Housing Board (supra) is of no help to the plaintiff. I would like to observe that during last two decades, the concept of public interest litigation has emerged in the legal field of Indo Pak subcontinent and is now gaining momentum. It is high time that our legislators should also incorporate identical provisions as of the Indian C.P.C. in our Civil Procedure Code, 1908, in order to make it in conformity with the concept of public interest litigation and with a view to avoid multiplicity of litigation It is settled that Rule 8 of Order I, C.P.C. is a rule of convenience and is only enabling and permissive in nature. It is not a mandatory provision. It was enacted with a view to save the litigants from additional expenses and to save the Court time in order to avoid repetition of same cause and litigation. (If any reference is needed, see Adam Khan Gulla Mir and others PLD 1982 S.C. 120 and Haji Saleh Muhammad and 2 others v. Haji Junta Khan Agha and 4 others (PLJ 1983 S.C. 262). In the last mentioned case, a Full Bench of Hon'ble Supreme Court of Pakistan approved the view of a learned single Judge of this Court in the case off Rangal Shah and others v. Mula Jadal (PLD 1960 Karachi 512) where it was held that Rule 8 to Order I, C.P.C. does not entail any compulsion for a person to bring a representative suit where a separate action can be maintained by him without joining others. In the present case, it was not disclosed by the plaintiff that this suit is being filed by it in representative capacity. Resolution filed in support of plaint also indicates that the person who was authorised to sign and verify the contents of plaint was authorised to do the same in capacity as General Secretary of the Association. This resolution as well as plaint no where indicates that the present suit was brought by all the members of association or on their behalf. It was at a later stage when objection was raised by the defendants that the instant application under Order I, Rule 8, C.P.C. was filed. Initially, suit was filed on 27.6.1996 while the present application was filed on 10.12.1996 after a delay of nearly six months. It reflects, that at the time when the suit was filed, the plaintiff never thought of filing a representative suit. Alongwith CMA-7053/96, plaintiff has also annexed as 'X-l' a list showing 122 members. It is prayed by the plaintiff Association that all these members be impleaded as co-plaintiffs. Mr. Makhdoom Ali Khan has rightly raised objection on the legal status of all these members. Perusal of list of members indicates that no where it was mentioned whether these members are individuals, registered as association or companies under Companies Ordinance, 1984. In case of a proprietory concern the plaintiff was required to disclose the name of its proprietor and in the case of registered association, again the plaintiff is required to show that there is a resolution entitling the said member to be joined as co-plaintiff. In case of a company, the same requirement is to be met/complied as is defined in Order XXIX C.P.C. and as in the case of Khan Iftikhar Hussain Khan of Mamdot v. Messrs. Ghulam Nabi Corporation Ltd. (PLD 1971 S.C. 550). In my view the plaintiff was required to give correct and all other legal details about the legal status of its members in order to bring its case within the scope of Order I, Rule 8, C.P.C Mr. Makhdoom Ali Khan has also raised objection that the present activity of the plaintiff in order to bring the present suit is beyond the scope of its by-laws, regulations and/or memorandum or Articles of Association. He has further argued that in view of preamble and sections 1 and 20 of the Societies Registration Act, 1860, the present plaintiff is not entitled to act contrary to the same. According to the learned counsel, since the purpose of the present suit is beyond the scope of section 20 of the Act, 1860, the plaintiff association may not be permitted to act contrary to the same. For the sake of convenience, section 20 of the Societies Registration Act, 1860 is reproduced as hereunder:- "20. To what Societies Act applies : The following societies may be registered under this Act: Charitable societies, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public, or public museums and galleries of paintings and other works of art, collections of natural histoiy, mechanical and philosophical inventions, instruments or designs The plaintiff association was evasive in its reply to the above objection inasmuch as during lengthy hearing the instant application and objections, no effort was made to bring rules and regulations of the association on record. Therefore, it will be difficult at this interlocutory stage to answer conclusively the objections raised by Mr. Makhdoom Ali Khan. No penal consequences are provided in the Act, 1860 if a registered society or an association acts contrary to the provisions of law. At the most, the defendants may move the concerned authority for its de-registration, if such provision is available in law As a result of the above discussion, I am of the considered view that it was not the intention of the plaintiff association at the time of filing this suit that they intended to file it as a representative suit and for the reason that application under Order I, Rule 8, C.P.C. was filed at belated stage with defective and incomplete list of its members on whose behalf authority to file suit or to implead as co-plaintiffs has not been produced, the instant application has no merits and is, therefore, dismissed. Accordingly, CMA No. 7053/96 is dismissed. Now, the order of interim injunction passed on 25.8.199 shall be read in respect of plaintiff Association only. Further hearing of the other two applications (CMA-4206/96 and CM-933/97) is adjourned to 4th April, 1997. (AAJS) Application dismissed.

PLJ 1998 Karachi 100 PLJ 1998 Karachi 100 Present: rasheed A. razvi, J. Mrs. RASHEEDA QUDRAT-Plaintiff versus Malik MUHAMMAD QUDRATULLAH KHAN and 2 others-Defendants Suit No. 775 of 1995, decided on 29.8.1996. (i) Civil Procedure Code, 1908 (V of 1908)-- —0. XXXIX, R. 1 & 2-Interim injunction-Application for-Case of plaintiff is that defendant No. 1 has obtained power of attorney on basis of fraud, misrepresentation and coercion, he may be restrained from acting as attorney of plaintiff, from alienating, setting or transferring flat at sea Cliff Apartments and from selling house at Gulshan Iqbal-General power of attorney was executed by plaintiff in favour of defendant No. 1 in respect of house at Gulshan Iqbal, which admittedly stands disposed of by way of sale to defendant No. 2-No where plaintiff has said in her plaint that at any subsequent stage this power of attorney was revoked or cancelled by her-Since this power of attorney has been acted upon, there would be no use of granting interim injunction against defendant No. 1 & 2 upto this extent-Interim relief as prayed has been infructuous- However, defendant No. 1 has admitted that amount was received by him as sale consideration after disposal of bungalow at Gulshan Iqbal of which plaintiff was recorded owner-No where defendant No. 1 has stated that he has either accounted for or handed over sale consideration of said bungalow to plaintiff-Plaintiff has established a prima facie case to extent that she was entitled for return/refund of this amount-Other immovable property which was apparently purchased from sale proceeds of bungalow of Gulshan Iqbal is likely to be alienated, therefore, defendant No. 1 is restrained from disposing of in any manner or creatingz any third party interest, incumberence or lien on that at sea Cliff Apartment till disposal of suit-Defendant No. 1 directed to submit accounts for amount which he has received as sale consideration of Gulshan Iqbal house. [Pp. 102, 104 & 105] A, C, D & E (ii) Civil Procedure Code, 1908 (V of 1808)-- —-O. XXXVIII, R 5 C.P.C.-Attachment of property-Order of-Passing of- Prayer for-Relief of attachment before judgment plaintiff is required, prima fade, to show that defendant is intending to dispose of his properties with intention to obstruct or delay execution of any decree thatmay be passed against him, which plaintiff was not able to satisfactorily establish—Mere apprehension of a plaintiff will not attract discretion of a court-Application dismissed. [P. 104] B Mr. Sohail Muzaffar, Advocate for Plaintiff. Mr. Muniur Rehman, Advocate for Defendant No. 1. Mr. AshrafAyub, Advocate for Defendant No. 2. Mr. I.H. Zaidi, Advocate for Defendant No. 3. Date of hearing: 12.8.1996. order The plaintiff has filed these two applications, one under Order XXXIX, Rules 1 and 2, C.P.C. (CMA-5771/95) and other application under Order XXXVIII, Rule 5, C.P.C. (CMA-6420/95). Since facts are common, I propose to dispose of both these applications by this common order The dispute apparent from the contents of the plaint is between first wife (plaintiff) and her husband (defendant No. 1) after the latter entered into the second marriage.The case of the plaintiff is that she was married to the defendant No. 1 in 1966, out of which five children were born, that after their marriage in Chakwal they shifted to Karachi; that defendant No. 1 being Officer in Merchant Navy used to remain away from the city of Karachi as such the plaintiff spent all her time on upbringing of the children. It is further case of the plaintiff that she sold her share of agricultural land in Chakwal for a sum of Rs. 5,50,000/- and purchased a plot in Gulshan Iqbal in Works Co­ operative Housing Society in the year 1979 and thereafter constructed a house consisted of two storeys which was completed in the year 1982. In support, the plaintiff has filed a copy of PT-I showing her as owner of this house. Subsequently, as alleged in the plaint, the parties shifted to a flat in Sea Cliff Apartment, Block-2, Cliffton, Karachi and the house at Gulshan Iqbal was rented out. According to the plaintiff she was informed by the defendant No. 1 that the said flat in Sea Cliff Apartments was purchased by him out of the sale proceeds of Gulshan-e-Iqbal bungalow; that due to irrational behaviour and hostile attitude of the defendant No. 1, it is claimed by the plaintiff, that she went to the U.S.A. alongwith her other children where her elder son was studying. The controversy in the present suit started on return of the plaintiff from the U.S.A. when she found that in her flat at Sea Cliff Apartments another woman was residing who is claiming to he the second wife of the defendant No. 1 and that she was forced to abandon this house and to live at some other place whereafter the defendant discontinued payment of maintenance to her and his children. In such desperate situation, as alleged in the plaint, she went to collect rent of her house at Gulshan Iqbal when she was informed by the defendant No. 2 that he has purchased the same against the consideration of Rs. 3.5 million through registered deed. In view of this background of facts as narrated in the plaint, the plaintiff has prayed for interim injunction against the defendant No. 1 praying that he may be restrained from acting as attorney of plaintiff and further prayed for interim injunction restraining him from alienating, selling or transferring the flat No. l-C/13 Sea Cliff Apartments, Block-2, Clifton, Karachi and from selling the house at Gulshan Iqbal. Interim relief is also sought against defendant No. 2 from transferring the house of Gulshan Iqbal and against the defendant No. 3 from further mutating its record. Through other application the plaintiff has also prayed for attachment of the immovable property consisting of flat at Sea Cliff Apartments, Clifton and of the house at Gulshan Iqbal, Karachi. I have heard Mr. Sohail Muzaffar, Advocate for plaintiff and M/s Muniur Rehman, S.I.H. Zaidi and Ashraf Ayub, Advocates for the defendants. Mr. Sohail Muzaffar contends that by misrepresentation and fraudulently the defendant No. 1 obtained a general power of attorney from plaintiff and thereafter sold the house at Gulshan-e-Iqbal to the defendant No. 2. None of the parties have filed copy of the said general power of attorney. However, during arguments, Mr. Munir ur Rehman submitted a photocopy of the said general power of attorney which was registered before the Sub-Registrar T' Division, Karachi on 3.9.1990. This authority was executed by the plaintiff in favour of defendant No. 1 in respect of the bungalow at Gulshan Iqbal which admittedly stands disposed of by way of sale to the defendant No. 2. In my view, since this power of attorney has been acted upon, there would be no use of granting interim injunction against the defendant No. 1 and 2 upto this extent. The case of the plaintiff is that defendant No. 1 has obtained this power of attorney on the basis of fraud, misrepresentation and coercion. Nowhere the plaintiff has said in tier plaint that at any subsequent stage this power of attorney was revoked or cancelled by her. After acting upon this power of attorney, interim relief as prayed vide para (a) in the injunction application has Decome infructuous. It is further argued by Mr. Sohail Muzaffar that the flat bearing No. l-C/13, Sea Cliff Apartments, Block-2, Clifton, Karachi was purchased from the sale proceeds of the house bearing No. B-88, Block 15, Gulshan Iqbal,Karachi and, therefore, the defendants No. 1 and 2 be restrained from alienating, selling or transferring this property till disposal of the suit. Mr. Munirur Rehman, learned counsel for the defendant No. 1 has vehemently disputed this position and has argued that the bungalow at Gulshan Iqbal was purchased from the income of the defendant No. 1 and that such purchase was made in the name of plaintiff who at the relevant time was his wife. The case of the defendant No. 1 is that he has divorced the plaintiff which fact was not disclosed in the plaint. But from the title and contents of plaint, it appears that the plaintiff is still claiming to be the lawfull wife; that the plaintiff was a Benami Owner and that he is the real owner. In these circumstances, even at this initial stage I am of the view that the burden is not upon the plaintiff as she was registered owner of the bungalow at Gulshan-e-Iqbal but is upon the defendant No. 1 to prima facie show that he is the real owner and that the plaintiff was merely a benamidar. There is no presumption in Law that the property standing in the name of a Muslim wife belongs to her husband and that the same is not her property. (For any reference see Sardar Jahan v. Afzal Begum (AIR 1941 Oudh 288) and Mst. Zaitoon Begum and another v. The Central Exchange Bank Ltd. and another PLD 1961 (W.P.) Lahore 888. I would like to further observe that Islam as well as our Constitution, 1973, corner rights on woman to own and possess movable and immovable properties and treat them as separate legal entity distinguished from their husbands Reverting to CMA-6420/95 filed by the plaintiff under Order XXXVIII, Rule (5) C.P.C. it is faintly argued by Mr. Sohail Muzaffar that since the defendant No. 1 has entered into second marriage, there is every likelihood that he may dispose of the flat of Sea Cliff Apartments, Clifton, Karachi as well as may also dispose of the sale proceeds of the bungalow of Gulshan Iqbal and, therefore, both the immovable properties may be attached. In this connection he has referred to the following cases: (i) Muhammad Yousif v. Agha Amir Muhammad (PLD 1976 Karachi 926); (ii) Travel Agents Association of Pakistan v. M/s Skyline (Pvt) Travels Ltd. (1992 CLC 1644); (iii) Muhammad Bashir Khan v. Messrs Steelfabs Ltd., Karachi (1985 CLC 38); and (iv) M/s Sports World and others v. Latees Fabrics and others (1995 MLD 1707) In the first reported case (PLD 1976 Karachi (926) a learned single Judge of this Court Mr. Zafar Hussain Mirza, J. (as he then was) held that the jurisdiction to attach a property before judgment is of an extra ordinary nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the Civil Procedure Code. It was further held that before passing such order the Court should be satisfied that the defendant is about to dispose of the whole or part of his property in order to obstruct or delay the execution of any decree that may be passed against him. This view was followed by this Court again in the case of Travel Agents Association (supra). In the case of Muhammad Bashir Khan (1985 CLC 38), this Court dismissed application for temporary injunction as well as attachment before judgment on the grounds that, no reference was shown as to the previous conduct of the defendant to dispose of his property with the intention to defeat the decree. In the case of M/s Sports World and others (1995 MLD 1707), a single Judge of Lahore High Court upheld the order of the trial Court for attachment before judgment on the grounds, inter alia, that the defendants were liable to pay substantial amount to the plaintiffs, they were citizens of the U.K., that they were planning to dispose of their properties in Pakistan which fact was substantiated by the plaintiff. In the present case, for seeking relief of attachment before judgment, the plaintiff is required, prima facie, to show that the defendant No. 1 is intendion to dispose of his properties with the intention to obstruction or delay the execution of any decree that may be passed against him, which she was not able to satisfactorily establish. In my view mere apprehension of a plaintiff will not attract such discretion of a Court. This application, therefore, merits dismissal. The defendant No. 2 Ismail Usman was able to establish, prima facie, that he is bonafide purchaser of the bungalow at Gulshan Iqbal. According to him this property was already transferred in his name and that he has paid a sum of Rs. 3.5 million as sale consideration to the defendant No. 1. Nowhere the plaintiff has alleged any such allegations towards this defendant that he, in connivance with the defendant No. 1 and with the object to deprive the plaintiff of her rights has purchased the said property. In my considered view, the plaintiff was not able to establish case of interim injunction or attachment before judgment against this defendant who tentatively appears to be a bonafide purchaser. Therefore, both the listed applications, as far as defendants No. 2 and 3 are concerned, are liable to be dismissed. However, there are certain facts which are either not specifically denied by the parties or appears to be admitted. It is admitted that the house at Gulshan-e-Iqbal was in the name of plaintiff which was sold at the price of Rs. 35 lacs. The defendant No. 1 has admitted that the amount of Rs. 3.5 million was received by him as sale consideration after disposal of the bungalow at Gulshan-e-Iqbal of which the plaintiff was recorded owner. Nowhere the defendants No. 1 has stated that he has either accounted for or handed over the sale consideration of the said bungalow to the plaintiff. Since the plaintiff was the recorded owner of the immovable property at Gulshan-e-Iqbal, I am of the tentative view that the plaintiff has established a prima facie case to the extent that she was entitled for return/refund of this amount. This leads me to observe that to this extent, the other two ingredients for grant of temporary injunction are also in favour of the plaintiff as the other immovable property which was apparently purchased from the sale proceeds of the bungalow of Gulshan-e-Iqbal is likely to be alienated. As a result of the above discussion, while CMA-6420/95 is dismissed, I grant CMA-5771/95 in the following manner:- (a) That the defendant No. 1 namely Malik Qudratullah is restrained from disposing of in any manner or creating any third party interest, incumberence or lien on the flat No. 1-C, 13th floor Sea Cliff Apartments, Block 2, Clifton, Karachi till disposal of the suit. (b) The defendant No. 1 is directed to submit accounts for Rs. 3.5 million which he has received as sale consideration of Gulshan-e-Iqbal Bungalow within one month With the above observations, both the applications are disposed of. (AAJS) Orders accordingly.

PLJ 1998 Karachi 105 PLJ 1998 Karachi 105 Present: SHAFI MUHAMMADI, J. GUL MUHAMMAD through LEGAL HEIRS-Appellant versus K.D.A. and another—Respondents Misc. Appeal No. 35 of 1994, decided on 7.8.1995. (i) Civil Procedure Code, 1908 (V of 1908)-- —O. XLI, R. 17-Dismissal of appeal for default/non-prosecution-Prerequisites-Appeal could be dismissed for default or non-prosecution when impression was created or statement was given by counsel for appellant or on his behalf that he/she had no interest in appeal-Where counsel for appellant remained absent from Court without any intimation, then it could be presumed by Court that no one, particularly appellant, was interested in appeal, thus, same could be dismissed under O.XLI, R. 17, C.P.C.~Where, however, counsel had sent application for adjournment or intimation to Court that he/she was unable to attend Court on account of certain reasons then such counsel was constructively present-Preusmption of "no interest" would be baseless especially when reasons mentioned in request for adjournment through application, intimation or by some other means were not based on falsehood. [P. 112] A AIR 1962 All. 622; PLD 1962 Quetta 82 and 1989 MLD 3989 ref. (ii) Civil Procedure Code, 1908 (V of 1908)-- —-O.XLI, R. 17-Appeal-Disposal of-Not on technical grounds but on merits-Whenever appeal was admitted and it contained arguable points then Appellate Court should avoid from disposing of appeal on technical grounds especially for non-prosecution-Law favours adjudication ofrights of parties on merits rather than disposal of same in summary manner or on technical grounds-Where principles of natural justice were fully ignored in passing order of dismissal of appeal, such order would be deemed to be in excess of jurisdiction. [P. 117] E (iii) Court-Duty of- —To do justice according to law is duty of Court, no matter counsel haveassisted Court on specific point or not-Any order passed on submission, of counsel by ignoring any provision of law, not urged by them, would amount to crucification of justice. [P. 114] B (iv) Limitation Act, 1908 (IX of 1908)-- —S. 12-Where copy of dismissal of appeal was obtained, appeal filed withinthirty days after excluding time requested for obtaining copy of judgment, would be within time. [P. 115] C & D PLD 1967 Kar. 537; PLD 1966 BJ 14; AIR 1935 Lah. 328 and AIR 1941 Lah. 257 ref. Syed Jamil Ahmed, Advocate for Appellant. Muhammad Ibrahim Dasti, Advocate for Respondent No. 1. Abdul Hafeez Pirzada, Advocate for Respondent No. 2. Date of hearing: 22.6.1995. judgment This Miscellaneous Appeal was directed against the order of District Judge, Karachi (East) dated 15.9.1994 passed on an application under Order 41, rule 19 read with section 151, C.P.C. which had been filed by the appellant for redressment of Civil Appeal No. 100 of 1993 dismissed under rule 17 of Order 41, C.P.C. on July 6, 1994. 2. Syed Jamil Ahmed, the learned counsel for the appellant not only attacked the impugned order on several grounds but also assailed the legal status of Mr. Salim Zaki for representing respondent No. 2 in capacity of an attorney. The said Saleem Zaki was represented by Mr. Abdul Hafeez Pirzada, one of the senior advocates of our judiciary. The power of attorney produced by the said Saleem Zaki radiates that the same was executed in his favour on 16.1.1995 one Mr. Abdul Wahab Lakhani s/o Adamji Lakhani i.e. after the appeal was dismissed by the Appellate Court and present Miscellaneous Appeal was filed. Mr. Abdul Wahab claims to be Honorary General Secretary of respondent No. 2 known as Pakistan Mamon Educational and Welfare Society while the matter was contested before the subordinate Courts by one Mr. Ashraf Rangoonwala who claimed to be President of the respondent No. 2 Society.3. Before touching the legal status of the attorney for respondent No.2, as assailed by the learned counsel for the appellant, I would like to discuss the legality of the impugned order, the operative part of which runs as under:-- " Application under Order 41, rule 19 read with section 151, C.P.C. has been filed by the appellant, for redressive of the appeal, which was dismissed under the provisions of rule 17, Order 41, C.P.C., on 6-7-1994. The counsel for the appellants was heard about the limitation for filing of application under rule 19 of Order 41, C.P.C. His contention is that the dismissal order is not under the provisions of rule 17, as such, the provisions of rule 19 would be applicable and the Court can restore the appeal for re-hearing under the inherent powers under section 151, C.P.C. He further contended that there is no limitation for filing the application under section 151, C.P.C. and in support of his contention, he placed his reliance on case of Bhagwati Prasad and another v. Ram Roop Tewari and others, reported in AIR 1962 Allahabad 622, wherein appeal fixed for final hearing was dismissed. Where neither the parties nor their counsel had knowledge of the date fixed for final hearing of appeal and the appeal was dismissed in default and the order of dismissal was not termed to be under Rule 17. and the application for restoration filed more than 30 days after the order of dismissal of appeal was allowed under the inherent powers of the Court. In the present case, the appeal was fixed for hearing and the appellant and his counsel had the knowledge. Even the applications for adjournment moved, were dismissed, as such, the rule laid down in case of Dost Muhammad and another v. Rais Satik and another, reported in PLD 1962 Quetta 82, is complete reply to the contention raised by Mr. Syed Jamil Ahmed, learned counsel for the appellant In the present case the appeal was dismissed in default by order dated 6-7-1994, anfl the application under Order 41, rule 19, read with section 151, C.P.C. has been filed on 11-8-1994 beyond the period of 30 days prescribed under Article 168 of the Limitation Act, and the provisions of section 5 of Limitation Act is also not applicable. Thus the application has been filed beyond the period of limitation prescribed for filing of the application. Hence the present applicatiop is barred by time and the same is hereby dismissed. However, with no order as to cost. " 4. The underlined portion of the order radiates its gist that: (i) Appeal was dismissed in default by order dated 6-7-1994. The application under Order 41, rule 19 read with section 151, C.P.C. was filed on 11-8-1994 beyond the period of 30 days prescribed under Article 168 of the Limitation Act; and (ii) The provisions of section 5 of Limitation Act are not applicable Syed Jamil Ahmed, the learned counsel for the appellant assailed the impugned orders by urging that: (a) That the order dated 6th July, 1995 was passed in excess of jurisdiction etc. hence the appellant could not be refused relief under Order 41, rule 19; (b) The appeal could not be dismissed for default on the face of circumstances and particularly without disposing of miscellaneous applications pending in the appeals; and (c) The order of the Appellate Court was void ab initio and nullity in the eyes of law, therefore, question of limitation could not be raised in such cases. Mr. Abdul Hafeez Pirzada, the learned advocate and controvertist for respondent No.2 (or for Salim Zaki) forcefully stressed that: (a-i) Even if it is presumed that the order of the learned District Judge/Appellate Court was bad in law, the remedy available to the appellant was to apply for restoration of the appeal under Order 41, rule 19, C.P.C. within 30 days as required under Article 168 of the Limitation Act; (b-i) There was no provision of law in C.P.C. according to which appeal could not be dismissed if miscellaneous applications were pending in the appeal; and (c-i) In the light of the previous conduct of the learned Advocate for the appellant, the learned District Judge \vasjustified to dismiss the appeal. Regarding the status of Mr. Salim Zaki, it was contended that he was . lawful attorney of the respondent No. 2. Therefore, all objections, in this regard, were baseless. The power of attorney was also placed on record after the arguments were concluded. The learned counsel for the K.D.A. adopted the easiest path and supported the learned counsel for respondent No. 2 without adding the leastAthough the impugned order fully reflects the contention of appellant's Advocate that dismissal order is not under the provision of rule 17 ( of Order 41, C.P.C.) yet this point was not clarified during the arguments. However, I would deal the same in a separate para. 5. In the first instance I would like to point out the presumption'of the learned District Judge/Appellate Court regarding application of Limitation Actin respect of applications under Order 41, rule, 19 C.P.C. and which shows his unawareness about the latest position of law. The Legislature had added sub-rule (2) to rule 19 of Order XLI, C.P.C. through Act IV of 1990 promulgated on 8th January, 1990 (PLD 1990 Central Satutes 23). The said subrule runs as under:-- "(2) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application for re-admission of an appeal dismissed under sub-rule (2) of rule 11 or sub-rule (1) of rule 17." I think that introduction of this sub-nlle was the result of one judgment reported as Mobin Ahmed v. Saeed Ahmed (1989 MLD 3989) authored by Saleem Akhtar, J. (as he then was of the High Court of Sindh and now the Judge of the Supreme Court of Pakistan). The relevant para, of this judgment runs as under:- "....due to non-applicability of section 5 of the Limitation Act to application under. Order XLI, rule 19 and the restricted nature of Article 168, great hardship has been caused to the innocent and bona fide litigants. If section 5 of the Limitation Act could have been applied to Order IX, rule 9 (1), C.P.C. there is no reason not to apply it to Order XLI, rule 19, C.P.C. Much water has flown under the bridge and it is high time that a proper legislation is made in this regard." It was, thus, strange for me to note that introduction of the sub-rule in the year 1990 remained'out of sight from a Senior District Judge, Karachi. It is also not known why the Appellate Court referred provision of section 5 of the Limitation Act in the impugned order particularly when there was no such application before the learned Judge for condonation of delay, if any. This aspect has demolished the sanctity of the impugned order to large extent notwithstanding to this fact whether the Advocate for the appellant should have moved any such application or not. 6. The circumstances, in which the order of dismissal of appeal on 6th July, 1994 was passed, are of great importance. Hence it shall be proper to bring into light ^the order passed by the Appellate Court on 6-7-1994 which was the subject-matter of the impugned order. The said order runs as under:- "On 1st call, Mr. Abbas Ali, Advocate for respondent No. 2 and Mr. Syed Irtiza Hussain counsel for respondent No.l are present. None present on behalf of the appellants. On second call, an application for adjournment was moved on the ground that Mr. Syed Jamil Ahmed, counsel for appellants is busy before the Hon'ble High Court, as such the matter was kept at 2.30 p.m. On third call at 2-30 p.m. another application was moved for adjournment on the ground that due to heavy rain in the city and failure of the electricity, the counsel is not attending the chamber. Two applications have been moved for adjournment on contradictory grounds. The counsel for the respondents have opposed the adjournment applications on the ground that right from December, 1993, till date the appellant is seeking adjournments on one or the other grounds. If the counsel for the appellants is not attending the chamber, the application should, have been moved on this ground earlier. The adjournments are being sought by the learned counsel for the appellants on one or the other ground since 2-12-1993. This shows the conduct of the appellant, that he is not interested in prosecuting his appeal. The application for adjournment have no merits, I, therefore, dismissed the same, and dismissed the appeal under Order 41, rule 17, C.P.C. with cost." It was, in these circumstances and the background that, the learned advocates for the appellant first moved an application for certified copy of the above order on the very .next day and after obtaining its copy on 20-7-1994 filed an application under Order 41, rule 19, C.P.C., by considering it proper path or the only forum. From the R & P it appears that several newspapers were brought on record which contained the news of heavy rains on their first page. The Daily Jang, Karachi gave this news in 5 columns on the first page in its issue of 6th July, 1995, as under: These are only headlines but the detailed news of that day is more horrible when the learned Judge dismissed the appeal for non-prosecution. It is important to point out that the rains continued for weeks and till July 18, 1994 they had completely paralysed Karachi. Civic bodies had failed to provide relief to the rain victims. Electricity and water sewerage systems were particularly in the worst shape. These rains had played havoc with human-life which can be realised from the news of Daily Star, Karachi in its issue of July 18, 1994 with the following 8 columns news on its front page. "Death Toll 55; Economic Loss Rs.35 Bn; Rain Ravages." Similarly several other Newspapers such as Daily Mashriq, Karachi, Daily Aghaz, Karachi, were also brought on record in support of that application. 7. In these circumstances orders of dismissal of appeal under Order 41, rule 17, C.P.C. (and particularly with cost) passed on 6-7-1994 could not be expected from Mr. Shabbir Ahmed, on account of his being a Senior District Judge of Sindh, especially by holding that "This shows the conduct of the appellant that he (means the learned counsel for .the appellant) is not interested in prosecuting his appeal. This application for adjournment has no merits. " If such grounds as mentioned in the applications had no merits in the light of havoc of rains, then I am afraid that no other ground could be so effective to satisfy the learned District Judge to adjourn the matter. Similarly the words "contradictory grounds" used in the order dated 6-7-1994 appear to be totally misconceived because the first application had been moved on the ground that the learned Advocate was busy before the Hon'ble High Court. Cause list of (he High Court dated 6th July, 1994 shows that the learned advocates had to proceed before the learned Justice Mrs. Majida Razvi in Suit No. 425 of 1994 with date by Court. This ground was, perhaps, not sufficient for the learned District Judge to adjourn the matter because the said application was not disposed of and the matterwas kept to be taken at 2-30 p.m. This conduct was surprising tor me. But for what purpose the matter was put to be taken at 2-30 p.m? Whether to hear the appeal or to pass any order on application for adjournment?Nothing is clear from the said order. Another application was moved by the learned Advocate at 12-15 hours when he came to know that the matter was being kept by the learned District Judge to be taken at 2-30 p.m. Adjournment, in this application was sought on the ground that due to heavy rains in the city and failure of the electricity the counsel was not attending the chamber. None of the two grounds mentioned in the two applications was based on falsehood on the face of record, therefore, they could not be labelled as "contradictory grounds". Similarly it is not necessary that an adjournment application should contain all the grpunds. There is much difference between an "adjournment application" and the "plaint of suit". It cannot be expected from the Court to reject an adjournment application as is done with the suits under Order 2, rule 2, C.P.C. If the learned advocate for the appellant had not been free from the High Court then first application moved by the learned Advocate for adjournment was more than sufficient to adjourn the matter. It was his cautiousness that he came back and moved the second adjournment application on another ground. I think that learned District Judge -might be fully aware of the difference between the expressions "different grounds" and " contradictor)' grounds" and, therefore, I need not to elaborate this aspect anymore. However, in this regard, I would like to refer the case of Muhammad Saced v. Manzoor Ahmed reported in 1992 CLC 961. In that case the appeal was dismissed for non-prosecution at 12-05 p.m. the first call in the appeal had been made at 10.00 a.m. Application was moved on the ground that the appellant was ill, hence he could not come from his village Chak Jhumra and his advocate was busy before some other Court. The Court rejected the plea for adjournment on the ground that the medical certificate appended by the appellant was incorrect as no date was mentioned on the certificate. Thus, reason was available to the Court to dismiss the application but the High Court treated such order arbitrary and accepted the appeal which had been dismissed at 12-05 p.m. In the present case, the application had been dismissed at 2-30 p.m.. which was not proper especially when applications for adjournment before the Court were on most reasonable grounds as enlightened in the above lines. Regarding application of rule 17, Order XLI, C.P.C., it can be said that an appeal can be dismissed for default or for non-prosecution when an impression is created or statement is given by an Advocate for the appellant or on his behalf that he/she has no interest in the appeal. If any learned advocate for an appellant remains absent from the Court without any intimation then it can be presumed by the Court that no one, particularly the appellant, is interested in the appeal hence the same may be dismissed for non-prosecution under rule 17, Order XLI, C.P.C. However, I am of the view that if any advocate sends an application for adjournment or intimation to the Court that he/she is unable to attend the Court on account of certain reasons then such an Advocate is constructively present in the shape of adjournment application or intimation due to which it cannot be presumed that he has no interest in the appeal. Therefore, such presumption of "no interest" in such circumstances would be baseless especially when the reasons mentioned in the requests for adjournment through application, jntimation or by some other means are not based on falsehood. In the present case, position is the same as discussed above. Two adjournment applications were sent by the learned advocate for the appellant on two different grounds. Neither any of the grounds was based on falsehood nor they were unreasonable under the discussed circumstances. Therefore, presumption of the learned Appellate Court that the learned Advocate "was not interested in proceeding his appeal" was totally based on negative imagination which certainly amounts to exercising power in excess of jurisdiction and such an order can never attract rule 17, Order XLI, C.P.C. 8. I think that there may be a specific category of advocates or Judges who are not exhausted even after 2-30 p.m and can proceed with Regular Appeals but every advocate and every Judge may not be having so much energy. For the best relationship between the bar and bench, it is necessary that this important aspect be not ignored by any Court. 1 also believe that Mr. Abdul Hafeez Pirzada who is one of the Senior Advocates of our judiciary may not differ with reference to this aspect but, in spite of that, the learned counsel stressed that in the light of the past conduct of the learned Advocate for appellant, appeal had been fixed on 6-7-1994 for final hearing and, on account of the contrary grounds mentioned in the adjournment applications, the learned District Judge was justified to dismiss the appeal. It was also urged by the learned counsel that if the order of the learned District Judge is supposed to be bad in law in the light of the circumstances with reference to havoc of rains, even then the remedy was available to the appellant under Order 41, rule 19, C.P.C. and this remedy could be availed by him within 30 days under Article 168 of the Limitation Act. As the appellant had moved application after the expiry of 30 days without presenting any application under section 5 of the Limitation Act for condonation of delay, therefore application was barred under section 3 of the Limitation Act and the Court was left with no discretion to grant relief to the appellant under Oroer41, rule 19, C.P.C It is thus evident that contention of the learned Advocate is totally based on technicalities of law. I have no doubt in my mind that the learned Advocate advanced the most impressive arguments on technical grounds but in spite of all my praises for such averments I could not embrace the same on account of one technical point. Although the said point was not urged by any of the learned Advocates yet the Courts are not supposed to follow arguments of Advocates blindly if any law point is left from being argued deliberately or unintentionally. During perusal of the record it radiated that the learned counsel, instead of directly applying for restoration of appeal first moved an application for certified copy of the order dated 6-7-1995 on the very next day and obtained its copy on 20-7-1995 although it was ready on 18-7-1995. The questions which agitated my mind was whether the time requisite for obtaining certified copies has to be excluded fbr the purpose of period of limitation under section 12 of the Limitation Act when section 5 of the Limitation Act was fully applicable under sub-rule (2) to rule 19 of Order 41, C.P.C. ? If the answer returns in the positive then, I am sorry to point out that the Appellate Court, the learned counsel for the appellant, the learned Advocate for respondent No. 2 ( or Mr Salim Zaki, as the case may be ) and the learned Advocate for the K.D.A. too, did not pay their attention to this important factor. However duty of advocates is to assist the Court only. To do justice in accordance wish law is duty of the Court no matter the advocates have assisted the Court on a specific point or not. B Therefore, any order passed only on submissions of advocates by ignoring any provision of law nol urged by them, according to my point of view, would amount crucifixion of justice by a Supreme Court to set a very bad precedent for the future. In case if section 5 of the Limitation Act is attracted for filing an application for restoration of appeal under Order 41, rule 19, C.P.C. then the time consumed for obtaining certified copy of the order of dismissal for default has to be excluded at the time of computing the period of limitation under section 12 of the same Act otherwise the purpose of introducing sub-rule (2) to rule 19, Order XLI, C.P.C. would become meaningless. In this regard I was fully influenced by and prevailed over by a judgment reported as Karachi Municipal Corporation v. M/s. Karimi & Co reported in PLD 1967 Karachi 537 decided by a Division Bench comprising of A.S. Faruqui and Abdul Kadir Shaikh, JJ. (as they then were). Although the said judgment was related to a certified letters patent appeal and not for restoration of appeal under Order 41, rule 19, C.P.C. yet the dictum laid down in that case attracts the present case also. In that case, question before the Division Bench was whether the time consumed for obtaining certified copy of the judgment/order could be excluded or not when it had been expressly stated that in an appeal under clause (10) of the Letters Patent, the memorandum of appeal need not be accompanied by a copy of the judgment, decree or order appealed from. There were conflicting views of different superior Courts. One view was expressed in a case reported as Abdul Karim v. Shaikh Muhammad (PLD 1966 B.J. 14 D.B). The said case was relied upon the case of Jogdhian v. Hussain (AIR 1935 Lahore 328) decided by a Full Bench but the case of Jogdhian (supra) wai overruled by a subsequent Full Bench judgment consisting of 5 Judges of the Lahore High Court in the case of Punjab Cooperative Bank Ltd. Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. (AIR 1941 Lahore 257). By taking into consideration the conflicting views and several other judgments in the case of Karachi Municipal Corporation (supra) the Hon'ble Division Bench observed that: " The fact that a copy of the judgment need not be accompanied is merely a facility which is permitted under the rule but it often becomes necessary for a counsel to examine the judgment before drafting the grounds of appeal. Therefore, when such a copy has been applied for it is difficult to see how the time taken in obtaining such copy is not to be excluded in computing the period of limitation, particularly when the rule itself provides that section 12 of the Limitation Act would apply." Although this judgment relates, to 1966 yet the dictum laid down in it fully attracts the present appeal particularly after insertion of sub-rule (2) to rule 19, Order 41, C.P.C. which, according to my view, has completely changed the legal position of limitation period. If the time consumed in obtaining certified copies is not excluded in such cases then introduction of the sub-rule in reference would become purposeless. On the same proposition I am of the view that if an appeal has been dismissed on any ground by an Appellate Court and the concerned party applies for certified copy of the order to know the grounds of dismissal as well as to decide what steps be taken for redress against the dismissal then the time taken in obtaining such copy be excluded in computing the period of limitation. Accordingly, I have no hesitation to hold that the application for restoration of appeal filed before the learned District Judge was undoubtedly within time because, admittedly application for copy of the order dated 6-7-1995 was moved on 7-7-1995 and the same was obtained on 20-7-1994 although it was ready on 18-7-1994. Thus, application under 'Order 41, rule 19, C.P.C. could be filed by the learned counsel on/or before 17-8-1994, if the date of preparation of the copy is taken into consideration or on/before 19-8-1995 if the date of obtaining the copy is given more importance than the date of preparation of copy. As the application under Order 41, rule 19, C.P.C. was filed on 11-8-1994 1 much before the expiry of limitation period hence the same cannot be treated as timebarred. 9. It is important to point out that the appeal in hand was admitted by this Court on 22-3-1995 on the ground that on 6-7-1995 when the order of dismissal of appeal was passed by the First Appellate Court, an application under Order 39, rules 1 and 2 read with section 151, C.P.C. was still pending for hearing. Therefore dismissal of appeal was improper and void ab initio unless the Miscellaneous Application had been disposed of and on account of this reason the subsequent impugned orders were also void in the eyes of lawThe learned counsel for Mr. Salim Zaki strongly attacked this plea by urging that there was no provision of any law in C.P.C. to put any sach condition that without disposing of the pending miscellaneous applications, appeal could not be disposed of. The learned counsel stated that appeal could be dismissed for non-prosecution and the same was properly dismissed. No doubt there is no such provision of any law to put any such condition as contended by the learned Advocate but undoubtedly there are judgments of the superior Courts which support the contention of the learned Advocate for toe-appellant. In this regard it may not be out of place to refer the case of Pak Carpet Industries Limited v. Government of Sindh and 2 others, reported in-1993 CLC 334. This judgment was authored by my learned brother Salahuddin Mirza, J. Instead of giving the background of that case I would like to reproduce one para, of the judgment which seems to be relevant and runs as under:-- "A perusal of R & P of the Appellate Court shows that application under Order 41, rule 27, C.P.C. was moved by the plaintiff/appellant on 9-7-1984 and notice for its hearing was ordered to be issued for 2-8-1984 and it was adjourned from time to time for one reason or the other and thereafter, perhaps due to inadvertence, it was forgotten and main appeal itself was heard and decided. This was extremely improper on the part of learned Appellate Court. Before hearing final arguments in a suit or an appeal, it is incumbent upon the Court first ensure that every miscellaneous application filed by any of the parties stands disposed of. notwithstanding the fact as to whether the party concerned presses it or not. If it is not pressed, it may be dismissed on that account but a specific order must be passed in that regard. Since this was not done to impugned appellate order dated 29-11-1987 is liable to be set aside. A reported judgment PLD 1976 Kar. 1075 (Haji Ibrahim v. Ismail) is not exactly on this point but failure of the lower Court in first disposing of a pending application while deciding the main suit was one of the grounds for setting aside the order of the lower Court. As such, the impugned appellate judgment is not maintainable on this ground." (Underlining is my own). The referred case of Haji Ibrahim v. Ismail and 9 others (PLD 1976 Karachi 1075) in the above judgment was authored by Abdul Hafecz Memon, J. (as he then was and now the Acting Chief Justice of High Court of Sindh). In this case the subordinate Court had passed order on an application case without deciding the connected pending application. Hence the said order was set aside by the High Court with following pinching remarks for the learned Judge of the subordinate Court :-- "....It appears that the learned Judge adopted this method, in his anxiety to earn uits, but surely, this is not legitimate earning and the method adonted by him cannot be approved. For the aforesaid reasons, 1 allow this revision application and set aside the impugned order and remand the case to the Trial Judge for deciding afresh both the applications filed under Order I, rule 10, C.P.C. after hearing the parties or their counsel. The applications shall be decided by a Judge other than the judge .who passed the impugned order." With profound respect for my learned brothers in Chamber 1 could not persuade myself to fall in full agreement with the views expressed in the above judgments. There may be dozen of applications alongwith the memo, of appeal but these applications should not be treated hurdle for disposing of an appeal finally. Hence the contention of the learned advocate for Mr. Salim Zaki has force in it. But at the same time I am of the view that when a Court is going to dispose of any appeal, it should dispose of all other pending miscellaneous applications too. Similarly it is my considered view that if an appeal has been admitted for regular hearing then effort be made by the Court to dispose of the appeal on merits. 10. Keeping these propositions in my mind I perused the R & P of the Appellate Court which revealed that an application under Order 39, rules 1 and 2 read with section 151, C.P.C. was filed on 14-10-1993 alongwith supporting affidavit. The learned District Judge passed the following order on 16-6-1993 on . this application: "Notice costs. Hearing on 23-10-1993." Counter-affidavit was filed on behalf of respondent No.2 on 2-12-1993. Then affidavit-in-rejoinder was filed by the appellant on 20-1-1994. Besides this application another application under Order 39, rule 7, C.P.C. read with Order XVIII, rule 18, C.P.C. was also filed on 20-1-1994 and notice was issued to the other side. Counter-affidavit on behalf of the respondent No.2 was submitted on 15-2-1994 and this application was disposed of on 19th day of March, 1994. But application under Order 39, rules 1 and 2, C.P.C. was never disposed of. The exercise of issuing notice on the said application, filing counteraffidavit by respondent Nq.2 and submitting of rejoinder-in-affidavit by the appellant cannot be treated an exercise in futility. In presence of these realities, the learned District Judge was bound to dispose of this application too alongwith the main appeal by passing specific order on that application, may be alongwith the disposal of the appeal if not prior to its dismissal. 11. Diary sheet dated 6-7-1994 also reveals that Mr. Abbas Ali, Advocate for respondent No.2 and Mr. Syed Irtiza Hussain counsel for the respondent No.l were present before the Court on 6-7-1995 and they had opposed the adjournment. No doubt the learned Advocates had right to oppose the adjournment even in the prevailing condition of rains and its havoc. In these circumstances the learned District Judge could hear the learned Advocates for the respondents on all important issues raised in the appeal even at 2-30 p.m. if he was so interested to dispose of the appeal on that day and which needed no further evidence except that which was available in the record.After going through the R & P as well as the contents of the memo, of appeal filed before the Appellate Court, I have no hesitation to say that the appeal contained arguable points to be decided on merits. I am of the view that whenever an appeal is admitted and it contains arguable points then the Appellate Court should avoid from disposing of the appeal technically especially for non-prosecution because the law favours adjudications of rights of the parties on merits rather than disposal of the same in a summary manner or on technical grounds. Admittedly, this principle of natural justice was fully ignored ai the time of passing order of dismissal of appeal on 6-7-1995 although there was no hurdle before the Court to decide the same on merits. It leaves me with no other alternative but to hold that passing any such order of dismissal in such havoc of rains by the learned District Judge was highly arbitrary which resulted in miscarriage of justice and failure to adjudicate the rights of the parties on merits. Such an order, in my view, was an order in excess of jurisdiction. The superior Courts are not sup-posed to leave the parties, particularly in such circumstances, at the mercy of discretion of Courts/exercised arbitrary to put a seal of legalization on the excesses of any Court by ignoring the important factors related to the circumstances. 12. In the last but not the least, I would like to deal the legal status of Salim Zaki who appeared before this Court as attorney of respondent No.2 and objection was raised regarding his status. The respondent No.2 is an Educational and Welfare Society and it can be presumed from its name that the plot in dispute may have been allotted by the K.D.A. to the Society for starting some welfare work for the people or to .promote education. Unfortunately it has become a trend of white-collared influentials to obtain plots under the pretext to do welfare work and then sell the same to builders to construct commercial flast/centres to loot the public after looting the K.D.A. In the present case one Mr. Abdul Wahab Lakhani has executed "Irrevocable General Power of Attorney in favour of Mr. Salim Zaki, Proprietor of Sairria Real Estate, for and in Society's name, to prepare building plans and get it approved from the concerned departments/authorities, to advertise and book bungalows villas, offices, etc. However, para. 11 of the said general power of attorney shows that power of sale, lease, transfer or alienation of any nature, whatsoever, shall 'solely and exclusively remain with the Society. I was expecting that Mr. Muhammad Ibrahim Dasti, the learned Advocate for the K.D.A. would bring on his lips real purpose of allotment of more than 10,000 sq. yards piece of land in dispute but he remained mum or was mummed by the authorities of K.D.A. because he had to say what he would be instructed or informed by the authorities. If the Judges of the Courts had been remote controlled computerised robots not to touch anything even if the same apparently appears to be illegal in the eyes of law, then I would have also not touched the same. Judges in capacity of citizens of Pakistan, are bound to protect interests of public whenever the same is disclosed to them and, in this respect their hands are not tied with the chains of technicalities. Therefore, they are not supposed to remain spectators if they sense something wrong in any matter. On account of this proposition it was not possible for me to ignore the issue regarding legal status of Salim Zaki so lightly. I, therefore, consider it necessary that the K.D.A. must bring on record all the facts about the terms and conditions for allotting such a big plot in dispute to respondent No.2. If the plot was allotted to the society for welfare purpose and the same is being used for commercial purposes then not only the K.D.A. is morally and legally bound to take all those possible steps in accordance to law to stop violations of terms and conditions even by demolishing all what has been constructed or is being contracted in violation of those terms and conditions of allotment, if the law so permits, but the Government of Sindh is also expected to take every action against all those officers who remained spectators over the violations or had illegally put a stamp of legalization on any such violation by respondent No.2. For the establishment of justice and setting an example for others the Courts are not supposed to remain silent over such issues. If anyone fears that due to such actions, the heaven would fall then let it fall if it falls on account of innocent crimes of curbing corruption of white collared influentials or for establishing justice and' protecting the rights of public 13. In the light of above discussion I have no hesitation to observe about the impugned order that:- (a) The learned District Judge/Appellate Court passed the said order on visionary misconceptions by treating the application of restoration to be time-barred .and on the presumptions that section 5 of the Limitation Act was not applicable while according to my perceptions section 5 of the Limitation Act was fully applicable in cases the appeals are dismissed for non-prosecution and choice is left with the appellants to approach directly to the Court to file application for restoration of appeal without obtaining and appending the certified copy of dismissal order. If certified copy of the said order is applied then the time requisite for obtaining the same shall be excluded under section 12 of the Limitation Act for computing the period of limitation under Article 168 of the said Act. In such situation if the application for restoration was filed beyond the period of limitation, even then the Court would not be barred to condone the delay if any application under section 5 of the Limitation Act was appended with the restoration application. (b) Similarly the circumstances, in which the order of dismissal, dated 6th July, 1994 was passed, were not attracted by rule 17, Order XLI, C.P.C. for dismissing the appeal. Besides this factor I,' in principle, subscribe to the view of my learned brother Salahuddin Mirza expressed by him in Pak Carpet's case (supra) with this exception that the pending miscellaneous applications were necessary to be disposed of by passing specific order alongwith the order of dismissal of appeal if the same were not disposed of before disposing of the main appeal." 14. Resultantly the appeal is allowed. Impugned order dated 15-9-1994 is set aside alongwith order dated 6-7-1994. The Appellate Court is required to dispose of pending application \inder Order 39 rules 1 and 2, C.P.C. as well as the main appeal on merits within a period of three months. The K.D.A. Authorities are required to bring on record all necessary infirmities regarding allotment of the land in dispute so that the Appellate Court could decide the status of present attorney respondent No. 2 namely Salim Zaki in the light of objections raised before this Court. No order as to costs. (K.K.F.) Appeal allowed.

PLJ 1998 Karachi 120 PLJ 1998 Karachi 120 Present: dr. ghous MUHAMMAD, J. MAZHAR MALIK-Appellant versus MUHAMMAD MUSLIM-Respondent F.R.A. No. 31 of 1994, decided on 24.7.1997 . Sindh Rented Premises Ordinance (XVII of 1979)-- —-S. 2(f)-Tenant-Ejectment of-Relationship of landlord and tenant if not prove-Effect-Landlord sought eviction of appellant relying upon agreement of tenancy but to that agreement wherein respondent was not a party and executant was this father who was said to be his attorney while dealing with appellant-Said attorney signed agreement as owner of house and issued rent receipts under his signatures-Rent Controller found respondent to be owner and consequently passed order for ejectment of appellant-No evidence was available to the effect that respondent's father was acting as his attorney while dealing with appellant, he neither let out premises to him nor did he ever act as landlord within the meaning of Sindh Rented Premises Ordinance, 1979- Respondent proclaimed himself as landlord and his father as his attorney-Relationship of landlord and tenant being non-existent between parties, ejectment proceedings were not maintainable. [Pp. 122 & 123] A & B Iftikhar Javid Qazi, Advocate for Appellant. Ismail Padhiar, Advocate for Respondent. Date of hearing: 29.5.1997. judgment The facts forming the background of this First Rent Appeal are that the respondent filed application under Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979) for eviction of the annellant on the ground of default in the payment of rent and addition/alteration causing impairment of the utility of the rented premises which consists of hungalow No. C-92, Block 2, Karachi Administration Employees Cooperative Housing Society, Karachi and which was let out under agreement dated 28.7.1986 on a monthly rent of Rs. 4,400 excluding the electricity, gas and water charges. The rent was payable in advance and was subsequently enhanced to Rs. 6,000 per month. The appellant in his written statement denied the relationship of landlord and tenant and also the allegations constituting the ground of his eviction. The learned Rent Controller (Mrs. Tahira Mohsin) framed the following issues:- (1) Whether relationship of landlord and tenants does exist between the parties? (2) Whether opponent has defaulted in payment of rent w.e.f 1.5.1989 till the filing of the case? (3) Whether opponent has made addition/alteration in the case premises, and impaired the utility and value of the case premises? (4) What should the order be?All the above issues were decided against the appellant who as a consequence thereof was directed to be ejected from the demised premises vide judgment dated 4.12.1993, which has been impugned in this appeal. I heard Mr. Iftikhar Javaid Qazi, learned counsel for the appellant and Mr. Ismail Padhiar, learned counsel for the respondent and also perused the record. The main contest in this case emanates from the appellants preliminary objection based on the denial of the relationship of landlord and tenant between him and the respondent. The relevant evidence on this issue is that Muhammad Ishaque who is said to be the attorney of the respondent through whom the application for ejectment was also filed. The most important document in this connection is that agreement of tenancy dated 28.7.1986 (Exh. 0/1) which was admitted by the parties. Additionally, there are rent receipts also produced in the evidence. The agreement is between the appellant and Muhammad Ishaque who was described in that agreement as owner, he signed the said agreement as owner and landlord of the disputed bungalow and not as attorney of the respondent whose name does not appear at in that agreement. The rent receipts were also issued by Muhammad Ishaque as landlord. The following portion in the statement of Muhammad Ishaque in cross-examination is relevant "It is a fact that there was no direct tenancy agreement between applicant and the opponent. The witness clarifies that he in capacity of the attorney of the applicant entered into tenancy agreement with the opponent. The agreement of tenancy dated 28.7.1986 which is on record is only tenancy agreement which is signed by me and the opponent. it is a fact that in the said agreement I am shown as owner and landlord and not as attorney of applicant. It is a fact that applicant has never received rent directly from the opponent. It is a fact that from the veiy beginning I deal with the tenancy." There is nothing in the record to show that there was subsequently agreement or arrangement resulting in the substitution of the respondent as the landlord in place of Muhammad Ishaque. There is also no evidence to the effect that Muhammad Ishaque was acting as attorney of the respondent while dealing with the appellant, no doubt respondent is son of Muhammad Ishaque but the fact remains that he neither let out the premises to the appellant nor did he ever act as the landlord within the meaning of the Ordinance, 1979. It was for the first time that in the application for ejectment the respondent proclaimed himself to be the landlord of the appellant and indicated Muhammad Ishaque as his attorney. Learned Rent Controller observed in the impugned judgment that since respondent was the owner of the disputed premises he would be a landlord as defined by section 2(b) of the Ordinance, 1979. It is pertinent to note that neither in the application for ejectment nor in the affidavit of evidence of Muhammad Ishaque the respondent was described as the owner of the bungalow in question. Moreover, no document showing respondent's title in respect of that property was filed. Furthermore, even if the respondent was owner that would by itself not make him also the landlord of the appellant in the absence of a privity of contract between them. The respondent relied upon the agreement of tenancy dated 28.7.1986 to seek eviction of the appellant but to that agreement he was not a party and the executants thereto were admittedly Muhammad Ishaque and the appellant. Under these circumstances, the respondent was not the landlord and had no locus standi to file the application for ejectment. Muhammad Ishaque was of course before the Court not as landlord but as attorney of somebody who was not the landlord and as such the proceedings instituted by him were not maintainable. The term attorney has been defined in Black's Law Dictionary 6th Edition p. 128 as under: "In the most general sense this term denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another. An agent or one acting on behalf of another. Sherts v. Fulton Nat Bank of Lancaster, 342 Pa. 337, 21A. 2d 18. in its most common usage, however, unless a contrary meaning is clearly intended, this term means 'attorney at law', 'layer' or 'counsellor at law'. Attorney can, thus, act only within the limits permissible to his principal and as aforesaid in the instant case the respondent being himself not entitled to file the application, his attorney was not competent to do so The up shot of the above discussion is that the relationship of landlord and tenant being non-existant between the appellant and the respondent, the ejectment proceedings were not maintainable and this being the conclusion it is not necessary to advert to the issues involved in this case. As a consequence, this appeal is allowed and the order of the learned Rent controller is set aside with no orders as to cost. (K.K.F.) Appeal allowed.

PLJ 1998 Karachi 123 PLJ 1998 Karachi 123 Present: NAZIM HUSSAIN SIDDIQUI, J. RASHID AKHTAR and RAZIA RASHID-Applicant versus SHAKIL AKHTAR-Respondents II Appeal No 03 of 1996, dismissed on 12.9.1997. Gift- —-Gift-Oral gift by donar father to his elder son donee-Thereafter donor executed a registered deed-Suit for possession, use and occupation charges and injunction against occupants-Prayer for-Both lower courts decreed suit as prayed with cost—2nd appeal too dismissed by learned 1st Additional Session Judge-Appeal against-Validity of gift was challenged- Whether a gift through registered deed and not orally made is valid-Its validity was not challenged before sub Registrar by any other heir and no question was put to donor when he was cross-examined—Three essential ingredients of a gift under Muhammadan Law was done properly- Contention that possession of property was not actual has no force- Donor had done what ever possibly he could do to complete gift and nothing was left to be done further-Taking of possession of gifted property can either be actual or constructive-Constructive possession was handed out to donee-Gift was complete in all respect-Appeal dismissed. [Pp. 123 & 124 & 126] A, B & C Mr. Aftab Kizalbash, Advocate for the Appellant. Mr. ArifKhan, Advocate for the Respondents. Date of hearing: 1.08.1997. judgment The appellants have filed this second appeal under the following circumstances: 1. Respondent Shakil Akhtar on 30.5.1993 had filed the Suit No. 444/1993 before learned 1st Senior civil Judge, Karachi, central, for Possession, Use and Occupation Charges, and Injunction and for the purpose of Court fee and Jurisdiction valued it at Rs. 1,00,200/-. his case is that his father namely, Muhammad Ibrahim son of Din Muhammad, was the owner of house, situate at Plot No. 3, Row No. 5, Block-3, Sub-Block F. measuring 21 Sq. Yard Karachi, hereinafter referred to as said property, and gifted it to him on 23.3.1992 and its possession was delivered to him. which he accepted. Thereafter, his father executed a registered gift deed on 7.12.1992. On 12.4.1993, Karachi Development Authority (KDA) affected Mutation of said property in his favour. 2. Said property consists of three residential rooms and one shop on ground floor, and five rooms on 1st floor. Two rooms on ground floor are in possession of the respondent, while third room is in occupation of the appellant No. 1, who is the real brother of the respondent and husband of the appellant No. 2. The shop is in possession of the respondent and was used as a Studio. The 1st floor is in possession of other brothers and sisters of the respondent and the appellant No. 1. The respondent filed the suit for claiming possession of one room on ground floor, which is in possession of the appellant No. 1 and for use and occupation charges at Rs. 10/- per day from the date of the institution of the suit till its possession was handed over to him. 3. The case of the appellants, in brief, is that the appellant No. 1 in his capacity as the elder son of his father, who expired on 7.6.1995, has invested money for the improvement of said property from time to time andin lieu thereof, his father had given him a portion of said property, which is still in his possession. The appellants in their Written Statements have not specifically challenged the validity of the registered gift deed dated 7.12.1992, but maintained that possibly the respondent had obtained signatures of their father with the sole object to deprive the appellant No. 1 with his legal shares in said property. 4. From the pleading of the parties, learned Trial Court had settled the following issues: (1) Whether the suit is maintainable under the law? (2) Whether suit is under valued? (3) Whether defendant No. 1 is in occupation of suit room as owner? (4) Whether the plaintiff is entitled to the relief claimed? (5) What should the decree be? 5. At trial, the respondent examined to himself and to his father Muhammad Ibrahim. The appellant examined to himself. 6. On assessment of the evidence brought on record, learned trial Court decided Issues Nos. 1 and 4 in affirmative and Issues Nos. 2 and 3 in negative. Consequently, the suit was decreed as prayed with cost, as per Judgment and Decree dated 29.5.1996. 7. The appellants being dissatisfied with said Judgment and Decree preferred the Appeal No. 15/1996, and the same was dismissed by learned 1st Additional Sessions Judge, Karachi, Central, as per Judgment and Decree dated 30.9.1996 and 10.10.1996 respectively. 8. Now the appellants have filed this second Appeal against the Judgment of the First Appellate-Court. 9. Mr. Arif Khan learned counsel for the respondent has, as a preliminary objection, challenged the maintainability of the appeal. Precisely stated the contention is that the value of the subject matter being less thanRs. 2,50,000/-, the second Appeal is not maintainably by virtue of Section 102 CPC. In reply Mr. Kizalbash, learned counsel for the appellants submitted that said property at least is worth rupees Sixteen Lacs, as such, the appeal is maintainable. Learned trial Court held that subject matter being only one room of said property, the suit was rightly valued at Rs. 100,000/- and that the appellant had not led any evidence to show otherwise.This finding was maintained by the 1st Appellate Court, during the course of arguments, Mr. Kizalbash frankly conceded that the finding of the trial Court. During the course of arguments, Mr. Kizalbash frankly conceded that the finding of the trial Court on above point was not challenged before the 1st Appellate Court. In fact, he did nor press the above point further. It being so, the preliminary objection is valid and the second appeal is not maintainable. • 10. On merits also the uppeal cannot succeed. Mr. Kizalbash as urged only two legal grounds. Firstly, he argued that the entire case of the respondent rests upon the alleged oral gift dated 23.3.1992, and since Donor Muhammad Ibrahim in his evidence recorded on 30.2.1995 stated that "he had not gifted suit property in favoar of Plaint'ff (Respondent) orally in the year 1992 but had gifted in writing in ths year 1993", as such, the subsequent registered gift deed losses all its credibility and create doubts about the authenticity of said gift deed. Secondly, he contended that, in anycase, the possession v. as not delivered to the espondent and the gift under Muhammadan Law without possession was void. In support of these contentions, he cited two cases form Indian Jurisdiction (1) Fakir Nynar Muhammad Rowther & another vs. Kanadasawrny Kulatau Vandan & others- The mdian Law Reports Vol. XXXV Page 102 and (2) Musamrnat Bibi Bilkis vs. Sheikh Wahid AH; The Indian La\ - Reports Vol. VII, Page 118. 11. In the case of Faki Ny : ar Muhammad Rowther, it was held that to make a valid gift under Muhammad Law the Done should be put in possession. In case of Ms?. Bibi bilkis, it was ubseirved that where the Donor administered and remained in joint possession of the property gifted with the Done until his death, the gift was not perfected by a proper transfer of possession and was invalid. 12. As regards, the first contention, it is noted that the Donor Muhammad Ibrahim nn his deposition before the Trial Court clearly stated that he had gifted in writing said property in favour of the respondent, and that he had gone to the Office of Sub-Registrar, where he signed the gift deed. It is noted that five real sisters of appellant No. 1 and the respondent had signed the gift deed before the Registrar as witnesses. The Donor was the father of the three sons and five daughters and all of them except appellant No. 1 were satisfied and accepted said gift deed. Its validity was not challenged and no question was put up to the Donor, when he was cross examined. Mere fact that the Donor stated that he had not gifted the said property orally but gifted it through Registered Deed, does not ipso facto make it invalid. 13. Under Muhammadan Law, an owner of the property may, in hislife time, dispose it wholly or partially if he carries into effect certain forms, which in this case seems to have been done properly. There are three essential ingredients of a gift under Muharrimadan Law namely (1) a declaration of gift by the Donor (2) an acceptance of the gift express or implied by or on behalf of the Donee and (3) delivery of possession of the subject of the gift by the Donor to the Done. All above was done up rightly.The case law cited by the learned counsel for the appellant is not applicable to the instant case and the contention has no force. 14. The second contention is regarding possession. It is true that it is one of the essential of a valid gift that the donor must divest himself of his possession to complete the gift. The registered gift deed specifically mentions that the Donee had accepted the said property as a gift from the Donor andthat the Donor had handed over physical possession of said entire property to the Donee and that the Donor also handed over all the relevant documents, papers, and receipts pertaining to said property to the Donee, and the Done having accepted said gift had taken over its physical possession along with all the documents, Lease Deed, papers, Receipts etc. The Donor had done whatever possibly be could do to complete the gift and nothing wasleft to be donee further. The gift and nothing was left to be done further. Thegift was complete in all respect. Taking of possession of the subject matter of he gift by the Done can either be actual orconstructive. In the instant case, constructive possession was handed over to the Done. There is no force in this contention also. 15. In consequence, I do not find any merit in this Appeal and the same is dismissed with no order as to costs. (AAJS) Appeal dismissed.

PLJ 1998 Karachi 127 PLJ 1998 Karachi 127 Present: ABDUL HAMID dogar, J. Mst. SUGHRA BEGUM and 7 others-Appellants versus M/s HIRJA BALI DAR-E-MEHAR-Respondent Trust Rent Appeal No. 424 of 1995 dismissed on 15-8-1997 . Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 21-Trust Property Suit for ejectment on grounds of default/ unpayment and also caused additions and alterations in disputed premises without permission of trust and causing sufficient damage to properly diminishing its value-Order to vacate-Appeal against maintainability of eviction application-Whether attorney of trust properly was properly authorised to file eviction application-Question of-Eviction application was filed through duly constituted Attorney and power of Attorney was duly registered with sub register-Contention of appellants counsel that no case for ejectment can he filed when period of default falls beyond three years is misconceived-Once it is established that tenant has defaulted in payment of rent he losses his right to occupy premises- Appellant have failed to produce any proof or any coupon of money order by which they had sent rent for period of default-Appeal dismissed. [Pp. 127, 129, 130, 131 & 132] A, B, C, D, E & F Mr. Abdul Majid Khan, Advocate for Appellans. Mr. Ghulam All Khokhar, Advocate for Respondents. Dates of hearing : 25.5.1979, 12.8.1997 and 26.8.1997. judgment This appeal under section 21 of Sindh Rented Premises Ordinance, 1979, hereinafter referred to us the 'Ordinance, is directed against the order dated 24-8-1995 of learned Ilnd Senior Civil Judge/Rent Controller, Karachi (Sought) in Rent Case No. 1508 of 1991 whereby respondent's ejectment application under section 15 of the Ordinance was allowed and appellant's were ordered to vacate the premises and hand over its possession within 60 days. 2. The facts relevant to the filing of this appeal are that the premises situated on plot bearing Survey No. 15/1 No. S.B. 1 situated at Dr. Dawood Pota Road, Saddar Bazar, Karachi known as Old Golewala House near Parsi Temple to be mentioned hereinafter as the disputed premises is the respondent Trust property which looks after the affairs of the said Temple. One room on first floor of the disputed premises was rented out to one Noor Muhammad at the rate of Rs. 7.69 per month. He died on or about 1979 and his legal heirs, the appellants and one Ghazi did not inform the Trust about his death for many years and were occupying the said premises and were also paying the rent till 1-7-1984. It was averred in the eviction application that sine this date the appellant wilfully defaulted to pay the rent to respondent Trust the landlord inspite of repeated demands made by it and also through Attorney. The case of the respondent further is that appellants had also caused additions and alterations in the disputed premises without the permission of the Trust and also caused sufficient damage to the property diminishing its value. 3. Out of 8 appellants three appellants, namely, Ghazi, Hassan and Shoukat filed their written statements in the rent case and denied the allegations whereas the others remained absent and were declared ex-parte. Appellant Shoukat claimed that after the death of his father in 1975, he is living in the demised premises and used to pay the rent to the respondent Trust regularly. As usual he paid the rent of July, August and September, 1984 but receipt whereof were not issued and thereafter he sent the rent through money order which was not accepted and was returned back. Assuch he started depositing rent in the Court of learned Rent Controller in Misc. Rent Case No. 3653 of 1984 and has thus not committed any default. He has also denied additions and alterations and damaging the disputed property. The other two opponents Ghazi and Hassan in their written statements maintained that they have no concern with the tenement in question. 4. Affidavit if evidence of Razi Ahmed, Attorney of respondent Trust was filed on 15-2-1992 alongwith the photo copy of his Power of Attorney and rent receipts dated 1-4-1984. The appellant did not cross examine him, in spite of many chances, hence his evidence remained unchallenged. Appellants Shoukat alone filed his affidavit in evidence on 8-3-1995. He did not produce any documentary evidence and closed his side, and was cross examined at length by the counsel for other side. On 6-7-1989 the Nazir of the Court was examined at the request of the respondent but he even was not cross examined by the appellant's counsel. The learned Rent Controller framed the following issues for determination; 1. Whether the ejectment application filed by Syed Razi Ahmed as an attorney of applicant trust is not maintainable in law ? 2. Whether the opponents have defaulted in payment of rent? Whether opponent made addition/alteration which impaired the value and utility of the premises in question? 3. What should the order be ? On the assessment of evidence the ejectment application was allowed as stated above. 5. I have heard Mr. Abdul Majeed Khan, learned counsel for the appellants and Mr. Ghulam Ali Khokhar, learned counsel for the respondent at length. Learned counsel for the appellants mainly attack the very maintainability of the eviction application on the ground that it was by an improper and unauthorised person and Razi Ahmed the Attorney of the respondent Trust was not a legal and proper Attorney as he was not authorised by all the Trustees to file rent case. He next contends that Trust cannot sue and only Trustees can sue as such the very application filed by Trust is also not maintainable. The resolution authorising the Trustees' names to appoint Razi Ahmed as Attorney has not been produced. He further states that according to the case of respondent, appellants did not intimate about the death of Noor Muhammad, the actual tenant in respect of the disputed premises who died in the year 1974 and occupied the same all alone. They have deposited the last rent on behalf of late Noor Muhammad for three months viz. April to July, 1984 a sum of Rs. 2370/- against a valid receipt dated 1-4-1984, but wilfully defaulted thereafter from July, 1984. According to the appellants Shoukat, he simply contested the matter and had been paying the rent to respondent Trust and had also paid the rent for the months of July, August and September, 1984 but no receipt was issued as such he remitted the rent of these months through money order which was refused and then he started depositing rent in Misc. Rent Case No. 3653 of 1984 as such he has not defaulted. Learned counsel lastly submits that since ejectment application has been filed beyond the period of three years of alleged default, so the same is not competent and is not maintainable. In support he has referred to a case reported in 1980 CLC 664(c). 6. On the other hand learned counsel for the respondent vehemently opposes the contentions raised by the learned counsel for appellants and stresses that learned Rent Controller has passed a proper order of evidence of appellants and they have not been able to prove their case. According to him, a proper person had filed the application for ejectment, who was authorised by way of resolution dated 27-8-1989 passed by the respondent Trust which unanimously resolved and Authorised Trustees, namely, Dara S. Beharana and Framroze H. Panthakey to execute the power of Attorney in favour of Razi Ahmed, the said Power of attorney was also got registered by Sub-Registrar T' Division-I, Karachi as such it cannot be argued that the same was not valid. He next contends that appellants the legal heirs of Noor Muhammad, the actual tenant not only kept his death secret but was depositing rent in his name and defaulted from 1st July, 1984 onwards, as such they have wilfully and deliberately defaulted. The appellants' contention, that he sent the rent for the months of July to September, 1984 through money order, is without force as they had failed to file coupons of such money order refused by the respondent Trust. He further submits that once it is proved that the party has defaulted in the payment of rent the same is liable to be evicted and the ground that no such application is competent beyond three years of default has no force. The case reported as 1980 CLC 664 referred by appellant's counsel has been over ruled by Hon'ble Supreme Curt in the case reported as P.L.D. 1990 S.C. 681. Learned counsel further went on arguing that the word of respondent Trust has got finality as Attorney Razi Ahmed was not cross examined by the appellants though sufficient opportunities were given to him. When he is not ciu-r- examined there is not other option except to believe his evidence. Appellants first filed application on 20-11-1994 about settiag aside the older dated 17-11-1994 about setting aside the order dated 17-11-1994 of closing his side, but after many chances appellants failed to cross examine the Attorney of respondent Trust and his side was closed on 20-12-1994 Thereafter again on 10-1-1995 he filed another application for setting aside the order dated 20-12-1994 but the same was also dismissed on 15-2-1995. As such the words of Attorney is neither contested nor challenged and has To be accepted on the face of it. In support he placed reliance on 1S94 C.L.C. 302. He lastly submit that authorities referred by the appellant's counsel are in the civil case and not on rent cases and are not applicable in rent cases. 7. I have given anxious thought to the arguments advanced by the learned counsel for the parties and have gone through the impugned order as well as the evidence adduced by the parties. The respondent M/s. Hijra Bhai Dar-e-Mehar (Parsi Temple) filed the ejectment application through is duly constituted Attorney Syed Razi Ahmed and the Power of Attorney is | duly registered with Sub-Registrar T' Division-I. Karachi, the said Power of Attorney includes a clause whereby the Board of Trustees of respondent Trust vide resolution dated 27-8-1989 authorised Trustees, namely. Dara S. Beharana and Framroze H. Panthakey to nominate, constitute and appoint Syed Razi Ahmed as Attorney to institute, file, conduct, prosecute, defend and contest any suit, action, appeal, application, petition for review and revision including all cases before lower as well as superior Courts including the matters before Rent Controller, about seeking ejectment of the tenants also. The said Attorney filed ejectment application on behalf of respondent iTrust and filed his affidavit in evidence attaching a copy of Power of Attorney. The appellants have failed to show as to how the said Attorney was inot competent to file rent case and also to give evidence on behalf of Trust as such the learned Rent Controller has arrived at proper conclusion to hold that he was the proper person to file eviction application and the same is maintainable. Not only this but the evidence of Attorney went unchallenged as in spite of so many chances afforded to appellants/tenants could not cross examine him and controvert the case of respondent. This renders the words of respondent, to be treated as correct. In the case of K.H. Nohri v. The Stafr (PLD 1988 Karachi 460) this aspect of the matter has been taken into consideration and it has been held that to controvert the facts stated in plaint it would be incumbent upon the defendant to cross examine the plaintiff and to give evidence. Failure to cross examine plaintiff on facts stated in the plaint and failure to give evidence to controvert such facts, heldcould renders those facts to be treated as correct. In the case of Muhammad Farooq vs. Mst Khairunisa (1994 CLC 322) this Court, has held that tenants' counsel failed to cross examine witnesses of landlord/landlady on a specific date as such the evidence of landlady was closed without her witnesses having been cross examined. At the request of tenant such order was set aside and he was permitted to cross examine landlady's witnesses on a date field by the Court but her- counsel against absented himself and thus could not cross examine witness against and the side was closed. It is held that such facts clearly indicate that tenant and his counsel were negligent and Rent Controller was justified in closing the cross examination of the landlady's witness. 8. On the other hand respondent Trust thoroughly cross examined appellant's Shoukat Ali the only person examined by the appellants. It is an admitted fact that the appellant paid the last rent in the name of Noor Muhammad for three months from April, to June, 1984 against receipt dated 1-4-1984 and thereafter they have wilfully defaulted inspite of so many demands. Learned Rent Controller has examined the Nazir who in his examination-in-chief has said that appellant Shoukat Ali deposited Rs. 56 14 on 3-11-1984 in Misc. Rent Case No. 3653 of 1984 and thereafter he deposited the same amount on 15-1-1985 and then he remained silent and deposited Rs. 400/- on 26-1-1988 after more than three years. It is pertinent to note that his statement also went unchallenged and appellant did not cross examine him as such there is not option but to accept Nazir's statement. From this it is apparent that the rent was paid only for three months from April to June, 1984 and thereafter appellants have become defaulters. The contention of appellants' counsel that no case for ejectment can be filed when the period of default falls beyond three years in misconceived, firstly, the citation reported as Muhammad Ahmed vs. Mst. Qam.ar Anwar, 1980 CLC 664 relied by appellant's counsel has been over ruled by Hon'ble Supreme Court in the case of Pervaiz Akhtar vs. Additional District Judge, Rawalpindi & 4 others, P.L.D. 1990 S.C. 681. In this case it is held as "rent due includes time barred rent". The Hon'ble Supreme Court has observed that the time barred rent does not procure landlord for the enforcement of his right for eviction of tenant on the ground of default. It is also observed that once it is established that the tenant has defaulted in the payment of rent, he losses his right to occupy the premises. The word default connotes of elements of negligence and failure of tenant to fulfil his obligation under the law. Thought pleaded, yet appellant has filed to produce any proof or any coupon of money order by which they had sent the rent for the period of July to September, 1984 through money order. In the case of Muhammad Wali us. Marian Begum. 1982 CLC 1789 it has been held thattender of rent after default would not wipe out default already committed. 1 tie j^me view has been taken by this Court in the case of Waqf Muhammad Mehar Elahi vs. Abdul Razzak, 1983 CLC 3285. 9. As a result of the above discussion, the appeal fails and is dismissed. The impugned order is upheld. The appellant is, however, allowed further two months' time from today to vacate the premises. The parties are left to bear their own costs. (K.K.F.) Appeal dismissed.

PLJ 1998 Karachi 132 PLJ 1998 Karachi 132 Present: MRS. MAJIDA RAZVI, J. M/s SHAFIQ HANIF (PVT.) LTD.-Plaintiff versus BANK OF CREDIT AND COMMERCE INTERNATIONAL-Defendant Suit Case No. 672 of 1990 allowed on 27.7.1990 Civil Procedure Code, 1908 (V of 1908)-- —-O. 22, R. 10, O. 6 R. 17 and O. 1 R. 10 section 151 CPC-Substitution of name in place of present defendant on the title page of plaint-Prayer for~ Appeallant, (Habib Credit and Exchange Bank Ltd) subsidiary of Habib Bank Limited took over to carry out operations of BCCI (Pak.) in pursuance of amalgamation scheme u/S. 47 of Banking Companies Ordinance 1962-Statutory requirements u/S. 47 (12) of the Banking Companies Ordinance 1962 were complied with and assignee waited till formalities were complied with and when it felt that assignor will not be able to look after interest of the assignee in a manner that assignee itself can do, it applied for substitute of their names in place of defendant-Whether justified--He!d : Justified-Application allowed. [Pp. 132, 133, 135, 136 & 137] A B & C Muhammad Sharif, Advocate for plaintiff. S. Iqbal Ahmad, Advocate for defendant. Date of hearing: judgment This is an application under Order 22, Rule 10, Order 6, Rule 17 and Order 1, Rule 10, read with section 151, CPC, filed on behalf of Habib Credit and Exchange Bank Limited Mr. S. Iqbal Ahmed, the learned counsel for the applicant contended that under the Amalgamation Scheme prepared by the State Bank of Pakistan with the approval of the Government of Pakistan, the Habib Bank Limited and the Liquidators of BCCI (Overseas) Limited entered into an agreement in accordance to which the three branches of the BCCI (Overseas) situated at Karachi, Lahore and Rawalpindi were merged with the Habib Bank Limited. He further submitted that Habib Credit and Exchange Bank Ltd. the present applicant, is a subsidiary of the HBL and pursuant to the Objects Clause 111 (a) of the Memorandum of Association of the applicant, it has acquired, took over and assumed the entire undertaking including the ownership, control and management of the three branches of BCCI (Overseas) Limited which already stood merged with the HBL. It is in the present capacity after having acquired ownership plus control of the said branches, that the applicant has applied for the substitution of their name in place of the present defendant praying for such substitution on the title page of the plaint and further that wherever the word 'defendant' has been used m the plaint, pleadings and proceedings Mr. Muhammad Sharif, the learned counsel for the plaintiff, contended that under Order 20 Rule 10, CPC the present applicant cannot be regarded as the proper assignee and as such the name of the applicant cannot be substituted. He relied on the case ofMst. Surraya Begum & others vs. Mst. Suban Begum (1992 SCMR 652). Hi- next contention was that the suit was filed on 26.7.1990 and the written statement was filed on 21.2.1991. The merger was maue effective on 14.3.1992 and the State Bank of Pakistan gave permission on 19.4.1992. By virtue of the Articles of Association dated 21.6.1992 the applicant was allowed to commence business from 20.10.1992 but the applicant, took no steps to file application for substitution of the name till 21.3.1993 as such this app 4l , ;don cannot be granted. I have heard both the counsel and have gone through the different statements/documents filed by the parties and the relevant law and the case law referred during the arguments. I will first refer to a letter dated 8.3.1992 from Deputy Secretary, Government of Pakistan, Finance Division to the Governor, State Bank of Pakistan giving approval, in terms of section 47 of the Banking Companies Ordinance, 1962 to the Scheme of Amalgamation of three branches of BCCI (Pakistan) with HBL. By another letter dated 12.3.1992 the Government of Pakistan notified the effective date of merger as 14.3.1992 and yet by another letter dated 9.3.1992 conveyed their approval for setting up of a subsidiary banking company by the HBL and to a take over and carry out the operation of the three branches of BCCI (Pakistan) in pursuance of the Amalgamation Scheme. In the Gazette of Pakistan dated 2.4.1992 the Government of Pakistan declared that the subsidiary company (by whichever names called) shall be effective for none year from the date of subscription of the share capital of the subsidiary Company, State Bank of Pakistan granted permission to carry out operation of the three Branches of BCCI (Pakistan) vide their letter dated 19.4.1992. On 16.9.1992 the Government of akistan addressed their letter to Habib Credit and Exchange Bank Limited (the applicant) requesting them to implement the direction and minutes of the meeting held on 17.9.1992. The Corporate Law Authority by their letter dated 30.9.1992 gave consent to the subscription of shares. On 1st October. 1992 State Bank of Pakistan accorded license. The Licence is in the name of Habib Credit and Exchange Bank Limited and by Notification dated 2.11.1992 the State Bank of Pakistan declared the said bank to be a scheduled bank effective from 1.11.1992. On an application (CMA No. 3919/93) filed on behalf of the plaintiff the Amalgamation Scheme and the Agreement entered into between the HBL and Liquidators of BCCI Limited was submitted by the counsel of the applicant which was duly returned after looking into the different relevant clauses. Now section 47(1), (4), (ii) and 5(b) are as under : "47. Power of State Bank of R to apply to Federal Government for suspension of business of a Banking Company and to prepare scheme of reconstruction or amalgamation-(l) Notwithstanding anything contained in the provisions of this Part or any other Law or any agreement or other instrument for the time being in force where it appears to the State Bank that there is good reason so to do the State Bank may apply to the Federal Government for an order of moratorium in respect of a . banking company. (2). (3). (4) During the period of moratorium, if the State Bank satisfied thatin the public interest; or (a) in the interest of the depositors; or in order to secure the proper management of the banking company; or in the interests of the banking system of the country as a whole, it is necessary so to do, the State Bank may prepare a scheme- CD not relevant (ii) for the amalgamation of the banking company with any other banking institution (in this section referred to as "the transferee bank"). (5) The scheme aforesaid may contain for ail or any of the following matters, namely :- (a) ........................................ not relevant ............. (b) in the case of amalgamation of the banking company the transfer to the transferee bank of the business properties, assets and liabilities of the banking company on such terms and conditions as may be specified in the cheme (c) to (1) not relevant ..................................... " Section 47Q2 of the Banking Companies Ordinance provides that "Copies of the Scheme or of any order made under sub-section (11) shall be laid on the table of Legislature as soon as may be, after the scheme has been sanctioned by the Federal Government or as the case may be, the order has been made." Thus it is clear that the law has authorised the State Bank of Pakistan after obtaining permission from the Federal Government to proceed, as deemed appropriate to the facts of the case, under the Rules.As mentioned hereinabove, the State Bank of Pakistan did obtain permission from t.ht T'Vderal Government, prepared the Amalgamation Scheme which was approved and action was taken accordingly. The merger of the three branches of BCCI was effected with the HBL and were later taken over by its subsidiary the Habib Credit and Exchange Bank Limited, the present applicant. Now the uext question which arises iswhether the Provisions of Section 47(12) have been complied with or not. The applicant had filed a letter dated 3.1.1994 addressed to the Government of Pakistan, Islamabad forwarding the copy of the Scheme of Amalgamation to be laid before the Legislature to fulfil the statutory requirements in terms of section 47(12) of the Banking Companies Ordinance, 1962. Since this letter did not confirm if the Scheme of Amalgamation was laid before the Legislature or not the applicants were directed to confirm the same. In response to this direction a photo copy of letter dated 12.10.1995 written by the Government of Pakistan, Finance Division addressed to the applicant was placed on record which indicates that the copies of Amalgamation Scheme were placed on the table of the Legislature by the Government on 1.8.1994 The wordings of section 47(12) of the Ordinance very clearly indicate the intention of the law makers that the instruments is "to be laid on the table of the Legislature" and no more indicating that it is a directly provisions. In Halsbury's Laws of England, Fourth Edition, Volume 44 at para 995 it has been described as under : "995. Instruments subject only to laying before Parliament. Many statutes conferring legislative powers provide that instruments made in exercise of them are to be laid before Parliament, or, sometimes, the House of Commons alone after being made, but do not subject them to any further procedure Before 1948, the effect of such a provision was in every case a matter of consideration. It might be provided that an instrument was not to come into operation until the expiry of a specified period after laying; but no more was normally required than that it be laid, or laid forthwith or as soon as may be or laid within a specified period, and in these cases, unless the contraiy intention clearly appeared, the provision would be held directory rather than mandatory, failure to lay the instrument at all or within the time specified in no way affecting its validity." In the case of Surrya Begum (supra) relied upon by the plaintiff, it was held as under :"Order 22, rule 10, C.P.C. is a permissive provisions which enables the assignee to continue the suit in place of the assignor. The assignee need not bring himself on record, if he feels that his interest is being protected by his assignor, in which case the decision for or against his assignor would be binding upon him. The suit in such a case would be treated as continuing for the benefit of the assignee, who can, after the decree is passed, file execution proceedings. It is only when the assignee feels that his interest is in jeopardy and not likely to be protected by the assignor, that he can apply to become either a party under Order 1, rule 10, CPC (See Ameer Muhammad vs. Jiwanlal) AIR 1952 M.B. 154 or to be substituted for his assignor under Order 22, rule 10, CPC." As such, the Hon'ble Supreme Court has held it to be a permissive provisions. It is for the assignee to decide as to when it feels that its interest is/or will not be protected and to apply for substitution. What the Court in such cases has to see is that the assignment complies with all the legal provisions. Mr. Iqbal Ahmed has submitted that the assignor (BCCI (Overseas) Limited) has gone into liquidation and cannot look after the interest of the assignee (Habib Credit & Exchange Bank Ltd). In the instant case the assignee waited till the formalities were complied with and when it felt that the assignor will not be able to look after the interests of the assignee in a manner that the assignee itself can do, it applied for the substitution of-the name. In my opinion, the applicant is entitled to substitution of their names in place of the defendant No. 1 on the title of the plaint and else-where in the plaint as prayed. In view of the above, this application is allowed as prayed. Amended title page to be filed within two weeks. CMA No. 2902/93 stands disposed of. (K.K.F.) Appeal allowed.

PLJ 1998 Karachi 137 PLJ 1998 Karachi 137 Present: HAMID ALI MlRZA, J. MAHFOOZ ALI-Appellant versus Mst. PARVEEN FATIMA-Respondent First Rent Appeal No. 65 of 1996, dismissed on 2.5.1997 Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 10-Tenant-Defaulter in payment of rent-Ejectment of-Appeal against-S. 10 of Rent Ordinance clearly states that rent in absence of any fixed date stated in agreement between landlord and tenant shall not be paid later than tenth of month next following month for which it is due- Tenancy agreement was not renewed between parties and as per para 4 of said agreement rent was payable by 10th of each calendar month which has not been paid and has been proved by respondent and appellant has failed to rebut respondent's evidence-Appellant did not pay rent earlier also in time-Conduct of making delayed payment of rent by appellant does not entitle him to discretion to be exercised in his favour- Appeal dismissed. [Pp. 140, & 143] A, B, & C Mr. Ajeebullah, Advocate for Appellant. Hafiz Abdul Baqi, Advocate for Respondent. Date of hearing: 2.5.1997 judgment This is an appeal under section 21 of the Sindh Rented Premises Ordinance 1979 (hereinafter called the Rent Ordinance) directed against an order dated 15.12.1994 in Rent Case No. 137/1989 Mst. Perveen Fatima v. Mehfooz Ali passed by II Senior Civil Judge and Rent Controller, Karachi East, whereby an application under section 15 of the respondent/landlady was allowed on the ground of default in the payment of rent with the directions to the appellant/tenant to hand over the peaceful vacant possession to the respondent within thirty days from the date of impugned order. Brief facts of the case are that the respondent filed an application under section 15 of the Rent Ordinance against the appellant/tenant on the ground that the appellant/tenant has failed to pay monthly rent since June 1988 hence he was defaulter in the payment of rent. The appellant/tenant filed written statement wherein he has stated in para 3 that he has paid rent through receipt No. 100 for the sum of Rs. 3550/- on 14.8.1988 and a sum of Rs. 7400/- on 13.11.1988 as per receipts Annexures A and A/1. The respondent/landlady filed affidavit in evidence of Tayyuh Hussain Ansari who produced photocopy of general power of attorney, photocopy of rent agreement dated 1.8.1983, posted registered receipt, photocopy of notice dated 19.10.1988. The appellant/tenant filed affidavits in evidence of Mehfooz Ali and Maqsood Hussain Qureshi. The parties witnesses who filed affidavits in evidence were cross examined by the learned counsel for the respective adverse party. After hearing the learned counsel for parties, impugned judgment was passed. Contention of the learned counsel for appellant is that the Rent Controller has erred in holding that the appellant/tenant has committed default in the payment of rent from October 1988. He has referred to Annexures A and A/1, photocopies of the rent receipts of Rs. 7400/- dated 13.11.1988 and Rs. 3550/- dated 14.8.1988 making total Rs. 10,950/- and the said total amount is stated by learned counsel for the appellant to be rent till September 1988 as per said two rent receipts which is also admitted by the learned counsel for respondent. Learned counsel for appellant also contend that after the said payment, further rent was sent through money order on 14.2.1989 and thereafter rent was deposited with the Rent Controller. Learned counsel further contends that in fact, the appellant/tenant has paid two months rent formed (1996 CLC 221); Muhammad Rafiq and another v. The State (1990 MLD 650), M/s. Sohn Traders and three others v. Ahmed Ali (1986 CLC 561); Abdul Hakim u. Atiya Sultana (PLD 1995 Kar. 370): Hakim Ali v. Muhammad Salim and another (1992 SCMR 46); Ulfat Ali v. Abdul Shakoor (1992 CLC 744) and Fazal Hussain u. Mst. Bundu Hajjan (1991 MLD 651) in support of his contentions. Learned counsel for the appellant in the alternative argued that period of tenancy agreement dated 1.8.1983 lapsed as it was not renewed hence the appellant became statutory tenant therefore the appellant could be at the most defaulter in the payment of rent for the month of December 1988 only and in such case discretion could have been exercised by the learned Rent Controller in favour of the appellant in view of the case law Hafiz Abdul Baqi learned counsel for respondent in reply has argued that the appellant has not paid rent for the month of October 1988 till the filing of eviction application and as per his own evidence therefore theappellant/tenant was therefore defaulter in the payment of rent from October 1988 till the filing of eviction application on 5.2.1989. He has placed reliance upon Mrs. Zarina Khawaja v. Agha Mahboob Shah (PLD 1988 S.C. 190) in support of his contention that the terms contained in the expired agreement will continue to operate except the terms and condition which would be inconsistent to the provision of the Rented Premises Ordinance. The respondent/landlady in para 3 of ejectment application has stated about the non-payment of rent since June 1988 so also as per notice annexure 'A' dated 19-10-1988 sent by the respondent's learned counsel. The attorney Tayyab Hussain of respondent in his affidavit-in-application and in the cross examination his veracity so far the non-payment of rent from October 1988 could not be shaken. The respondent's attorney in para 4 of the affidavit-in-evidence admitted the receipt of rent as per annexures 'A' and 'A/1'. There is no reliable and satisfactoiy rebutting evidence on record that appellant/tenant has paid Rent from October 1988 to the respondent. The appellant in the written statement has also stated that rent for the month of October and November, 1988 was paid to the father of the respondent and no rent receipt was issued but in the said respect no suggestion in the cross examination of Tayyab Hussain was made by learned counsel for the appellant/tenant. The appellant/tenant Mehfooz Ali in the cross has stated that it was incorrect to suggest that he has not paid the rent for the months of October and November 1988 due to which he had sent four months' rent through money order. He has also stated that tenancy was month to month as per agreement. In the above said statement of appellant in the cross examination after the words "it is" a word appears which is stated by learned counsel for the appellant to be "in" so as to make "incorrect" while according to the learned counsel for respondent the said word could not be "in" so as to read it as "incorrect" considering that if the rent for the months of October and November 1988 was paid then there was no need of sending rent through money order to the respondent for four months as was the defence of appellant. Accordingly, the word used after the word "it is" could not be "in" but could be "is" which has been used twice un-intentionally considering that it fits in which the sense that as the rent was not paid for the said month therefore rent was sent through money order Besides the witness Maqsood Hussain in para 2 of his affidavit has stated that father of respondent on receipt of rent did not issue rent receipts for the said amount in respect of months October and November 1988 whereas in the cross examination he has stated that the did not know what was the rate of rent in the months of October and November 1988 and stated that he himself paid rent to the attorney of respondent when the 'rate of rent was Rs. 1700/- per month and stated that he did remember the number of house where Haji Mushtaq resided and further stated that appellant sent rent through money order for October and November 1988 and further he did not know Mushtaq Ellahi, father of the respondent The above statement of appellant's witness made in the cross examination would show that his evidence is not confidence inspiring. It would also be seen that on one hand he has said that he himself has paid rent to the attorney of the respondent and on the other hand he said that he was not ware of the house of the said attorney Haji Mushtaq. On one hand he has stated that rent for the months of October and November 1988 was paid by the appellant/tenant in his presence and on the other hand he has admitted that rent for the months of October and November 1988 was sent through money order. How it is possible that when rent is paid for the said months, the same could be tendered again through money order. It is not the case of the appellant that second time rent for said months was sent through money order. In the circumstances, no reliance could be placed on the evidence of said witness. Next contention of the learned counsel for appellant in the alternative is that as the agreement between the parties though admitted, was not duly attested either by the Magistrate or by Rent Controller, it could hot be looked into therefore rent would be payable after the expiry of sixty days, when the monthly rent is payable hence the rent for the month of October 1988 would be payable after expiry of sixty days viz. by 31st December, 1988 while the rent for the month of November 1988 would be payable by 31st January 1989 hence there could be no default in the payment of rent by the appellant. The contention has no merit and substance. Even it is said that the rent for the said months was payable by the end of December 1988 and January 1989 then also as the appellant tendered rent as per money order coupon on 14.2.1989 (though the said fact has also not been proved) the rent for the said months was not tendered in time as required by law, there would be default in payment of rent. Section 10 of Rent Ordinance clearly states that the rent in absence of any fixed date stated in the agreement between the landlord and tenant shall not be paid later than the tenant of month next following the month for which it is due, and such rent shall be paid on the acknowledgement of receipt in writing from the landlord while in case of refusal or avoidance to accept the same shall be sent by postal money order or be deposited with the Rent Controller and such acknowledgment or postal receipt shall be proof of payment of rent. In the instant case tenancy agreement wsa not renewed between the parties and as per para 4 of the said agreement rent was payable by 10 the of each calendar month which in the instant case has not been paid which has been proved by the respondent and the appellant has failed to rebut the respondent's evidence. But in case no rent receipt was issued by the respondent's attorney then appellant should have soon thereafter sent rent through money order to the respondent but no such evidence has been produced that the appellant sent the rent through postal money order soon thereafter. The postal money order coupon sent is dated 14.2.1989 long after the alleged period of default in payment of rent. Neither postal money order receipt is produced nor postal is examined to prove the refusal to accept money order, consequently, alleged tender of rent by money order could not be termed to have been made in terms of agreement or in terms of provisions of law as contained in section 15(2) of the Rent Ordinance. So far the said expired rent agreement between the parties, Supreme Court of Pakistan in reported case Mrs. Zarina Khawqja v. Agha Mahboob Skah (PLD 1988 S.C. 190) at pages 199-200 has observed :- "We have carefully considered the implication of various judgments of the Supreme Court, which deal with the question of continuance of the terms of agreement of tenancy, after its termination. Leaving aside the theoretical possibilities all of them can be interpreted consistently on the following lines : One : notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with : (a) the general law, and, (b) the terms of tenancy between the parties, But subject to a very important condition that in case of repugnancy of either of these two elements to any of the provisions of the rent law the latter shall prevail, meaning thereby that the provisions of the general law and/or the covenants, in the agreement to the contrary, shall have no effect; Two : during the continuance and subsistence of the agreement of tenancy, the question of relationship of landlord and tenant, the regulation of the relationship particularly vis-a-vis the determination and payment of rent, as also tire eviction, shall be governed by the convenants contained in the agreement; provided that those covenants do not come in conflict with the provisions of the rent law and in case of conflict the provisions of that law will prevail notwithstanding any term of agreement to the contrary; Three : after the expiry of the agreement the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of the Rent Restriction Law. On the contrary, it was specifically provided in the definition of a 'tenant' in section 2 of the West Pakistan Urban Rent Restriction Ordinance, 1959, that a possession after the termination of the tenancy in his favour". The definition of tenant in the present Sindh Law also provides that a tenant would include "any person who continues to he in possession or occupation of the premises after the termination of his tenancy'. Not only this, the present Sindh Law made it more clear when the provisions contained in sections 6 and 15 (2)(i) of the Sindh Rented Premises Ordinance, 1979, providing that no tenancy would remain valid beyond that mutually agreed period and that a tenant would be liable to be evicted on termination of such period, were repealed. The obvious reason was that the pre­ existing law before the re-enactment was kept intact, namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visualised in the definition of the tenant holding over. However, notwithstanding the continued operation of the terms of the agreement after the termination of the agreement; by process of law as aforesaid, its provisions whenever they are in conflict with the rent law, shall not he operative For example, if a special method of eviction of the tenant is provided in the terms of the agreement which are repugnant to the provisions contained in the relevant Rent Restriction Law, the latter shall prevail to the extent of repugnancy. Section 15 of the Sindh Law is explicit on this point. Same was the position in the repealed Law. Similarly would be the case relating to some other situations, for example, the determination of the fair rent. Similarly, the vice versa position would also be correct. The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreement increase in rent provided it is not after the determination of fair rent, provision for re-entry of a tenant after he vacates the premises for re-construction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the Law repealed by it, and similar other conditions and comments. There is useful discussion on this aspect in the case of Muhammad Yunus Malik v. Mst. Zahida Irshad 1980 SCMR 184. We accordingly answer the 4th question in the negative and hold that the terms of an expired agreement as such, continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an unexpired agreement also. In the circumstances, in the light of the above evidence and the case law it could be concluded that the terms of agreement being not inconsistent to the Rent Ordinance would be operative and binding upon appellant/tenant therefore appellant was bound to pay rent by 10th of each succeeding month but as he failed to pay rent for the months of October, November 1988 till the filing of eviction application he was-rightly held to be defaulter in the payment of rent under the law.Next contention of the learned counsel for appellant that only one month's default has been committed therefore discretion could have been exercised in favour of appellant. The said contention has no merits as payment of rent for the two months viz. October and November 1988 was not paid by the appellant/tenant. Even the perusal of annexures 'A' and 'A/1' would show theat rent for the months of July, August and September 1988 was paid on 14.8.1988 and 13J1.1988 therefore rent for the months of July and August 1988 was not paid by 10th of succeeding month. In terms of tenancy agreement. This would lead to conclusion that the appellant did not pay rent earlier also in time. The said conduct of making delayed payment of rent by the appellant does not entitle him to the discretion to be exercised in his favour by this Court. In the circumstances, I do not find merits in this appeal, consequently, same is hereby dismissed. However, period of sixty days is given to the appellant/tenancy to vacate the disputed premises subject to payment of rent for the said period. (K.K.F.) Appeal dismissed.

PLJ 1998 Karachi 143 PLJ 1998 Karachi 143 Present: ABDUL HAMID DOGAR, J. ZAMIR HUSSAIN-Petitioner versus BADSHAH and others-Respondents Constitutional Petition No. S-175/97, dismissed on 20.8.1997. Constitution of Pakistan, 1973-- —- Art, 199~F.I.R.--Quashment of-Offence u/S. 11 & 16 of Zina (Enforcement of Hadood) Ordinance, 1979-Constitutional Jurisdiction under Art. 199 being purely a discretionaiy one can only be exercised in cases where action has either been taken mala fidely against law and beyond jurisdiction or has in fact caused some injustice to parties-A person can be permitted to invoke discretionary power of court, it must be shown that order sought to be set aside had occasioned some injustice to parties, and if it does not work any injustice to any party, rather it cures a manifest illegalities that extra ordinary jurisdiction ought not to be allowed to be invoked-Quetions of disputed fact should not ordinarily be adjudicated upon in constitutional jurisdiction-Complainant party will be seriously prejudiced if FIR is declared false at this stage for reasons, firstly, that investigation has not yet initiated, secondly, that no chance isprovided to complainant to bring or produce evidence in investigation-­ Petition dismissed. [P. 147] A, B C & D Mr. Mahmood A, Qureshi, Advocate for Petitioner. Mr. Jai Jai Veshno, Additional A.G. for Respondent. Date of hearing : 20.8.1997. order 1. Granted for the time being subject to all just exceptions. 2. Through this petition the petitioner seeks quashment of FIR No. 66/97 of P.S. Naudero District Larkana, registered under Sections 11 and 16 of Offence ofZina (Enforcement of Hudood) Ordinance, 1979. He has prayed for the following reliefs :- 1. That the action of respondents No. 1 to 3 is illegal unlawful, without lawful authority, without and againstthe law, not warranted under the law, the same is of no legal effect and against the public interest and is in derogation of the fundamental rights as an provided and guaranteed under the Constitution of the Islamic Republic of Pakistan of 1973 to the citizens of this country. 2. That this Honourable High Court may further be pleased to order for restraining the respondents from harassing, humiliating, disgracing, threatening, arresting and/or taking any action against or to the petitioner without lawful authorities or without due course of law. 3. That this Honourable High Court may further be pleased order, declared and quash the said FIR No. 66 /1997 under Section 11/16 of the Zina (Enforcement of Hudood)Ordinance of 1979, registered at Police Station Naudero District Larkana (Sindh) and further. That this Hon'ble Court may further he pleased to grant any other relief of reliefs as may be deemed fit, proper and expedient in the circumstances of this case in the interest of justice and equity. The relevant facts to the filing of the petitioner are that above crime was lodged on 12.7.97 on the report of respondent No. 1 Badshah that he has three sisters, out of whom Mst. Shabana aged about 17-18 years is unmarried and she as well as his uncle Abdul Sattar and cousin Khadim Hussain reside together. On 8.7./1997 at about 2.00 P.M. his relative Zamir Hussain came to their house and after staying for half an hour went way. On the said date at about 4.00 P.M. while complainant and the other inmates were present in the house, there appeared Zamir Hussain petitioner with pistol, Shahid AH Brohi and Hussain Ali Burdi both resident of Nasirabad with guns in their hands. It is mentioned that petitioner and the other culorits on the pointation of arms dragged Mst. Shabana from outside the house and went to narrate the incident to nekmard Gulsher Ali, who was not present, and came back on the lodging of FIR, who advised him to report the matter with the police. In the FIR she was said to have been abducted with the intention to commit zina.Mr. Mahmood A. Qureshi, argues on behalf of the petitioner that the abductee Mst. Shahana has married with the petitioner with her own free will according to Muhammadan Law on 9-7-1997, as such they have committed on offence and FIR has been lodged mala fidely on 12-7-1997 after knowing the above fact that the spouse have married. He further contends that Mst. Shabana in her affidavit sworn on 9-7 1997 before Judicial Magistrate, Dadu has stated that she was engaged with the petitioner by her parents and her brothers wanted to sell her to some other person as such she left the house and went to the petitioner at her own free will and being a major and sui-jures contracted marriage with petitioner at her own accord. In support learned counsel has placed reliance on the following case law : (i) Mst. Waziran & others vs. Supdt. of Police Bhakkar 1997 P. Cr. L.J. 996. (ii) Muhammad Banaras vs. S.H.O. & others 1995 P. Cr. L.J. 94. (iii) Mst. Razia Bibi vs. S.H.O. Gunjial District Khushab 1995 P. Cr. L.J: 797. (iv) Shenaz Begum vs. Hon'ble Judges of High Court of Sindh & Balochistan (P.L.D. 1971 S.C. 677 & 693) (v) Adamjee Insurance Co. Ltd vs. Asstt. Director Enquiry wing 1989 P. Cr. L.J. 1921. On the other hand learned Additional Advocate General Mr. Jai Jai Veshno vehemently controverts the contentions of the petitioner's counsel and states that this petition is not maintainable and no fundamental right, of the petitioner is infringed. He argues that the incident actually took place on 8-7-1997 whereas the marriage has been contracted by the petitioner and Mst. Shabana alleged abductee on 10-7-1997, as such the fact that the above crime took place or not can only be thrashed in the investigation. The petitioner should have joined the investigation before approaching this Court in Writ Petition seeking quashment of FIR This crime is registered on the complaint of brother of Ms?. Shabana who according to FIR was forcibly abducted by the petitioner and others on the pointation of arms in presence of PWs. It is admitted fact that the petitioner has neither joined himself in the investigation of the case nor has produced alleged abductee Mst. Shabana for interrogation as such at this stage it cannot be termed that FIR is false and concocted, it is purely a question of fact, which cannot be thrashed in this petition. On the face of it the incident is shown to have been taken place on 8-7-1997 whereas the Nikah has taken place three days thereafter on 10-7-1997. The petitioner according to the petition is resident of Quarter No. 2/1 Sector 36-B, Landhi, Karachi and complainant Badshah and his sister Mst. Shabana are resident of Larkana and Nikahnama shows that it was registered with Nikah Registrar Municipal Committee Dadu. The veracity of documents viz. the affidavit of Mst. Shabana and their Nikahnama can only be judged when the same are produced in the investigation. These being purely disputed questions of fact and can only be ascertained in the evidence which cannot be recorded in the petitioner therefore at this stage it will be too premature to term the FIR as false. In the case of Muhammad Rashid vs. Station House Officer and others (1997) P.Cr.L. J. 928) Lahore High Court quashed the FIR on different facts and circumstances to that of the case in hand. In the cited case the petitioner after getting bail joined investigation. Lahore High Court in, the case of Mst. Razia vs. Station House Officer (1995 P.Cr. L.J. 797) quashed the FIR mainly on the ground that the petitioner and one Sadiq after bail joined investigation and produced the relevant documents. The facts of the referred case of Adamjee Insurance Company Ltd., vs. Assistant Director Enquiry Wing (1989 P.Cr. L.J. 1921) are quite distinct from the one in hand. In the reported case the prayer was that respondents could not. have initiated investigation/enquiry without first recording of FIR if the alleged offence is cognizable and in case the alleged offence is not cognizable thenwith the permission of Magistrate. The case of Shahnaz Begum vs. Hon 'ble Judge of High Court of Sindh and Balochistan (PLD 1971 SC 677) is not applicable to the facts and circumstances of the present case as in the citedcase the Hon'ble Supreme Court has held that in Constitutional Petition an investigation can be challenged if it is launched mala fidely or is clearly beyond the jurisdiction of the agency concerned. Advertising the prayer clause in the petition it is necessary to mention that same are not in consonance with the contentions raised by the petitioner in the petition. In the entire petition the petitioner has never gaited for any short of relief against the respondents No. 1 to 3 so much so that he has mentioned nothing as to which of his fundamental right is infringed or violated by any of the respondents or any other official functionaries. The entire petition is based on the facts of the FIR and the affidavit sworn by Mst. Shabana before Judicial Magistrate and not even a single round has been taken on which action of respondents No. 1 to 3 is illegal, unlawful without lawful authorised and against the law, as such the prayer No. 1 in such circumstances is untenable and unjustified and cannot be granted. About the second prayer the petitioner has said nothing in the petition as to in what manner he is being harassed by the respondents, same therefore, is not sustainable and cannot be granted. The quashment of FIR as prayed in the prayer clause No. 3 at this stage when petitioner has not joined investigation and all pleas taken by him in the petition relating to the disputed questions of fact, cannot be resolved in the Constitutional Petition as the same requires evidence which can only be done by the competent authority. On this point reference many be made to the case of Muhammad Rashid Khan vs. Ch. Saeed Akhtar and others (1987 SCMR 441-c) wherein Hon'ble Supreme Curt has held that High Court in exercise of Constitutional jurisdiction cannot go behind questions of fact which were for competent authority to determine unless any substantial error was found in reaching them. Moreover Constitutional jurisdiction under Article 199 being purely a discretionary one can only be exercised in the cases where action has either been taken mala fidely against law and beyond jurisdiction or has in fact caused some injustice to the parties. In certain cases Hon'ble Supreme Court has refused to grant relief to the parties in Writs where the order to be set aside was illegal but had caused no injustice to the parties. Reference is made to the case of Raunaq Ali etc vs. Chief Settlement Commissioner & others (PLD 1973 SC 236) In this case it has been held by Hon'ble Supreme Court that an order in the nature of writ of certiorari or mandamus is a discretionary one its object is to foster justice and rise wrong. Therefore, a person can be permitted to invoke the discretionary power of the Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to „ any party, rather it cures a manifest illegalities, then the extra ordinary jurisdiction ought not to be allowed to be invoked. Full Bench of Hon'ble Supreme Court in the case of Federation of Pakistan vs. Haji Saifullah (1988 SCMR 166-c) had held that writ jurisdiction si discretionary in nature and even if Court finds that a party has a good case it may refrain from giving him relief, if greater harm is likely to be caused thereby then the one sought to be remained. The same view has been followed by this Court in the case of Ghulam SarwarAwan vs. Government ofSindh (P.L.D. 1988 Karachi 414(e). Apparently in the present case complainant party will be seriously prejudiced if FIR is declared false at this stage for the reasons, firstly, that investigation has not yet intimated, secondly that no chance is provided to complainant to bring or produce the evidence in the investigation. In any case Hon'ble Supreme Court in the case of Karachi Municipal Corporation vs. M/s. Harina Salt Chemicals (Pak) Ltd. & others (1988 SCMR 1259(d) it has been held that questions of disputed fact should not ordinarily be I) adjudicated upon in the Constitutional jurisdiction In the result, I do not find nay merit in this petition which is dismissed in limine. (K.K.F.) Appeal dismissed.

PLJ 1998 Karachi 148 (DB) PLJ 1998 Karachi 148 (DB) Present: WAJIHUDDIN AHMAD & ZAKIR HUSSAIN MlRZA, JJ. SHAMS MOHIUDDIN ANSARI-Appellant versus M/S INTERNATIONAL BUILDERS, KARACHI-Respondent H.C.A. No. 25 of 1997, decided on 13.8.1997. Contract Act 1872 (IX of 1872)-- —S.2-Application filed by appellants for allocation of shop premises in building project-Acceptance of appellants offer and execution of contract--Deviation from stipulations by respondents—Allegations of—Learned Single Judge through order while refusing interim injunction to plaintiff, in restraint of further construction upon alleged violation of contractual terms, has, however, dilated upon admission on part of project Manager, in their written statement, to the effect that they had not deviated from original concepts of plan nor from their avowals-Learned counsel appearing for builder-respondents, has categorically re-iterated that, in first place, no deviations have been made and in second, slight alterations, such as reservations of two parking floors, instead of one can only be to the advantage of members of public, who chose to duly come up with their offers in response to general invitation—More specifically, it has also been denied by counsel of builders that offices proposed in upper storeys of building have been converted into shops by Managers of project and, according to him, original proposal, as to office accommodation, has been maintained—High Court (DB) would record above statement as well as position taken before single Judge, from whose order appellantplaintiff has appealed, as undertakings made to Court-Held : Any deviation or transgression thereof would be actionable as if order of injunction of Court had been contravened—Appeal disposed of in above terms. [P. 149] A, B & C Mr. Aminuddin Ansari, Advocate for Appellant. Mr. Abdul Muqtadar Khan, Advocate for Respondents. Date of hearing: 13.8.1997 order Wajihuddin Ahmad, J.-Briefly put, the case of the appellantplaintiff has been that he applied for the allocation of a shop premises in the project of the respondents on the basis of an advertisement and a duly supplied brochure, specirying the various features of the building project in question. The quoted price of the shop was Rs. 940,000/- out of which, after acceptance of the appellant's offer, a fourth was paid. Once, in response to the advertised invitation to offer, the proposal of the appellant-plaintiff was made and accepted, the terms, in the advertisement and follow up brochure, patently. Crystalised in a contract. These are the implications of the interpretation clause in Section 2 of the Contract Act, 1872. Contractual obligations having been incurred thus, speaking broadly, no deviation from the stipulations, except by mutual consent or with intendment to benefit the members of the public, committing themselves in response to the invitation or on account of a reprieve for general good, adjudicated upon by a competent Court or authority, could be permitted. One such authority, spoken of here, may be the KBCA, constituted under the Sind Building Control Ordinance, 1979 The learned single Judge, through the order under appeal, while refusing the interim injunction to the plaintiff, in restraint of further construction upon the alleged violation of the contractual terms, has, however, dilated upon an admission on the part of the project managers, in their written statement, to the effect that they had not deviated from the original concepts of the plan nor from their avowals, made public as above. In response to the notice under Order 43 Rule 3 CPC, the respondents defendants have also been represented here before us. Mr. Abdul Muqatadar Khan, appearing for the builder-respondents, has categorically re-iterated that, in the first place, no deviations have been made and, in the second, the slight alterations, such as reservations of two parking floors, instead of one, can only be to the advantage of the members of public, who chose to duly come up with their offers in response to the general invitation. With this we agree. More specifically, it has also been denied by Mr. Abdul Muqatadar Khan that the offices proposed in the upper storeys of the building have been converted into shops by the managers of the project and, according to him, the original proposal, as to office accommodation, has been maintained. In the circumstances, we would record the above statement as well as the position taken before the learned single Judge, from whose order the appellant-plaintiff has appealed, as undertakings made to the Court. Any deviation or transgression thereof would be actionable as if an order of injunction of the Court had been contravened.Disposed of in the terms but with no order as to costs. (B.T.) Appeal disposed of.

PLJ 1998 Karachi 150 (DB) PLJ 1998 Karachi 150 (DB) Present: WAJIHUDDIN AHMAD AND ALI MUHAMMAD BALOCH. JJ. MAZDOOR UNION, KARACHI WATER AND SEWERAGE-Appellant. versus REGISTRAR OF TRADE UNIONS, (CENTRAL DIVISION) KARACHI and 9 others-Respondents H.C.A. No. 70 of 1996, dismissed on 16.12.1996. Law Reforms Ordinance 1972 (XII of 1972)-- _—S. 3-Industrial Relations Ordinance (XXIII of 1969), S. 22 (5) & S. 22 (a) Failure of respondent No 2 (Union) to poll minimum number of employed workmen & rigging of poll—Allegations against respondents-­ Appeal against issuance of C.B.A certificate by respondent No. 1 in favour of respondent No. 2 dismissed by single judge of High Court-Challenge to-Learned single judge has observed that no such list of 13282 workmenwas filed with petition—No such list was ever verified or prepared by Registrar as envisioned in Section 22 (5) of I.R.O-No challenge prior to poll on issued list was raised—Even after poll, no specific prayer in petition was made, questioning dimension of voter's list—Total number ofemployed workmen in section 22 (9) cannot be indefinite list of voters prepared under section 22 (5) of I.R.O.--Allegations of rigging, such as they may have been, ought to have been raised at level of departmental functionaries and an enquiry ought to have been solicited--It was onlyagainst outcome of such exercise or refusal to process it that relevant grievance could be brought to High Court, under Art. 199 of Constitution of Pakistan-Normally corrective measure being confined to proper, further or additional enquiry, leading to appropriate and lawful rights rather than holding of enquiry in High Court itself—Held: Respondent No. 2 Union, which polled 4330 votes seem to have qualified the required limit in first proviso to Section 22 (9) I.R.O.-Appeal not maintainable and accordingly dismissed. [Pp. 152 & 153] A, B, C, D, E, F & G. Ch. Rasheed Ahmad, Advocate for Appellant. Mr. All Arnjad, Advocate for Respondent No. 2. Date of hearing: 16.12.1996. order Wajihuddin Ahmed, J.~At Sr. No. 2 is an application under Section 5 of the Limitation Act and seeks condonation of delay on the ground that because of contracting hepatitis the Secretary of the Appellant-Union could not prefer this appeal in time. The period involved is stated to be 16 or 17 days. Due Counter affidavit to the application is filed. The mere fact that the appeal is filed by the Union, which is a legal entity, does not justify condonation solely because one of the officers of such legal entity was suffering from a disease, which had a potential to personally prevent him from preferring the requisite appeal, even if it is assumed that the disease had such a potential. Quite plainly, other office bearers could have acted to prevent default. The condonation, therefore, is not called for Even as to merits, the appellant does not have any plausible cause. In the petition, which was brought before a single Bench of this Court, the prayer is as under: "It is. therefore, prayed that this Hon'ble Court may be pleased to:- (i) summon the record and proceedings from Respondent No. 1 respecting secret ballot proceedings from the commencement to the issuance of impugned certificate and may be pleased to hold and declare that Respondent No. 2 union did not secure l/3rd votes of total number of workmen (which are admittedly 13282) and as such the issuance of CBA certificate by Respondent No. 1 in favour of Respondent No. 2 vide Annexure 'G' to this petition is illegal, ab-initio invalid, without lawful authority and/or jurisdiction; (ii) Restrain the Respondent Nos. 1, 2 and 10 from taking any advantage or benefit of impugned certificate dated 24.3.1996 (Annexure 'G' to this petition) by posting/claiming to be the Collective Bargaining Agent and the facilities allowed to the petitioner Union prior to 21.3.1996, may not be withdrawn. (iii) Any other relief which this Hon'ble Court may deem fit. (iv) Cost of the petition. It would thus seem that the entire grievance of the petitioner, who is the appellant herein, before the learned single judge was that respondent No. 2-Union, which has since been declared to be the Collective Bargaining Agent of respondent No. 10-Establishment, the Karachi Water & Sewerage Board, did not qualify to be so declared as it did not, contrary to Section 22(9) of the Industrial Relations Ordinance, 1969 (IRQ), poll the required minimum of not less than one third of the total number of employed workmen, which were claimed to be 13282. However, the relevant provision in the I.R.O., pertaining to the issuance of the voters' list is Section 22(5), which is as follows:- "The Registrar shall, after verification of the lists submitted by trade unions, prepare a list of voters in which shall be included the name of every workman whose period of employment (as computed in accordance with sub-section (4) is not less than three months and who is a member of any of the contesting trade unions and shall, atleast four days prior to the date fixed for the poll, send to each of the contesting trade unions a certified copy of the list of voters so prepared." It will at. once be seen that the list upon which the vote is to be held is one to be verified and prepared by the Registrar of Trade Unions and admittedly the relevant list carried 12873 voters and not the number claimed by the appellant. On such basis the respondent No. 2- Union , which polled 4330 votes, seems to have qualified the required limit in the first proviso to Section 22(9) above. Mr. Ch. Rasheed Ahmed for the appellant, however, has drawn our attention to a meeting held by the Registrar Trade Unions on 11.1.1996 where, according to him, total strength of workmen in the respondent- Establishment was determined to be 13282 workmen and such was done with the consent of all the Unions represented. He relies on the following two passages from the Minutes of that meeting:- "The representatives of the Management has submitted a complete list of (13152 + 129 = 13282) workmen, the total number of workmen employed in KW & SB whose services are more than 3 months. He also submitted that there is no workmen employed in the establishment whose service is less than 3 months. The representatives of all the contestant Trade Unions, present in the meeting agreed that the above list of workmen may be treated as voters list as the list contain names of all the members of all or either registered Trade Unions." The learned Single Judge, on the point, has observed that no such list of 13282 workmen was filed with the petition. What is more we find that no such list was ever verified or prepared by the Registrar as envisioned in Section 22(5) of the I.R.O. The requisite list under that provision is postulated to be provided atleast 4 days in advance of the date fixed for the poll, clearly leaving room open for a challenge, if warranted. That challenge never came through but Mr. Ch. Rasheed says that such transpired because the Registrar issued bifurcated booth-wise lists and not a comprehensive list. It is far too belated a plea. Even so, a simple exercise in arithmetic could have furnished the sum total of the enlisted voters for those who felt concerned, let alone aggrieved. The fact, therefore, remains that no challenge prior to the poll on the issued list was raised. Even after the poll no specific prayer in the petition was made, questioning the dimension of the voters' list though something might have been said in the body of the petition about the propriety of such a list. That was not enough and a specific prayer was warranted, preceded by a timely objection and an illegality committed by the Registrar either prior to or after the submission of such objection. The total number of employed workmen in Section .22(9) cannot be an indefinite figure. It is to be based on the certified list of the voters prepared under Section 22(5) of the I.R.O. In the circumstances, the learned single Judge seems to have right in rejecting the plea that the respondent No. 2-Union did not poll the requisite minimum of one third enlisted workmen Another plea before the learned single judge pertained to the alleged rigging. That plea was rejected on the ground that an enquiry into such questions of fact could not be undertaken in Constitutional jurisdiction. In fact, even that objection was precluded, although on the same ground as the first recapitulated above. The allegations of rigging, such as they may have been, ought to have been raised at the level of the departmental functionaries and an enquiry ought to have been solicited. It was only against an outcome of such an exercise or refusal to process it that the relevant grievance could be brought to the High Court under Article 199 of the Constitution of Pakistan. There, it could be seen whether or not the functionaries of the State had acted lawfully in the matter and only if such officers had acted illegally or otherwise than in due course of law that the necessaiy directive could issue, normally the corrective measure being confined to a proper, further or additional enquiry, leading to appropriate and lawful results rather than holding of the enquiry in the High Court itself. On none of the grounds the appellant has made out any case. Therefore, this appeal is not sustainable. The matters at Sr. Nos. 1 and 2 are, accordingly, dismissed. (B.T.) Appeal dismissed.

PLJ 1998 Karachi 154 (DB) PLJ 1998 Karachi 154 (DB) Present: wajihuddin ahmed AND M.A. memon, JJ. BAHAR KHAN GHORI-Petitioner versus ELECTION TRIBUNAL NO. 1, KARACHI and 2 others-Respondents C.P. No. 67 of 1997, accepted on 15.1.1997. (i) Civil Procedure Code, 1908 (V of 1908)-- -----O. II, R. 2-Representation of the People Act (LXXXV of 1976), S. 11- Principle of jf?es-j«dzcata-Applicability--Whether arguments not advanced with regard to counting of 5 days period for filing nomination papers in earlier litigation would estop petitioner to raise same at a later stage-­ Question of-Bar, if any, could have applied if in terms of O. II, R. 2. C.P.C., all available causes of action were not joined in previous proceedings and one and more causes, having been left out, were agitated later on-For obvious reasons, cause of action at this stage is not same as at stage of previous constitutional petition-At that time, all that petitioners were seeking, were not more than entertainment of theirnomination papers-For that relief, whatever was found necessary was pleaded and that apparently was enough as petitioners succeeded in ultimate analysis-They are, as at present, aggrieved not on account of non-entertainment of their nomination papers, but in relation to rejectionthereof and surely this is different stage and different cause of action-­ Held: Petitioners can take any legal plea available to them at this juncture of proceedings. [P. 160JC (ii) Representative of the People Act, 1976 (LXXXV of 1976)-- —-S. 11-Limitation Act (IX of 1908), S. 12(1), General Clauses Act (X of 1897), S. 9—Connotation of word "after" occurring in Section 11 of Representation of the People Act, 1976 for purpose of counting five days period for filing nomination papers-It is plain that where act is required to be done within specified period after given event or after prescribed date or time of such event, point of time from which period is to be reckoned or to commence, is not to be counted and period as many days involved mean, unless otherwise provided, clear time—This is a rule based on common sense and good reason and has also been adopted in law pertaining to limitation-Thus section 12(1) of Limitation Act, 1908, expressly provides that where limitation is prescribed to commence under such enactment from particular day, such day would not be taken into reckoning—Besides, in Central Statute in order to exclude first in series of days or any other period of time, it has been postulated in Section 9 of General Clauses Act, 1897, that use of word "from is much weaker than word "after", used in Section 11 in question. [P. 159] A (Hi) Representation of the People Act, 1976 (LXXXV of 1976)-- —S. 11-Notification for holding election and filing of nomination papersetc. issued on 16.12.1996 by Election Commission and published in Gazette of Pakistan on 17.12.1996--When will five days period allowed for filing nomination papers will culminate-Question of-Placed in legislative and legal background, it would appear that relevant date is date of gazette notification viz. 17.12.1996 and not date of its issue i.e. 16.12.1996-On such premises, if period of five days in subsection (1) of Section 11 of 1976 statute is to be counted, count is to be related back to that period "after" date of gazette notification-Held : December 17, 1996, would be excluded and 5th day would culminate on 22.12.1996 and not 21.12.1996 as notified. [P. 159] B (iv) Representation of the People Act, 1976 (LXXXV of 1976)-- —-S. 11-Nomination papers-Rejection of-Challenge to-Whel.her petitioners are entitled to protection of law on account of infirmities in the procedure of holding election-Question of-In paragraph-12 of Manual of Instructions, time of receipt of nomination papers is stipulated to be between 9 AM and 3 PM daily-As against this, same Manual in applicable proforma of notice envisages time restriction to be between 9 0. Clock in morning and 4 0.Clock in afternoon on all working days from ". Inconsistency or contradictions, as case may be, has occurred became in previous Manual of Instructions issued to last election, prescribed period of time was between 9 A.M. and 4 P.M., which evidently was altered in as far as Paragraph 12 ibid, is concerned, but corresponding modification did not take place in proforma of notice in question—Be that as it may and irrespective of reasons for discrepancy, fact remains that at least some of petitioners, thereby and in effect disenfranchising effectees, which is very serious matter-This inconsistency, accordingly, cannot be ignored and necessaiy relief appears to be warranted-Clause (3) in Art. 218 of Constitutional provisionsclearly shows that it is duty of Election Commission, inter-alia, to organize and conduct election as also to make arrangements in order to ensure that election is conducted in accordance with law- Petitioners of any of them may have been hit on account of various infirmities and could be entitled to protection of law-If requirements were not satisfied by Election Commission, it did not, at least in relation to petitioners, duly filled its obligations under quoted clause in Art. 218 of Constitution which itself is not trifling matter-Held : Petitioners are entitled to protection of law—Petitioners allowed by recalling orders of rejection of petitioners nomination papers and requiring Returning Officers to examine same within 24 hours of communication of this order, and that being done, passing appropriate orders in consonance with applicable law. [Pp. 161 & 162] D. E. F & G Mr. Khalid Javed and G.M. Saleern, Advocates for petitioners in C.P. Nos. D-76, 68 & 69 all of 1997. Syed Iqbal Haider, Petitioner in person in C.P. No. D-76/97. Mr. Abdul Munir Khan, Advocate for Petitioner in C.P. No. D- 133/1997. Mr. Syed Tariq Ali, standing Counsel for Respondents, with Mr. Muhammad Sarwar Khan, Addl A.G. Sindh. Date of hearing: 15.1.1997. order Wajihuddin Ahmed, J.--Since there are common questions of fact and law involved in these petitions such are disposed of through this common order. As to facts, the Election Commission of Pakistan, pursuant to Section 11 of the Representation of the People Act, 1976, issued, inter alia, a Notification dated 16.12.1996, which was published in the Gazette of Pakistan Extra ordinary, dated 17.12.1996. According to such notification, whereby the constituencies were generally called upon to elect representatives, successive dates of filing of nomination papers, scrutiny thereof, appeals against rejection/acceptance etc., were notified. The crucial date for. our purpose is the last date for filing nomination papers, viz: 21.12.1996. It is the case of the petitioners (prospective candidates) before us that all of them were present before the relevant Returning Officer(s) on 21.12.1996 before the expiry of the appointed time namely, 3 pm on that date but because such time expired on account of rush of work their nomination papers were not entertained. It would seem that the petitioners under-took an earlier round of litigation and filed Constitutional Petitions here, some of which were rejected, the matters going to Supreme Court of Pakistan. There, we are informed, orders were passed to the effect that the Returning Officers were to entertain the relevant nomination papers, which being done, the nomination could either be rejected or accepted, giving rire, in course of time, to due appeals before the pre-election Tribunal set up under the aforesaid enactment of 1976 It is maintained that upon being thus entertained the nomination papers were rejected as beyond time and the petitioners approached the Election Tribunal, which through a common order, dated 9.1.1997, dismissed the appeals. Here, it may be relevant to point that the Tribunal, on the factual plane, found that all candidates or other concerned persons, who were physically present before the Returning Officers on the appointed day, before the efflux of the appointed time, papers were entertained even beyond the time fixed. In the circumstances, we do not think that such a factual conclusion in open for further scrutiny at this level of the proceedings and at this stageEven so, several questions of fact and law have been thrown up for examination. It has been argued before us that in terms of Section 11 of Representation of the People Act, 1976, the aforesaid notification dated 16.12.1996 does not qualify as a valid one. Relevantly, Section ll(l)(a> runs thus:"11. Notification for election.-(i) As soon as the President makes an announcement of the date or dates on which the polls shall be taken, the Election Commission shall, by notification in the Official Gazette call upon a constituency to elect a representative or representatives and appoint- (a) the last date for making nominations, which shall be fifth day after the date of publication of the notification or, if that day is a public holiday the next succeeding day which is not public holiday;" (emphasis supplied) To be precise, contention is that the period of five days allowed by Section ll(l)(a) is to be a clear period and the count is to commence after excluding the .date of publication of the relevant notification in the Official Gazette. Proceeding on that basis, the last date for filing of nomination papers would come to be 22.12.1996 and not 21.12.1996, as notified by the Commission. We may add here that such question though raised before, it was left un-decided by the Election Tribunal, (comprising of our learned brothers Kamal Mansoor Alam and Ali Mohd Baloch, JJ.) in its aforesaid order dated 6.1.1997 and the reasons for so doing appear in the following passage, which we reproduce for the sake of ready reference: "We called from the notification from the Election Commission Office and the notification placed before us shows that it was issued on 16.12.1996 but it was published in the Gazette of Pakistan on 17th December, 1996. If the fifth day provided for the receipt of nomination paper underthe aforesaid clause (a) is to be reckoned excluding 17th it would appear to end on 22.12.1996. However, in respect of both these objections, it may not be possible for this Tribunal to express any opinion for the simple reason that this Tribunal has a very limited jurisdiction confined only to deal with appeals filed by candidates "against the decision of the Returning Officers rejecting or, as the case may be accepting the nomination paper of the candidates. It will therefore perhaps not be proper for us to examine the action of the Election Commission. Even otherwise, with the short time at our disposal, we have to decide around 113 appeals by 7.1.1997, it will not be possible to undertake detailed examination of the questions being agitated with regard to the scope of the powers of the Election Commission in issuing the notification under Section 11. As such, we leave these questions to be taken up by the appellants before the proper forum in appropriate proceedings." In order to entertain the argument in the exercise of Constitutional jurisdiction of this Court, we have been referred to Ghulam Mustafa Jatio v. Additional District and Sessions Judge, 1994 SCMR 1299, where if not the same at least a similar questions pertaining to the submission of a nomination paper was allowed to be agitated in the Constitutional jurisdiction of the superior Courts. Thus there appears to be no apparent preclusion to examine such a question here, more so when the Tribunal has declined to determine the same and, additionally, when no appeal lay against the order of the Tribunal, spelling finality thereof. Mr. Khalid Javed, for some of the petitioners, as to the concept, of publication of a notification, has drawn our attention to Province of East Pakistan v. Hasan Askary, PLD 1971 SC 82, where a comprehensive discussion has taken place as to the various requirements touching the publication of notifications and it has been found that even where the relevant law does not expressly stipulate the notification to be gazetted, its gazetting is implicit by virtue of the provisions in the General Clauses Act and, besides, mere publication as well may not in itself be sufficient compliance of law, unless it be further shown that the publication was effected in the manner usually adopted for such a purpose. A similar view was expressed by the same Court in Muhammad Suleman v. Abdul Ghani, PLD 1978 SC 190. Needless to add that sub-section (1) Section 11 Nupra pointedly requires the notification to be gazetted, making the legislative intent more than manifest. We have also been invited to opine on the connotations of word "after", occurring in the reproduced portion of Section 11 ibid and in context Manjuli v. Civil Judge, AIR 1970 Bombay 1 and Jitender Tyagi v. Delhi Administration and another, (1989) 4 Supreme Court Cases 653, have been referred, which appear to be pertinent. It is plain that where an act is required to be done within a specified period after a given event or after the prescribed date or time of such event, the point of time from which the period is to be reckoned or to commence, is not to be counted and the period or as many days involved mean, unless otherwise provided, clear time. This is a rule based on common sense and good reason and has also been adopted in the law pertaining to limitation. Thus Section 12(1) of the Limitation Act, 1908, expressly provides that where limitation is prescribed to commence under such enactment from a particular day, such day would not be taken into reckoning. Besides, in a central statute in order to exclude the first in a series of days or any other period of time, it has been postulated in Section 9 of the General Clauses Act, 1897, that the use of the word "from" would be deemed as sufficient. It should hardly brook any argument that for excluding such a first day the word "from" is much weaker than the word "after", used in Section 11 in question, Section 9 in the General Clauses Act, 1897, is as under:- "9. Commencement and termination of time. (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from", and, for the purpose of including the last in a'series of days or any other period time to use the word "to". (2) This section applied also to all Central Acts made after the third day of January, 1868; and to all Regulations made on or after the fourteenth day of January, 1887."Placed in this legislative and legal background, it would appear that the relevant date is the date of the gazetted notification viz: 17.12.1996 and not the date of its issue i.e. 16.12.1996. On such premise, if the period of days in clause (a) of sub-section (1) of Section 11 of the 1976 statute is to be counted, the count is to be related back to that period "after" the date of the gazetted notification. That being so, December, 17, 1996, would be excluded and the 5th day would culminate on 22. 12. 1996 and not 21.12.1996, as notified. Correspondingly, the argument of the learned counsel for the petitioners is well founded and acceptable on any standard of reasoning As against this, the learned Standing Counsel has referred to section 11-A in the Representation of the People Act, 1976, and has urged that the Election Commission is fully competent to alter the election schedule and the various dates comprised therein which being so that; power may be deemed to have been exercised in the issuance and promulgation of the above notification. This appears to be far-fetched because for something to be altered that thing must pre-exist and there was no pre-existing notification either on December, 16,1996 or December 17,1996 to be altered in terms of Section 11-A. Another objection of the learned Standing Counsel is that the above argument was not advanced by the petitioners in the earlier round of litigation when the previous Constitutional Petitioner were filed and when the matter was taken upto the Supreme Court. It is contended that such constituted acquiescence on the part of the petitioners and they stand estopped from raising the plea at this stage. We are unable to agree. The bar, if any, could have applied if in terms of Order II Rule 2 CPC all the available causes of action were not joined in the previous proceedings and one or more cause, having been left out, were agitated later on. For obvious reasons, the cause of action at this stage is not the same as "at" the stage of the previous Constitutional Petition. At that time, all that the petitioners were seeking was no more than entertainment of their nomination papers. For that relief whatever was found necessary was pleaded and that apparently was enough as the petitions succeeded in the ultimate analysis. They are, as at present, aggrieved not on account of non-entertainment of their nomination papers but in relation to rejection thereof and surely this is a different stage and a different cause of action. The petitioners can, therefore, taken any legal plea available to them at this juncture of the proceedings. What is more, this veiy question was expressly taken in the appeal before the Tribunal but the Tribunal, as quoted by us, declined to interfere on the grounds and reasons, which we have already noted. Yet another aspect of the matter focussed by the learned counsel for the petitioners, pertains to the giving of the follow up notices at the level of the Returning Officers. It has been argued before us that requisite notices were only pasted on the notice boards in the offices of the Returning Officers and no publication in the constituencies, as prescribed by Section ] 1 (,S) of the Representative of the People Act, 1976, actually took place. This being so arguments is that the various ingredients of the time schedule did not lawfully and effectively come into play. However, the question does not appear to have been discussed in the referred order of the Tribunal even though the learned counsel for the petitioners say that such a question was explicitly raised. We are afraid that such is a question involving examination and proof of facts, which at such a late stage and in the circumstances, we feel, would be counter productive to go into and, therefore, we refrain from expressing ourselves on the matter one way or the other in these proceedings. The petitioners have next argued that there are certain in­ consistencies in the instruction issued by the Election Commission to the various functionaries upon whom has been cast the duty and to whom have been assigned the functions of conducting the forthcoming national elections. Relevantly, it is pointed that under the title "Time and place of inviting nominations" in paragraph 12 of the Manul of Instructions, the time of receipt of nomination papers in stipulated to be "between 9 am and 3 pm daily". As against this, the same Manual in the applicable profornui of the notice envisages the time restriction to be between "9 o'clock in the morning and 4 o'clock in the afternoon on all working days from " It seems to us that the in-consistency or the contradiction, as the case may be, has occurred because in the previous Manual of Instructions issued pertaining to the last elections, the prescribed period of time was between 9 am and 4 pm, which evidently was altered in so far as paragraph 12 ibid, is concerned but proforma of the notice in question. Be that as it may and irrespective of the reasons for the discrepancy, the fact remains that such a development may have worked hardship in relation to all or at least some of the petitioners, which is a very serious matter. The in-consistency, accordingly cannot be ignored and necessary relief appears to be warranted In the ultimate analysis, as pointed out by Mr. G.M. Saleem, we must advert to the relevant constitutional provision, which is Article 218(3) and which is as under:- "218. Election Commission.--(l) (2) (3) It shall be the duty of the Election Commission constituted in relation to an election to organize and conduct the election and to make such arrangements as are necessaiy to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. The above reproduced clause in the Article clearly shows that it is the duty of the Election Commission, inter alia, to organize and conduct the election as also to make arrangements in order to ensure that "the election is conducted in accordance with law". It seems to us that if the for going requirements were not satisfied by the Election Commission, it did not, at least in relation to the petitioners, duly fulfil its obligations under the quoted clause in Article 218 of the Constitution. That in itself is no trifling matter, While we are in agreement with the petitioners that they or any of them may have been bit on account of the various infirmities pointed out above and could be entitled to the protection of law, we must, at the same time, emphasis that if a substantial period of time is prescribed, for doing of an act and that period runs into several days, there can hardly he any justification for a person who wait till the last date to do the needful and then attempt to take advantage of a development occurring on such date, which development, obviously, could have been warded off, if the available time in its entirety had been fully utilized. Thus, if there were no infirmities involved as above, the mere.fact that a nomination paper was presented at 3.05 pm on the last day i.e. five minutes beyond the time presented should have .been fatal. This arises because a last minute development should, not. normally, be allowed to wipe off earlier in-action without cogent and lawful reasons. The principle, however, does not apply here, because there are obvious defects in the procedure adopted and the petitioners, as a results, may not only have been hit but possibly even been disenfranchised. In circumstances, where we have heard these petitions on an understanding from the learned counsel that the same can be heard. admitted and disposed of at the same time, we are inclined to allow the petitions by recalling the orders of rejection of the petitioner's nomination papers and requiring the Returning Officers to examine the same within 24 hours of the Communication of this order and, that being done, passing appropriate orders in consonance with the appliable law. We may add her that while, for obvious reasons, the remaining time schedule in the notification cannot be adhered to in material particulars yet that should not deter the relevant officer(s) from expeditiously proceeding wil.h these matters in conformity with the spirit of the provision in section 15(2) of the Representation of People Act, 1976, that provision contemplating an emergent situation of the same character, following upon the allowing of an appeal, in circumstances where, in the meantime, the relevant period(s) may have elapsed by efflux of time. In so doing, the concerned officer(s) would act expeditiously and without loss of time and ensure, wherever necessary, that the names of the concerned candidates are duly and well in time brought on the ballots. In these terms but with no order as to costs, the petitions are allowed. (B.T.) Petitions allowed

PLJ 1998 Karachi 168 (DB) PLJ 1998 Karachi 168 (DB) [Constitutional Jurisdiction] Present: wajihuddin ahmad and syed saeed ashhad, JJ. ASAD ALI KHAN-Petitioner versus CHAIRMAN PAKISTAN TELECOMMUNICATION CORPORATION. ISLAMABAD and 2 others-Respondents C.P. No. 1690 of 1994, dismissed on 11. 3. 1997. Service Tribunals Act, 1973 (LXX of 1973)-- —-S. 5 (2) Civil Procedure Code, 1908 (V of 1908) S. 12 (2)-Civil servant- Case of—Fixation of Pay/recovery—Suppression or misrepresentation of facts—Proper forum for civil servant to agitate matter—It was Tribunal, where apparent suppression or misrepresentation of facts should have been disclosed- Under Section 5(2) of Service Tribunal Act, 1973, Tribunal has been deemed to be Civil Court for purpose of deciding appeal before it and in it have been vested all powers of such court exercisable under Code of Civil Procedure-One of these powers is in contemplation of Section 12(2), of Code, which makes it obligation on person, who challenges validity of judgment, decree or order on plea of fraud, misrepresentation or want of jurisdiction to seek his remedy by making application to court which passed final judgment decree or order- -Held: Remedy on Principle in Section 12(2) of Code lie with Tribunal alone—Petition dismissed. [P. 171] A, B, C&D. Petitioner in person. Mr. Niaz Ahmad Khan, Advocate for Respondents. Date of hearing: 11.3.1997. judgment Wajihuddin Ahmed, J.- We have heard this matter. It is pointed out by Mr. Niaz Ahmed Khan, the learned counsel representing the by decision of the Federal Service Tribunal in Appeal No. 51(K)/92, rendered on 17.3.1993, where the operative part is this:- "It has been further added that completion of pre-service training is compulsory for the appointment but annual increment cannot be disallowed to an employee who has performed that duty for more than six months in a year continuously and this point has also been cleared by the Establishment Division in the light of FR 24. Since none of the respondents have filed comments in this appeal, we have no alternative but to direct the Chairman, Pakistan Telecommunication Corporation, Islamabad to decided this matter within a period of three months. With these observations, the appeal stands disposed of. A copy of the memo of appeal and letter also be sent to the Chairman, PTC, Islamabad alongwith the order of the Tribunal for further action." According to Mr. Niaz Ahmed Khan, the petitioner, who was the appellant before the Federal Service Tribunal, preferred Miscellaneous Petition No. 72/93 where he complained of non-implementation of the aforesaid order dated 17.3.1993 but such Miscellaneous Petition was dismissed on 7.11.1993 upon an observation that the order, in fact, stood implemented by refusing the claim of the petitioner-appellant Operative part of the order dated 7.11.1993 is as below:- ! 2. The appellant today submitted an application for adjournment of the case as his Advocate was not available, but the request was declined as it is a matter of simple implementation of the orders of the Tribunal. Mr. Niaz Ahmed Khan, the learned counsel for the respondents haa submitted that the claim of the appellant was examined and turned down, in view of the observations of the tribunal, and the decision of the Tribunal stands implemented. In the light of the comments filed by the respondents, the claim of the appellant having been finally turned down, there is no question of implementation of the order of the Tribunal as the Tribunal had directed the respondent department to consider the case of the appellant in accordance with law. The application is consequently rejected." It is next pointed out by Mr. Niaz Ahmed Khan that the same controversy was raised by the appellant before the same Tribunal through Appeal No. 252(K)/93 but that Appeal, brought on 6.12.1993, was dismissed on 6.1.1994 on the ground that the dispute had already been agitated and decided. As against this the petitioner has shown us two letters, the first of which is dated 14.10.1993, addressed by the Divisional Engineer to Director, PTC Accounts, Lahore, wherein the following passage occurs:- "2. On the appeal of Mr. Asad AH Khan the case was taken by with Audit but audit was not convinced and held that recovery is rightly pointed out by audit. The audit's point of view is quite clear from their two letters. Meanwhile the case was discussed in PAC meeting alongwith other cases of over payment/wrong fixation of pay. At this state it is not possible to decide the case at the Headquarters level. It is however suggested that reply may be submitted in the Federal Service Tribunal explaining full facts of the case. 3. In view of the above the Director PTC Accounts is requested to kindly engage an Advocate at Karachi and formulate a written reply to the Misc. Petition on the above facts and submitted in the Service Tribunal Karachi at the earliest, under intimation to this HQ. (Emphasis supplied) In the other letter dated 21.11.1993, addressed by the Director General Audit, Post, Telegraph and Telephones. Lahore to the Chairman, Pakistan Telecommunication Corporation, the Under-noted excerpt is relevant: - "3. It is very kindly brought to your notice that the three months period specified in the decision of the Federal Service Tribunal judgment has already expired on 16.6.1993 and consequently the appellant who is the aggrieved party has again filed Petition No. 72/93 against non-implementation of Appeal No. 51(K)/92. It will be realised that Director, PTC Accounts is the Administrative Unit under your control to implement the judgment of the Tribunal. This office has not yet heard anything from you, Chief Engineer (S & E) and/or Director PTC Accounts Lahore about the necessary action which was required to be taken under the law to provide relief to Mr. Asad Ali Khan, Chief Superintendent Central Telegraph Office, Karachi. 4. It is requested that immediate necessary action regarding fixation of pay and decision taken in this regard may be communicated to the undersigned under direct intimation to the Federal Service Tribunal, Karachi and Finance Division Islamabad Sd/- (SUHAIL SAFDAR) Director General."(Under-lining added) Upon a plain reading of the foregoing it would appear that by 14.10.1993 and 21.11.1993, the dates of the above two letters, the decision of the Federal Service Tribunal may not have stood implemented. However, the Tribunal, when it came to pass orders on 07.11.1993 and again on 04.1.1994, does not seem to have been duly appraised to the factual details. An element of suppression and even of mis-representation cannot thus be ruled out. Even so, we are of the view that the petitioner has approached a wrong forum. It was the Tribunal, where the apparent suppression or mis­ representation of facts, as reflected above, should have been disclosed. Surely, the Tribunal has jurisdiction to attend to such facts and such matters and to address relief wherever relief is warranted: See Abdul Bari v. Government of Pakistan, PLD 1981 Karachi 290. We may venture here to add that under Section 5(2) of Service Tribunals Act. 1973, the Tribunal has been deemed to be a Civil Court for the purpose of deciding an appeal before it and in it have been vested all the powers of such Court exercisable under the Code of Civil Procedure. One of these powers is in contemplation of Section 12(2), of the Code, which makes it obligatory on a person, who challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction to seek his remedy "by making an application to the Court which passed the final judgment, decree or order-—". It is obvious that the petitioner preferred successive appeals/other proceedings in the Tribunal. In relation to orders therein passed fraud and/or mis-representation is pleaded. Tlie remedy, on the principle in Section 12(2) of the Code, should lie with the Tribunal alone. In this background, while the petition is dismissed, the petitioner is left to pursue his remedy, such as that may be, before the Tribunal. (AAJS) Petition dismissed.

PLJ 1998 Karachi 171 (DB) PLJ 1998 Karachi 171 (DB) Present: WAJIHUDDIN AHMAD AND RASHID A. RAZVI, JJ. IRFAN ZAMIR BUTT-Petitioner versus THE KARACHI METROPOLITAN CORPORATION, KARACHI and another—Respondents. C.P. No. D-2210 of 1995 and C.P. No. D-1622 of 1996, decided on 23.12.1996. Sindh Building Control Ordinance, 1979-- —-S. 6(l)-Notice to petitioner for demolishing shops and offices coming within cut-line portion-Challenge to-Whether plea of petitioner that there is no immediate prospect of road widening and thus they cannot be called upon to remove offending structure, is tenable especially when they failed to prove that constructed creature in front of their plot had been duly regularised and condition contained in letter of KMC fulfilled- Question of—It is not disputed that structure in question falls within cut-line portion-All that is urged is that necessaiy process for acquisition has not been taken in hand but that is not material-It is common knowledge that in various localities, multi-storeyed building are constructed leaving substantive frontage for cut-line purposes-Cut-line portions have never been acquired-If petitioner's logic were to be accepted then owners of such cut-line portion could raise make shift constructions thereon on simplest of pleas that awaiting acquisition they could use their property in manner suited to themselves-In expanding modern city such as Karachi, cut-line provisions are of vital importance-Such have to be given effect to in all individual cases and one individual cannot steal march over another by simply saying that scheme is itself in state of fruition and that be would only act when others do likewise or that till such time as land is his, he is free to do with it what he pleases-Held: Land can remain with owner petitioners to be used as open ground or for any other purpose except use as building constructed thereupon-Held further: Constitutional jurisdiction is essentially equitable in nature, but no equities call to be protected in this case-Petitions dismissed. [P. 174] A&B Mr. Khurshid Anwar Sheikh, Advocate for Petitioner. Mr. Muhammad Iqbal Memon and Mrs. Zahida Naqui Advocates for Respondent No. 2. Date of hearing: 17.12.1996. judgment Wajihuddin Ahmed, J.-These are two connected petitions. The first of these is apparently by tenant of one of the four disputed shops and upper floor office constructed in the Hotel Imperial premises, Queens Road, Karachi, where the disputed shops are claimed to be used as Display Centre for foreign buyers. In turn, the second petition is the petition by the owners of such shops. The common causes for grievance are notices issued by the KBCA, respondent No. 2 here, claiming that such structure of shops and office thereon is unauthorised, coming within the cut-line portion (i.e. space reserved for future road widening scheme) and requires to be demolished. These are 24 hours notices. Upon approach to this Court, ad-interim orders were issued and the respondents have put in appearances. The petitioner's case is that the allegedly illegally constructed structure in front of the plot has been duly regularised and docs not merit to be removed. Reliance is placed on a plan approved under the Sindh People's Local Government Ordinance, 1972. Such plan has been produced but that is conditioned as under:- "Subject to the condition contained in the Accompanying Letter No. KMC/AC/BP 1056/75/1159 dated 7.4.1975 and the condition mentioned below. This approval would be liable to Cancellation in case it is found at any later stage that it was obtained by misrepresentation of facts. With the condition that structures coming within the cutline shall be removed without compensation." Regarding the reproduced condition, the petitioners maintain that there is no immediate prospect of road widening. If and when such a proposal is taken in hand, necessaiy acquisition proceedings shall have to be instituted and then alone the petitioners can be called upon to remove the allegedly offending structure. On 9.12.1996 it was stated before this court from the side of the petitioners that prior to the approved/regularised plan there was an approved plan for the main building. The petitioners were required to produce such plan, which was not produced. On the same date and in the same order, it was observed that if the approved plan was issued on 7.4.1975, there had to be a completion plan, which too after lapse of 21 years should have materialised. If there was a completion plan, such as well was required to be produced. The same too was not brought on record. What is more, following upon the promulgation of the Sindh Buildings Control Ordinance, 1979, Section 6(1) thereof relevantly postulated as under:- "6. Approval of Plan.-(I) No building shall be constructed before the Authority has, in the prescribed manner, approved the plan of such building and granted no objection certificate for the construction thereof on payment of such fee as may be prescribed. Provided that in the case of a building the construction whereof has commenced before coming into force of this Ordinance the Authority's approval of the plan and no objection certificate shall be obtained not latter than six months after the enforcement of the Ordinance. (Explanation.-The word "construct" with all its variations used in this section and hereafter shall include 'reconstruct' with all its variations and, additions or alterations). 3. 4., 6 ....................................................................................... In line with the foregoing, it was for the petitioners to state as to when the building in question was taken in hand for putting up the requisite construction, when was not the initial plan submitted for approval, what did the approval letter stipulate and finally when was the construction taken to the level of completion and when the final seal of completion was affixed on the exercise. All these essentials have not been provided, as would have been expected in such a serious case. The only document brought on record, as seen, is the approved plan but that itself was accompanied by letter and even that letter has not been produced Coming to the controversy itself, it is not disputed that the structure in question falls within the cut-line portion. All that is urged is that the necessary process for acquisition has not been taken in hand that is not material. It is common knowledge that in the various localities of the city, such as I.I. Chundrigar Road, Frere Road, etc., multi-storeyed buildings are constructed leaving substantial frontage for cut-line purposes. The cut-line portions, we understand, have never been acquired. If the petitioner's logic were to be accepted then the owners of such cut-line portions could raise make-shift constructions thereon on the simplest of pleas that awaiting acquisition they could use their property in a manner suited to themselves. In an expanding modern city such as Karachi the cut-line provisions are of vital importance. Such have to be given effect to in all individual cases and one individual cannot steal a march over another by simply saying that the scheme is itself in a state of fruition and that he would only act when others do likewise or that till such time as the land is his he is free to do with it what he pleases. In the circumstances, we asked the learned counsel for the petitioners whether he would be prepared to accept a reasonable period of time, within which we could grant to the petitioner to do the needful. He skirted that question. Constitutional jurisdiction is essentially equitable in nature. No equities rail to be protected in this case. The land can remain with the owner petitioners to be used as an open ground or for any other purpose except use as a building constructed thereupon. That alone could be the result of giving effect to the impugned notices and that constitutes no illegality, for such reasons through a short order passed on 17.12.1996 we has dismissed these petitions. (B.T.) Petitions dismissed.

PLJ 1998 Karachi 175 (DB) PLJ 1998 Karachi 175 (DB) Present: wajihuddin ahmed and abdul hameed dogar, JJ. MUMTAZ AHMAD and another-Petitioners versus GOVT. OF SINDH through HOME SECRETARY and 3 others—Respondents C.P. NO. D-945 of 1997, dismissed on 4.9.1997. Service Tribunals Act, 1973 (LXX of 1973))-- —-S.4-Constitution of Pakistan (1973), Ait. 199-Police Rules (1934), Rule 12.8-Petitioner appointed as P.S.I's in Police Department on three years probation-Discharge from service during probation period on ground of unsatisfactory performance of work-Challenge to-Whether discharge amenable to protection under Constitutional provisions—Question of— Matter pertains to fitness of petitioners to hold specific posts—In matters of this genus, subjective as well as objective considerations come into play at departmental level and it is for that reason that matters of kind are not open to scrutiny before Courts as postulated in Section 4(1), Proviso (b) of Service Tribunal Act—At same time, even such matter of fitness of person to be appointed to or hold particular post as also to be promoted to higher post will remain within purview of departmental authorities to examine further and that can be done through appeal or review where expressly provided for and representation where no provision for appeal or review exists—This is only remedy in such matters—Held: Order not amenable o protection under constitutional provisions—Held further: Against final order, if violation of law is claimed, an aggrieved civil servant may move Service Tribunal—Petition without merit is accordingly dismissed. [P. 176 & 177] A, B & C. 1983 PLC (CS)) 812; 1982 SCMR 770 Mr, Mazhar AH B. Chohan, Advocate for Petitioner. Mr. Munib Ahmad Khan, Addl. A.G. Sindh for Respondents. Date of hearing: 4.9.1997. judgment Wajihuddin Ahmed, J.-In the memo of petition, instituted on 29.4.1997, the petitioners, had expressed an apprehension that pursuant to a news item, dated 6.4.1997, whereby 77 employees of the Police Department were reported to have been discharged from service, the petitioners themselves may have been terminated. Allegation was that such orders, if passed, would involve mala fides because while around 82 PSIs were appointed only four such appointees, bailing from Larkana Division were likely to have been removed/discharged, two of them being the petitioners here and the remaining two having filed Constitution Petition No. D-362 of 1997. This petition was entertained and notices were issued on 7.5.1997 together with ad-interim orders. Meanwhile, comments have been submitted and the respondents maintain that the petitioners were appointed on 28.11.1995 on probation for a period of three years. Since the petitioners were allegedly not performing their duties in an adequate and proficient manner, they were discharged under Police Rule 12.8 on 1.4.1997. Correspondingly, the petitioners have applied through CMA. 4339/1997 for amendment of the petition so as to specifically challenge the said orders/dated 1.4.1997. One such order is reproduced below: "QRDER Perusal of report of SSP Larkana hearing No. EO/Estt./10220 dated 1.4. 1997. reveals that offtg: PSI Mumtaz Ahmed S/o Moula Bux Dahar of Larkana District has no knowledge of Prosecution job and is not conducting the cases with dedication to get good results. He is also irregular in his Court duties and irresponsible Officer. In view of above, he is discharged from service under Police Rule 12.8 with immediate effect as he will not become a good Police Officer. Sd/- (MUHAMMAD EJAZ AKRAM) PSP Deputy Inspector General of Police,Larkana. No. E-l/6132-35/97, Larkana, dated 1.4.1997" It would seen from the above that the petitioners, during the course of their probation, were terminated solely on the ground of unsatisfactory performance of work and such was not a case of dismissal or removal from service but one of discharge only. The decision of the Supreme Court of Pakistan in the case of Muhammad. Siddique Javed Chaudhry v. Government of Pakistan, PLD 1974 SC 393, cited at the bar, therefore, does not in any way advance the petitioners' case. Furthermore, the decided case pertained to a period where there were constitutional guarantee applicable to service matter, which is no longer the case now. The terms and conditions of service are currently governed by statutory law, as distinguished from the Constitutional law, which is the difference between then and now. At any event, the matter pertains to the fitness of the petitioners to hold specific posts. The competent authority has found that the petitioners are not fit to hold such posts. In matters of this genus subjective as well as ( objective considerations come into play at the departmental level and it is for ;hat reason that matters of the kind are not open to scrutiny before Courts Jas postulated in Section 4(1), of proviso (b) of the Service Tribunals Act. At the same time, even such a matter of fitness of a person to be appointed to or hold a particular post as also to be promoted to a higher post will remain within the purview of the departmental authorities to examine further and that can be done through an appeal or review, where expressly provided for, and a representation where no provision for appeal or review exists. That is the only remedy in such matters. There, if any manifest illegality is involved, an appropriate plea can be advanced. Against the final order, if violation of law is claimed, an aggrieved civil servant, and a probationer in covered by the category, may more the Service Tribunal. Even so, in cases involving fitness to hold a post, the jurisdiction of the Tribunal should be confined only to the element of illegality, if any, and no more. However, the learned counsel for the petitioners also relies on Ikramullah Khan v. N. W.F. Province, 1983 PLC (CS) 812. On the other hand Pakistan (Punjab Province) v. Riaz AH Khan, 1982 SCMR 770, is to the effect that where a probationer is terminated and the termination is on the ground of unsatisfactory performance of work, as distinguished from mis­ conduct, the termination is not amenable to protection under constitutional provisions (now applicable statutory law). In the circumstances, we do not see any merit in this petition and dismiss the same together with the applications pending in it. Office would ensure that Constitution Petition No. D-862 of 1997, which was referred to at the time notices were ordered in this petition, is posted expeditiously and if it has not been posted so far to explain as to why such has not been done. CB.T) Petition dismissed.

PLJ 1998 Karachi 177 (DB) PLJ 1998 Karachi 177 (DB) Present: mamoon kazi, C.J. and mrs. majidarazvi, J. NADEEM AHMED and others-Petitioners versus PAKISTAN INTERNATIONAL AIRLINES CORPORATIONS and others—Respondents Constitutional Petitions Nos. D-2360, 2369, 2370, 2371, 2372,2373,2374, 2381,2399,2424,2425,2501,2502,2512 and 2531 of 1996: 28,38,39,40,49,50,62,79,155,696,698,717,718,747, 762 and 773 of 1997. decided on 13.5.1997. Constitution of Pakistan (1973)-- -—Art. 199-Employees of a Corporation-Termination of services without show-cause notice and without providing opportunity of hearing to such employees-Status-In absence of statutory rules, employee of Corporation would be purely governed by principle of Master and Servant and resort could not be had by him to Constitutional jurisdiction of High Court in case of any infraction of such rules-Such principle, however. could no apply in case of any infringement of law-Principle embodied in maxim "audi alteram partem" would be applicable to judicial as well as non-judicial proceedings and same must be read as part of every statue-­ No reasons were assigned by Authority while terminating services or in some case although reasons were assigned, yet no opportunity of hearing was afforded to any of petitioners-Held: It could justifiably be assumed that employment was terminated for extraneous reasons-Initial appointment of petitioners although was said to be irregular but no opportunity of hearing was afforded to them beforetermination—Entire action was, therefore, taken in violation of law without observing principle of natural justice—Termination of employment of petitioners was declared of be without lawful authority and of no legal effect-- Authority, however, would have option to take fresh action in accordance with law if it so desired. [P. 180] A 1994 SCMR 2232 re/. Mr. Abdul Mujeeb Pirzada, Mr. Abdul Ghafoor Mangi, Mr, All Amjad, Mr. A.H Lakho, Mr. Ataur Rehman, Mr. Anjum Ghani, Mr. A. Hcdeem Pirzada, Mr. G.M. Qureshi, Mr. Khalid Hameed, Mr. Khalid Shah, Mr. Khalid Javed Khan, Mr. KB. Bhutto, Mr. Muncer A. Malik. Mr. N.K. Jatio, Mr. Nafees Siddiqui, Mr. Syed Amir Shaukat, Advocates for Petitioners. Mr. Amir Malik, Mr. Ikram Ahmed Ansari, Mr. Syed Amjad Hussain, Mr. Khalid Javed, Mr. Obaidur Rehman, Dy. A.-G. for Respondents Date of hearing: 13.5.1997. judgment Mamoon Kazi, CJ.- The petitioner, in each of these petitions, was employed by Pakistan International Airlines Corporation (hereinafter referred to as "the respondent") on a contract and subsequently, the petitioner's appointment was regularised by the respondent, as the petitioner was permanently absorbed into service. The petitioners are aggrieved because they were informed by notices respectively received by them that their services had been terminated by the respondent. As several petitions were filed in this Court raising similar questions, the petitions were heard together. It is also pertinent to point out that althoiigh some of the petitions had not yet been admitted, but by consent of the parties' counsel, these petitions are being finally disposed of by this common judgment. 2. The main ground, urged on behalf of the petitions, is that the orders passed by the respondent are without lawful authority because neither a prior show-cause notice was served upon the petitioners before termination of their services by the respondent, nor the petitioners were provided an opportunity of hearing. In some of the cases, no doubt, the impugned orders indicated that the petitioner's initial appointment was irregular, but in other cases even the reasons had not been assigned. 3. The petition was resisted on behalf of the respondent mainlyon the ground that, the employees of the respondent are not governed by any statutory rules of service, therefore, the relationship between the petitioners and the respondent could only be governed by the principle of Master andServant and, therefore, those petitions were not maintainable and the only remedy available to the petitioner was by way of a suit. 4. Reference may be made in this regard to the judgment of the Supreme Court in Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR2232). In this case, a question had arisen before the Supreme Court whether violation of a legal right of an employee of the respondent-corporation could be challenged by writ petition. Although, in this case, it was held that the Rules of Service framed by the respondent known as "Pakistan InternationalAirlines Corporation Rules, 1958" were not statutory rules, but nevertheless, as the petitioner was governed by P.I.A.C. Art. 1956, in case of violation of any provision of law, the Constitutional jurisdiction of the High Court under Article 199 could be invoked by an aggrieved employee, it was observed bythe Supreme Court in this behalf, as under: "7. From the above stated cases, it is evident that there is judicial consensus that the Maxim audi alteram partem is applicable to judicial as well as to non-judicial proceedings. The above maxim will be read into as a part of every statute if the right of hearing has not been expressly provided therein. In the present case respondent No. 1 in its comments to the writ petition (at page 41 of the paper book) admitted the fact that no show-cause notice was issued to the appellant nor she was heard before the impugned order dated 6th August, 1991 reverting her to Grade VI from Grade VII was passed. In this view of the matter there has been violation of the principles of natural justice. The above violation can be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction under Article 199 of the Constitution, which the High Court failed to exercise. The fact that there are no statutory service rules in respondent No. 1 Corporation and its relationship with its employees is of that. Master and Servant will not negate the application of the above Maxim audi alteram partem. The above view, which we are inclined to take is in consonance with the Islamic Injunctions as highlighted in the case of Pakistan and others v. Public at Large (supra), wherein, it has been held that before an order of retirement in respect of a civil servant or an employee of a statutory Corporation can be passed, he is entitled to be heard. The effect of the application of the master and servant rule is that, an employee of a Corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service, his remedy for wrongful dismissal is to claim damages." 5. No doubt, as would appear from the above observations, in absence of any statutory rules of service, an employee of a corporation would be purely governed by the principle of Master and Servant and resort cannot be had be him to the writ jurisdiction of the High Court in case of any infraction of such fuels. However, the said principle cannot apply in case of any infringement of law. The principle embodied in the Maxim, audi alterarn partem, meaning that no person can be condemned unheard, is applicable to judicial as well as non-judicial proceedings and is to be read as a part of ever statute. In the present case, either no reasons were assigned by the respondent while terminating the petitioner's employment or in some cases although, reasons were assigned, but no opportunity of hearing was afforded to any of the petitioners. After such appointments were regularised, and the petitioners were permanently absorbed by the respondent, the petitioners were no longer governed by a contract under which they were initially appointed. Simply telling the petitioners that their services were not longer required, without assigning reasons or giving them an opportunity of hearing, amounts to condemning them unheard. Therefore, in the present case, the principle embodied in the said maxim was equally attracted. The termination of appointment cannot be called simplicitor, because when no reasons are assigned, it can justifiably be assumed that employment was terminated for extraneous reason. In some cases, no doubt, initial appointment of the petitioners was said to be irregular, but no opportunity of hearing was afforded to the petitioners before termination of their mployment. The entire action was, therefore, taken in violation of law, without observing the principles of natural justice. 6. In the result, these petitions are allowed and the impugned action is held to be without lawful authority. It may, however, be observed that fresh action can be taken by the respondent in accordance with law in any particular case, if it so desires. The parties are left to bear their own costs in view of the questions raised. (K.K.F) Petition accepted.

PLJ 1998 Karachi 179 PLJ 1998 Karachi 179 Present: SABIHUDDIN AHMAD, J. NOORUDDIN & 3 others-Plaintiffs versus PAKISTAN through SECRETARY, MINISTRY OF COMMUNICATION, GOVT. OF PAKISTAN, ISLAMABAD and 3 others-Defendants Suit No. 356 of 1998, accepted on 20.6.1997. N.L.R. 1984 U.C. 5. (i) Land Acquisition Act, 1894 (I of 1894)-- —S. 4-Possession of suit property without fulfilling requirements of law- Whether possession is illegal and unauthorised—Question of—Under section-4 of Act whenever it appears Provincial Govt. that land is likely to be needed for any public purpose preliminary notification to that effect is required to be published in official Gazette—Upon such notification officers and staff could enter upon land set out boundary, conduct survey and take other measure enumerated in sub-section (2)-Thereafter under section 5-A (which was added in 1923) objections to notification under section 4 could be made within 30 days after issue of such notification and Collector is required to hear all objections and direct making any enquiry if he thought it fit to do so—It is thus evident that property is duly acquired only when all elaborate requirements of law have taken place and award is made by Collector-No evidence whatsoever has been placed before Court indicating that above requirements of law had been followed-On the other hand it is admitted position that no award of compensation was made and no compensation was paid-At the same time it is also surprising how two notifications i.e. one under section 4 and other under section 6 were simultaneously made by Chief Commissioner and published in Gazette-Obviously, declaration under section-6 could be made only after giving allowance for 30 days period for hearing of objections under section 5-A-Indeed in case of urgency requirement of section 5-A could be dispensed with in view of provisions of section 17(4)-However, in absence of specific declaration as to suchurgency enabling exercise of exceptional power-Even declaration purpor­ ted to be made under section 6 published in Gazette was ultra-vires power of Chief Commissioner to subsequent notifications, accordingly are also inconsequential and of no legal effect whatsoever-Even otherwise, requirements of sections 9 & 11 having admittedly not been followed, there is no escape from conclusion that suit land has not been acquired by defendant under requirement of law-Held : Possession of defendants is unauthorised-Suit is decreed. [Pp. 190, 191 & 194] D, E & F (ii) Record of Rights-- —It is settled law that entries in record of rights are strong pieces of evidence in support of persons title to immovable property and ought to be relied upon absence of satisfactory evidence in rebuttal produced by opposite party—Moreover, other documents i.e. purchase agreement and permission from Deputy Commissioner can be treated as corroborative piece of evidence in favour of plaintiffs claim—Further corroboration is available in the form of receipt and even survey report produced by defendants themselves indicated ownership of plaintiffs-In any case defendant Nos. 1. & 4 never claimed ownership of suit property with respect to themselves or for that matter with respect to any other person-Though it is alleged that plaintiffs were not owners it is neither clearly stated as to who was owner nor has any evidence whatsoever been led on this question-Sale agreement has been signed by all four plaintiffs-Plaintiffs have produced sufficient documents in support of their ownership of suit property which has not been rebutted by defendants-Held : Plaintiffs are owners of suit land. [P. 187 & 188] A, B & C Mr. Usman Ghani Rashid, Advocate for Plaintiffs. Mr. Dastgir Ghazi, Advocate for Defendants. Date of hearing : 27.2.1997. judgment This suit for declaration of title and specific reliefs has been filed by one Nooruddin son of Abdullah and his three brothers (hereinafter mentioned as plaintiffs) in respect of a piece of land measuring 14 acres and 19 ghuntas in Deh Khanto Tapo Landhi, Tapo and District Karachi East. According to the plaintiffs, the then Post and Telegraph Department of the defendant No. 1 (Federal Government) illegally obtained possession of 14 acres of land out of the plaintiffs' holding since 1.11.1971, without obtaining permission from or without notice to the plaintiffs and without acquiring the land upon payment of compensation. It is alleged that the defendant No. 1 thereafter proceeded to construct a wireless station on the suit property and built a compound wall around it. The plaintiffs have not even been allowed to enter upon the same. 2. It is further alleged that on 3.6.1975 the plaintiffs served a notice upon defendant No. 1, requested for payment of compensation for the land so acquired, but the latter did not respond. Thereupon they filed Const. Petition No. 913 of 1975 on the appellate side of this Court. The Court invited parawise comments and in response thereto the defendant No. 1 admitted the plaintiffs' claim for compensation subject to determination of the amount by the defendant Nos. 2 and 3 i.e. Authorities under the Land Acquisition Act and, therefore, the petition was withdrawn. It is further alleged that upon withdrawal of petition proceedings under the Land Acquisition Act were initiated by the defendant No. 3, who called upon the defendant No. 1 to deposit the estimated costs of the land. Few meetings were also held in relation to acquisition proceedings and attended by defendant No. 1 in 1977, but thereafter the aforesaid representative disappeared. Consequently the plaintiffs served a notice dated 8.12.1977 on General Manager of the then Post Telegraph Department of defendant with a copy to the Secretary, Ministry of Communication, calling upon them to comply with the requirements of the Land Acquisition Act and deposit estimated costs of the land demanded by the defendant No. 3. On 15.12.1977 they were informed that notice had been passed on to another General Manager for further proceedings. However, having received no satisfactory reply the plaintiffs filed this suit claiming following reliefs :-- "1. Declaration that the defendant No. 1 is in unlawful possession of 14-0 acres out of 14 acres 19 ghuntas of plaintiffs No. 39 (14-19) situated in Deh Khanto Tapo Landhi Taluka and District Karachi (East) since 1.11.1971. 2. Mandatory injunction may be issued against thedefendants directing them to comply with the provisions of Land Acquisition Act 1894 and pay compensation to the plaintiffs in accordance with the said Act. 2.A. A decree for possession of the said land against the defendant No. 1 or anyone claiming through or under him. 3. Decree for Rs. 1,74,000/- may be granted against the defendant No. 1 with 6% interest from the date of decree till actual payment. 4. Any other relief which may be granted by this HonourableCourt against the defendants. 5. Costs of this suit may be awarded to the plaintiffs." It may be pertinent to mention here that the relief in terms of clause 2.A above was claimed only after the plaintiffs were allowed to amend the plaint vide order dated 13.11.1989. 3. Written statement was filed on behalf of defendant No. 1 on 10.2.1980, wherein it was mainly contended that the correct area of the land in question as well as the plaintiffs' claim to ownership could only be decided after the land was surveyed and demarcated. The defendant No. 1 however, neither claimed ownership nor contended that somebody else was the owner. It was also admitted (para No. 9) that representative of defendant No. 1 participated in proceedings relating to payment of compensation under the Land Acquisition Act, but it was contended that such proceedings had not been finalised. A written statement was also filed on behalf of the defendant No. 3, wherein it was contended that the said defendant would only proceed with the matter relating to the payment of compensation under the Land Acquisition Act after the tentative costs of land was deposited by defendant No. 1. Consent issues were settled and upon an application for early hearing being granted, this Court started recording evidence in 1984. 4. The plaintiff No. 1 entered the witness-box and deposed that the plaintiffs had purchased the property from two sets of owners, namely, Khuda Bux and Mst. Sarkhani, son and daughter of Usman and Ramzan and Hasan, both sons of Dost Muhammad. He averred that prior to the aforesaid purchase, both sets of owners owned 8 anas share each in the aforesaid property. The property was purchased after obtaining permission from the Deputy Commissioner. He alleged that the defendant encroached upon the land in 1971. He admitted that he did not report the matter to the police but stated that he had complained to revenue authorities about such encroachment. He produced the following documents in support of his claim:- Ex. 6/1 - Copy of form VII Ex. 6/2 - Order of Deputy Commissioner, Karachi granting permission to sell land to plaintiff. Ex. 6/3 - Agreement of Sale dated 20.7.1964 Ex. 6/4 Agreement of Sale dated 15-7-1964 Ex. 6/5 -Receipt regarding sale agreement dated 20.7.1964. Ex. 6/6 -Receipt regarding sale agreement dt: 15-7-1964 Ex. 6/7 - Kutchi Receipt Ex. 6/8- Kutchi Receipt. Ex. 6/9 - Copy of Mukhtiarkar letter dt: 15-5-1975 in Constitutional Petition No. 913/95 Ex. 6/10 - Copy of order dated 23.12.1975 passed in Constitutional Petition No. 913/95. Ex. 6/11 - Copy of Parawise comments offered (GMSTRKR) Ex. 6/12 - Copy of the General Power of Attorney. 5. That second witness for the plaintiff was one Haji Noor Muhammad who deposed, that he had a land adjacent with the plaintiff. He stated that his land was Barani. That average acre's income from land was Rs. 2,000/- to Rs. 3,000/-, if there were rain but if there is no rain the income is substantial. In cross-examination he stated that the plaintiff used to cultivate their land and he had seen them doing for the last 6 to 7 years. The plaintiffs closed their side on 23.9.1984. 6. On behalf of the defendant No. 1 Zahid Hussain Divisional Engineer Wireless in the then department telephone and telegraph was examined. He deposed that the construction of the wireless station commenced some wherein 1957-58 and was completed in 1960. The station is about 25 miles from Karachi in Deh Joraji and Deh Khato. He stated that there was a joint survey of the land in occupation of the wireless station 1984 and showing the area in actual use and occupation of the wireless station. Thereafter the department wrote a letter to Deputy Commissioner (East) for acquiring of land, which had been found to be in access of that already acquired. He further stated in cross-examination that except for very small portion, the entire land in Survey No. 39 was in the defendant's occupation. He stated that he could not say whether only 2 acres out of Survey No. 39 of Deh Khato had been acquired and the rest of the area still remained to be acquired by the Government. In support of the defendant's plea he produced the following documents :— Ex. 6/1, report from Mukhtiarkar to Assistant Commissioner (East) dated 3.4.1976 where details of land under occupation of defendant No. 1 was stated on the basis of survey of land prepared by Tappedar ; Ex. 6/2. Letter dated 26.9.1984 from Divisional Engineer to General Manager Oversea Telecommunication Region Forwarding Survey Report. Ex. 6/3. Letter dated 21.10.1984 from Divisional Engineer to Deputy Commissioner Karachi (East) pointing out some discrepancy in the survey report and requesting that estimated cost of compensation may be intimated. Ex. 6/4. Copy of award of Deputy Commissioner Karachi dated 3.5.1964 relating to land acquired in Deh. Joreji. 7. After the evidence of these witnesses were recorded the defendant No. 1 closed his evidence and so did the counsel for the defendants Nos. 2 & 3. The matter was fixed for arguments in January 1985. The case however, could not be argued and instead an application was submitted on behalf of the defendant for bringing on record a notification of the KarachiDevelopment Authority dated 12.1.1985. The application was granted upon payment of cost and the notification was brought on record as Ex. 7. According to this notification of K.D.A. had prepared a Zonal Plan Scheme No. 25 consisting of inter alia the whole of Deh Khanto under the provision of the K.D.A. Order. 8. The matter kept on adjourning from time to time for arguments but on 22.11.1987 learned counsel for the defendant made another application for bringing copy of the notification of the Chief Commissioner of Karachi dated 29.9.1956 on record. The application was also granted subject to payment of costs and the right of the plaintiff to lead evidence in rebuttal.Consequently the documents was placed on record though, perhaps owing to inadvertently error it was not marked as exhibit. Under the said notification the Chief Commissioner recorded that a total area of 17.10. acres (coveringentire survey number) in Survey No. 39 Deh Khanto was required for the public purpose i.e. wireless of the Post and Telegraph Department and that if satisfied that the land are indeed for the aforesaid purpose a further and final notification under Section 6 of the Land Acquisition Act will issue. 9. On 7.3.1988 learned counsel for the plaintiff placed on record notification dated 4.4.1962 issued by the Commissioner Karachi by way of evidence in rebuttal which was taken on record as Ex. 8. This notification purported to amend the Chief Commissioner's notification dated 29.9.1956to the extent that the area sought to be requisitioned from Deh Khanto was reduced to 2.31 acres from 17.10 acres. 10. On 28.3.1989 the plaintiff submitted an application for amendment of the plant with the object of seeking relief of possession. The application having been granted and amended pleadings filed, parties were given another opportunity to adduce evidence. The plaintiff made a short oral deposition but the following correspondence were placed on record (without objection) on behalf of the defendant relating to acquisition of land for wireless station : Ex. 9. Letter from Director General Ministry of Communication to Revenue Commissioner, Sindh. Ex. 10. Letter from Chief Engineer Pak. P.W.D. dated 16.2.1955. Ex. 11. Letter from Director General Post and Telegraph to Revenue Secretary dated 21.5.1955. Ex. 12. D.O. Letter from Divisional Engineer Wireless Pipri Karachi to Assistant Director Office of the Post Master General dated 5.3.1960. Ex. 13. Letter from Divisional Engineer Wireless to irector Wireless EMG Office dated 11.3.1960. Ex. 14. Letter from Director General Post and Telegraph to Chief Engineer and Pak P.W.D. dated 24.2.1960. Ex. 15. Completion report from Divisional Engineer Wireless to General Manager Southern Telecommunication Region dated 19.6.1970. 11. That on the basis of pleadings of the parties final issues were settled by this Court vide order dated 4.3.1990 passed by Mr. Justice Mukhtar Ahmad Junejo (as he then was) which read as under : - 1. Whether the plaintiffs are owners of the suit land ? 2. Whether the defendant No. 1 is in unauthorised possession of the suit land? 3. Whether the suit is time barred? 4. Whether the plaintiffs have been dispossessed from the suit land within a period of 12 years of filing of the suit ? 5. Whether the suit is not maintainable? 6. Whether the suit is under valued for purposes of Court fees? 7. Whether the plaintiffs are entitled to profits? 8. What should the decree be ? 12. The matter came up before me for arguments on various dates Mr. Usman Ghani Rashid, learned counsel for the plaintiff argued the matter in details. Mr. Dastgir Ghazi, learned counsel for the defendant Nos. 1 and 4 was finding some difficulty in represent oral arguments so filed written arguments. No arguments were however addressed by Mr. Ashiq Raza, advocate for defendant Nos. 2 and 3. Having gone through the pleadings and the evidence and considering arguments I have arrived at the following findings issue-wise. 13. ISSUE No. 1. On this issue the plaintiffs stand is clear and unequivocal, having claimed ownership of the suit land. In support of their case. Apart from the oral statement of the plaintiff No. 1 which is also( corroborated by their witness Haji Noor Muhammad. The plaintiffs have heavily relied upon the copy of Form VII i.e. record of rights. It is indeed correct as averred on behalf of the defendant that entires in revenue record are not documents of title and the plaintiffs have not produced any sale deed or other document of title to the land in question. Nevertheless it is settled law that entries in record of rights are strong pieces of evidence in support of a person's title to immovable property and ought to be relied upon in the absence of satisfactory evidence in rebuttal produced by the opposite party. Moreover other documents i.e. purchase agreement and permission from the Deputy Commissioner can be treated as corroborative pieces of evidence in favour of the plaintiffs claim. A further corroboration is available in the form of receipt and even the survey report produced by defendants themselves (Ex. 6/1) indicate ownership of the plaintiffs. In any case the defendant Nos. 1 and 4 never claimed ownership of the suit property with respect to themselves or for that matter with respect to any other person.Though it, is alleged that, the plaintiffs were not the owners it is neitherclearly stated as to who was the owner nor has any evidence whatsoever been led on this question. 14. In this context I may also refer to a Division Bench judgment of the Lahore High Court in the case of Barkat Bibi vs. West Pakistan Government, reported in NLR 1984 U.C. 5. Though this judgment was not cited at, the bar by either of the parties, I shall be referring to it extensively as this pronouncement of law by two eminent Judges of the country, Abdul Shakoorul Salam and Muhammad Shafiq Tarer, J. (Both of whom subsequently adorned the Bench of the Honourable Supreme Court) has made my task immeasurably easier and provided guidance in respect of most of the issues involved. In this case too a notification under Section 4 of the Land Acquisition Act aws issued and possession of the land was obtained by the Government, some negotiations for compensation also took place with the appellant/owner. When a suit for possession and mean profit was filed, the respondents questioned the title of the plaintiff/appellant, Salam, J. observed :— "The public functionaries took the possession from a landlord without any authority of law. It does not be fit a public authority to resist the claim of the appellant by specious argument by saying that the appellant had not proved her ownership even when the defendant/respondent neither claim ownership nor say that anybody else other than the appellant is the owner, or that anybody else is claiming ownership, or compensation for the land occupied by the defendant/respondents." 15. In the written arguments however, it has been contended that while the original owner were given permission to sell their 8 anas share in the land the sale of the entire land in favour of the plaintiff was invalid. The argument obviously is misconceived. It fails to take note of the simple facts apparent on the record that original 8 anas in the aforesaid land was held by Khuda Bux and Mst. Sarkhani son and daughter of Osman while the remaining 8 anas was owned by Ramzan and Muhammad Hassan sons of Dost Muhammad. The Deputy Commissioner accorded permission to both these parties to sell their respective share to the plaintiff who entered into separate agreement for purchase of the land with both these parties. Again it has been contended that the sale in favour of the plaintiff was void because no permission under MLR 115 was obtained. Apart from the facts that no provision of MLR 115 placing any embargo upon sale of land has been referred to, the arguments does not even take notice of the fact that MLR 115 was promulgated only 1972 while the purchase by the plaintiff is said to have been made in 1964. A third plea with respect to this issue is that the power of attorney dated 31.12.1970 (Ex. 6/2) did not enable the plaintiff No. 1 to purchase land on behalf of his brother i.e. plaintiffs Nos. 2 to 4 and as such the purchase made was void. I am unable to appreciate the relevance of the said Power of Attorney executed in 1970 to a sale effected in 1964. The sale agreement dated 15.7.1964 (Ex. 6/4) has been signed by all the four plaintiffs. One cannot help expressing regret over the casual manner in which arguments are prepared and advanced before Courts on behalf of the Government/Government controlled agencies without bothering to carefully examine the facts and law in matters involving property worth millions of rupees. In view of the above I am satisfy that the plaintiffs have produced sufficient documents in support of their ownership of the suit property which has not been rebutted by the defendants. I would, therefore, decide this issue in favour of the plaintiff and held that they are owners of the suit land defendant appears to be found upon the contention that the land was acquired for the public purposes. At the same time it has not been disputed that no compensation was ever paid to the plaintiff or any other person. It has never been claimed that the land always vested in the Federal or the Provincial Government nor has it been shown that the possession was taken with the permission of the real owner. In para 2 of the amended written statement it is contended that : "The answering defendant is in possession of certain land for Government purpose and correct area of such land cannot be determined unless and until the same is surveyed and demarcated by the authorities concerned were supposed to complete the formalities." In para 12-A it is asserted that :-- "The plaintiffs were not the owner of land in question in 1957 nor can they legally acquired any entitlement in or over the said land which has already been acquired for public purpose." 17. In para 8 of the plaint the plaintiffs have asserted that in C.P. No. 913/75 the defendant Nos. 1 to 4 had admitted that the plaintiffs claim for compensation was under consideration and such position is indeed apparent from par 7 of the parawise comments produced as Ex. 6/11 by the plaintiffs. In para 9 the plaintiffs claim that the defendant No. 3 required the defendant No. 1 to deposit the tentative amount of compensation and a few meetings were also held in the office of defendant No. 3 but thereafter the representative of the defendant No. 1 disappeared. The defendant No. 1 made an evasive reply to the aforesaid para 9 stating that the matter related to defendant No. 3 but admitted that few meetings ere attended by the representative of the defendant No. 1. In the written statement filed by the defendant No. 3. however, the contents of par 9 of the plaint are admitted and it has been asserted that the Deputy Commissioner had requested the Telephone and Telegraph Department to deposit estimated cost with his office so that the land may be acquired and payment be made to the claimant/land owner but no funds have been remitted. 18. Even the witness appearing on behalf of the defendants deposed that the land in question was acquired in 1962. Subsequently however, in1985 the defendants were able to locate a notification of the Chief Commissioner issued in 1956 and therefore proceeded to allege that the acquisition was made in 1956. Be that as it may, the fact remains that the defendants' case being found upon acquisition of land, it has to be determined whether any part of the land was validly acquired by the defendants. 19. Mr. Usrnan Ghani Rashid learned counsel for the plaintiffs vehemently urged that only an area 2-31 acres of land had been acquired by the Provincial Government by notification dated 24.4.1964 (Ex. 9). A perusal of the aforesaid notification shows that it purports to amend the earlier notification dated 29.91956 issued by the Chief Commissioner of Karachi (Not marked as exhibit). On the other hand Mr. Dastgir Ghazi, has argued, as contended in his written arguments, that the latter notification of Commissioner, Karachi (Ex. 8) was void and inoperative as it was never served by the defendant No. 1 and as such the earlier notification must prevail. 20. Under Section 4 of the Act when ever it appears the Provincial Government that the land is likely to be needed for any public purpose a preliminary notification to that effect is required to be published in the Official Gazette. Upon such notification Officers and the Staffs could enter upon the land set out boundary, conduct survey and take other measure enumerated in sub-section (2). Thereafter under Section 5-A (which was added in 1923) objections to a notification under Section 4 could be made within 30 days after the issue of such notification and the Collector is required to hear all objections and direct making any enquiry if he thought it fit to do so. Thereafter he was required to submit a report to the Government together with his recommendation on the objection. Thereafter under Section 6, upon considering such report the Provincial Government could issue a declaration stating that the land was needed for a public purpose and such declaration was required to be published in the Official Gazette. Upon such declaration having been issued the Collector had to bedirected under Section 7 to take order for acquisition of the land and under Section 9 he is required to issue a public notice' stating that the Government intended to take possession of the land and claims for compensation for all interests in the land may be made to him and all persons interested in theland should appear before him at a given place and time not being earlier then 15 days after the publication of the said notice under Section 9. Personal notices are required to be served on all persons known to have an interest in the land including occupier of the land. Under section 10 the Collector can also direct any other person to communicate to him a statement containing the name of any other person who may have an interest in the land/Thereafter under Section 11 the Collector is required to hear the claims for compensation and make an award. Under Section 16 only when the Collector has made an award under Section 11 he may take possession of the land which shall thereupon vest absolutely in the Government free from all incumberances. 18. It is thus evident that a property is duly acquired only when all the elaborate requirements of the law have taken place and an award is made by the Collector. No evidence whatsoever has been placed before the Court indicating that the above requirements of law had been followed. On the other hand it is an admitted position that no award of compensation was made and no compensation was paid. At the same time it is also surprising how two notification i.e. one under Section 4 and the other under Section 6 were simultaneously made by the Chief Commissioner on 29.9.1956 and published in the Gazette on the same date i.e. 5.10.1956. Obviously a declaration under Section 6 could be made only after giving allowance for the 30 days period for hearing of objections under Section 5-A. Indeed in case of urgency the requirement of Section 5-A could be dispensed with in view of the provisions of Section 17(4). However, in the absence of a specific declaration as to such urgency enabling the exercise of exceptional power I have no option but to conclude that even the declaration purported to be made under Section 6 published in the Gazette dated 5.10.1956 was ultravires the power of the Chief Commissioner and of no legal effect whatsoever. The subsequent notifications, accordingly, are also inconsequential. Even otherwise the requirements of Sections 9 and 11 having admittedly not been followed there is no escape from the conclusion that the suit land has not been acquired by the defendant under the requirement of law and their possession must be held to be unauthorised. Issue No. 2 is accordingly also decided in the affirmative. 22. Issues Nos. 3 & 4.— Both these issues relate to the question of limitation, the former premised on mixed questions of law and fact and the latter upon a pure question of fact. It may be convenient to take up the. latter issue first i.e. whether the plaintiff have been dispossessed within a period of twelve years from the filing of the present suit. On this aspect of the case the plaintiffs' have alleged that the defendant encroached upon the land in 1971. The only evidence in support of this contention is the plaintiff Nooruddin's oral testimony. On the other hand the defendants witnesses asserted that the construction of the wireless station was commenced in 1957-58 and completed in 1960. Documentary evidence also lends support to the defendants version. The first notification under Section 4 of the Land Acquisition Act, as mentioned earlier was issued on 5.10.1956. Documents produced as Ex. 10-11, suggest that proceedings for building a Wireless Station were initiated in 1955. Ex. 12 indicates that the Transmission Station had already been constructed in 1956 in view of the above I am not inclined to accept the plaintiffs version and of the view that the defendant came into possession of the property before 1966 though without proper legal authority and acknowledging the owners' right to compensation. The defendants have not pleaded that they dispossessed the plaintiff nor shown how they came into possession. 23. The matter, however, does not conclude here. To successfully plead the bar of limitation, the defendants were required to show that the plaintiffs were is possession and such dispossession occurred prior to 12 years of the filing of the suit. The plaintiffs' case is not founded upon their right to possession hut upon title. The defendants, however, have flatly denied the factum of having dispossessed the plaintiff both in the writtenstatement as well as in the written arguments. In the written arguments it has been reiterated that "the defendant is continuously in possession of the suit land and the plaintiffs never dispossessed because they were not in possession of the land at any time during the period from 1956 to the date of these presents". 24. In view of such categorical position take up by the defendants, no finding can be recorded on the question of dispossession. Even otherwise such finding may not be necessary as discussed hereinafter for determining the question of limitation. 25. Unfortunately, on the question of limitation, I have received legal assistant at the bar. In his written arguments Mr. M.G. Dastgir did not refer to any specific provisions which in his opinion, was applicable in thecircumstances. Mr. Usman Ghani Rashid, despite issues on the question of limitation having been framed, did not advert to this aspect either in his address no filed any written argument in rebuttal. 26. Nevertheless, in order to determine which provision of law would be attracted for deciding the question of limitation, it may be pertinent to reproduce Articles 142 and 144 of the First Schedule to the Limitation Act, which read as under :-- 142. For possession of immovable (Twelve The date of the property when the plaintiff years) dispossession of while in possession of thediscontinuance,property, has been dispossessed or has discontinued the possession. 143. 'For possession of immovable (TwelveWhen the property or any interest years) possession of the therein not hereby otherwise defendant becomes specially provided for adverse to the plaintiff. 27. It may be observed that dispossession of the plaintiff is a condition precedent for the application of Article 142. Irrespective of the sketchy evidence on record, if the plaintiffs' version is to be believed, the suit is within time. If the defendants position is to be accepted, Article 142 could not apply as the basic precondition for its application i.e. dispossession of the plaintiff cannot be assumed to have accrued. I am fortified in this view by a judgment of Patna High Court in the case of Kanchan Te.li v. Mogo Mahton (A.I.R. 1934 Patna 593), wherein Wort, J. held :-- "If the defendant admitted that he had dispossessed the plaintiff, then quite clearly Art. 142 would apply; but if, as in this case, he asserted that the plaintiff had never been in possession, that he (defendant) had been there and had been prescribing against him (plaintiff) it seems to me abundantly clear that the case does hot come under any of the authorities holding on the facts of particular cases that Art. 142 applied. It is a case that Art. 142 applied. It is a case which is otherwise provided for by the Limitation Act and therefore, Art. 144 applies." 28. Coming to Article 144 it may be seen that limitation start running from the date when possession of the defendant becomes hostile to the plaintiffs. In the above matter however, it is established that the defendants never asserted title to the land in question even on the basis of the Land .acquisition Act, prior to the filing of the suit. It is established on record that till June, 1997 the defendants were attending meetings for determination of compensation payable to the plaintiffs/owner. Even the last notice dated 8.12.1977 sent by the plaintiffs was passed on to another Officerin the circumstances Article 144 too could not be held applicable. 29. Evidently till the filing of the suit the defendants never claimed any right or interest in the land in question or set-up title hostile to the plaintiffs. Even in the original written statement filed in 1980 they did not attempt to justify their possession but only disputed the plaintiffs right to obtain compensation and contended that question of payment of compensation could only arise after proceedings under the Land Acquisition Act, relating to demarcation of property etc. Their claim to possession was never hostile to or inconsistent with the rights of the real owner and it has been established on the basis of evidence including evidence adduced by thedefendant that the plaintiffs were the real owners. Only when they were able to lay their hands on the Notification published in 1956 they started claiming that the land had been acquired. This contention has been found to be untenable on facts and law. The possession of the defendants does not appear to be better than that of a trespasser and I am inclined to think thatsuch trespass amounts to a continuing wrong in terms of Section 23 of the Limitation Act. Moreover admittedly negotiations for payment of compensation were being carried out till June 1977. As such the suit filed in April 1978 cannot be held to be barred by limitation. In this context I may refer once again to the observations made in Barkat Bibi's case, cited above, to the following effect :-- "Nor, it is open to a public authority to enter into negotiation for settlement of dispute with a citizen for a number of years and after failure thereof when the private citizen asks for relief through Court to turn round and say that the claim is barred by time. The limitation would not start unless a of action has arisen to a party and in the case in hand the cause of action arose to the appellant in February, 1984 when the respondent finally refused to settle the dispute. From this date the suit is clearly within limitation having been filed in the end of May 1984. In view of the above I am clearly of the opinion that the suit is not barred by limitation. 30. With respect to issue No. 5 no other objection as to the maintainability of the suit has been taken and I do not see any other requirement of law which would render the suit not maintainable. 31. Issue No. 6. has not been pressed in the written arguments and with respect to issue No. 7 it has only been contended that the plaintiffs have not shown title to the suit land and are, therefore, not entitled to any mense profit. In view of my findings at Issue No. 1, however, this objection cannot be sustained. On the factual aspect the plaintiffs' witness Noor Muhammad has stated that the income from land in the area is about two to three thousand rupees per acre. This evidence has gone unrebutted. Nevertheless in view of the bar of limitation the plaintiffs are only entitled to claim mesneprofit for a period of three years preceding the filing of the suit. 32. Coming to the question of relief I would hold that in view of my findings above, the plaintiffs are entitled to a decree for possession of the land against defendant No. 4, who are the successor-in-interest of the defendant No. 1 by operation of law. They are further entitled to mesne profit at the rate of Rs. 28,000/- per year for a period commencing from 28.4.1975 i.e. three years before the filing of the'suit till the date of decree. The proceedings initiated for possession of the suit land by virtue of the Notification published on 5.10.1956, however, shall become to an end in the absence of a subsequent Notification under Section 5 (as amended by Act XXVII of 1974) and the requirements of Section 6 (1-A) enacted vide Ordinance 23 of 1984. As such the plaintiff is not entitled to anycompensation en that score. I may, nevertheless, add that the defendants would be free to initiate fresh acquisition proceedings in case they considered it to be so in the public interest. 33. In view of the forgoing, the suit is decreed in the above terms with cost. Before parting with this judgment, however, I must express my anguish over the apathy of public officials dealing with rights of citizens as well as the interest of public at large involving property worth to millions of rupees. It is a matter of some regret that proper legal advice was not sought or acted upon for the purposes of acquiring the land in public interest and instead of resolving the matter even after the filing of the suit, possession which was ex-fade unlawful, was sought to be defended on especious grounds. (B.T.) Suit decreed.

PLJ 1998 Karachi 195 PLJ 1998 Karachi 195 Present: KAMAL MANSUR ALAM, J. SH. MUHAMMAD KHALID-Appellant versus FAKHARUDDIN-Respondent F.R.A, No. 348/92 decided on 26-9-96. (i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- --S. 15--Tenant--Ejectment of-Appeal against-Claim of landlord was about shop situated on plot No. E-10, eviction by court was directed only for same—Taking advantage of fact that both these shops were connected whether respondent/landlord can seek eviction from shop situated on plot No. E/'ll too on basis of aforesaid order when in fact plot No. E/ll was in the name of son of landlord—Question of—On basis of ejectment application, Rent Controller's order and order in appeal respondent is entitled to claim eviction of appellant from shop situated on plot No. E/10 only and not that situated on plot No. E/11-Since case of appellant is that by removing common wall between two shops situated on plot No. E/10 and E/ll, he converted these into one joint shop, respondent would be entitled to eviction of appellant only from that portion of said joint shop as is situated on plot No. E/10 and not from portion on plot E/11--Case is remanded to determine whether any portion of shop from which appellant is sought to be evicted is situated on plot No. 11/E as alleged, for this purpose parties will be allowed to produce evidence-Case remanded--Orders accordingly. [P. 201] A & B Mirza Waqar Baig, Advocate for Appellant. Mr. Re'nanul Hassan Farooqi, Advocate for Respondents. Date of hearing : 26-9-1996. judgment This Rent appeal is directed against the order dated 2-7-1992 passed by the Illrd Senior Civil Judge and Rent Controller Karachi East in Execution Application No. 03/1991 arising out of Rent Case No. 2534/82, whereby the Rent Controller rejected the objection of the appellant to the effect that in the garb of the eviction order passed against the appellant in the aforesaid rent case the decree holder/landlord was trying to evict the appellant not only from the shop occupied by him as tenant on Plot No. E-10 in Block-4, Shah Faisal Colony, Karachi but also from the shop occupied by him as a tenant on the adjoining plot No. E/ll in Block-4, Shah Faisal Colony Karachi. The brief facts of the case are that the Respondent filed aforesaid Rent Case No. 2534/1982 against the appellant under Section 14 read with Section 15 of the Sindh Rented Premises Ordinance 1979 (hereinafter referred to as 'the Ordinance) seeking the ejectment of the appellant from "Shop No. 2 on Commercial Plot No. E-10 situated in Block-4 of the Drigh Colony Karachi". It appears that this application was initially dismissed by the Rent Controller on 11-12-1982. Against the dismissal the Respondent filed FRA No. 6/1983 in this Court which too was dismissed on 25-1-1987. This dismissal was challenged by the Respondent in the Supreme Court in Civil Appeal No. 46-K/88 and the Supreme Court remanded the case to the Rent Controller for determining the issues as proposed in the order. Accordingly, the matter was re-heard by the Rent Controller and fresh evidence was recorded whereafter by order dated 24-1-1991 the Rent Controller allowed the Respondent's application. Last paragraph of Rent Controller's said order reads :— "The up-shot of my findings on the issues involved in the enquiry is that as I have reached to the conclusion that the applicant was not in occupation of Shop No. 1, therefore, in terms of the directives of the Hon'ble Supreme Court of Pakistan the opponent is hereby directed to vacate Shop No. 2 on Plot No. E-10 in Block-4, Shah Faisal Colony within one month of this order and to hand-over the possession of the shop in dispute to the applicant." The aforesaid order of the Rent Controller was challenged in this Court, this time by the appellant, in FRA No. 86/1991 which was dismissed by judgment dated 30-1-1992. Against this judgment petition for leave to appeal was filed before the Supreme Court by the appellant which petition was dismissed by order dated 14-4-1992. Subsequently, the aforesaid Execution A. No. 03/1991 was filed by the landlord/decree holder for execution of the order of eviction of the appellant. The contention of Mr. Waqar Hussain, the learned counsel for the appellant, is that the appellant is occupying as tenant two adjoining shops, one of these is situated on Plot No. E-10 Block-4, Shah Faisal Colony while the other on Plot No, E-ll, Block-4, Shah Faisal Colony, Karachi. His contention is that both these shops are adjoining and the wall between the shops was removed by the appellant so as to \ise these as one shop. However, the fact, remains that these are two shops situated on two different plots. He submits that out of these two plots the one bearing No. E-10 is owned by the Respondent while the other with No. E-ll is owned by his son. He submits that it is apparent from the application filed by the Respondent that he claimed the shop situated on Plot No. E-10 only and therefore the eviction of the appellant directed by the Court, was only in respect of this shop, but, taking advantage of the tact that both these shops were connected the Respondent wants to evict the appellant from the shop situated on Plot No. E/ll too on the basis of the aforesaid order. Mr. Rehanul Hassn Farooqui, learned counsel for the Respondent, opposes the appeal on the ground that the objection taken by the appellant in the Execution Application was never taken before during the entire proceedings before the Rent Controller or even thereafter and therefore this objection at such a belated stage cannot be allowed to be taken. The more so as it pertains to a question of fact. In support of his contention the learned counsel places reliance on the cases of :-- (i) Muhammad Anwar versus Jamaluddin (1996 S.C.M.R. 771). (ii) Ch. Ghulam Mujtaba vs. Mst. Naeema Khartum (1985 S.C.M.R. 38). (iii) Mst. Khurshid Begum etc. vs. Mr. Ghulam Kubra etc. (1982 S.C.M.R. 90). In the first case it appears that the tenant had taken an objection at the stage of appeal that the premises involved was a hotel and therefore did not fall within the jurisdiction of the Rent Controller. The Hon'ble Supreme Court on such objection observed that"We are inclined to hold that the question, as to whether the premises were let out as a hotel in terms of clause (h) of section 2 of the Ordinance, was a question of fact, which should have been pleaded in the written statement by the respondent if he wanted to oust the jurisdiction of the Rent Controller. The above plea could not have been raised by the respondent first time before the High Court. No doubt a purely legal plea can be raised even before the appellate forum first time with its permission. However, a legal plea, which is founded on factual plane, cannot be raised first time before the appellate forum. In the second case it appears that the petitioner in the Supreme Court was appearing as the advocate for the tenant in earlier proceedings but never applied to the Courts for being impleaded as one of the tenants of the premises and was content with contesting the proceedings as counsel of the tenant until the stage of execution proceedings when for the first time he came with his own claim of possession. In this situation the Supreme Court observed that: "Thus it will be seen that there were four rounds of litigation arising out of the proceedings for ejectment of A.K. Mumtaz and finally on 7-11-1973, while the last round of litigation was in progress, the landlady filed an execution application on 7-11-1973 and it was on 24-4-1974 that the present petitioner, for the first time put in his claim as a party intervenor by means of objection petition in the execution proceedings. It is on the record that the landlady sought the eviction of A.K. Mumtaz inter alia, on the ground of subletting of the premises to the present petitioner and some others unauthorisedly. The petitioner is a practising advocate and was representing the sole respondent A.K. Mumtaz in the ejectment proceedings. The tenant, in his written statement filed through the petitioner as his counsel, did not deny that petitioner was in possession of the premises, hut averred that he is the joint tenant alongwith A.K. Mumtaz and others. In spite of these facts the petitioner did not move the Court for being impleaded as a party hut remained contented with contesting the proceedings as a counsel on behalf of A.K, Mumtaz until after about ten years, he came up with his own claim to possession. It was on this ground that the executing Court held that the objection petition filed by the petitioner was mala fide as all alone he was aware of the proceedings and did not put in his personal claim in the ejectment proceedings. The executing Court proceeded on the basis of the rule laid down by this Court in Mst. Khurhsid Begum v. Ghulam Kubra 1982 SCMR 90. The High Court also upheld the view taken by the executing Court and rejected the contention of the petitioner that the law laid down in Mst. Khurshid Begum's case was not attracted in the facts of this case. The petitioner has reiterated his contention but. we agree with the High Court that the ratio of Mst. Khurshid's case is directly applicable in this case and indeed with greater force. The petitioner being the counsel for the tenant cannot deny knowledge of proceedings before the Rent Controller. It was for him to have set up his claim before the Rent Controller arid obtained the adjudication of the matter at the stage of preliminary issue when the Controller was determining the question of statutory tenancy in the premises. His having refrained from taking this course, disentitled him from asking the Court to re-open the matter at the stage of execution of the order of eviction In the last case the facts appear to be that the landlords sued the tenant and obtained an order of ejectment against him on the ground of their bonafide. personal need. The order was maintained upto the Supreme Court. It appears that before the Rent Controller and also at the appellate stage only ! the tenant against whom the application was filed contested the case but at the execution stage this Respondent joined hands with certain other persons and filed objection praying that their claim be adjudicated and till its adjudication they be not ejected in execution of order of eviction passed against the original respondent. On these facts the Supreme Court held that: "Syed Saqlain Abid was the sole respondent in the ejectment proceeding before the Rent Controller. He had contested the proceedings for years and in different forums, right up to this Court. On no principles could he be permitted to join the other objectors or to make a common cause with them so as to raise questions which he could have raised before the Rent Controller and having not raised he was precluded for all time, particularly before the executing Court, from reagitating them. If the executing Court is allowed to dispose of his objection in terms of the issues framed but if the entire jurisdiction of the Rent Controller would be subverted and a proceeding in the nature of review or rehearing would be undertaken not by the Tribunal having exclusive jurisdiction in the matter but by a civil Court while seized of the execution of the order. So far as Syed Saqlain Abid's claim was concerned, it could not at all be entertained." On the basis of the aforesaid authorities the contention of the counsel is that the appellant had full opportunity of raising the question of his occupying a shop on Plot No. E-ll, before the Rent Controller. He submits that in fact this should have been done in the written-statement filed by the appellant. However, I am unable to agree with the contention and in my view none of the three cases cited by the counsel would be relevant in the circumstances of the present case. In the ejectment application filed by the Respondent the veiy first par reads that, "he is the owner/landlord of the shop No. 2 on Commercial Plot No. E-10, situated in Block-4, Drigh Colony Karachi." No where in the said application he has said a word about his claim to shop situated on Plot No. E-ll. This application of the Respondent was granted by the Rent Controller by his order dated 24-1-1991 and the last para of this order is to the following effect: "The up shot of my findings on the issues involved in the inquiry is that as I have reached in to conclusion that the applicant was not in occupation of Shop No. 1, therefore, in terms of the directives of the Hon'ble Supreme Court of Pakistan the opponent is hereby directed to vacate Shop No. 2 on Plot No. E/10 in Block No. 4, Shah Faisal Colony within one month of this order and to hand-over the possession of the shop in dispute to the applicant." Thus it is clear, both from the application filed by the Respondent and also from the ejectment order passed by the Rent Controller that the appellant was sought to be evicted from the shop situated on Plot No. E-10 alone and no other pl6t, as such, there could have been no occasion for the appellant to give information that he was also in occupation of a shop situated on another plot. Indeed, he could not have even foreseen that on the basis of the order obtained for his eviction from Shop No. E-10 he would also be evicted from the other shop situated on Plot No. E-ll. In this regard it may be mentioned that in so far as Plot No. E/ll is concerned the case of the appellant is that this plot belongs to the son of the Respondent and this position has been admitted by the Respondent in his cross-examination. In these circumstances, in my view, on the basis of the said order dated 24-1-1991 as also respondent's ejectment application, the Respondent/landlord would be entitled to the shop situated on Plot No. E-10 only and not to any other shop on other plot. It is next contended by the learned counsel for the respondent that it was admitted by the appellant that the Respondent was the landlord in respect of both the shops, being the owner of the one on Plot No. E-10 and being entitled to receive rent for that on Plot No. E-ll, and therefore he was entitled to claim possession of both these shops in view of the wide definition of 'landlord' under the Sindh Rented Premises Ordinance. For this proposition reference is made to the case of Muhammad All versus Mst. Hameeda Begum (1988 SCMR 705). There while considering the question as to whether a widow of a deceased owner of a property could maintain an ejectment application under Section 14 of the Ordinance when there were other legal heirs of the deceased too who had not joined the widow in the proceedings, it has been observed that: "It may also be mentioned that the expression "landlord" has been used in the Ordinance in a wider sense for it includes a person who need not be the owner of the premises at all, that is required is that he should be authorised or entitled to receive rent in respect of the rented premises. In this case all the other heirs of Pir Muhammad Nawaz had authorised the respondent not only to collect the rent of the house in dispute but also to deal with it in all respects including to get the same vacated and use it for her own occupation." With this contention too I am unable to agree for the reason that, as mentioned earlier, in his application the Respondent had sought eviction of the appellant specifically from the shop situated on Plot No. E-10 only and not that on Plot No. E-ll and therefore even if he was covered by the definition of 'landlord' in respect of the shop on Plot No. E-ll by virtue of being entitled to collect rent therefor, he would still not be entitled to get the 1 appellant evicted therefrom on that ground alone when he had made no such claim in his application. Muhammad Ali's case relied upon by the counsel would not, therefore, help him. In this regard it may be mentioned that in a ' later judgment passed in the case of Syed Muhammad Hyder Zaidi and others versus Abdul Hafeez (1991 SCMR 1699) the Supreme Court after considering a number of cases on the point including Muhammad Ali's case held that :-- "22. We are inclined to hold that the word "landlord" used in section 14 refers to its primary meaning, namely, the owner and not to its extended meaning. In our view, an attorney or an agent simpliciter who is authorised to receive rent on behalf of the owner of the property concerned cannot pressinto service section 14 of the Ordinance for his personal benefit. An application under section 14 can be maintained by the persons specified therein (or on their behalf), who should have interest, in the property as the owner, either as the sole owner or as once of the co-owners. We may further observe that the Court, while" constructing section 14 will place liberal construction as to advance the object for which, it has been enacted rather to defeat it, but at the same time, the benefit of the above section cannot be extended to the persons other than those specified therein. The above conclusion is fortified by the fact that the definition of the term "personal use" given in clause (g) speaks of use of the premises by the owner thereof and/or his wife or husband, son or daughter. Subsection (2) of section 14 of the Ordinance refers to "a building owned by him in any locality". Furthermore, section 10 of the Ordinance contemplates service of a notice by the new owner on the tenant through a registered letter in case of change of ownership because of sale, gift, inheritance or by some other mode. It does not provide for service of a notice on account of change of a landlord who includes an attorney or a person for the time being receiving rent on behalf of the owner."For the reasons discussed above, in my view, on the basis of his ejectment application, the Rent Controller's order dated 24-1-1991 and the order in appeal the respondent is entitled to claim eviction of the appellant from the shop situated on Plot No. E-10 only and not that situated on Plot No. E-ll Since the case of the appellant is that by removing the common wall between the two shops situated on Plot No. E-10 and E-ll, he converted these into one joint shop, the respondent would be entitled to the eviction of the appellant only from that portion of the said joint shop as is situated on Plot No. E-10 and not from the portion thereof as may be on Plot No. E-ll. However, in the present case although the appellant claims to be occupying a shop on Plot No. E/ll, there is no evidence on the point, obviously as, this issue for the first time cropped up at the stage of execution when, according to the appellant, the Respondent attempted to evict him from the shop occupied by him on Plot No. E/ll. As such in order to determine the issue as to whether the appellant is occupying a shop or portion of the said joint shop, which is situated on Plot No. E/ll, it is necessary to hold further enquiry. As such I set aside the impugned order and remand the case to the Rent Controller with the direction to determine as to whether any portion of the shop from which the appellant is sought to be evicted is situated on Plot No. E/ll Block-4, Shah Faisal Colony, Karachi as alleged and for this purpose he will allow the parties to produce evidence. This he will do within six weeks. The Rent Controller will thereafter proceed to execute the eviction order against the appellant in respect of the shop or as the ease may be, portion of the said joint shop, situated on Plot No. E-10, Block No. 4, Shah Faisal Colony, Karachi only. The appeal is disposed of in terms of this order. Office is directed to return the R & P to the Rent Controller without delay. (A.P.) Orders accordingly.

PLJ 1998 Karachi 202 PLJ 1998 Karachi 202 Present: ABDUL HAMEED DOGAR, J. Mrs. FARIDA MANZOOR etc.--Appellants versus wing; commander irtd.) makhdoom MomuDDiN-Respondent F.R.A. No. 36/97, dismissed on 29-9-1997. Cantonment Rent Restriction Act, 1963 (XI of 1963)-- —-S. i7-Tenant-Ejectment of-Challenge to-Personal bona fide need-­ Ground of—On ground of personal bona fide use, respondent/landlord in his ejectment application as well as affidavit in evidence has categorically stated that he being highly qualified experienced teacher and having retired, as Assistant Professor from Defence Housing Authority DegreeCollege is jobless and wants to run his own coaching center in disputed premises—His educational experience and qualifications referred abovehas not, been challenged by appellant and simply saying that coaching center is not, a legal business will not take away his right of asking disputed premises for his personal bona fide use-Learned Rent Controller has rightly observed that rented premises in possession of appellant is required by respondent in bona fide good faith for his own personal use for running a coaching center for which he has ample experience—Appeal dismissed. [P. 207] A Muhammad Abdullah, Advocate for Appellant ,. Iftikhar Javaid Qazi, Advocate for Respondent. Date of hearing : 27-8-1997. judgment In this appeal, the appellant has called in question the order dated 15.2.1997 of Rent, Controller, Clifton Cantonment, Karachi, whereby he allowed the ejectment application of the respondent; anc : ordered the appellant to vacate the premises within 30 days. 2. Briefly the facts are that respondent, the owner and landlord, filed application for ejectment against the appellant under section 17 of the Cantonment Rent Restriction Act, 1963, ('hereinafter' referred to as the Act'!, stating therein that lie rented out a portion on the ground floor of his property bearing No. 60-C, 13th Commercial Street. Phase -II Extension, Defence Housing Authority, Karachi to appellant at the rate of lis. 2,000/-per month i.e. Rs. 1000/- as rent and Rs. 1000/- as hire charges excluding water, conservancy, electricity, telephone charges etc, vide a written tenancy agreement dated 12.3.1987 to be payable on or before loth of each month. It. is further said that appellant proved herself a chronic and habitual defaulter, always irregular and irresponsible towards payment of monthly rent and conservancy charges and lastly paid the rent in May 1994, whereafter no rent was paid tendered or offered in any manner whatsoever. The respondent, being a well qualified person and having served Pakistan Air Force for 20 years and retired as Wing Commander on HI. 1.1988 and was also in the field of teaching since 1957 and after retirement ,-ilso served as Assistant Professor in Defence Housing Authority, Degree College from where he retired on 31.8J 994. His case further is that since last two years lie has been requesting verbally as well as in writing to the appellant to vacate the premises as he requires the same genuinely, hona fide and in good faith for his own use for running a Coaching Centre therein on the basis of his long life experience in the field of education. With regard to the default, the respondent mentioned in the rent case that appellant not, only failed ro pay the rent after May 1994 but has also failed to pay the water and conservancy charges for last, four years at the rate of Rs. 750A per yeur and it was on 4.12.1994 when he received a notice of Miscellaneous Kent Application No. 92 of 1994. from tlie Office of Controller of Rents where lie had deposited the rent of the premises from July 1994 to December 1994. As such h ;:- h;^ committed a wilful default: in the payment of rent. It was fail her mentioneu that the appellant has kept the rented premises looked since tasf more '. ban two years and is not carrying on any business therein bu , using the same as a godown for storing certain goods and articles and as such she is liable io vacate the said premises by virtue of section 17(2)(iiKv), besides subsection (2) Cl) and sub section 3. 4(11) fiHii) (iii) of section 17 of the 1 Act. 3. The appellant is his written statement denied the case of the respondent and stated that, the plea of personal need agitated by the respondent is not correct; and that she has not committed any default iu payment of monthly rent as well as water and conservancy charges as alleged. In fact, she was regular in payment of monthly rent, and other charges since inception of tenancy and sometimes the monthly rent was received by the respondent himself and at other times by his brother Sultan Molmiddin through whom the tenancy agreement was executed She always trusted upon them and they usually never issued receipt in time on one or the other pretext and always issued the same-late usually after 2/3 months. So far as the rent for the month of July 1994 is concerned, it is said that the said rent eas paid to the brother of the respondent, who did not issue receipt and promised to deliver the same lateron but with bad intention and ulterior motives withheld the said receipt thereafter she tendered the rent of July and August 1994 through cross cheque vide No. 25697777 dated 4.9.1994 amounting to Rs. 4000/- and issued another cheque in favour of respondent for the months of September and October 1994 vide cheque No. 25697780 on 12.9.1994 of Rs. 4000/-. Her case further is that she tried to contact the respondent and his brother in November 1994 but failed as they avoided to meet and receive the rent. On 1st December 1994 she succeeded to meet with the respondent and tendered the rent for the month of November 1994 but he refused to accept the same and then she enquired from the Bank concerned and found that respondent did not encash the said cheques and thereafter there was no alternate but to deposit the rent in Court. It is further stated by her that she has paid the rent upto 1993 with an excess amount of Rs. for 250/- which she was not supplied bills hence she has not committed default in the payment of monthly rent as well as water and conservancy charges. Regarding personal use she contended that it dons not appear to be bona fide as Coaching Center is an illegal business. She has also averred in her written statement that respondent, the owner of the three other portions of the building has rented out the same on higher rates to different persons including one leather garment factory, hence he is not come with clean hands. She has lastly alleged that the respondent in fact had demanded the enhanced rent of Rs. 6000/- per month excluding the other charges which she refused. She has also incurred a sum of Rs. 16000/- in order to make the premises in good condition, hence he filed the above rent case. 4. On the basis of the pleadings of the parties the learned Controller framed the following issues "(1) Whether the opponent has committed default in payment of monthly rent since June 1994? (2) Whether the premises in opponent's possession isgenuinely and in good faith required by the applicant forhis own personal bona fide need to run a coaching centre therein? (3) Whether the opponent has ceased to occupy the rented premises for more than last two years and is using the same as godown, if so to what effect? What should the order be ?" 5. Respondent filed his own affidavit in evidence alongwith affidavit of his brother Sultan Mohiuddin and produced original tenancy agreement and carbon copies of rent receipt dated 22.5.1994 certified copy of Miscellaneous Rent Case No. 92 of 1994. 6. Appellant filed affidavit in evidence of her husband, namely, Mian Manzoor Ahmed said to be her attorney and his employee Shamsuddin. He alongwith affidavit produced original tenancy agreement, carbon copy of rent receipt dated 22.5.1994 issued to the opponent for May 1994, certified copy of M.R.C. No. 92 of 1994, certified copy of Court's ledger showing first deposit of rent by the opponent in December 1994, photo copies of Degrees and certificates showing his qualification and retirement letter from P.A.F., retirement letter from Pakistan Defence Officer Housing Authority, commendation certificate and carbon copies of vacation notices/rent receipts. 7. The parties filed their written arguments and referred case law. 8. The learned Rent Controller decided Issues No! 1 and 2 in affirmative. Issue No. 3 was not pressed whereas vide Issue No. allowed the ejectment application. 9. I have heard the learned counsel for the appellant and learned counsel for the respondent at length. Mr. Muhammad Abdullah for the appellant mainly reiterated the arguments advanced in the rent case as well as taken in the written statement. He contended that respondent has failed to prove the genuine need of personal bona fide of the disputed premises inthe lower Court as such is not entitled to possession. He further argued that appellant has not committed any default in payment of rent and has been paying the same all along to the respondent or his brother Sultan Mohiuddin either by way of tendering the same in person or by sending the same through cheques. They used to issue the receipts after 2 or 3 months of tendering the rent and about the rent of the month of June 1994 they did not issiie receipt in spite of repeated demands. It, is further submitted that the rent for the month of July, August, September and October 1994 was sent through cross cheques of Rs. 4000/- by appellant's attorney thereafter the rent was deposited in Miscellaneous Rent Case No. 92 of 1994 which has been proved from his evidence and evidence of his witness produced by them in the Lower Court. In support of his contentions he has relied upon the following cases : -- (i) 1996 SCMR 336 Bin Yameen and 3 others versus Chaudhry Hakim and another. (ii) 1996 SCMR 1178 Messrs F.K. Irani & Co. versus Begum Feroze. 10. Learned counsel for the respondent mainly relied upon the grounds agitated by him in his case in the Lower Court and stated that appellant has failed to refer any illegality or irregularity or misreading or non-reading of evidence of any sort from the order of the Rent Controller. He further argued that the Rent Controller has rightly termed appellant as defaulter and also correctly observed that the respondent is in personal bona fide need of the disputed premises. Learned counsel further contended that the rent for the month of June 1994 was never paid and that the rent from July 1994 onwards was also neither paid nor tendered by the appellant till December 1994 whereafter on 5.12.1994 the rent for last six months was deposited in Miscellaneous Rent Case No. 92 of 1994 for the first time. According to him, appellant neither mentioned anything about counter-foil in written statement nor in miscellaneous rent case, as such if ;>i;ot.u copies of counter foils for the first time alongwitb ikes it absolutely unworthy, particularly when there are lot of :; over the same. On the personal bonafidc. use , learned counsel h:i! respondent in las affidavit fully proved thai; he is a retired !:, in rate! not'd of opening a Coaching Centre for his livelihood. ns chough I'uUy cross-examined the respondent and his witness sh art or their evidence on both the grounds. In support of his ntions be placed reliance on the case reported as 1996 IvILD )96 SOMR 1178 <e) wherein it has beeii held as under e s S. {--Ron.a fide, personal need of landlord-Merely because the husband of landlady had 62 shops in one area u;k' 21 shops in another, would not disentitle her to apply for ejectment on the ground of personal, requirement of her son as it is for a landlord/landlady to select as to which of I.he buildings he/she wishes to use personally or to provide the same to his/her children". 11. I have given anxious thought to the contentious advanced by the learned counsel fo ; the parties and have gone through the evidence recorded by the learned Rent Controller. Apparently" eviction was sought, on the grounds of personal ban a fide, need and default, in the payment, of rent The plea that, respondent rented a portion on the ground floor of disputed premises at Rs. 2000/'- Rs. 1000/- as rent, and Rs. 1000/- as hire charges (excluding water, conservancy, electricity and telephone charges) since 1987 as per tenancy agreement, is proved and is not disputed by the appellant. About default, respondent as well as his brother in thoir affidavits as well as in cross examination have specifically said that appellant has failed to tender rent from June 1994 till 5.12.1994 when for the first time he deposited the ront amounting to Rs. . 12000/- from July 199 to December 1994 in Misc. Rent Case No. 92 of 1994. The rent, for the month of June J994 was neither paid to the respondent or his brother nor was deposited by the appellant in the said miscellaneous rent case at any time. The appellant has not been able :: c break this contention of the respondent though he was sufficiently cross examined. On thecontrary the appellant Mian M,- .;.,or Ahmed, Attorney of Mst. Karidfi Manzoor the original appellant, in nis cross examination has admitted that he is not in possession of any rent, receipt from June 1994 till the date of his examination. He has also admitted thai he deposited the rent from July 1994 to December 1994 in Misc. Rent Case No. 92 of 1994. He in cross-examination lias stated that he issued cheques to Sultan Mohiuddin and obtained receipts and also admitted that in miscellaneous rent, case as well as in written statement he has not so mentioned about the obtaining of the receipts of the cheques. About, the counter foil of cheques the denied the suggestion that the same are forged. On the face of it the counter foils of the two referred checnits show cutting and mterpolution tendering their sancity entirely doubfiVd ,uid unworthy. For the purpose of evidence these sorts of documents cannot even be taken into consideration. From the evidence of ' both sides it becomes ciystal clear that the vent for the month of June 199-- ! has never been tendered or deposited by the appellant. So far deposit!!;;.; of rent in miscellaneous rent case on 5.12.1994 for the month of JuJy to December 1994, on the face of it shows that the said rent was deposited on 5th December 1994, making appellant a clear defaulter. Once a tenant: is proved to be a defaulter, even late payment, of rent will not take him out, of ; the category of defaulters. Since the plea of counter full of the cheques was not taken in the written statement as well as in miscellaneou rent case by appellant, therefore, evidence recorded on the same if any cannot be relied upon. Honourable Supreme Court in the case of BinYamin & 3 others versus Ch. Hakim & 6 others, 1996 SCMR 336<e'» 'Das held as under :- 'Practice and procedure-No evidence can be led or looked in support of a plea which had not been taken in pleadings". 12. In the case of Noman Ahmed versus Ms/, ti-huzala Iqbal 1996 MLD 1717, this Court dismissed first rent appeal on the ground of default as well as personal bona fide use exactly having the same facts as that of the case in hand. 13. On the ground of personal bona fide use. the respondent in his I ejectment application as well as affidavit in evidence iias categorically stated that, he being highly qualified experienced teacher and having retired as Assistant Professor from Defence Housing Authority Degree College on 31st August 1994 is jobless and wants to run his own Coaching Centre in the disputed premises. His educational experience and qualifications referred above has not been challenged by the appellant, and simply saying that Coaching Centre is not a legal business will not take away his right, of asking j" disputed premises for his personal bona fide use. The learned Controller has | rightly observed that the rented premises in possession of the appellant is 'i required by the respondent in bona fide good faith for his own personal use j for running a coaching centre for which he has ample experience. On j persona] bona fide need, Honourable Supreme Court in the case of M/s, F.K. Irani and Co. versus Begum Fe.roz 1996 SCMR 1178, iias observed at platinum id) & ie'i as under :— (d) S. 15-Bona fide personal need of landlord-Suitability of opening a departmental store by landlord in any one of the available premises entirely depends upon the choice of the landlords-Such need and choice, however, should be real, genuine and not tainted with mala fides." "(e) S. 15-Bona fide, personal need of landlord--Merely because the husband of landlady had 62 shops in one area and 21 shops in another, would not disentitle her to apply for ejectment on the ground of personal requirement, of her son as it is for a landlord/landlady to select as to which of the buildings he/she wishes to use personally or to provide the same to his/her children." 14. For the above said reasons, I am of the opinion that learned Controller has rightly exercised the discretion in favour of the respondent/landlord and there is hardly any ground to interfere with his findings. Accordingly, the appeal is dismissed in limine. The appellant is ordered to vacate and hand over disputed premises to the respondent within 60 days. (K.A.B.) Appeal dismissed.

PLJ 1998 Karachi 208 PLJ 1998 Karachi 208 Present: M.L. shahani, J. MUHAMMAD MASOOD BHATTI-Apellant versus MOINUDDIN KHAN-Respondent F.R.A. No. 25 of 1994, allowed on 26-5-1997. (i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 15 and 10-Tenant-Ejectment of-Default-Ground of-Appeal against ejectment order-Rent was sent through money order for the month of September and October on 14-11-1998, wnen land lord refused to receive money order same was deposited in court—Whether it is default or not ?— Question of—When oral evidence is contrary to documentary evidence documentary evidence is taken to be conclusive-Learned Rent Controller ignored provisions of S. 10-Findings given by him is contrary to documentary evidence as such learned Rent Controller has come to aerroneous conclusion while passing impugned order which is set aside appeal is allowed-Held : No default has been committed-Appeal allowed. [P. 210] A & B Kamal Uddin, Advocate for Appellant. Date of hearing : 26-5-1997. judgment Mr. Kamaluddin, learned counsel for the appellant is present since morning. The respondent and his learned counsel are repeatedly called absent since morning. It is 11.30 a.m. there is no intimation available from the learned counsel for the respondent as such I am hearing this appeal on the merits of the case in absence of the learned counsel for the respondent, 1. Consequently C.M.A. No. 80/1997 is dismissed in default. 2. The respondent filed application under Section 15 of the Sindh Rented Premises Ordinance, 1979 claiming in para 3 of the said application that the appellant has not paid the rent for the month of September and October, 1992 while in the said para he has stated that the rent for the month of August, 1998 has been received. This application was filed on 3-11- 1992 There is no written agreement between the parties as such the effect of the law will hold the field. The appellant is written statement denied that he has committed any default. He stated that the rent for the month of September, 1992 was due in the month of October, 1992 while the rent for the month of October, 1998 was due in the month of November, 1992 and in order to be a defaulter in terms of Section 19 the appellant should not have paid the rent within sixty days when it became due. Accordingly to him the rent was sent through money order for the month of September and October on 14.11.1992. When the landlord refused to receive the money order the same was deposited in the court. In support of the application the respondent examined Muhammad Jamil as his attorney. In his affidavit-in-evidence he has stated in para-3 that the rent up to the month of August, 1992 was received. In the cross-examination he stated that I do not remember when the tenant has lastly paid the rent to the applicant. I do not remember the date of committal default of the rent by the opponent. I do not if the opponent has paid the rent to the applicant upto the August, 1992. He further denied that the money order was sent which was refused. He further stated that he had no knowledge that the rent is being deposited in the court. The appellant examined himself. He produced money order seat to the respondent and the court receipt dated 17.11.1992. The appellant in his cross-examination stated as follows : On 12th or 14th September I had remitted rent through money order collectively of three months from August to October, 1992. That money order came back. I do not know when I had submitted an application in the court for deposit of rent. I do not remember also the date of deposit of rent in court. First I had deposited the rent in court of August to October, 1992. Voluntarily says that I am depositing thereafter continuously, It is correct, that firs!, time I had sent the money order on 14.11 "" W2, the iv^i for August, to October, 1992." Learned Rent Controller was impress "hat f.he appellant has stated that he paid the rent for the three months n 'o .August to October, 1992. "In the month of November according to him the default has been committed as the rent for the month of August was not sent in due time. Mr, Kamaluddin, learned counsel for the appellant states that the learned Rent, Controller has given the findings which is not sustainable on record. According to him by virtue of section 10 of the Sindh Rented Premises Ordinance, 1979 the rent is due by 10th of the next month. In ordei ... % a defaulter in terms of Section 19 the rent should not be paid for another sixty days. In this case the rent has been admitted to have been received by the landlord upto August, 1992. The rent for the month of September, 1992 was due by 10th October, 1992 and could be paid by 10th December, J 992 beyond 10th December, of course, it can be said that the appellant has committed wilful default. According to Section 10 the receipt issued by the kaidlord, money order sent to the landlord and the receipt of deposit in the court, would be the evidence that the rent has been tendered Vy the tenant in accordance with law. The contention is that the learned Rent ContrnUer ignored documentary evidence i.e. money order and the Aj deposit of rent which is dated 17.11.1992 in the court of Rent Controller. The I con; rioiior; u; ,:eo by tiie learned counsel for the appellant is proved from the I reri.-rd. ov,Ti from where the learned Rent Controller come to the i conclusion that the rent for the month of August, 1992 was not paid, j although it is an admitted position in para-3 of the application and also affinned in affidavit-in-evidence filed on behalf of the landlord. Even for the 8>ike of Arguments it is taken that in cross-examination the appellant may have so stated but that does not absolve the Rent Controller from following tiie provisions of 'aw and came to the conclusion on the basis of the documentary evidence. Even otherwise, when the oral evidence is contrary to the documentary evidence the documentary evidence is taken to be conclusive Learned Rent Controller ignored the provisions of Section 10 of the Sine! Rented Premises Ordinance, 1979. The findings given by him I is contrary to the documentary evidence as such I would hold that j the learned Rent Controller has come to a erroneous conclusion Pj while passing the impugned order which is set aside and the appeal is allowed Consequently Rent Case No. 832 of 1992 filed by the respondent is dismissed and it is hold that no default has been committed by the appellant. ; AA. Appeal allowed.

PLJ 1998 Karachi 211 (DB) PLJ 1998 Karachi 211 (DB) Present: wajthuddin ahmad and syed sayeed ashhad, JJ. SYED NADEEM ARIF & 7 others-Petitioners versus FEDERATION OF PAKISTAN & 2 others-Respondents C.P. No. 2203 of 1996, dismissed on 11.7.1997. National High Way Authority Act, 1991-- —S. 13 (l)--Termination of contract appointment-Constitutional Petition-Whether constitutional jurisdiction of High Court could be invoked in case of contractual disputes-Question of-While some protection to employees of State-run corporations/Autonomous bodies may be invocable, institution itself requiring to qualify stringent tests, principle is not usually extendable to contractual employees simplicitor, even where all requisite conditionalities stand satisfied-Contractual employees, as inherent in concept itself, are governed by rule of master and servant and cardinal principle in such cases is that no such servant can be forced upon an unwilling master-In cases of termination of such services, where necessary pre-requisites are shown to exist, conventional remedy for aggrieved employee would lie in suit for damages or other permissible action in court of competent civil jurisdiction e.g. service Tribunal, because all employees of National Highway Authority per statute, have been deemed to be civil servants for purposes of service Tribunal Act, 1973-Purported terminations are not without rationale-Held : Employees of Corporation in absence of violation of law or any statutory rule cannot press into service constitutional jurisdiction. [Pp. 217 & 219] A, B, C & D AIR 1979 S.C. 1628, PLD 1992 Kar. 283, 1995 MLD 15, 1992 PLC (CS) 76,1992 SCMR 1093, 1994 SCMR 2232, 1995 SCMR 453, PLD 1970 Kar. 332,1971 SCMR 566 and 1997 PLC (CS) 327. Mr. Khalid Javed Khan, Advocate for Petitioners. Mr. M. Sarwar Khan, Addl. A.G. for Federation of Pakistan. Mr. Abdul Qadir Siddiqui, Advocate for Respondent No. 3. Date of hearing : 27.6.1997. judgment Wajihuddin Ahmed, J.--The petitinncif in thu listed Const. Petitions are contract employees, in various categories of the National Highway Authority (N.H.A.) a statutory bf-'y constituted under the National Highway Authority Act, 1991. The ,'f..u,r",±s involved were for specified durations. The employees, as per the , .^iated contractual terms, did riot qualify for pension or gratuity and pension, 1 - in respect of previous services, if being drawn, could continue to be so drawn, in addition to the agreed remuneration. Likewise, no contributions to the general Provident Fund were required to be made. These employees were not to have any seniority. They were, however, to be governed by the Leave Rules of the Authority, were entitled to all medical facilities, as applicable to NHA employees and travelling allowances were also admissible to them, as to oilier employees of the NHA in the corresponding pay scales under the Rules, uc dps, while employed on contract, their conduct was to be regulated by Rules made or deemed to be Rules made and instructions issued by the Government or the prescribed authority, as for NHA employee;-'. The contracts were liable to termination upon service, from either side, of notices of specified durations or pay in lieu thereof. The periods of the conr.racts could be extended with the approval of the competent authority. All the foregoing find, express mention in the relevant contracts The grievance of the petitioners is that, per Office Memo dated 7.! 1.199(5 issued by the Cabinet, Secretariat, Government of Pakistan, under ibt; (iiij. 'Termination of Contract Appointments", it was un-ceremoniousry 'Kit 'the services of all the civilian contract employees may be ;•(! with hmjiediate effect". All Ministries/Divisions to which the ijieriK' w,j,s endorsee' were requested to implement such orders in respect of civiliiUi con trad: appointees in the Ministries/Divisions/attached depart­ ments and Autonomous Bodies/Corporations under their administrative control. Requisite orders were to be issued on 7.11.1996 itself and compliance report was to be forwarded to the Establishment Division immediately. The Ministries/Divisions were also advised to furnish lists of contract employees/appointees, both civilians and Ex-Armed forces personnel, 10 the Establishment Division positively within one week. It is the farther case of the petitioners that Respondent National Highway Authority, >'!(!>' ar, office order dated 27.11.1996 under the head, "Termination of Contract Appointments", in pursuance of the referred decision of the competent authority, dated 7.11.1996, with immediate effect, terminated the conn-act appointments of 54 such, appointees while allowing them to draw pay in lieu of advance notices, as per the terms and conditions of their '•tMU.raefs. 'The petitioners maintain that before actual notices could be i^'-mod. the petitioners approached this Court, on various dates commencing < 12,1996, where status quo orders were granted, the first being, on ;2.1H46, fry a bench presided over by one of us. In such petitions <if,-:;mitiw)s have been sought that the office memo dated 7.12.1996 and the "f'u-f '.-riser dated 27.11.1996 are unlawful, void and of no legal effect. A !uether declaration claimed is that the petitioners could not be terminated goo-,1 cause and except in accordance with the principles of Natural Directions have been sought against the NHA to process the cases of mnners for regularization in accordance with the Rules and lied practice. Prohibitions have been solicited against the NHA from •;i' letters of termination and from taking any adverse actions against the petitioners, inclusive of seeking relinquishment of charges oi ; their respective offices. he NHA, as a respondent, has submitted its comments: ami like comments have also been filed by the Federal Government of Pakistan in Const. Petition No. D-2408/1996. The burden of the comments, brought on record by the NKA, is that the National Highway Authority Employees Service Rules, 1995, do not apply to employees appointed on contract: basis or those on deputation or to employees being paid from contingency. Our attention is invited to Rule 1(2) of such Rules, which runs thus "(1) (2) These Rules shall apply to all employees of the National Highway Authority, hereinafter referred to as the Authority other than those : (a) appointed on contract basis; (b) on deputation to the Authority; (c) paid from contingency." On the factual plane, :i <s maintained that the NHA had undertaken a number of projects and the appointments in question were made against temporary posts, sanctioned for the duration of the respective projects. The appointments are claimed to be governed by contracts and no particular criteria for merit is said to have been followed relating to the same. It is urged that, as per the applicable allocation for 1996-97, the NHA was originally accorded a sanction of Rs. 9,503.024 million in the ADB. As per the revised allocation, however, such amount was reduced to Rs. 6,503.024 million, thus accounting for a short-fall of Rs. 3,000 million. Further, as against Rs. 36.847 million, demanded for the establishment budget, only an amount of Rs. 19.426 million was allocated. Because of the resulting financial constraints, the NHA, it is said, had to abandon several projects and to stop work on on-going ones. The terminations in question, allegedly, were brought about in accordance with the terms and conditions of employments, as reflected in the relevant contracts. Regarding the enforced out of Rs. 3000/- million from the allocation in respect of the projects of the NHA. reliance has been placed and brought on record is a memo of the Finance Division, endorsed to the NHA dated 23.10.1996. Some other material has also been produced, which need not specifically be dealt with On its part and in its comments, the Federal Government of Pakistan has maintained that the previous government had appointed a large number of persons on contract. basis in various departments/corporations. In such view most of these appointments had been made on grounds extraneous to job requirements and otherwise than in accordance with the system/procedure, against specific created posts Resort, therefore, was had to terminations under the applicable clauses of the contracts themselves. It is, however, added that wherever any exemption be considered unavoidable and in public interest, the case was referable to the Establishment Division with necessary justification. Besides, the contract employees against posts in foreign aided projects or where International commitments were involved were not to be affected by the policy decision to terminate such appointments nor would there be any ban to fill such vacancies though, at the same time, efforts were required to be made to give priority to absorb personnel from within the surplus pool of officers/staffs with the Establishment Division. The thrust of the petitioners' case, however, remains that the purported terminations, which according to them, have not yet taken effect, are mala fide and discriminatoiy. Mala fide are involved because appointees only of the previous (PPP) government have been targeted and discrimination comes into play because there has been pick and choose of employees, who are proposed to be terminated, as against some who are projected to be retained. These allegations are denied From the documents, which have been brought on record, we are unable to discern that any palpable distinction has been made in the termination of the contract employees. Besides, if that be the case, the matter should require factual inquires of an intricate nature, not routinely permissible in the exercise of the constitutional jurisdiction of the court. Even so, while the orders of the competent authority appear to involve an across the board exercise, some mention is still made to the allegedirregularity of appointments brought about by the previous (PPP) Government. This was the precise plea upon which the present petitions were entertained and status quo orders were issued. The mere fact that certain appointments were made by a particular government cannot ipso facto be made the basis of retributive action. That would be discriminatory and possibly, even mala fide. At the same time, if an illegal or irregular action is taken or appointment made, such remains unlawful or irregular, as the case may be, unless duly legalised or regularised. Correspondingly, if any illegalities or irregularities have been committed it is immaterial as to who committed the same. Wilful irregularities in public appointments and more so where mass appointments are involved, should legitimately call for appropriate review at the relevant levels. It is unfortunate but inescapable in the peculiar circumstance of the administrative inaptness of governance ofpublic affaires in this country that such identification can only be made by successor government because no government in office appears to bemotivated or inclined to be inward looking for taking stock of its own shortcomings. This will continue so long as transparency in public affairs and self-accountability takes root in the system itself. Each successorgovernment, may it even be a care-taker government, which is expected to be more neutral, would, therefore, continue to find fault with the one that preceded it. But that is no ground for attributing mala fides to an exercise, if otherwise found to be unexceptionable. Indeed, if this is not. permitted, albeit within reasonable limits and within the frame-work of law, the only avenue, presently, open for corrective measures would itself stand blocked. That can hardly commend itself. Even so, wherever exceptions are made, other than for justifiable reasons and wherever pick and choose takes places for extraneous considerations, such would always remain facts to be pleaded and proved at an appropriate level and if an adverse finding is recorded, necessaiy measures of redress can be set afoot. These matters, however, involving as they do, factual inquiries cannot routinely be dealt with in the exercise of Constitutional jurisdiction of this Court and the remedy, if one commends itself, lies elsewhere, as will be reflected blow. Here mention may be made to some case law cited in the context. In S.R. Tewari vs. District Board, AGRA, AIR 1964 SC 1680, which was a case of termination of employment, upon payment of three months' salary in lieu of notice, while the Indian Supreme Court declined relief, it did observe that in the exercise of Constitutional jurisdiction the High Court had the power to declare the decision of the Board ultra vires though such jurisdiction could be exercised only if the Couri, was satisfied that departure was called for from the rule that a contract of service would not, ordinarily, be specifically enforced. U.P. Ware Housing Corp. vs. Vijay Narayan, AIR 1980 SC 840, is a case, where it was observed that even in the absence of statutory rules, the Court could presume the existence o. duty, attaching to a state-run corporation, to abide by the rules of natural justice, if and when taking recourse to dismissals of its employees for misconduct. Allegations there, inter alia, were of theft and reasonable opportunity to deny the guilt was not accorded. Re­instatement was upheld but back-benefits, in the absence of requisite proof of loss, were denied. In Shrilekha Vidyarthi vs. State of U.P., AIR 1991 SC 537, the Indian Supreme Court quashed the impugned circular of the State Law Ministry on the ground that en bloc removal of District Government Counsel, in an arbitrary manner, on a plea of stream-lining the conduct of Govt. cases was impermissible, amongst other things, because the Legal Remembrancers' Manual, ordinarily, provided for renewal of tenures and it was too much to assume that every Government Counsel for the purpose of such stream-lining was required to be replaced. Such case, however, is dis­ similar to that in hand in-as-much as no improprieties in the initial opportunities were pleaded there and the appointments, presumably, were regular. Besides, in the instant cases, financial constraints, as well, have been invoked. Reliance has next been placed on Single Bench Judgment of the Lahore High Court viz. Mudassar Ahmad vs. Govt. of Pakistan, 1991 PLC (CS) 1047. There the petitioners, ad hoc appointees against substantive vacancies, having been appointed on recommendations of Prime Ministers Secretariat/Placement Bureau, under-went intensive training were asked to and applied afresh and even cleared the relevant examinations. Under the circumstances instructions of the Care-taker successor govt. were that terminations of uicir ser"ices were to be avoided as for as possible. They were yet terminated. Discrimination was also allegedly involved. In the circumstances relief was granted in the exercise of ConstitutionalJurisdiction. The matter went in appeal and the leave granting order is reported as Regional Cornmr. of Income Tax vs. Zaffar Hussain, PLD 1992 SC 869. We have not been able to verify whether the appeal has or has not yet been heard All the foregoing are distinguishable precedents. The National Highway Authority Act, 1991, per Section 13(2) thereof expressly postulates that notwithstanding anything in Section 13(1), any rules made, or orders issued, by the Authority or in any terms and conditions of service of any person employed by or serving under the Authority, the Authority may at any time terminate the services of any such person by giving a notice of a stipulated duration or pay for the period by which the notice falls short. Section 13(3) deems eveiy person holding a post under the Authority to be a civil servant for the purposes of the Service Tribunals Act, 1973. In the first place, thus the termination of services through notice (s) may not be alien to section 13(2) ibid, and, in the second, every person holding a post under the Authority having been deemed to be a civil servant the grievance, if any, against a final order can be agitated before the Service Tribunal alone, as mandated by Article 212 of the Constitution. Besides, against an intervening dis-satisfaction also the employee should wait for a final order to emerge. Even so, we would dispose of the contentions of the parties, as far as feasible at this level. We are also not satisfied that the purported terminations are without any rationale. The plea of financial constraints cannot be summarily dismissed. Budgetary constraints are a manifest reality and such appear to have been applied to the NHA much as to other government departments/ government run corporations. The respondents, therefore, have a viable case on the point. This brings us to the question whether any rules have been violated or the petitioners were due for absorption and instead of being absorbed have unceremoneously been terminated. Mr. Abdul Qadir Siddiqui, learned counsel representing the NHA, has pointed out that the services of 60 employees were terminated by the NHA in the first phase whereas 167 such employees were shown the way out in the second phase. He has urged that all this has occurred in the national interest and in the interest of the Authority. The learned counsel has pointed out that under the National Highway Authority Act, there is no scope for appointment of contractual employees. We find that under Section 31 of the Act the Federal Government has been empowered to frame the rules for carrying out the purposes of such Act. The National Highway Authority Employees Service Rules. 1995, are one set of such rules and it has already been noted that the same do not, inter alia, apply to employees appointed on contract basis. Then there are the National Highway Authority (Appointments and Promotions) Rules, 1995. As to these, Mr. Abdul Qadir Siddiqui has urged that Rule 3(i)(b) of the National Highway Authority (Appointments and Promotions) Rules, 1995, which envisages initial appointments to the Authority is itself governed by Chapter III of such Rules and there various conditions for appointments have been laid down, including availability of clear vacancies, necessaiy competition between the candidates, due processing, etc. Such requirements, in his submission, remained unsatisfied in cases of the petitioners. He has also contended, and apparently correctly, that there is nothing either in the Act or in the Rules to regularize a contractual appointee except, perhaps, on going through the ordinary procedure applicable to initial appointments. Indeed, adherence to procedure is a guarantee against any likes or dislikes favours or disfavours. We would be failing in our duty it we do not pause to point out there that in all public appointments the public at large has a stake. The Govt. of the day cannot deviate to benefit a few to the detriment or at the expense of the populace in general. The matter of placement Bureau, as adverted to above, may still be before the Supreme Court. Then this court had to deal with appointments in the Pakistan International Airlines Corporation (PIAC) in Ehtesab Reference No. 28 of 1997 (State us. Ahmad Sadiq & others). In the order of the Court, dated 18.6.1997, albeit tentatively, it was recorded that for 1280 advertised PIAC posts 19000 applications were received. While members of the public were to apply on ordinary pieces of paper due forms were made available to the applicants coming through the Prime Minister's Secretariat. Tests for a generalised recruitment were held but all seem to have come to. nought when over 800 persons were appointed on the recommendation of the Prime Minister's Secretariat alone. We are in no position to under-take an enquiry as to facts in this jurisdiction but as and when that transpires in an appropriate forum, we hope that a similar out-come, as above does not present itself. In this view of the matter, it does not seem plausible to hold that the resort to terminations through the contractual clauses was patently ill-founded. Still to take away jobs from people secure in their employments remains a painful exercise. It must be transparent & towards advancement of public policy. Some cannot be deprived to benefit others except in due course of law and in public interest. The moment these principles are eschewed the exercise becomes suspect & opens up for judicial scrutiny though only at the competent level (5) Here may be taken up an argument of Mr. Khalid Javed Khan, for the petitioners, that where an appointment, may that even be of a contractual employee, is terminated otherwise than in due course of law, such would be actionable in the Constitutional Jurisdiction of the superior courts. This is too sweeping an argument to be accepted without reservations. Supplemental to what has already been said, we may add that contractual disputes, routinely, do not quality for redress in a constitutional dispensation. Some well documented exceptions are, however, enshrined in the case law evolved on the subject. Thus in Ramana vs. LA Authority of India, AIR 1979 S.C. 1628, while the writ petition on facts was dismissed, it was observed that the International Airport Authority could not disregard the objective tests as to eligibility in a tender , otice and could not accept the tender of a person, who did not fulfil the requisite qualifications. Like result namely, dismissal of the Const. Petition is reflected upon the facts in Pacific Multinational (Put) Ltd. vs. LG. of Police, PLD 1992 Kar. 283 but this Court found the Const, Petition maintainable to assess whether the Government acted lawfully in accepting higher of the two bids for purchase of helicopters, albeit the Court coming to the conclusion that the higher bid involved better potential to meet the public requirement. In Person Manufacturing Limited vs. Secretary Ministry of Pa.trole.um and Natural Resources, 1995 MLD 15, a learned single Judge of the Lahore High Court elaborately examined the concept of judicial review in the context of administrative action. While dismissing the petition, it, nonetheless, was held that even though Constitutional jurisdiction was not the arena for thrashing out private disputes regarding contracts yet transparency in the process of decision making by public functionaries could come up for examination and if a case of discrimination was made out for applying different standards qua equally placed persons or parties, appropriate redress could be administered. Relevant to contractual disputes in service matters, it was found in MA Rasheed vs. Province of Punjab, 1987 MLD 153, that where a retired civil servant was employed on contractual basis and his services were terminated on one month's notice in accordance with the terms of the contract, Constitutional jurisdiction could not be invoked for relief. A learned single Judge of the Lahore High Court in Qurban Hussain vs. Secretary, Services Department, 1992 PLC (CS) 76, declined relief in the Constitutional jurisdiction to a re-employed retired Army Officer, who had been allowed extensions from time to time but disallowed the last extension pursuant to a cabinet policy decision, policy decisions, normally, not being open to judicial review. In University of the Punjab vs. Sardar All, 1992 SCMR 1093, the Supreme Court, dealing with the termination of a lecturer on probation, the termination being on a month's salary in lieu of notice, coinciding with the expiry of the probation, observed that in the absence of statutory rules relief could not be accorded in Constitutional jurisdiction. The same Court in Anisa Rehrnan vs. PIAC, 1994 SCMR 2232, while examining a case where the petitioner, without being accorded any opportunity of hearing, was reverted from Pay Group VII to VI in the PIAC, observed that the PIAC was a statutory body and the petitioner was a regular employee. However, in the absence of enforcible statutory rules the relationship stood reduced to the status of master & servant. Still, the rule of Audi Alteram Partem, being readable in every statute, the petitioner was found entitled to redress though the corporation, upon hearing, could take recourse to any other lawful order. Regarding purely contract employees an independent observation was made, as woxud be reproduced below. Mohd Umar Malik vs. The Muslim Commercial Bank, 1995 SCMR 453, arose from a suit for re-instatement by an employee of the Bank. The suit was decreed by the trial and Appellate Courts but the decree was reversed by the High Court, The Supreme Court declined leave and observed that where the rule of master and servant governed the relationship, re-instatement in service could not be ordered. Indeed, the rule is so stringent that even an interim injunction cannot be granted to force an employee on an employer. Oil and Gas Developmen Corporation vs. Shujauddin Ahmad PLD 1970 Kar. 332 and Shujauddin Ahmed vs. Oil & Gas Development Corporation, 1971 SCMR 566 are in point. However, because that emerges from Order XXXIX rules 1 & 2 CPC in the background of the Specific Relief Act, both sub-constitutional legislations, the preclusion does not extend to interim measures, dispensed under Article 199 of the Constitution. Such itself, however, is good only for the interim stage and we are past that stage in these proceedings. Lastly, may be examined Masood-ul-Hasan vs. Azad Govt. of The State of J & K, 1997 PLC (CS) 327. That was a case of a tenure post of M.D. of the Small Industries Corp. a statutory Corporation. On a finding that the terms and conditions of the post emerged from the relevant enactment itself, it was opined that, the tenure could not arbitrarily be cut down Examining the referred dicta, we are of the view that while some protection to employees of State-run Corporations/Autonomous bodies may be invocable the institution itself requiring to qualify stringent tests, the principle is not, usually, extensible to contractual employees simplicitor, even where all the requisite conditionalities stand satisfied. Contractual employees, as inherent in the concept itself, are governed by the rule of master and servant and the cardinal principle in such cases is that no such servant can be forced upon an unwilling master. In cases of termination of such services, where the necessary pre-requisites are shown to exist, the conventional remedy for an aggrieved employee would lie in a suit for damages or other permissible action in a Court of competent Civil jurisdiction e.g. the Service Tribunal, as here, because all employees of the NHA, per statute, have been deemed to be civil servants for the purposes of Service Tribunals Act, 1973. That form of remedy, the petitioners, if so advised, are free to seek. We are strengthened in this conclusion by the observation of their lordships in the case of Anisa Rehman ibid., where the following was recorded "The effect of .the master and servant rule is that an employee of a corporation in the absence of violation of law or any statutory rule cannot press into service Constitutional Jurisdiction or civil jurisdiction for seeking relief of re-instatement in service, his remedy for wrongful dismissal is to claim damages". (emphasis supplied) In view of the foregoing and for reasons to be recorded separately, „ we had dismissed these petitions through a common order dated 27.6.1997. The reasons have been recorded now. (B.T.) Petitions dismissed.

PLJ 1998 Karachi 220 (DB) PLJ 1998 Karachi 220 (DB) Present: wajihuddin ahmad & SYED saeed ashhad, JJ. M/S TELEPHONE INDUSTRIES OF PAKISTAN (PVT.) LTD. KARACHI-Petitioner versus SINDH LABOUR APPELLATE TRIBUNAL £ 2 others-Respondents C.P. No. D-104 to 123 all of 1996, dismissed on 13.3.1997. Industrial Relations Ordinance, 1969 (XXIII of 1969)-- —S. 25-A—Termination of telephone employees—Whether remedy against orders of termination provided under I.R.O. or Standing Orders 12 & 13— Question of—Grievance ventilated before Labour Court, finding being confirmed in appeal, essentially, pertained to avowedly illegal terminations of services in contravention of Standing Orders 12 & 13 in Standing Orders Ordinance—Remedy is provided not by Standing Ordersordinance itself, but in such ordinance through invocation of provision in section 25-A of I.R.O., as would be found upon perusal of Standing Order 12(3), postulating that workman aggrieved by termination of his services may proceed under section 25-A of I.R.O and "thereupon provisions of said section shall apply as they apply to redress of individual grievance"- On this plane of reasoning, if workmen were not terminated inconsonance with requirements in S.O. 12(3) and if termination simplicitor were resorted to when, in actual fact, case admitted of retrenchment, grievances could be taken to Labour Court for appropriatereliefs-Held : Remedy provided u/s 25-A, I.R.O. and reliefs were administered-Petition dismissed. [Pp. 229 & 230] A, B & C 1992 SCMR 227 and '1996 SCMR 883. Mr. Khalid Javed, Advocate for Petitioners. Mr. Muhammad Mqjeed Jaillani & Mr. Ali Amjad Amicus in C.P. No. D-1355/95.Date of hearing : 11-3-1997, 12-3-1997 and 13.3.1997. judgment Wajihuddin Ahmed, J.-These are twenty connected Constitutional Petitions, each directed against an individual worker of petitioner Telephone Industries of Pakistan (TIP). On facts, the twenty workmen had joined TIP on various dates during the years 1976 to 1985 as mechanics, technicians and technical assistants. According to Mr. Muhammad Majid Jillani, their learned counsel, such workers even though employed for several years in succession were not made permanent, the omission leading to their filing grievance petitions for necessary redressal. While these petitions were pending, it is the case of the contesting respondents that they were terminated, resulting in issuance of fresh grievance notices and consequent submission of grievance petitions seeking reinstatements in service. The two sets of proceedings were taken up together and, on the one hand, the terminations were found to be illegal while, on the other, the private respondents were found to be workmen, who had attained permanence by efflux of the requisite periods of time. While the employer appealed, and the appeals were pending, the notices, subject matter of yet another round of proceedings, impugned in these petitions, were issued. It would be advantageous to reproduce here one such notices in extenso, because the remaining in the rest of the cases are identical :-- "We refer to your letter dated 15.3.1993.We are aggrieved of the order dated 7.3.1993 passed by the Sindh Labour Court No. 1, Karachi, allowing your both the cases. Against the said order we have preferred an appeal before the Sindh Labour Appellate Tribunal. Subject to the final outcome and the legal remedies available to us against the impugned order dated 7.3.1993, you are re­ instated in service w.e. from 7.3.1993. However, we regret to inform you that the job (Installation of EMD Exchanges) for which you used to be engaged against temporary nature of work from time to time being not available, your services are therefore hereby terminated with immediate effect on payment of one month's wages in lieu of notice." These notices in turn, led to the present set of litigation. The Labour Court and the Labour Appellate Tribunal have, concurrently, found the terminations, effected through the quoted notices, to be in contravention of Standing Order 12(3) of the W.P. Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Standing Orders Ordinance) in-asmuch as the common reason assigned in the notices in question was inaccurate and in real terms the contesting respondents were retrenched, thereby transgressing the principle prescribed in Standing Order 13 of the same Ordinance. These concurrent findings have brought the petitioner-employer here. At this stage, it would be convenient to reproduce Standing Orders 12 and 13, which we hereby do :-- STANDING ORDERS ORDINANCE, 1968. "12. Termination of Employment.—(Y) For terminating employment of a permanent workman, for any reason other than misconduct, one month's notice shall be given either by the employer or the workmen. One month's wages calculated on the basis of average wages earned by the workman during the last three months shall be paid in lieu of notice. (2) No temporary workman, whether monthly-rated weekly-rated, daily-rated or piece rated, and no probationer or badli, shall be entitled to any notice if his services are terminated by the employer, nor shall any such workman be required to give any notice or pay any wages in lieu the proofto the employer if he leaves employment of his own accord. (3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicity state he reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may takeaction in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said Section shall apply as they apply to the redress of an individual grievance. (4) .. \^V (5) The services of a permanent or temporary workman shall not be terminated on the ground of misconduct otherwise than in the manner prescribed in Standing Order 15. (6) (7) (8) Where a workman dies while in service of the employer, his dependant shall be paid gratuity in accordance with the provisions of clause (6): 13. Procedure for retrenchment.—Where any workman is to be retrenched and he belongs to a particular category' of workmen, the employer shall retrench the workman who is the last person in that category It will at once be seen that Standing Order 12. in relation to severance of relationship of employer and workmen generally ostulates specified norms and specially prescribed guarantees for permanent workmen. Thus for terminating the employment of a permanent workman, for any reason other than mis-conduct, one month's notice from either side is visualised or in lieu thereof one month's wages. However, the rule has not been extended to temporary workmen of various categories nor to probationers. As for dismissal on the ground of mis-conduct, Standing Order 12(5) makes the procedure in Standing Order 15 a pre-requisite for termination on that ground. Next, the rule, equally applicable to permanent as well as temporary workmen, is that their services shall not be terminated nor would they be removed, retrenched, discharged or dismissed from service except by an order in writing. The order, in turn, shall explicity state the reason for the action taken. This done, in the event the workman concerned is aggrieved by such termination in the way of removal, retrenchment, discharge or dismissal, he is given the option to seek redress in accordance with the provision in Section 25-A of the IRO and, that resort being taken, the provisions of the said section shall apply as they apply to the redress of an individual grievance. Here, it would be noticed that the genus for severance of relationship between an employer and the workmen in Standing Order 12 is designated as "termination" whereas "removal, retrenchment, discharge or dismissal" from service appear to be species of that genus. These are not common place expressions but words of art and even technical words. Such shall have to be interpreted in the light of the meanings assigned to them in the precedent law and other acceptable constructions. Thus, some of these were examined in the Supreme Court case of Ghularn Sarwar v. Pakistan, PLD 1962 Supreme Court 142. Relevant passages from the separate judgments of Hamoodur Rehman and Inamullah Khan, JJ., are respectively reproduced here for ready reference :— "The fact that in these rules "removal" which does not disqualify from future employment has also been described as a penalty does not, in my view, make it synonymous with "discharge". Although "dismissal" "removal" and "discharge" all produce one common result, namely, a severance of the relationship of master and servant, it does not necessarily follow that these words also possess the same connotation. The words "dismissal" and "removal" appear to me to have been used in these rules to describe a termination of service occasioned by some fault on the part of the employee whilst "discharge" has been used to signify a faultless termination of service. The only case in which a departure appears to have been made is in the proviso to rule 1708 of the Railway Establishment Code, Volume I where the word "removal" has been used, possibly by mistake, to signify a discharge in terms of the sendee agreement." "17. The words "dismissal and removal" have thus different connotations. The word dismissal conveys more than "removal". The word "dismissal" would connote forfeiture of certain benefits but there is no such justification . for interpreting the word "removal". The word "discharge" is more akin in meaning to "removal". It would therefore appear that if the words "dismissal" and "removal" are given their dictionary meaning the termination of the services of a permanent employee would attract the provision of sub section (3) of section 240 of the Act." Correspondingly, in the specific context of service disputes, the meanings assigned to the words removal, retrenchment, discharge and dismissal, in common parlance and in judicial constructions, are these :-- The word "removal" signifies an act of displacement from a post or position. Such, usually, comes about for a fault on the part of an employee but also may be occasioned, in certain circumstances, quite blamelessly. "Retrenchment" comprises of an act or instance of cutting off, cutting out or cutting down, in many a cases, for considerations of economy, such as discharge of the surplus labour or staff in a continuing or running industry. This is how our labour laws seem to employ the expression. "Discharge" involves either simple relieving of a charge of any kind or to dismiss, though usually the former, as perhaps in our labour laws. Such, therefore, may either be without apportionment of balme or on account of commission of an offence or misconduct. In either case, it results in extinguishment of an obligation or termination of an employment,"Dismissal" is the loose equivalent of removal from an office or employment. This class of termination, simplicity, involves severance of relationship before time and on account of some defect in the performance or discharge of duties. Thus, the connotations in the above expressions, in relation to service or employments, may be overlapping. In the specific context of our labour laws, however, "removal" and "discharge" may possibly involve no more than a bare severance of relationship of master and servant, without any fault occasioning the same and may, generally, tantamount to a termina­tion simplicitor. 0n the other hand, "retrenchment" of the whole or part of a work force should have, as its underlying reasons, a drive for economy in an establishment or industry, occasioned on account of a number of factors, which may vary from time to time and situation to situation. Again, as distinguished from a termination simplicitor is the case of a "dismissal". It must, necessarily, result upon some fault or faults on the part of the employee or workman for which there has, invariably, got to be a notice, an inquiry, a resultant hearing and a culmination in an adverse finding "Dismissal" carries a stigma whereas "removal" and "discharge" may not and "retrenchment" never does. As a consequence, "dismissal" may disqualify for re-employment though "removal", "discharge" and "retrenchment", generally speaking, do not. The conclusion on the basis of the foregoing analysis is that the guarantee of a month's notice from either side in Standing Order 12(1) is not invocable or applied where the workman has been proceeded with for mis­ conduct or is terminated on that ground. As a common factor, what is mandated by the legislature in Standing Order 12(3) is that in the event a workman is to be terminated, the termination should be through a speaking order, specifying clearly the reason for the termination unless it transpires that the termination is not a termination simplicitor and is founded, on due enquiry, on the ground of mis-conduct, in which case the outcome of the inquiry is the applicable reason. In many a cases, however, the termination brought about either do not disclose the reasons or do not disclose the same adequately or the reasons, such as are disclosed, are not the actual or real reasons. It therefore, frequently comes up before the Courts of labour jurisdiction to determine as to whether the re-requisites for termination in Standing Order 12(3) aforesaid, have been satisfied and if not what the consequences should be. It should have been noted that Standing Order 12(3), when it speaks of retrenchment, implicity, makes a reference to Standing Order 13, incorporating the principle governing retrenchment, much as Standing Order 12(5), explicity, maker the procedure for dismissal in Standing Order 15 mandatory. Non compliance or sham compliance of either, if prejudicial to a worker, may be subjected to a grievance notice and, if remaining unredressed, to a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, in virtue of the legislation by reference, occurring in Standing Order 12(3). In such an eventuality the Courts must determine the efficacy of the reason assigned. As it turns out, in the instant cases the Courts in the labour jurisdiction have, concurrently, found that the reasons cited were not the actual reasons and that on such basis the terminations involved in these proceedings were un-called for, having consequently been set-aside. Coming to the reasons assigned, it is clear from the notice of termination, reproduced above, that the respondents in these petitions were purportedly re-instated from a back-date viz. 7.3.1993, the date of the Court order, and were simultaneously terminated. Both results were brought about through the same notice, addressed on 24.3.1993. The deemed re­ instatement, thus, may tantamount to a legislative act performed by a person who does not even qualify as the executive, being a mere establishment. What is more, the ieasons for termination, after such equivocal re-instatement, was questioned by the workmen in these proceedings through the grievance notices, v«here it was expressly denied that the employment was for installation off EMD exchanges on a temporary basis. It was further said that the TIP was still continuing with the employment of workers on EMD exchange basis none of whom had been retrenched or terminated. Specifically, it was stated that junior persons were still continuing in the employment of the TIP which showed mala fides of the management in refusing to continue with the respondents. In the grievance petitions the contents of the grievance notices were taken as part and parcel of the same, copies thereof having been annexed. Again, in the affi'^its-in-evidence it was categorically averred that the management had not foliovvtsd the principle of "first in last out". There does not seem to have been any cross examination on the question that others in the same employment, were continuing or that the essential pre-requisite for retrenchment viz. the rule of "first in last out", so fundamentally entrenched in Standing Order 13, was followed. What is still more material, in the crossexamination of the employer the following (underlined) admissions were made "The main function of TIP is the installation of telephone. In the year 1960 the telephone Exchange used to work on F.I. system. This system was subsequently converted to EMD System. At present EMD. EDSD and APL Systems are

vo.dyiUL Few of the employees who were employed in the year 1962 are still in service. We had attached 3 or 4 old employees to the installation of EMD Exchange alongwithnew employees. EMD was introduced in Karachi either in the year 1966 or 1967. Twenty old employees or so have been deputed in the EDSD System' We issue appointment letters to the regular mployees. We do not give employment o.n_ the basis of some particular system but they are emBloyed. according to the trade requirement. Likemechanic and technical etc. I am engineer by profession. At the time of my employment, the telephone were being installed on FIA yawn....was subsequently changed EMD System and presently the system has been changed as stated earlier. It is a fact that the regular employees still continue in service of TIP despite the above mentioned change in the system. It is a fact that according to the labour Court's verdict the applicant having completed nine months in service are entitled to be made permanent retrospectively.Pir Ghulam one of the applicant was employed in the year 1980. Nayer Iqbal was regularised on 20.1.1986, so also Shamim Akhtar. They both are mechanics. On similar basis 10 or 11 more was also made regularised. I produce the letter regarding appointment of M/s Shamim Akhtar and NayyarJ_qbaI as. Ex._R/_1and Ex. R/2 respectively. It is fact that the remaining 10 and 11 employees were also issued letters of same type. At the stage I cannot, sav if Shamim Akhtar and Navyar Iqbal and other 10 or 11 are junior to the present applicants On the foregoing material, it cannot be said that the finding of the Labour Court and the Labour Appellate Tribunal, that the workmen were actually retrenched, though in the garb of orders of termination simplicitor, is based on no evidence of ignores or mis-apprehends evidence. Such terminations, arguably, feel within the purview of the jurisdiction of the labour Courts and conclusions there reached do not appear to have been ill-founded. Even so, the learned counsel for the petitioner-employer has urged that the Labour Court acted in excess of jurisdiction when it proceeded to entertain the grievance petitions of the respondents-workmen. Reliance has been placed on the Supreme Court Judgment in Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCMR 2213. In such case, relative to the KPT employees, their lordships pointed out that, there being statutory rules of service available to such employees, in virtue of the first Proviso to Section 1(4) of the Standing Orders Ordinance, 1968, those rules prevailed and the Standing Orders Ordinance stood excluded. They then proceeded to observe that the definition clause in Section 2 (xxviii) of the Industrial Relations Ordinance (IRO) did not embrace a dismissal, discharged, retrenched, laid off or otherwise removed workman. This being so, it was held that a workman whose employment had been terminated could not resort to the remedy contemplated in Section 25-A of the IRO. In the process was also distinguished an earlier decision of the Supreme Court in Trustees of the Port of Karachi v. Abdul Ghani, 1983 SCMR 769, declaring that in such case the question pertaining to the rights of a terminated workman under Section 25-A of the IRO had not been decided and was left open. For ready reference we may reproduce here Section 2 (xxviii) of the IRO :-- Industrial Relations Ordinance, 1969. Section 2 (xxviii): "Worker" and "workman" means any person not falling within the definition of employer who is employed including employment as a supervisor or as an apprentice in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under, this Ordinance in relation to an industrial dispute include^ a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal discharge, retrenchment, lay-of. or removal has led to that dispute but does not include any person— (a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a oupervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." (Under-lining added) It would be seen that whereas the first part of the definition is all unbracing and covers in the catagory of workmen all persons not falling within the definition of employer, employed including employment as supervisors or as apprentices in an establishment or industry "for hire or reward either directly or through a contractor whether the terms of employment be express or implied", the definition, for the purpose of any proceeding under the IRO in relation to an industrial dispute, isextended to include "a person, who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal had led to the dispute In the first place, it is difficult to conclude that the remedies under the IRO in virtue of the above definitionof worker or workman, have been limited only to such persons who continue to be employed in an establishment or industry. This would leave a very limited field for operation of the law and may not be in line with the rule of liberal and beneficial construction, applied to labour laws. It may further be : added, with respect, that when a worker or workman is terminated, he is i terminated in relation to his employment as such and the cause for grievance arises to him at a point of time when he is such worker or workman. The redress, therefore, that he may seek has a nexus with something which was ( done in the court of his employment and not beyond that spectrum. An £ added consideration may lie in the fact that if a terminated worker is excluded from the ambit of the definition and, correspondingly, from the / entitlement to seek redress under Section 25-A, such should involve a i presumption that, h'owsoever illegally and unwarrantedly he may have been j terminated, he does not, in law, continue to be a worker. It hardly bears i mention that were a terminated worker to seek redress under Section 25-A j: he, in effect, would be seeking, as one of the reliefs, a finding that his services were dispensed with otherwise than in due course of law and from his point of view he remains in the employment. Therefore, a terminated worker, also, may fall within the first part of the definition clause Another aspect of the matter has relevance to the definition of an "industrial dispute" in section 2(xiii) in the IRO. The definition is this : "Industrial Relations Ordinance, 1969. Section 2, (xiii) "Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment non-employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force. (Emphasis supplied) As such, the definition of "industrial dispute", pertaining to a right under the IRQ, signifies "any dispute or difference between employers and employers or between employers and workman or between workmen and workmen, which is concerned with the employment or non-employment or the terms of the employment or the conditions of work of any person". This being the definition of an "industrial dispute", a terminated workman, as well, on a question, which has a nexus with his "employment or non employment", walls within the later part of the definition (involving an "industrial dispute") of a worker or workman in Section 2 (xxviii) of the IRO and may, therefore, logically prefer a grievance petition in terms of Section 25-A of the same Ordinance. This aspect, relevant to the definition of the expression "industrial dispute", does not seem to have been pointed out to their lordships in the case of Trustees of The Port of Karachi v. Muhammad Saleem and if that were so, perhaps, another view was possible. We would, however, with respect, leave t u ~ matter at that because the determination of such question can be skirted on another plane of reasoning, as would shortly be shown. Now, irrespective of what has been with respect submitted above, the grievance ventilated before the Labour Court, findings there being confirmed in Appeal, essentially, pertained to avowedly illegal terminations of services in contravention of Standing Orders 12 and 13 in the Standing Orders Ordinance. The remedy is provided not by the Standing Orders Ordinance itself but in such Ordinance through the invocation of the provision in Section 25-A of the IRO, as would be found upon a persual of Standing Order 12(3), postulating that a workman aggrieved by the termination of his services may proceed under Section 25-A of the IRO and "thereupon to provisions the said section shall apply as they apply to the redress of an individual grievance". This is, as observed in Mobeen Ahmed Siddiqui v. Chairman, Sindh Labour Appellate Tribunal, 1991 PLC 780, what is law is known as legislation by reference. Qua the legislative measure so enacted, the ambit and scope of another legislation, already on the statute book, is enlarged or otherwise affected so as to cater, by reference, to the requirements of the subsequent statute, where a deeming or other such clause is incorporated. Reverting, the effect of the creation of the right spoken of in Standing Order 12(3) and the remedy postulated upon transgression thereof, manifestly, is that a person, who qualifies as a workman under the Standing Orders Ordinance and whose services stand terminated, in contravention of Standing Order 12(3) may, if he so chooses, seek relief as if such was an individual grievance in terms of Section 25-A of the IRO. For that purpose, it is irrelevant whether the worker qualifies as one in terms of the definition in the IRO. All that he needs to qualify under is the definition clause in the Standing Orders Ordinance itself and cause of action would arise to him, if he be terminated otherwise than in due course, as in the contemplation of Standing Order 12(3). On this plane of reasoning, if the workmen here were not terminated in consonance with the requirements in Standing Order 12(3) and if terminations simplicitor were resorted to when, in actual fact, the cases admitted of retrenchment, the grievance could be taken to the Labour Court for appropriate reliefs. They indeed were and reliefs were administered. In this context, as already hinted, the dicta in the Trustees of the Port of Karachi v. Muhammad Saleem would not be extended because in that case, inter-alia, it was found that the Standing Orders Ordinance did not apply to the dispute for the simple reason that the KPT employees, involved there, were subjected to statutory rules of service, conduct or discipline, excluded from the purview of the Standing Orders Ordinance in virtue of the first proviso attached to Section 1(4) of such Ordinance. On the contrary, the dicta directly applicable to the instant proceedings would be the Supreme Court enunciation in Matloob Hasan v. Brook Bond Pakistan Limited, 1992 SCMR 227 and Millat Tractors Limited v. Punjab Labour Court No. 3, 1996 SCMR 883. For such reasons, as are discussed above, we found no merits in these petitions and dismissed the same through the short orders recorded on 13.3.1997. In doing so, we took advantage of the presence of Mr. Ali Amjad Advocate, who was appointed Amicus Curiae in another similar case. He together with Mr. Khalid Jawaid and Mr. Jeelani, for the contestants, has been of considerable assistance to us in reaching the conclusions recorded here. (B.T.) Petitions dismissed.

PLJ 1998 Karachi 230 PLJ 1998 Karachi 230 Present: RASHEED A. razvi, J. Syed MUHAMMAD ARIFEEM-Plaintiff versus i Syed ALAMDAR HUSSAIN (DECEASED) through HIS LEGAL HEIRS SYED ZAIGHAM HUSSAIN ZAIDI & 3 others-Defendants. Suit No. 599 of 1992, decided on 29.9.1997. Encashment of Cheque- —Suit compromised-Amount of cheque not paid despite order of court-­ Challenge to-Whether imposition of ban by Govt. on expenditure ' precludes treasury in encashing cheque-Question of-This amount had been retained as 'Amanat'-ln no manner does it fall within definition of 'Expenditure' as mentioned in Govt. Letter--According to this letter, ban is imposed only on expenditure and not on such amount which Treasury has received and are liable to refund to parties as result of court proceedings-Held : Treasury was bound to honour cheque so long it was presented within its period of validity. [P. 232] A None present for Parties. Mr. Iqbal Quadri, Asstt. A.G. on court notice. Hqji Abdul Rahim Sheikh, Acting Treasury' officer on court notice. Date of hearing : 29.9.1997. order Learned Assistant Advocate General has placed a copy of letter dated 26-9-1997 indicating that the cheque in question dated 15-9-1997 for Rs. 200,000/- (Rupees two lacs only) stands encashed in favour of the plaintiff. Let this letter be placed on record. In view of such fact, this application has become infructuous and is accordingly dismissed. This matter does not end here. On the last date of hearing, I had ordered issuance of notices to the Treasury Office in view of the allegations levelled in this application that despite issuance of a cheque bearing No. 505164 dated 15-5-1997, the same was not encashed as there was a ban imposed by the Provincial government. The amount against which the aforesaid cheque was issued was deposited with the Nazir of this Court as a result of compromise entered into between the parties on 13-2-1997 which is reflected in the order of this Court of even date. Now, the representative of Treasury Office has placed a copy of letter bearing No. Bl/2(3)/1996-97, dated 2nd June, 1997 issued by Government of Sindh, Finance Department, in order to show that there was a ban on "all expenditure" imposed on the said date till further order. For the sake of convenience, the said letter is reproduced as follows : "To The Accountant General Sindh Tariq Centre, Tariq Road, Karachi. Subject: BAN ON EXPENDITURE (NON- DEVELOPMENT & DEVELOPMENT 1996-97. I am directed to refer to the subject noted above and to say that Government of Sindh has decided to impose ban on all expenditure except the following items with immediate effect and till further orders. (i) Salary (excluding creation of new posts, leave vacancy ^d contract appointment). (ii) Pension, Commutation and Gratuity. Any deviation will be taken serious note of. This issues with the approval of competent authority Sd/- (IQBAL AHMED M. SHEIKH) Budget Officer-I For Secretary to Government ofSindh" This is not the first case where cheque issued on the orders of this Court was dishonoured, but I face such situation particularly during the period May to July every year. In the instant case, the amount of Rs. 2 lacs was deposited as a result of compromise entered between the parties and the Treasury Office. In my opinion, this amount had been retained as 'Amanat'. In no manner does it fall within the definition of "expenditure" as mentioned in the said letter. According to this letter, ban is imposed only on expenditure and not on such amount which the Treasury has received and are liable to refund to the parties as a result of Court proceedings. It is pertinent to note here that the ban on expenditure was imposed on 2nd June, 1997 while the cheque under reference was issued on the 15th of May, 1977. The ban did not have a retrospective effect. Hence, the Treasury was bound to honour the said cheque, so long as it was presented within its period of validity. Misinterpretation of this letter by the Treasury Office is in fact, causing serious hardship and inconvenience to the innocent litigants who want to withdraw their amount deposited in any proceedings by the order of this Court and for which they are entitled. Such legal proceedings include succession matters and suits for administration; therefore, any delay in payment may cause further hardships to the minors, orphans and widows. With this clarification, notice issued to the Treasury Officer stands discharged. Before parting with this order, I would like to refer another letter of the same department bearing No. Bl/2/(3)/1996-97 dated 13th June, 1997, which reads as follows :-- "To The Accountant General Sindh, Tariq Road,Karachi. Subject: LIFTING OF BAN OF UTILIZATION OF BUDGET 1996-97 OF THE HIGH COURT OF SINDH AND THE DISTRICT & SUBORDINATE COURTS IN SINDH with I am directed to refer to the subject noted above & reference to the correspondence resting with this Department's letter of even number dated 2nd June, 1997, the Sindh High Court and District and Subordinate Courts of Sindh are hereby exempted from the ban, but within the Budget Allocation for the current financial year 1996-97. The bills of above referred offices are also exempted from ban for submitting to the office of the A.G. Sindh/Treasury Office, Karachi and The State Bank of Pakistan, Karachi, for pass and payments etc. upto 22nd June, 1997. Sd/- (IQBAL AHMED M. SHEIKH) - Budget Officer-I For Secretary to Government of Sindh" It is regrettable to note that despite above letter, the cheques issued as a result of this Court's order were not encashed. For future, all the government functionaries are advised to be more careful and vigilant while dealing with matters pertaining to the Court proceedings. Office is directed to forward copies of this order to the Chief Secretary and Secretary, Finance Department, Government of Sindh as well as to the Nazir of this Court and that of all District Courts. (T.A.F.) Petition accepted

PLJ 1998 Karachi 233 [Admiralty Jurisdiction] PLJ 1998 Karachi 233 [Admiralty Jurisdiction] Present : rana bhagwan das, J. MESSRS ASLO MARINES LIMITED, KARACHI-Plaintiffs. versus M.T. MAGDA & another-Defendants Admirality Suit No. 92 of 1977, dismissed on 22.10.1997 . Admiralty Court Act, 1861-- —S. 6--Suit for recovery of damages on account of short landing and delayed landing of consignments--Whether suit maintainable before High Court in its admiralty jurisdiction-Question of-Plaintiffs are neither owners nor consignees of goods or assignees of Bill of Lading as provided in Section-6 of Admiralty Court Act, 1861-From plain reading of language employed in aforesaid provision of law it is evident that notwithstanding enlargement of scope and jurisdiction of Admiralty Courts in England by virtue of amendments brought about in Admiralty Court Act, 1861 and 1891 that jurisdiction could not be exercised by Admiralty courts in Pakistan-In case reported as Hayat shipping Agencies Ltd. v. Delta Pioneer, learned Chief Justice after examining scope of section 6 of Admiralty Court Act, 1861 concluded that suit not by owner or consignee or assignee but by charterers is not covered by section 6 of Act J861-- Held : Suit in present form is neither maintainable before High Court nor is this Court possessed of jurisdiction to entertain claim at the instance of charterers—Suit fails and is accordingly dismissed. [Pp. 235 & 237] A, B, C & D PLD 1970 SC 67, PLD 1978 Kar. 837, 1985 CLC 1355, PLD 1972 Kar. 442 and 1927 AC 906. Mr. I.H. Zaidi, Advocate for Plaintiff. Mr. Muhammad Nairn, Advocate for Defendant. Date of hearing : 22.10.1997. judgment Short question in this admiralty suit for recoveiy of Rs. 13,02,728.70 by way of damages on account of short landing and delayed landing of consignments is whether the suit at the behest of the plaintiffs who are charterers is aintainable before this Court in its admiralty jurisdiction. 2. As per plaint vessel M.T. MAGDA was chartered for voyages on different occasions and such vessel sailed from the Ports of Jabel Dhanna (Saudi Arabia) and Rastanura (Kuwait) and landed at the Port of Karachi on different dates between 26.10.1976 to 27.1.1997. Amount claimed in the suit is based on short delivery of the consignments shipped on such vessel and on account of difference of price owing to increase in the market, Total amount claimed on this account comes to Rs. 13,02,728.70. 3. Written statement filed on behalf of defendants who are vessel and its owners respectively raises a number of factual as well as legal questions which were reflected in the following issues : 1. Is the suit not maintainable under the Admiralty jurisdiction of this Hon'ble Court? 2. Have the plaintiffs any right to sue in respect of the claim : for the alleged short landing of goods under various bills of lading? 3. What were the quantities of bulk oil consignments and the value thereof at the time of shipment? 4. Was any part of the suit consignments short-landed and if so to what extent? 5. Have the defendants any liability for the wastage in bulk? 6. What is the extent and value of the loss if any suffered by the plaintiffs? I. Was there any breach of the third charter party and if so on whose part? 8. Have the plaintiffs suffered any loss or damages on account of the alleged breach of charter party and if so what is the extent and value thereof ? 9. Are the plaintiffs entitled to recover any damages on account of the breach of charter-party and if so in what sum? 10. To what relief if any are the plaintiffs entitled? I1. What should the decree be ? 4. In support of their cases both the parties adduced evidence which was recorded on commission. 5. I have had the benefit of hearing the valuable arguments advanced on behalf of the learned counsel for the parties on issue No. 1 dealing with the maintainability of the suit under the Admiralty jurisdiction of this Court. 6. It is admitted that the plaintiffs are neither the owners nor theconsignees of the goods or assignees of the Bill of Lading as provided in section 6 of the Admiralty Court Act, 1861 which reads as under :-- "The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignees or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty of breach of so contract on the part of the owner, master or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales: Provided always, that if in any such cause the plaintiff do not recovery twenty pounds, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the Judge shall certify that the cause was a fit one to be tried in the said court." 7. Admittedly the plaintiffs are the charterers of the vessel by virtue of charter-party contracts between the parties. From a plain reading of the language employed in the aforesaid provision of law it is evident that notwithstanding the enlargement of scope and jurisdiction of Admiralty Courts in England by virtue of amendments brought about in Admiralty Court Act, 1861 and 1891 that jurisdiction could not be exercised by the Admiralty Courts in Pakistan. It may also be pertinent to note that the Actsof 1840 and 1861 were repealed by Admiralty jurisdiction of High Courts Ordinance, 1980 with the consequence that the jurisdiction of the Courts in Indo Pak Sub-continent remained unaffected by the amendment introduced in England. 8. Finding him on weak wicket learned counsel for the plaintiffs attempted to argue that section 6 of the Admiralty Court Act, 1861 was repealed by Administration of Justice Act, 1920 but the argument is devoidof any force as the Colonial Courts in the British era continued to retain the jurisdiction vested in Admiralty Courts conferred under section 6 of the aforesaid Act. Mr. I.H. Zaidi learned counsel for the plaintiffs inspite of more than reasonable indulgence was unable to cite any provision of law or any precedent to the contrary. It is, therefore, only logical, fair and lawful for this court to assume that the jurisdiction vested in this court under the Act 1861 cannot be extended to a claim by a charter party. On this sole account the suit in my view was wrongly entertained which could not be maintained at law. Reference to PLD 1970 S.C. 67 is however completely misplaced. 9. As to the jurisdiction of this Court under the Act, 1861, it may suffice to observe that in 1840 the British Parliament passed the Admiralty Court Act 1840 and later the Admiralty Court Act 1861 in order to extend the jurisdiction and improve the practice of the High Court of Admiralty of England. Further changes in the Admiralty jurisdiction of the High Courts were brought about by the Supreme Court of Judicature (Consolidation) Act, 1925 and the latest enactment governing such jurisdiction is the Administration of Justice Act, 1956, which lasts the areas of jurisdiction of the High Court under eighteen paragraphs. The said Act elaborately defined the Admiralty jurisdiction of the High Court so as amongst other things, to give effect by domestic legislation to two International Conventions in addition to specifying in detail the questions or claims within Admiralty jurisdiction, and the Act expressly preserves any other jurisdiction vested in the High Court of Admiralty immediately prior to commencement of the Supreme Court of Judicature Act, 1873. However, the High Court of Sindh is not concerned with the latter enactments, as the jurisdiction of this HighCourt continues to be governed by the provisions of Admiralty Court Act, 1861 as was made applicable to the Courts of law in British possession by Colonial Courts of Admiralty Act 1890. While section 3 of the aforesaid Act stipulated that the Legislature of British Possession could by any Colonial law, declare any court of unlimited civil jurisdiction, in that possession to bea Colonial Court of Admiralty and provide for the exercise by such Court of its jurisdiction under the said Act and limit territorial and otherwise, the extent of such jurisdiction. However, the proviso to section 3 reads as under:- "Provided that any such Colonical law shall not confer any jurisdiction which is not by this Act conferred upon Colonial Court of Admiralty." 10. Aforesaid historical back ground of the Admiralty jurisdiction was considered by S.A. Nusrat-J (as he then was) in Diamond Engineering, Mechanical, Electrical & Marine Engineering Contractors v. M.V. Luctor-I (PLD 1978 Karachi 837) and reiterated by Saleem Akhtar-J (as he then was) in Alexander G. Tsavliris & Sons v. M. V. Rice Traders (1985 CLC 1355). To my mind, this should furnish a complete answer to the contention raised by Mr. I.H. Zaidi that-the suit by a charter party for short landing and damages could be lawfully entertained in the Admiralty jurisdiction of this Court. 11. I am further fortified by judgment rendered by late Tufail Ali A. Rehman, C.J. (as he then was) of this Court in the case reported as Hayat Shipping Agencies Ltd. v. Delta Pioneer (P.L.D. 1972 Karachi 442). Learned Chief Justice after examining the scope of section 6 of Admiralty Court Act, 1861 concluded that suit not by owner or consignee or assignee but by charterers is not covered by section 6 of the Act, 1861. Dealing with the contention of the plaintiffs counsel that in the year, 1925 the jurisdiction of the English Courts of Admiralty was enlarged by the Supreme Court of Judicature (Consolidation) Act, 1925 so as to cover suits of this nature, he held that in view of the verdict by their Lordships of the Privy Council in The Yuri Maru v. The Crown (1927 A.C. 906) 1925 does not serve to increase the jurisdiction of the Colonial Courts and also be held expressly that the jurisdiction already covered did not exclude the jurisdiction in rem to try an action for breach of charter party. 11. Admittedly this Court is bound by a decision of the Privy Council unless a contrary principle of law is enunciated by the Supreme Court of Pakistan. As a necessary corollary, I am clearly of the view that the suit in its present form is neither maintainable before this Court nor is this Court possessed of the jurisdiction to entertain a claim at the instance of charterers. It the result the suit fails and is hereby dismissed with no order as to costs. (B.T.) Suit Dismissed.

PLJ 1998 Karachi 237 (DB) PLJ 1998 Karachi 237 (DB) Present : WAJIHUDDIN AHMAD AND SAYED SAEED ASHHAD, JJ. NAZIR AHMAD-Petitioner versus GOVT. OF SINDH through ITS SECRETARY SERVICES & GENERAL ADMINISTRATION DEPARTMENT, KARACHI & another-Respondent C.P. No. D-123/1997, D-124/1997, D-143/1997, D-154/1997, D-164/1997, D- 226/1997, D-232/1997, D-244/1997, D-251/1997, D-279/1997, D-282/1997 and C.P. No. 283 of 1997, dismissed on 21.5.1997. Civil Servant Act, 1973 (LXXI of 1973)-- —S. 24--Constitution of Pakistan (1973), Art. 190-Promotion of petitioner by Chief Minister superseding large number of other civil servants Issuance of show cause notice to petitioner for reversion to lower ranks Justification of scrutiny-Power of Govt. to do so is not restricted by Act or Rules, Proviso, appended to Section-24, guarantees that affectee cannot be dealt with in manner less favourable to him than that postulated in Act or Rules-Provisions of Act and Rules can be by-passedif and when justice and equities in case so demand-When civil servant concerned is to be relieved of rigours of law, that cannot, arbitrarily, be at expense of another civil servant-Such civil servant, who may become exposed to impact of "just and equitable" treatment to another, under operative part of section-24 of Sindh Civil Servants Act, can never be dealt with in any manner less favourable to him than that provided by Act or Rules-Held : Exercise of power u/s 24 is Ex-Debito justitiae, inevent doubts, at some stage surface regarding bonafides or justification for exercise of such power, surely, no one can, legitmiately, dispute requisite scrutiny or lawful determination. [P. 240] B & C Service Matter-- —Civil Servant-Case of-Issuance of show cause notices to petitioners for reversion to lower ranks-Challenge through Constitutional Petition- Whether petitioners have any cause of action to agitate matter in court or Tribunal when nothing more has happened as yet-Question of-No adverse action has yet been taken against petitioiier—Mere show cause notice was issued and due hearings were projected-This was clearly in consonance with rule laid down by Supreme Court of Pakistan in AnisaRehman's case, 1994 S.C.M.R. 2232-Held : No cause of action arose to petitioners. [P. 240] A Civil Servants Act, 1973 (LXXI of 1973)-- —S. 24~Service of show cause notice to petitioners for reversion to lower ranks-Challenge to-Whether there was any stage to question legality or illegality of show cause notice-Petitioners being civil servants, if and, when reversion cames about, their remedy lies before Service Tribunal but for that there has to be final order-Affectees must await for appropriate orders, which would give rise to invocation of jurisdiction of exclusive Tribunal-Intermediate resorts to other fora is clearly barred- There is no final order yet, affecting terms and conditions of service of petitioners, which need to be attended to inmediately-Held : No occasion, therefore, arises for assumption of jurisdiction at this stage of controversy—Held further : As yet, there is not even final order against which petitioners could be aggrieved and to question constitution of tribunal, which petitioners cannot even approach at this stage and, at that, in proceedings aliundi would be totally unnecessary and possibly, even counter productive. [Pp. 241 & 244] D, E, F, G & H Mr. Amir Hani, Mr. Rasool Bux Unar, Mr. Khalid Hameed, Mr. Khalid Javed Khan, Mr. Nuruddin Sarki, Mr. Manzoor Ali Khan & Mr. Shabbir Ahmad Aawn, Advocates for Petitioners Mr. Raja Qureshi, Advocate General, Sindh £, Mr. Muhammad Sarwar Khan, Addl. A.G. Sindh for Respondents. Date of hearing : 21.5.1997. judgment Wajihuddin Ahmed, J.--The above petitions involve more or less identical questions of fact and law and are, therefore, being disposed of through this common order. These are two sets of Constitutional petitions. The first set consists of Petitions Nos. 123, 124, 143, 154, 164, 226, 232 and 244, all of 1997. In the second set are Constitutional Petitions Nos. 251/1997, 279/1997, 282/1997 and 283/1997. In the first set, the petitioners are police officers whereas the second group of petitions have been preferred by medical officers in the service of the Province of Sindh. In Petition No. 123/1997 the petitioner had been promoted as Superintendent of Police (B- 18) from the post of Deputy Superintendent (B-17). In Nos. 124/1997, 143/1997 and 164/1997 the promotions were identical, whereas in petitions Nos. 154/1997, 226/1997, 232/1997 and 244/1997 the promotions of the petitioners had been from the positions of Police Inspectors (B-16) to Deputy Superintendents of Police (B-17). In the second bunch of petitions, the petitioner, figuring in D-251/1997 had been promoted from the post of Medical Officer (B-17) to that of Senior Medical Officer (B-18), in D- 279/1997 from Woman Medical Officer (B-17) to Senior Woman Medical Officer and in D-283/1997 as Senior Medical Officer from B-19 to B-20. All such promotions, apparently, stood made by the then Chief Minister, Sindh, in exercise of powers under Section 24 of the Sindh Civil Servants Act, 1973. Because in the process the petitioners had in-controvertibly superseded a large number of their compatriots, in some cases claimed to be running into thousands, these matters, upon dissolution of the Sindh Assembly, came under scrutiny of the Caretaker Chief Minister. For the relevant cases, around November, 1996, summaries were floated by the Secretary (Services), where more or less similar proposals, in the following terms, were made "6. In view of above position and to avoid any legal complications, it is suggested that all cases where promotions were made under Section 24 of the Siridh Civil Servants Act or on out of turn basis as reflected at para-4 above, may be reviewed by giving show cause notices/personal hearing to the incumbents so as to meet the ends of justice. The administrative Department will accordingly be advised to proceed against such officers for their reduction to the lower posts The summaries being approved, show cause notices were issued. The notices were similarly worded, except for details. The petitioners were to'appear at times and on dates specified in the notices and were to explain as to why the petitioners be not reverted. On receipt of notices, the subject petitions were filed and heard in course of time. For reasons to be recorded separately, these petitions were dismissed on 21.5.1997. Our reasons appear as below: In the first place, no adverse action has yet been taken against any of the petitioners. Mere show cause notices were issued and due hearings were projected. This was clearly in consonance with the rule laid down by the Supreme Court of Pakistan in Anise Rehman's case, 1994 SCMR 2232. No cause of action, therefore, arose to the petitioners.As to merits, the promotions had taken place under Section 24 of the Sindh Civil Servants Act, 1973. It would be pertinent to examine such section, which we reproduce hereinbelow :-- 24. Saving : Nothing in this Act or in any rule shall be construed to limit or abridge power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable : Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." A close scrutiny of Section 24 would reveal that the exercise of powers thereunder may be approached from two different angles. Thus, in the first place, a civil servant may be exposed to suffer detriment for meting out a just or equitable treatment to another or others. However, while the power of the Government to do so is not restricted by the Act or the Rules the proviso, appended to Section 24, guarantees that the affectee cannot be dealt with in a manner less favourable to him than that postulated in the Act or the Rules. The other facet of the section deals with situations converse to the above and addresses, what may be termed, hardship cases. Here, as well, the provisions of the Act and the Rules can be by-passed if and when justice and equities in the case so demand. Correspondingly, where, in such a given case, the civil servant concerned is to be relieved of the rigours of law, that cannot, arbitrarily, be at the expense of anoiaer civil servant. The proviso appended to the section makes that amply clear. Such a civil servant, who may become exposed to the impact of a "just and equitable" treatment to another, under the operative part of Section 24 of the Sindh Civil Servants Act, can never be "dealt with in any manner less favourable to him than that provided by" the Act or the Rules. Because the exercise of power under Section 24 is Ex Debito Justitiae, in the event doubts, at some stage, surface regarding the bona fides or the justification for exercise of such power, surely, no one can legitimately, dispute the requisite the scrutiny or lawful determination. No more than that seems to have occurred so far. No prejudice hs been caused and no untoward action has yet been taken. If the petitioners were lawfully and duly promoted, the petitioners shall have nothing to fear and should face the proceedings with patience and equanimity. However, for reasons best known to the petitioners they seem to be negating that very expectation.Even otherwise, the petitioners being civil servants, if and when a reversion comes about, their remedy lies before the Service Tribunal but for that there has to be a final order. The petitioners, apparently, are dis­ inclined to suffer such an order. It is now settled law that where a tribunal of exclusive jurisdiction is mandated by and created under the Constitution itself, there can be no piecemeal administration of the remedy to an aggrieved person. See : ArifAli Khoja v. Govt. of Sindh (C.P. No. D-38/1997, disposed of on 18.3.1997). The affectee must await for appropriate orders, which would give rise to the invocation of the jurisdiction of such an exclusive tribunal. Intermediate resorts to other fora is clearly barred, That is, precisely, the predicament of the petitioners mere but then the petitioners, in the constitutional background, must have their remedy under the special law or none at all. Sec : Saghir A. Naqvi v. Prov. of Sindh, 1996 SCMR 1165. Some argument was addressed by the learned counsel on the question that the Service Tribunal is not currently functional inasmuch as it is not presided over by a Chairman and the remaining two members are incapable of administering relief. This is an important aspect of the matter and needs to be fully examined. In so far as the Sindh Tribunals Act, 1973, is concerned, per Section 8 thereof, the rule making power of the Government, inter alia, extends to fixing the "requirements as to the number of members of the Tribunal necessary for hearings before or, order or decision by, a tribunal" as also the "filling of a vacancy in the office of the Chairman or a member of the tribunal." There can be no cavil with the proposition that insofar as the Sindh Service Tribunal is concerned, it has been established pursuant, to the promulgation of the 1973 Statute and is a reality. The only question is whether, without a subsisting Chairman, the tribunal is functional. Because the tribunal is in existence there can be no difficulty in instituting appropriate appeals before it. The only asppci, amphadr-d by the learned counsel, in these petitions, is that their appeals, if and when brought, in the absence of the Chairman, cannot be accorded due hearing. The rules applicable to hearings under the Sindh Service Tribunals (Procedure) Rules 1974 are rules 23 to 27 which, for ready reference, are reproduced hereinbelow :- "23. Subject to the general or special orders of the Chairman-­ fa) an appeal against an order, imposing any minor penalty under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, or relatiug to provided fund, leave, transfer or posting shall be heard by a single member; (b) an appeal against an order relating to benevolent fund, insurance, re-employment or probation shall be heard by a Division Bench consisting of two members; and (c) an appeal against an order, imposing any major penalty under the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, or relating toconfirmation, promotion, retirement, pension and gratuity, pay including additional pay, technical pay and special pay and honoraria shall be heard by the Full Bench consisting of three members. 24. If any member, is, for any reason, unable to attend a sitting of the Full Bench, the other two members may, notwithstanding his absence, proceed with and any appeal or other matter if ripe for decision, dispose of finally at such sitting or any subsequent sitting. 2,5. If in any matter requiring the decision of a Tribunal, there is a difference of opinion among its members, the opinion of the majority shall prevail, and the decision of the Tribunal shall be expressed in terms of the view of the majority. 26. If a matter is heard by two members only and there is difference of opinion between them, the matter shall be reheard by the Chairman and the members and the opinion of the majority shall the prevail. 27. Whenever a casual vacancy in the office of Chairman occurs the senior member shall act as Chairman till the vacancy is filled by Government In consonance with the Rules occurring above, it is manifest that appeals, relating to promotions etc., brought about or recalled under Section 24 of the Sindh Civil Servants, Act, "shall be heard by the Full bench consisting of three members". (No different "general or special" order is invoked) If, however, any memher, which expression, as per the definition clause in the Rules, includes the Chairman, is, for any reason, unable to attend a sitting of the Full Bench the other two members may, notwithstanding his absence, proceed with any appeal or other matter, if ripe, for decision and dispose it of finally. Where a matter is heard by two members only and there is a difference of opinion between them such has to be re-heard by the Chairman and the members and the opinion of the majority shall, then prevail. In circumstances, however, where the Full Bench of the Tribunal is riot available at all, either on account of a vacancy in the office of Chairman or of a member or members, the situation cannot admit of the concept of a member, for any reason, being unable to attend a sitting of the Full Bench, When the Chairman or a member has not been appointed at all, upon occurrence of a vacancy, the contingency of inability to attend can. therefore, never be attracted. In such a state of things, Rules-24 and 25 of the Rules would be of no help and the Tribunal, in cases where a Full Bench must meet and decide an appeal would, to that extent, be non functional. The further question is whether such a situation can be taken care of by rule 27 of the Rules, which envisages that whenever a "causal vacancy in the office of Chairman occurs, the senior member shall act as Chairman till the vacancy is filled by the Government. The adjective casual carries the meanings of accidental, unforeseen or occasional. It can be and has been argued that a vacancy occurring upon the expiry of the term of a Chairman or even upon the cessation of a Chairman to remain so on account of resignation or other cases still remains a casual vacancy. However, the word "casual" also cannotes the implications of a short duration of time. It has been contended before us by the learned counsel for the petitioners that, the vacancy caused, upon the efflux of the term of office of Mr. Justice (R) Munawar Ali Khan and that upon the cessation of Mr. Justice (R) Abdul Majeed Khanzada have already lasted for 18 and 4 months respectively. It. therefore, follows that such a vacancy cannot be termed as casual. Rule 27 (ibid), therefore, which is an enabling rule, can hardly be of any use or assistance in such a continuing state of inaction. Even otherwise and even when the vacancy is a casual one, the instant matters can only be dealt with by a Full Bench of the Tribunal. It follows that a vacancy in the office of the Chairman or of a member, even if casual, would leave the Tribunal bereft of the requisite Full Bench and such matters accordingly, cannot be heard. For the purposes here, therefore, it must be found that the Tribunal is, currently, non-functional. The decisions of the Supreme Court of Pakistan in Abdul Rehman us. I.G, of Police, Punjab, Lahore, PLJ 1996 SC 208 and Muhammad Salim Chaudhiy v. Secretary to Government of Punjab, 10 S7 PLC (CS) 409, even though acknowledging that similar benches of a Service Tribunal can be constituted, do not derogate from the foregoing proposition. The Tribunal having thus been found to be non-functional reference was made to the United Bank Ltd. v. Akbar Agencies Ltd. PLD 1987 Kar. 81, to contend that this Court in such a state of things can assume jurisdiction in matters, which need.to be decided under rule 23(c) of the Sindh Service Tribunals (Procedure) Rules, 1974. This argument cannot be up-held for more reasons than one. In the first place, there is no final order yet, affecting the terms and conditions of service of the petitioners, which needs to be attended to immediately. No occasion, therefore, arises for assumption of jurist q; -Hon at this stage of the controversy. In the second place, whenever a vacancy in « Court or Tribunal occurs and a vacuum is thereupon created, which continues for an unreasonable period of time, this Court, under Article 199 oi' the Constitution has the power and jurisdiction to require the appointing authority to fill up such a vacancy and to bring about discontinuation of such a vacuum. What is a reasonable time in a given case is, however, always a question of fact to be determined in the attending circumstances. Because the vacancy, in the office of the Chairman of the Sindh Service Tribunal, the last of which is stated to have occurred in Feb. 1997, is far too iong for any public good, a situation has arisen for requiring the Provincial Government of Sindh to fill such a vacancy within a specified time. On our q-,ipry. the learned Addl. A.G. Sindh, pointed out that the delay, at this juncture, \va? occurring because pursuant to the Lahore Full Bench decision in Imran v. Presiding Officer, Punjab, Special Court, PLD 1996 Lah. 542, the Government was awaiting the approval of the nominee from the HorTble Chief Justice of this Court. Even if that be so. such matters have to be resolved expeditionary. As far as possible, therefore, the Government would take steps to fill the vacancy of the Chairman within a period of one month from the date reasons for the orders in these petitions are recorded. Here may be taken note of an argument from the side of the learned counsel for the petitioners that the Tribunal itself does not satisfy the requirements as, inter alia, laid down in the referred case of Imran and, therefore, in consonance with the dicta in Chittarangan Cotton Mills Ltd. v. Staff Union, PLD 1971 SC 197 and Sabir Shah v. Shad Muhammad Khan, PLD 1995 SC 66, the same may be declared to have been unlawfully constituted. To elaborate, contention is that a court, Tribunal or other authority can be found to have been illegally constituted and declared to be so even aliundi. We do not think that such a question arises even remotely in these petitions because as seen, as yet, there is not even a final order against (3 which the petitioners could be aggrieved and to question the constitution of a tribunal, which the petitioners cannot even approach at this stage and, at that, in proceedings aliundi would be totally unnecessary and, possibly, even counter-productive. Such a question, if any, obviously can be raised at an appropriate time and in a proper set of ?roceedings The foregoing are the reasons for the short orders through which these petitions were dismissed as above. (B.T.) Petitions dismissed.

PLJ 1998 Karachi 245 (DB) PLJ 1998 Karachi 245 (DB) Present: wajihuddin ahmed and hamid alt mirz, J J. Messrs PETROCOMMODITIES (PVT.) LTD.--Appellant versus RICE EXPORT CORPORATION OF PAKISTAN-Respondent High Court Appeal No. 196 of 1996, decided on 2.12.1996 (i) Contract Act, 1872 (IX of 1872)-- —-S. 73-Breach of contract--Status--Once contract was wilfully broken, it was relegated to the status of dead letter and no question of its performance would arise. [P. 247] A AIR 1953 Mad. 380; PLD 1977 Lah. 481; 1984 CLC 1129; 1991 MLD 2697 and 1993 CLC 714 ref. (ii) Sale of Goods Act, 1930 (III of 1930)-- —-S. 4 read with Specific Relief Act, 1877(1 of 1877), S. 56 and Civil Procedure Code, 1908 (V of 1908), O.XXXIX, Rr. 1 & 2-Contract for sale of goods-Grant of interim injunction against breach of contract- Entitlement-ContraL, 'or sale of goods was not capable of being specifically performed, therefore, permanent injunction in terms of S. 56(f). Specific Relief Act, 1877 could not be issued-Where permanent injunction could not be issued, interim injunction also would not be issued—In relation to contract of sale of goods, unless otherwise shownand established, compensation in terms of money would be adequate consideration. [P. 247] B (iii) Sale of Goods Act, 1930 (III of 1930)- -—Ss. 2(14) & 58 read with Specific Relief Act, 1877 (I of 1877), S. 56 and Civil Procedure Code, 1908 (V of 1908), O.XXXIX Rr. 1 & 2-Contract for sale of goods--Specific performance of such contract when to be ordered- Specific performance could be ordered even in relation to sale of goods but same would be relative to specific or ascertained goods-As regards such goods S. 56, Specific Relief Act, 1877 would not become bar for grant of permanent injunction nor interim injunction could be refused on that score--Whether goods involved in contract for sale of goods would qualify as specific or ascertained goods was always question of fact. [P. 248] C Yawar Farooqui, Advocate for Appellant. ArifHussain Kliilji, Advocate for Respondent. Date of hearing : 2.12.1996. order Wajihuddin Anmed, J.-This appeal arises from an interlocutory order passed by a learned Single Judge of this Court on the original side in Suit No. 1132 of 1996, whereby interim relief of injunction was declined to the appellant-plaintiff. Such was a suit based on application under sections 20 and 41 of the Arbitration Act, 1940. The suit pertained to a contract between the plaintiff-appellant and the defendant-respondent concluded on 11-7-1995 for the sale of 10,000 metric tones of Basmati rice. The appellant was to establish the letter of credit within 21 days of the date of agreement and the respondent-seller had to do the needful at its end in such manner that the goods, which were sold on F.O.B basis, were put on board on or before 31-12-1995. It is nobody's case that the letter of credit was opened in time or the rest of the requirement were fulfilled within the contractual period. According to the appellant, the letter of credit was established on 16-10-1996 but respondent, Rice Export Corporation of Pakistan (RECP) says that by the time if received the intimation of that having been done, the contract had already been cancelled by it on 5-11-1996. This is controverted from the side of the appellant and it is maintained that two memorandums were issued on 24-10-1996 for 2500 metric tones on 1000 metric tones each by the RECP for supply of those quantities to the appellant. As to this, without conceding anything, Mr. Arif Hussain Khilji for respondents RECP says that such, even if the case, could merely have been an internal act of RECP. Correspondently, it has been pointed out by Mr. Yawar Farooqui for the appellant, that during the course of time, the appellant had agreed to take Irri-6 in place of Basmati rice and the contract had been kept alive all the while. In this background, according to him, the suit was filed and the interim relief was claimed. As seen the same was declined.The learned Single Judge, in disallowing relief, seems to have been impressed by several factors. He referred to non-payment of the contracted price by the appellant within time. Mention was also made of the revocation of a contract by the RECP. He cited V.K. Mumaraswami Chettiar and others. F.A.S. v. Karuppuswani Nooppanar AIR 1953 Mad. 380; Messrs Charibwal Cement Ltd., Lahore v. Messrs Universal Traders, Gakhar Mandi PLD 1977 Lah. 481; Hafiz Misbahul Hasan v. The Director-General of Suppliers 1984 CLC 1129; Haji Abdul Sattar Chapri v. Secretary, Karachi Grains and Saeeds Merchants Group and another 1991 MLD 2697 to hold that in such a contract, was before him, interlocutory relief by way of interim injunction could not be granted. The same decision are relied upon by Mr. Arif Hussain Khilji for the respondent. On his part Mr. Yawar Farooqi refers to Merkuria Sucden v. Rice Export Corporation of Pakistan 1993 CLC 714, where interim relief relative to a case sale and purchase was allowed by a learned Single Judge of this CourtThere can be little cavil with the proposition that once a contract is wilfully broken, it is relegated to the status of a dead letter and no question of its performance arises. That is what the learned Single Judge seems to have said on account of the fact that the appellant never came up with the requisite consideration money, which was a precondition involved in the opening of letter of credit within 21 days of the contract. Obviously, such an observation as and remains tentative in nature, not intended to affect the ultimate decision of the case, which would be decided on its own facts Another aspect of the matter is that a contract for sale of goods, peaking generally, is not routinely a contract, which is capable of being specifically performed. In relation to such a contract, not usually capable of specifically performed, a permanent injunction under section 56(f) of the Specific Relief Act cannot issue. Where a permanent injunction cannot issue, an interim injunction also does not arise to be administered. Correspondingly, in application to contracts of sale of goods, unless otherwise shown and established, compensation in terms of money would be adequate consideration, and therefore, no element of irreparable loss would subsist, again coming in the way grant of interim injunction relative to such contracts. These, however, are general principles of law and have to be applied in the specific circumstances of even case, which in itself may pose an exception. As said before, none of its calculated to affect the disposal of the main dispute between the parties.As to the order of a learned Single Judge of this Court in the case of Suceden (supra) all that needs to be said is that where the goods which to the subject-matter of the contract, are specific or ascertained goods and it is known that the property therein already stood passed even interim relief can be ?? as was the position ' v . a cited case. Several factors in the precedent case, including issuance of some documents of possession and creation of third by interests, may have accomplished just that. In that case yet another aspect have been that, at the time, the RECP alone was dealing in the export of and the goods were claimed to be unavailable elsewhere. That aspect also and have weighed with the learned Single Judge. Relevant to the provisions of law pertaining to the passing of the property or the title in the goods, the rule as enshrined in section 19 of the Sale of Goods Act is that the property in the goods inter alia passes at the time when the parties intend the same to pass. Intention of the parties, subject to contract, may be ascertained from the rules set out in sections 20 to 23 of the same Act. In the instant case, Mr. Arif Hussain Khilji, for the respondent, maintains that because the contract was on F.O.B. basis, the property would have passed only as from the time the goods were actually put on board because prior to that the same shall have remained at the risk of the RECP, the seller. The provisions of sections 20 to 24 of the Sale of Goods Act, as can be seen immediately, are explanatory of the various circumstances in which the intention of the parties may be gaudged. All such questions would come up for consideration as and when the matter is decided in the ultimate analysis. Reference may here be made to section 58 of the Sale of Goods Act. Such section runs thus :-- "58. Sp af> ifc performance. -Subject to the provisions of Chapter II of the Specific Relief Act, 1877, in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price or otherwise, as the Court may deem just, and the application of the plaintiff may be made at any time before the decree." The reproduced section would show that, in the cases covered by it, specific performance can be ordered even in relation to sale of goods. But that, as hinted above, is to be relative to specific or ascertained goods. As regards such goods, section 56 of the Specific Relief Act would not become a bar for grant, of permanent injunction, nor an interlocutory injunction may be refused on that score in such behalf. Even then it would always be a question of fat as to whether the goods involved qualify as specific or ascertained goods. A variety of articles may fall under the category of "specific goods", which is defined by section 2(14). of the Sale of Goods Act to involve and mean "goods identified and agreed upon at the time a contract of sale is made". An example, which instantly occurs to mind, may be that of a painting or other piece of art or a thing having a special meaning to the _ buyer. Such goods arguably may be covered by the description. However, with reference to the subject-matter of the suit and the present appeal, it can hardly be said that the goods were specific goods, because Basmati Rice, except in rare cases and unlike old (specific or ascertained) wine, from year to year, may remain similar, if not the same. As it is, according to the appellant-buyer's own case even Basmati Rice came to be substituted by Irri-6. On the other hand, the concept of ascertained goods, in the view we taken, should be still different. The expression is not defined. That, inter alia, may connote earmarked or appropriated goods in terms contracted to be sold and purchased; in other words goods identified, as agreed upon after the contract of sale is made. At any event, each individual case of the nature in such ontext shall is made. At any even, each individual case of the nature in such context shall have to be determined on its own facts. Nothing more on the subject need be said here. Seeing no cause for interference, while we dispose of the appeal and also the applications filed with it, subject to the foregoing, the appellant, would be force to reagitate all such questions, as be relevant to its case, just as the respondent may do likewise. Nothing said here or in the order of the learned Single Judge, except the bare propositions would affect the rights of the parties, when the case proceeds either to trial or in arbitration, as the case may be. (K.K.F.) Order accordingly.

PLJ 1998 Karachi 249 PLJ 1998 Karachi 249 Present: M.L. SHAHANI, J. BAR B. Q. through Partner, Defence Society, Karachi-Appellant versus Mrs. HAYAT REHMAN-Respondent F.R.A. No. 84 of 1992, decided on 29.5.1997. (i) Cantonments Rent Restriction Act, 1963 (XI of 1963)- —-S. 17-Tenant-Ejectment of—Ground of—Original landlord having died, tenant in spite of such knowledge did not pay rent to successor landlady i.e. heir of original landlord-Evidence on record indicated that deliberatedefault in payment of rent had been committed for which no justification existed, therefore, consequential order of ejectment by Rent Controller would not call for interference. [P. 252] A (ii) Cantonments Rent Restriction Act, 1963 (XI of 1963)- —-S. 17(4), proviso-Ejectment of tenant-Premises were not expressly let out for purpose of restaurant; proviso to S. 17(4), Cantonments Rent Restriction Act, 1963, was, thus, not applicable-Tenant, therefore, was not entitled to two years' notice-Order of ejectment passed by Rent Controller on that score would not call for any interference. [P. 254] B Mohsin Tayab Mi, Advocate for Appellant. M. Ziauddin Qureshi, Advocate for Respondent. Date of hearing : 22-5-1997. judgment This appeal by tenant calls in question an order passed by learned Additional Controller of Rent, Clifton Cantonment, Karachi (hereinafter referred to as 'Rent Controller') ordering ejectment of appellant-tenant on the grounds of default, and personal use by the landlord vide order dated 28- 12-1991 under the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as an Act of 1963). 2. Briefly the facts of the case are that the appellant was inducted as tenant by the late landlord Wing Commander Khalidur Rehman since 1st February, 1975. After his death on 5th October, 1988 the respondent claims that the appellant has not paid the rent since July, 1988 and she further claimed that the premises are required by her for her personal use in good faith and filed such application before the Rent Controller under the Act of 1963 on 12th December, 1989. The appellant resisted the said application for ejectment and stated that the rate of rent is Rs. 500 per month now, rent for the month of July, 1988 to 31st December, 1988 was paid by Pay Order, dated 17th July, 1988 which was encashed by the late landlord in his lifetime. The rent from January, 1989 to June, 1989 was tendered through Pay Order dated 25-1-1989 and sent through registered A/D post but the same was refused. Thus vide money order dated 31-1-1989 the rent was tendered in the name of late landlord but was refused; the rent was sent for the month of January, 1989 again through another money order for Rs. 3,000 dated 6-3-1989 for six months but the money order came back with the remarks that landlord died, and then on 5th July, 1989 vide money order for Rs. 4,000 was sent to the present respondent which was refused. Thereafter, an application was filed before the Rent Controller seeking permission to deposit the rent before the Rent Controller and initially a sum of Rs. 3,500 was deposited, and thereafter, the rent was deposited by the tenant. Personal bona fide need ground was denied as well. 3. The learned Rent Controller framed the following five issues :- (i) Whether the application as framed is not maintainable in law? (ii) Whether no relationship of landlord and tenant, exists between the applicant and the opponent ? (iii) Whether the opponent has committed default in payment of rent by failing to pay rent from July, 1988 to November, 1989? (iv) Whether the applicant bona fidely needs the premises for per personal use ? (v) What should the order be ? The respondent examined herself and her brother-in-law Mr. Habibur Rahman, while the appellant examined himself, Shahid Asghar. Sikandar and Abid Rahim. In additions, the Post Master and Postman of Defence Post Office and Jamshed Ali Kazi an officer of United Bank Ltd., were examined. The learned Rent Controller on assessment of evidence came to the conclusion, that the application is maintainable he held that the relationship of landlord and tenant exists between the parties, held further that default has been committed and further stated that premises are needed for the needs of landlady, therefore, allowed the application for ejectment vide impugned order. 4. While assailing the impugned order Mr. Mohsin Tayabally learned counsel for the appellant contended that in view of the evidence no default has been committed by the appellant; that the premises were let to be used as restaurant and since no notice has been given for two years, therefore, by virtue of proviso to section 17(4) ejectment for bona fide use was not maintainable. 5. Mr. M. Ziauddin Qureshi, learned counsel for the respondent stated that default is provide. The proviso is not applicable. The personal bona fide need is established and, therefore, the impugned order is just and valid and no exceptions are called for. 6. I have given anxious consideration and have gone through the record with the assistance of learned counsel and came to the conclusion that the impugned order does not call for exceptions; as such dismissed the appeal with no order as to costs for reasons to be recorded separately. These are the reasons for passing such order : (a) On the issue of default, the respondent in para. 4 gave details that the rent was not given since July, 1988. Shefurther stated that the late landlord dies on 5th October, 1988 and such intimation of his death was published in daily Dawan but no efforts were made by the tenant to pay the rent. (b) Against this evidence, the appellant has established on record that the rent for July, 1988 to December, 1988 was tendered through Pay Order duly encashed by the late landlord in his lifetime. Such evidence came through the Manager of United Bank Ltd. I would accordingly hold that there is no default for payment of rent from July, 1988'to December, 1988. (c) However, it remains to be seen whether any default was committed for payment of rent for the month of January, 1989 to November, 1989. From the record it appears that Pay Order dated 25-1-1989 for Rs. 3,000 on Allied Bank Ltd. was prepared in the name of late landlord and it is alleged that the same was sent but returned with remarks 'refused to receive'. Thereafter, there is money order for Rs. 500 being the rent for the month of January, 1989 which was also refused. The money order was sent in the name of late landlord. On 6th March, 1989 another money order for Us. 3000 was sent in the name of late landlord. This money order came back on 13th March, 1989. The remarks are that 'this gentleman expired, hence returned'. This in my view, is a turning point for default, even if I were to ignore that the respondent did not inform the appellant that the origional landlord died. Thereafter, the rent was tendered in the name of present respondent on 5th July, 1989 through money order, endorsement is made on this money order that the appellant came to know yesterday that the original landlord expired. Such endorsement even the learned counsel conceded is false as the intimation regarding death was received or conveyed to the appellant when money order, dated 6th March, 1989 was returned on 13th March, 1989 with the specific remarks that the addressee expired. (d) The provisions for the ejectment are the ground of default are stated in section 17(2)(i) of the Act of 1963 and such provision of law reads as follows : (i) the tenant has not paid or tendered the rent to the landlord within fifteen days of the expiry of the time fixed in the agreement of tenancy for payment of rent. or in the ahsence of such agreement, within sixty days following the period for which the rent is due. (ii) ..................................................................... (e) Assuming for the sake of arguments that the tenant paid the rent through money order for January in the name of late landlord which was refused. According to the above provisions of law, the rent for the month of February, 1989 is due by 1st March, and should be paid within 60 days i.e. up to 1st May, 1989. It was sent on 6th March, 1989. The money order came back with the endorsement that the addressee (the late landlord) died yet no effort was made to tender the rent until 5th July, 1989 and that too with fake and false endorsement that the tenant came to know only yesterday (i.e. on 4th July, 1989) that the original landlord expired as such rent was tendered in the name of the present respondent-landlady. Even Mr. Mohsin Tayabally conceded that the endorsement of appellant regarding information of death of landlord is nature and not sustainable on record. (f) However, Mr. Mohsin Tayabally stated that from the office of Defence Authority he came to know that the property was transferred in the name of present landlady as such the rent was sent in her name on 5th July, 1989. From the record I find that the property was transferred in the name of landlady on 24th July, 1989. No document was produced by the tenant which may reveal that the Authorities may have transferred the property in her name which may be the basis of information to the tenant. Such plea urged by Mr. Mohsin Tayabally is not sustainable on any piece of evidence, as such cannot be entertained. (g) From the record it appears that the respondent and her witness (brother of late landlord) have stated on oath that they informed the tenant that the landlord expired, yet no efforts were made to tender the rent to the respondent. Consequently on the strength of evidence on record I would hold that deliberate default in payment of rent has been committed for which no justification exists, and consequential order of ejectment does not call for any exception. (h) Reverting to the ground of personal need Mr. Mohsin Tayabally urged that by virtue of proviso to section 17(4) tow years' clear notice is required but the same was not given, as such order of ejectment is not sustainable in law. The proviso relied upon reads as follows :- "(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession, (a) in the case of a residential building, if- (i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and (ii) he or the member of his family, as the case may be. is not occupying any other residential building suitable for his needs at the time, in the Cantonment area concerned or in any local area in the vicinity; thereof, and (iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act; and (b) in the case of a commercial building, if- (i) he requires it in good faith for his own use ; and (ii) he is not occupying in the Cantonment area concerned or in any local area in the vicinity thereof in which such building is situated for the purposes of his business any other such building suitable for his needs at the time; and (iii) has not vacated such a building in the said area or vicinity without, sufficient cause after commencement of this Act. Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period: Provided further that when the landlord has obtained possession of a residential or a commercial building under the provisions of sxib-clause (a) or subsection (b) he shall not be entitled to apply again for the possession of any other building under that subclause, unless the building of which he had previously taken possession has become unsuitable for his needs Provided also that this subsection shall not apply to serais, hotels, dak-bungalows, lodging-houses baording-houses, residential clubs, restaurants, eating-houses baording-houses, residential clubs, • restaurants, eating-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in seals or production of materials of books of educational and culture values except where the landlord requires any such building to carry on any such business of his own, in which case, he may make an application under this subsection after having served two years' notice on the tenant; but no building which it is not, on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purposes, shall be converted to any such purpose except with the consent, in writing of the landlord." (Underlining is mine). (i) There is no evidence on record that the premises were let out for such purposes expressly, even in the written statement no such exceptions were pleaded. On the contrary in evidence of appellant partner of appellant's) it has been clearly stated that the tenancy was oral and no agreement between me and deceased landlord Khalilur Rehman was executed." (j) In view of this categoric statement I would hold that the premises were not expressly let out for the purpose of running restaurant, as such proviso is not attracted. (k) The respondent in view of her evidence for personal B need established on record and also in view of the fact that the proviso to section 17(4) of the Act of 1963 is not attracted and the tenant is not entitled to the two years' notice, I would hold that the impugned order on this score also does not call for any exceptions too. No other contention was urged. After the order was passed dismissing the appeal, learned counsel for the appellant sought time to hand over the possession. He was granted time till 31st August, 1997 to hand over possession to the respondent landlady and in case of default, the writ of possession shall be issued without notice. (K.K.F.) Appeal dismissed.

PLJ 1998 Karachi 255 PLJ 1998 Karachi 255 Present: mushtaq ahmad memon, J. YARNTEX TRADING COMPANY and others-Plaintiffs versus CHIEF CONTROLLER OF BUILDINGS and others-Defendnats Suit No, 869 and Civil Miscellaneous Application Nos. 4375 and 4611 of 1997, decided on 18.8.1997, (i) Karachi Development Authority Order, 1957 (V of 1957)-- -—Art. 52-A-Housing Scheme- Deviation from scheme-Master layout plan not showing internal bifurcation and earmarking of plot in question within commercial area-Use of such plot for commercial purpose- Status-All public functionaries were to ensure implementation of notified scheme without change-In absence of positive evidence provisions of Art. 52-A, Karachi Development Authority Order, 1957 could not be pressed into service nor could their strict compliance be asserted for the reason that master layout plan did not show internal bifurcation and earmarking of plots within commercial area—Every one acquiring property within relevant commercial area on basis of scheme approved by Karachi Development Authority, would thus, know inadvance that plots therein would be used for commercial purpose- Plaintiffs, therefore, having sufficient notice could not object to use of plotin question, for commercial purpose. [Pp. 264 & 265] A PLD 1995 SC 423 and PLD 1997 Lah. 464 ref . (ii) Karachi Development Authority Order, 1957 (V of 1957)-- —Art. 52-A-Plot reserved in commercial area for construction of cinema- Change of user from cinema to commercial complex-Status-Cinema business being commercial activity, tentatively speaking change of user from cinema to commercial complex would not amount to modification of nature of plot in question, cinema business having not been included inrecognised amenity purposes stated in Building Regulations framed by Karachi Building Control Authority. [Pp. 265 & 266] B & D Ballentine's Law Dictionary, 3rd Edn., p. 222 and Concise Oxford Dictionary 8th Edn., p. 227 ref. (iii) Karachi Development Authority Order, 1957 (V of 1957)-- —Art. 52-A-Modification in notified scheme-Status-Law would not prohibit modification of notified scheme altogether-Alterations in scheme could be made for good of people at large-Minor changes and alterations, which would not change nature of scheme or so radically change the same as to render sanctioned scheme materially different, could be effected—No grievance against such changes or deviations could be made-Even if user of plot in question was assumed to have been changed from cinema to commercial, such modification would not changegeneral nature of notified scheme. [P. 266] E PLD 1969 SC 223 rel. (iv) Karachi Development Authority Order, 1957 (V of 1957)-- —- Art. 52-A-Civil Procedure Code, 1908 (V of 1908), O.XXVI, R. 9 & O.XXXIX, Rr. 1 & 2-Application for prohibitory order-Court having appointed Local Commissioner for assessment of damages to property ofplaintiff on account of construction of high rise building by defendants, plaintiff was not entitled to any prohibitory order against defendants at such initial stage. [P. 267] F (v) Karachi Development Authority Order, 1957 (V of 1957)-- —Art. 52-A-Civil Procedure Code, 1908 (V of 1908), O.XXXIX, Rr. 1 & 2- Temporaiy injunction to restrain defendant from raising construction beyond 4th floor-Notification issued by Provincial Government issued on 2nd December, 19093, having placed ban on high rise buildings beyond 4th floor, Administrative order of Chief Minister could not undo such notification-Plaintiff had been able to establish prima facie case for injunction to restrain defendant from raising construction beyond 4th floor on plot in question-Defendant was directed not to raise construction beyond 4th floor during pendency of suit. [Pp. 267 & 268] H PLD 1961 SC 105; 1989 MLD 4286 and PLD 1990 SC 626 ref. (vi) Statutes-Interpretation of- —Administrative decision-Notifiction issued by Government could not be modified even by Government itself through administrative orders-Administative order, stands at slightly lower padestal from Notification- Subordiante legislation could not destroy or undo superior law. [P. 267] G (vii) Words and phrases­ '—Commercial.-Relates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce Commercial activity.-Terms includes any type of business or activity which is carried on for a profit. Activity relating to or connected with trade and traffic or commerce in general." In Ballentia's Law Dictionary (Third Edition at page 222 word 'Commercial' is defined as follows "Commercial. -Pertaining to the purchase and sale or exchange of goods and commodities and connoting as well forms of and occupations in, business enterprises not involved in trading in merchandise; in a broad sense, embracing every phase of commercial and business activity and intercourse." In the Concise Oxford Dictionary (8th Edition) at page 227 the word 'commercial' and 'commercialise' are described as follows "Commercial having profit as a primary aim rather than artistic etc. value; Commercialise ('!') exploit or spoil for the purpose of gaining profit" [P. 265] C Faisal Arab, Advocate for Plaintiffs Zahida Naqvi, advocate for Defendants Nos. 1 to 3. Abdul Qadir Memoon, holding brief for Dasti Muhammad Ibrahim, Advocate for Defendants No. 5. Abdul Inarn Advocate for Defendants No. 6. Dates of hearing : 31.7.1997 and 1.8.1997. judgment By this order I propose to dispose of the two application being C.M.A. No. 4375 of 1997 under Order XXXIX, Rules 1 and 2, C.P.C. and Civil Miscellaneous Application No. 4611 of 1997 filed under section 151. C.P.C. 2. The facts leading to institution of the present proceedings, as are deducible from the respective affidavits and documents filed by the parties, are that the plaintiffs are owners, tenants and occupants of various offices in the building known as Ebrahim Estates situated at Plot No. D/l, Union Commercial Area, Blocks 7 and 8, Shahra-e-Faisal, Karachi, hereinafter referred to as 'Ebrahim Estate'. The adjoining Plot No. Z, Central Commercial Area Blocks 7 and, Shahra-e-Faisal, Karachi, hereinafter referred to as 'the subject plot' is, owned by the defendant No. 6. The Ebrahim Estates was constructed on the basis of and in accordance with building plan approved on 12-7-1979 and the structure of grounds plus 5 storeys was occupied after approval of completion plan on 3-1-1983. It is averred in the plaint that the subject plot which is adjacent to Ebrahim Estates and although shown as part of area earmarked for commercial use in the master plan, was reserved for construction of Cinema and notified as such in the detailed plan prepared and notified for the concerned commercial area. It is further the case of the plaintiff that having noticed construction activity upon the subject plot and excavation for the purpose of laying foundation, they brought their concern to the notice of defendant No. 6 through letter dated 10.5.1997. A copy of the letter was endorsed t.n thp necessary legal action in the matter. The architect of the defendant No. 6 respondent instantly to the said letter asserting that the construction was being done in accordance with approved building plans and further offered to meet the plaintiffs for redress of their grievances, if any. The proposed meeting did take place but could not bring any positive result. On 27-5-1997, the plaintiffs through another letter requested the official defendants Nos. 1 to 3 for action against the on-going construction at the subject plot and sought a copy of the approved plan. The plaintiff further sought professional opinion of an Engineer who reported that the construction activity on the subject plot was a serious and immediate threat to Ebrahim Estates. After failing to elicit any response, the present proceedings were filed by the plaintiffs seeking following reliefs :-- (i) A declaration that the conversion of the Plot ZCCI from amenity to commercial is illegal and contrary to public interest; (ii) a declaration that the Plot No. ZCCI is a amenity plot and that the same cannot be utilized for any other purpose ; (iii) a declaration that the approval, if any, of the building plans by defendants Nos. 1 to 3 for construction on the Plot No. - ZCCI is contrary to law and of no legal effect; (iv) a permanent injunction restraining the defendants form raising any construction on the Plot No. ZCCI for any purpose other than amenity purpose; (v) a permanent injunction restraining the defendants from approving, or allowing any construction on the Plot No. ZCCI. (vi) Setting aside the approval of building plans, if any as illegal, mala fide and contrary to public interest. (vii) Grant cost. (viii)Any other relief that it just and proper in the circumstances; 3. Alongwith the plaint, an application for interim injunction listed at Serial No. 1 was also filed seeking restraint, against all construction activity whatsoever on the subject plot. Initially, by way of ad-interim order dated 4-3-1997, the defendant No. 6 was directed to maintain status quo but such order was recalled on 14-7-1997 in the absence of plaintiffs' counsel mainly on the basis of reports dated 12-7-1997 submitted by the Deputy Controller of Buildings (Vigilance-1) and the defendant No. 3 which are as follows : "Subject : Report Required by Hon'ble High Court Sindh in Suit No. 869 of 1997 on Plot No. ZCC-1 Blocks 7 and 8 CC The site on Plot No. ZCC-1 Blocks 7 and 8 C.C. Area K.C.H.S. Union was inspected with the concerned D.C.B. and A.C.B. Zone and it was observed that the owner has cost R.C.C retaining wall for support of existing building on adjoining Plot No. D-l (Ebrahim Estates) and apparently no effects i.e. cracks or settlement were observed. However, due to excavation on such plot that foundation of another rear adjoining building (Anum Blessings) on Plot No. ZCC Blocks 7 and 8 C.C. Area, K.C.H.S. Union have been exposed that may cause any accident due to expected heavy moon soon rainfall season. (Sd. 12-7-1997 DY. CONTROLLER OF BUILDINGS (VIGILANCE)-l No violation against approved Architectural plan was observed as on site shuttering for slab of first basement is under progress. Furthermore it is informed that K.B.C.A. has granted approval for two basement + ground + seven upper floors. Besides the concerned consulting Licence Structural Engineer and Licence Architect have also submitted stability certificate. (Sd.) 12-7-1997 DY. CONTROLLER OF BUILDINGS ZONE-XIII." 4. During hearing, the learned counsel for the plaintiff has urged that under the Land Development Scheme of the area notified earlier, the subject plot was earmarked for construction of Cinema and the defendant No. 5 K.D.A. had unauthorisedly allowed conversion of the user of land for commercial purpose. It is next urged on behalf of the plaintiff that the proposed construction on the subject plot, besides being violative of the ban imposed by the Government of Sindh upon construction of multi-storeyed structure beyond ground four floors and was also opposed to the Building Control Regulations which prescribe construction ratio up to 1:3. It is further urged that, the excavation of land for foundation of the proposed construction over the subject plot has caused damage to the exiting structure of Ebrahim Estates and unless restrained through interim injunction, further damage was likely to be caused. 5. Elaborating his submissions, the learned counsel for the plaintiffs has referred to lay out plan of Central Commercial Area, Blocks 7 and 8, Karachi Co-operative Housing Societies Union Limited showing therein that the subject olot mrasnrincr 9Q37 cm varrlo k A certificate issued on 2nd July, 1997 by A. Rehman. Executive Officer of the defendant No. 4 Union has also been referred to support the contention that the subject plot was earmarked for a Cinema, but was subsequently converted into commercial plot and a revised plan for Ground + Mezzanine + Four upper floors was approved by the defendant No. 5 K.D.A., on 8-4- 1990. Besides, the learned counsel has referred to two documents filed by the defendant No. 6, alognwith its counter-affidavit was Annexures D and D-l. The first document is a letter dated 25-10-1986 written by the defendant No. 4 to the Director, Master Plan Department, K.D.A. mentioning therein that the subject plot was auctioned by it in the year 1963 for construction of cinema, but sub-lease in favour of the allottee was executed in Form C-l which is meant for Commercial plots. It is further noted in the said letter that due to unwillingness on the part, of the owner of the plot, to construct cinema thereon, the defendant No. 4 Union had considered and extended its no objection for construction of Commercial Complex. The second document is copy of challan issued by the K.B.C.A. evidencing payment of Rs. 58,740 on 9-1-1988 by the defendant No. 6 and another on account of T.P. charges for change of land use at the rate of Rs. 20 per square yard". The learned counsel, with all the emphasis at this command, asserts that the two documents do evidently show that the subject plot was initially earmarked for use as cinema, but its user was changed to Commercial subsequent to construction of the Ebrahim Estates. On the basis of above, it, is urged that the notified scheme for the area has been modified without compliance with the precedure prescribed by the K.D.A. Order. In support of the above submission, learned counsel has referred to judgment of the Honourable Supreme Court in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512). It may be advantageous here to reproduce Article 52-A of the K.D. Order, which is as follows :-- "52-A.-(D The Authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of. Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette. (2) The Authority or the Housing Society may at any time prior to utilisation of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose. (3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the eeneral public through a notice published in one newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice. (4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations alongwith the application and other connected papers to Government for orders." 6. On the basis of the procedure laid down in the above-quoted provision of the K.D.A. Order, the following dictum laid down in the case of Abdul Razak (supra) was referred :- "It, may be stated that in spite of presence of the above unambiguous Article in the order the successive Provincial Governments overlooked the above Article and converted amenity plots into commercial or residential plots and thereby denied to the residents of Karachi inter alia parks and playground which contributed towards environmental pollution in the city. A tendency has also developed to convert the use of a residential plot into commercial or instead of constructing residential units in the form of bungalows to erect flats." 7. In support of his second submissions, the learned counsel for the plaints, besides refering to the averment contained in the affidavits, has relied upon certificate issued by an Architect on 22-6-1997, filed asAnnexure-F with the plaint, and has also referred to the photographs of the site- On the basis of such submissions, the learned counsel asserts that thedefendant, No. 6 may be restrained from continuing with any construction activity over the subject plot. 8. The next submission of Mr. Faisal Arab on behalf of the plaintiffs is that, the proposed structure shall be violative of the ban imposed by the Government of Sindh through Notification dated 2-12-1993 upon construction of buildings beyond ground + four floors within the jurisdiction of Karachi Division. The learned counsel further submits that as to the rule laid down in the case of Multiline Associate v. Ardeshir Cowasjee and others (PLD 1995 SC 423). with regard to power vesting in the Building Control Authority and/or the Government to compound or waive restriction upon construction of additional floors, floors, the provisions of Act, XXXIV of 1994 were not pointed out to the Bench. For such reason, the learned counsel further submit that the construction proposed to be raised by the defendant No. 6 is unlawful and the building plan for structure beyond 4th floor could not, be permitted by the Karachi Building Control Authority. 9. Mr. Abdul Inam, appearing for the defendant No. 6, while replying to the arguments of Mr. Faisal Arab, has submitted that the sub­ lease in respect of the subject plot wsa executed in Form C-I on 11-11-1965 by the defendant No. 4 Union in favour of M/s. Gem Corporation; in June, 1984, Site Plan in respect of the subject plot was issued by the defendant No. 4 Union, followed by its letter dated 22-11-1985 to confirm that the subject plot was commercial. Induced by such representation, the defendant 6 purchased the subject plot on 15-5-1985 from M/s. Gem. Corporation. On 23-9-1986, proposed Building Plan submitted by the defendant No. 6 was forwarded by the defendant No. 4 Union to the K.D.A. On 9-1-1988, conversion charges were paid by the defendant No. 6. On 29-5-1989, Building Plan for construction of commercial complex consisting of Basement + Ground + 04 Upper floors was approved by Karachi Building Control Authority, whereafter the defendant No. 6 applied for sub-division of the subject plot which was approved on 16-8-1994. On one of the subdivided portions of the subject Plot bearing No. ZCC measuring 1400 square yards, 8 storeyed building including Mezzanine floor was raised, whereas the other portion No. ZCC/1 measuring 1440 sq. yards is ought to be constructed now. In respect of portion No. ZCC/I, approval of plan, from Architectual point of view, was accorded by K.B.C.A. on 27-10-1996 whereas the Building Plan was approved on 12-2-1997 for construction of two basements + grounds + 07 floor (Commercial). The learned counsel submits that in all the said documents, the subject plot is referred and treated as commercial plot. It is further submitted by the learned counsel for the defendant No. 6 that the Master Lay-out Plan, which was prepared by defendant No. 4 Union in respect of the entire area and was approved by K.D.A., showed reservation of the Central Commercial Area, Blocks 7 and 8 for commercial purpose. The lay out plan for the commercial area which shows reservation of the subject plot for use as Cinema does not bear approval by K.D.A.. but was a sort of detailed drawing prepared by the defendant No. 4 Union. Moreover, use of plot for cinema is a commercial use, and therefore, the present case was distinguishable from matters where conversion of amenity plot wsa attempted. It is further urged by Mr. Abdul Inam that the entire action has been brought with mala fide intention of not allowing the defendant No. 6 to develop and use his property. In the submission of learned counsel for defendant No. 6, the use of subject plot as cinema may rather cause nuisance for the entire area and in view of the changed completion of the locality, after construction of Shaheed-Millat Road, overhead bypass, the subject Plot cannot be used as cinema. The learned counsel further submitted that the concept of modern city planning, inter alia, envisages orderly arrangement of parts of the city into residential, commercial, industrial and amenity etc. so that each part could perform is functions with minimum cost and conflicts. It is further urged by Mr. Abdul Inam that the plaintiffs themselves have been using Ebrahim Estates for commercial purpose and construction of Ebrahim Estates besides being a seven storeyed structure, is also violative of the plot Ratio required to be maintained by the Karachi Building ControlRegulations for construction of buildings. As to the allegation of damage caused to the Ebrahim Estates, the learned counsel has referred to the column Lay-out Plans approved by the Building Control Authority for proposed construction over the subject plot. The learned counsel submits that, the basement columns could be created at the distance of 6 feet from the structure of Ebrahim Estates as per Building Regulation. However, the defendant No. 6 had excavated the land for construction of basement columns at a distance of 12 feet from the building of the plaintiffs. No damage whatsoever, according to the defendant No. 6, had been caused to the foundations or structure of Ebrahim Estates which, in any event, had been provided additional protection by the defendant No. 6 through construction of a retention wall. As to the next submission of the plaintiffs counsel regarding ban on construction of multi-storeyed building beyond 4th floor, the learned counsel for the defendant No. 6 has placed on record summary put up before the then Chief Minister of Sindh on 16-7-1996 and the approval accorded by him to the following proposal :- 7. After detailed discussion, Committee recommended the following :- 7.1 The ban on high rise buildings should be lifted as faras Shahrah-e-Faisal is concerned. 7.2 For the present the plot ratio 1 : 4 should be allowedon Shahrah-e-Faisal. 7.3 K.D.A. should come up with a policy and if needed legislation to enforce proper maintain of the high rise after their completion." 10. According to the learned counsel, the ban on construction of high-rise was imposed through notification, dated 2nd December, 1993 issued by the Housing Town Planning and Environmental Control Department, Government of Sindh, and the same stands waived after approval of the above-quoted summary by the then Chief Minister of Sindh whose orders are to be treated as the order passed by the Government by virtue of Rule 7 of the Sindh Government Rules of Business. Such authority vesting in the Chief Minister was duly recognised in the case of Multiline Associates (supra) in the following terms "In the Sindh Government's Rules of Business 1986, while describing the powers of the Chief Minister it is provided that any order passed by the Chief Minister or any authority to whom he has delegated such power shall be deemed to be the order passed by the Government. It is so stated in rule 7, Part III of the Rules of Business mentioned above. Such order of the Chief Minister cannot be called in question on the ground that it is passed in deviation of the Regulations because there is no such deviation. It is a separate and independent statutory power of the Sindh Buildings ControlOrdinance, 1979, if it is not inconsistent with other provisions of the Ordinance." 11. the learned counsel has also referred to a recent judgment by Division Bench of the Lahore High Court in the case of Dr. Miss Hajira Abdullah and others v. Lahore Development Authority, Lahore and others reported in PLD 1997 Lah. 464 to contend that right to enjoy and use the property is guaranteed by Article 23 of the Constitution and the defendant No. 6 can lawfully use the subject plot in a manner which he thinks is suitable and beneficial to him. In any event, it is urged that the defendant No. 6 can rise construction up to forth floor without causing violence to the ban. 12. On behalf of defendants Nos. 1 to 3, Mrs. Zahida Naqvi has opposed the grant, of injunction adopting the arguments of Mr. Abdul Inam. I may further note here with regret that the defendant. No. 4, despite havingbeen served, did not file any affidavit nor has placed any record before theCourt. On behalf of defendant No. 4 K/D.A., Mr. M. Ibrahim Dasti did not have time to attend the matter and Mr. A.K. Memon who remained presenton behalf of Mr. Dasti throughout the hearing made statements that he was not aware of the facts of the case, and therefore, did not advance arguments. 13. I have heard the learned counsel and with their assistance gone through the record. The Master Lay-out Plan in respect of the entire scheme shows that the area in question was reserved for commercial use. The Plan submitted by the defendant No. 4 Union to the Federal Government which isowner of the land, after approval of the defendant 5 K.D.A. does not contain bifurcation of the commercial area into plots or earmarking of any plots therein for particular commercial use. The detailed Lay-out Plan of the Commercial area appears to have been prepared by the defendant No. 4 Union subsequently, and seemingly, was not sent to the defendant No. 5 K.D.A. for approval. While paramount object of modern city planning is toensure optimum confronts for the residents by providing maximum facility and civic amenities, the said object must always be kept in view by the public functionaries which are entrusted with the job of town planning. It is also true that a person intending to acquire property for self-use, invariably keepsin view, the environments and general scheme of the concerned area to avail benefit, advantages and privileges in accordance with individual requirements. Besides, division from the planned scheme is bound to bring discomfort and inconvenience to others. At times, even the public utility services may fall short of the requirements resulting in public suffering. Keeping such aspect in mind, it is generally imperative upon all the public functionaries to ensure implementation of the notified scheme without change. In the present case, however, in the absence of positive evidence, as may be led by the parties at the appropriate stage, provisions of Article 52-A of the K.D.A. Order, 1957 cannot be pressed in service nor can its strict \jcompliance be asserted for the reason that the Master Lay-out Plan approved by defendant No. 5 K.D.A. does not show internal bifurcation and earmarking of the plots within the commercial area. Thus, any one acquiring property within the concerned commercial area on the basis of the same approved by K.D.A. knew in advance that the plots therein would be used for commercial purpose. In the circumstances, in my view the plaintiffs had sufficient notice and, in any event, cannot object to use of the subject plot for commercial purpose. 14. Another aspect highlighted by the learned counsel for the defendant No. 6 is that running business of cinema is also a commercial activity as opposed to amenity purposes. The change of user from cinema to general commercial complex, therefore, does not amount to change of the user in its strict sense. It is true that cinema business is run for earning profit. In the present social set-up, existence of cinema in the vicinity, creates greater nuisance. Moreover, use of land for running cinema, normally involves utilisation of more public amenities besides causing traffic B congestion and influx of different classes of people. Without going into such aspect, in my view, the cinema business is a commercial activity and tentatively speaking, change of user from cinema to commercial complex does not amount to modification of the nature of the subject plot, I am supported in my above view by the ordinary meaning of the word 'commercial' as stated in various dictionaries. To quote, in Black's Law Dictionary (Sixth Edition) at page 270 words 'commerciar and 'commercial activity' are stated to mean as follows :- Commercial.—"Relates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce; Commercial activity.--Terms includes any type of business or activity which is carried on for a profit. Activity relating to or connected with trade and traffic or commerce in general." 15. In Ballentia's Law Dictionaiy (Third Edition at» page 222 word 'Commercial' is defined as follows :- "Commercial. -Pertaining to the purchase and sale or exchange of goods and commodities and connoting as well forms of, and occupations in, business enterprises not involved in trading in merchandise; in a broad sense, embracing every phase of commercial and business activity and intercourse." 16. In the Concise Oxford Dictionary (8th Edition at page 227 the word 'commercial' and 'commercialise' are described as follows :- "Commercial having profit as a primary aim rather than artistic etc. value; I i i 266 Kar. yarntex trading Co. v. chief controller of buildings FL.T (Mushtaq Ahmad Meinon, J.) Commercialise (1) exploit or spoil for the purpose of gaining profit." 17. As already stated, cinema business is primarily run for earning profit, and, in any event, it is not included in the recognized amenity purposes stated in the Building Regulation framed by the Karachi Building Control Authority. ! IS. It is also pertinent to note that the law does not prohibit I modification of notified scheme altogether. Alteration in a scheme can be I made for the good of the people-at-large; again minor changes and alterations, which do not change nature of the scheme or so radically change | it as to render the sanctioned scheme materially different, can indeed be 1 effected and no grievances against such change or deviation can be made. Such principle was clearly recognised in the case of Mian Fazal Din v, _j Laftore Improvement Trust and another PLD 1969 Supreme Court 223. Applying the above analog}', even if user of the subject plot is assumed to have been changed from cinema to commercial such modification does not change the general nature of the scheme. However, the deposit of payment of free by the defendant No. 6 for change of land use has its significance and cannot be ignored. 19. As to the ground of likelihood of damage to the foundation and structure of Ebrahim Estates, perusal of structural. Plan for the proposed construction on the subject plot, shows that foundation for raising columns, is designed at the distance of 12 feet from the Ebrahim Estates and such columns have already been raised. As per statement made at the bar, by Mr. Abul Inam, retention wall has been constructed to provide additional protection to the structure of Ebrahim Estates. The damages, if any, may already have been caused, which cannot be undone through grant of prohibitory order restraining further construction work. While it has come on the record that the excavation done for laying foundation by the defendant No. 6 has exposed the foundation of another adjoining structure, the plaintiffs cannot base their claim upon such factum. In view of such situation, I had asked all the learned counsel to suggest name of a qualified Engineer to asses the damage, if any caused to the structure of Ebrahim Estates due to the construction activity over the subject plot. However, the learned counsel were unable to reach consensus in that regard and had requested for appointment of a qualified Engineer by the Court to evaluate the damage. In the circumstances, the Staff Officer, Chief Engineer (South), Pakistan Public Works Department, Block 48, Pakistan Secretariat, Karachi appointed as Commissioner to visit the site, assess the damage, if any, already caused to the foundation/structure of Ebrahim Estates and/or is likely to be caused to the plaintiffs' building. Such report be submitted after visiting the site, after notice to the parties and in presence of their representative as may choose to remain present. The official defendants Nos. 1 to 5, are, however, directed to depute responsible officer to remain available at the time of inspection and provide such material as may be 1998 yarntex trading Co. v. chief controller of build ings Kar. 267 (Mushtaq Ahmad Me.man, J.) necessary and be required by the said Commissioner. The report should be submitted by the Commissioner within one month of this order. The fee of Commissioner is tentatively fixed at Rs. 5,000 which shall be deposited by the plaintiffs with the Nazir of this Court within one week, 20. In view of the order of appointment of Commissioner for assessment of damages, as above, the plaintiff is not, entitled to any prohibitory order against defendant 6 for the present. 21. As to the next submission of Mr. Faisal Arab, regarding ban on the high rise construction in Karachi , reliance has been placed on the notification, dated 2nd December, 1993. It seems that the Building Plan in respect of the subject plot has been approved by the defendants Nos. i to 3. without properly advertising to various factors and aspects. The above- referred notification was issued due to scare availability of utilities in Karachi and to obliterate sufferings of the general public living in Karachi . The above-referred notification has been issued by the Government of Sindh which being the controlling and rule-making authority could lawfully issued instructions as above. Such notification carries the force of law as per the dictum laid down in the case of Pakistan v. Shaikh Abdul Hamid PLD 1961 SC 105.. Evidently, the defendants Nos. 1 to 3 cannot act in division from the said notification for the benefit of favouring an individual or at the cost of other people. Besides, according to the plaintiffs, the Plot Raio, for construction over the subject plot too, has not been maintained in accordance with the. Plot Ratio Standards prescribed by the K.B.C.A. in Schedule H. Part II of the Town Planning Regulations notified by it. The reliance, in reply, upon approval of summary by the then Chief Minister of Sinuh on 15-8-1996, relaxing ban on high-rise buildings abutting Shahrah-e- Faisal, in my view, cannot be pressed into service since a notification issued by the Government of Sindh cannot, be modified even by the Government itself through Administrative orders. Administrative orders, stand at a G slightly lower padestal from the notifications and the established principle of law is that a subordinate legislation cannot destroy or undo the superior law. For such view, I find support from judgment in the case of Sher Muhammad v. The, Chairman, Federal Land Commission and others reported in 1989 MLD 4286, which judgment was affirmed by the Honourable Supreme Court in the case of Chairman, Federal Land Commission v. Sher Muhammad reported in PLD 1990 SC 626. The defendant No. 6, in the circumstances, cannot raise construction beyond 4th floor unless it is established through evidence that such construction can lawfully be raised, the argument with regard to the plaintiffs building having been constructed beyond the limits prescribed by the notification, dated 2nd December, 1993 or being in violation of the Plot Ratio Standards of K.B.C.A., loses significance since the Building Plan for Ebrahim Estates was approved on 12-7-1979, prior to enforcement of the Building Regulations. The plaintiff has thus been bale to establish prima facie case for injunction to restrain the H defendant No. 6 from raising construction beyond 4th floor on the subject plot. Even otherwise, the defendant No. 6, is admittedly raising construction for disposal of the various commercial units therein to general public, which shall create third party interest and may expose the plaintiffs to multifarious litigation. In the circumstances, it is ordered that the defendant No. 6 shall not raise any construction beyond fourth floor during pendency of this suit but, may raise construction up to 4th floor at his own risk and in case of creation of third party interest, should put the transferees/allottees on notice about the present proceedings, clarifying that the construction up to 4th floor is raised by the defendant No. 6 at this own risk and shall be liable to be pulled down in the event of the plaintiffs succeeding eventually. Subject to the above, the order passed by me on 1-8-1997 stands modified.' 22. In view of the above order Civil Miscellaneous Application No. 4811 of ] 997 has become infructuous and is disposed of accordingly. (K.K.F.) Order accordingly.

PLJ 1998 Karachi 268 (DB) PLJ 1998 Karachi 268 (DB) Present: rana bhagwan das and zakir hussain K. mirza, JJ. KAMIL KHAN and another--Petitioners versus GOVERNMENT OF SINDH through DEPUTY COMMISSIONER, SANGHAR arid 22 others-Respondents Constitutional Petition No. D-656 of 1995, decided on 24.9.1997. West Pakistan Land Revenue Act, 1967 (XVII of 1967)- —-S. 161-Constitution of Pakistan (1973), Art, 199-Constitutional petition- Natural justice, principles of-Violation of such principles-Effect-Where Tribunal or Court had acted in violation of principles of natural justice by not affording opportunity of hearing to petitioners and had exceeded its jurisdiction by condoning delay of seven years in entertaining appeal against mutation without assigning any reasons, such order could not be deemed to have been passed with lawful authority-Constitutional jurisdiction would be more effective and efficacious remedy in such cases than other remedies available under the law-Respondent's contention that mutations in question being fraudlent and forged were rightly set aside by Assistant Commissioner had no bases as no such finding had been recorded by Assistant Commissioner-Such contention, being a disputed question of fact, could not be gone into by the High Court-order of Assistant Commissioner whereby mutations of sale were set aside, having been passed in derogation of principles of natural justice, was declared to be without lawful authority arid of no legal effect-Parties were, however, would be at liberty to agitate their rights before proper forum, if so advised. [Pp. 270 to 273] A, B, C, D & E PLD 1991 SC 691; PLD 1987 SC 447; PLD 1973 SC 236; 1994 SCMR 2232: 1988 MLD 1863 and PLD 1996 Kar. 68 ref. Anwar Zaheer Jamali, Advocate for Petitioners. Amanullah Qureshi, Asstt. A.-G. for Respondent Nos. 1 to 4. Mukhtar Ahmed Bhatti, Advocate for Respondent No. 5. EijazAU. Hakro, Advocate for Respondent No. 7. Muhammad Hashim Memon, Advocate for Respondents Nos. S to 10, 12 to 16, 18 to 21 to 23 (present). Date of hearing : 24-9-1997. order The petitioners in this Constitutional petition have called into question the vires of the order dated 22-3-1995 passed by Assistant. Commissioner Khipro District Sanghar respondent No. 3 whereby he cancelled entries in the record of rights dated 3-3-1988 in favour of the petitioners in the exercise of his powers under section 161, Land Revenue Act, Petitioner had also prayed for a declaration that all subsequent actions taken by the respondents resulting in their dispossession from the lands be declared as illegal and of no legal effect. 2. Briefly stated the case of the petitioners is that on 3-3-1988 they purchased 101-04 acres of land situated in Deli Khail, Taluka Khipro from respondents Nos. 6 to 23 by way of an oral statement before Mukhtiarkar Khipro who attested the mutation in favour of the petitioners who were accordingly put in possession of the entire land. According to the petitioner they obtained a loan of Rs. 36,000 from Allied Bank Ltd. Khipro on 2-5-1989 on the strength of Agricultural Pass Book issued to them by Mukhtairkar Khipro after due verification that the lands were free from all disputes and '" encumbrances. Petitioners were however, dispossessed from the lands on 31-8-1995 by private respondents in collusion with respondent No. 4 i.e. Mukhtiarkar Khipro with police force. Besides standing cotton, chillies and - pulses crop on 25 acres was wrongfully taken away by the respondents. Main thrust of the petitioners is that Assistant Commissioner, Khipro acted illegally, in violation of principles of natural justice and enquiry and without jurisdiction thus the order is void ab initio and of no legal effect. 3. On behalf of private respondents Nos. 7 and 13 have filed counter-affidavits to the petition controverting the sale in favour of the petitioners, delivery of possession and the payment of consideration. They have supported the impugned order on a number of grounds. 4. Although no relief was sought against, respondent No. 5 Agricultural Development Bank of Pakistan but since a pre-admission notice was issued an officer of the bank has also filed a counter-affidavit to show that the lands were mortgaged with the bank to the tune of Rs. 10,00.000. 5. As pre-admission notice was also issued to other respondents we ! have heard learned counsel appearing for the parities at length and by ' .-.'.»,.,-,»4 .-....-.noarloii in iKvnosf of the Dt'Xition on merits. ' 6, Learned counsel for the private respondents have vehemently urged that the purported sale in favour of the petitioners being fraudlent and forged. Assistant Commissioner was legally justified and entitled to order the cancellation of entry in the record of rights in the exercise of authority vested in him under the provisions of section 161 Land Revenue Act. Learned counsel have emphasised the circumstance that according to the Assistant Commissioner the lands were mortgaged with Agricultural Development Bank of Pakistan as well a.s Qaim Agricultural Cooperative Society as reported by Tappedar, therefore, there could be no sale of the encumbered lands. It ik further contended that as the Assistant Commissioner had jurisdiction to entertain the appeal his order is immune from judicial scrutiny in the exercise of Constitutional jurisdiction of this Court and the proper remedy available to the petitioners is by way of a suit under the provisions of Special Relief Act as laid down in section 53 Land Revenue Act. Lastly it was urged that since the petitioners did not avail of the alternate and adequate remedy by way of appeal before the Collector under the provision of Land Revenue Act, their petition cannot be maintained with apart from other circumstances also involves a deeper investigation into disputed questions of fact including the factum of possession. 7. On the other hand learned counsel for the petitioners mainly contended that the petitioners were condemned unheard without affording an opportunity of hearing and Assistant Commissioner acted completely without jurisdiction in relying upon the report of the Tappedar that the petitioners whereabouts were not known when they were physically available on the lands as well as in their village which circumstances is corroborated by their dispossession after the impugned order. Besides the learned counsel pointed out that an appeal before the Assistant Commissioner from the order of the Mukhtiarkar attesting a mutation could be filed within thirty days of the order whereas respondent No. 7 had invoked the appellant jurisdiction after a lapse of seven years and the Assistant Commissioner proceeded to condone the delay without assigning any reason muchless cogent and convincing explanation for each day's delay beyond the period prescribed for preferring an appeal. Lastly learned counsel submitted that the impugned order being void ab initio and passed without lawful authority, it would be a futile exercise to assail the order in appeal before the Collector which became barred by law as the petitioner came to know about this order only after their unlawful dispossession and removal of the standing crop on 31.8.1995. 8, Adverting r,o the first contention advanced by the petitioners that the alleged sale in favour of the petitioners was fra dulent and forged, we are unable o note any findings to this effect in the impugned order passed by the Assistant Commissioner. At any event, this is a disputed question of fact which can neither be gone into by this Court nor determined by the High Court, in the exercise of extraordinary Constitutional jurisdiction. In support of his argument that, ihe order on the face of its being just and proper even it" found to be without jurisdiction need not be interfered in the exercise of Constitutional jurisdiction learned counsel heavily relied upon Muhammad Baran v. Member (Settlement and Rehabilitation;, Board of Revenue PLD 1991 SC 691. The view expressed by the Supreme Court in this case was that where the allotments relied upon by the Settlement Authorities were illegal and without jurisdiction ar>d were also based on fraud and forgery, in that eventually even if the Board of Revenue which exposed fraud and forgery and set aside the illegal transfer of property by its own order. High Court, would not in exercise of its discretionary jurisdiction annul the order of the Board of Revenue even though it. was clearly without jurisdiction. There can be hardly any cavil with the proposition of law laid down by the appex Court, which is even otherwise binding on this Court, the judgment is hardly attracted in the circumstances of the case as the impugned order has not exposed any fraud and forgery committed by the petitioners on the vendors or the revenue authorities. In the circumstances it cannot be held that the order is just, fair and proper or that it advances the ends of justice and that it need not be set aside by the High Court, 9. Reverting to the second contention urged at the bar suffice to say Assistant Commissioner has not referred to any authentic record in support of the general observation that the lands were mortgaged with Agricultural Development Bank of Pakistan and Qairn Agricultural Cooperative Society and has founded his observation on a report of Tappedar which by itself is not sufficient and conclusive to record a finding that the lands were under encumbrance. This sort of finding could only be based on a detailed enquiry into the relevant facts and the record maintained by the authorities as well as the Bank and Cooperative Society. At any rate we would refrain from recording any finding on this aspect of the case as we do not fell inclined to base such finding on a disputed question of fact. 10. No doubt, Assistant Commissioner had the authority to hear ar. appeal from the order passed by Mukhtiarkar Khipro under the provisions o: Land Revenue Act, his order is not immune from judicial scrutiny when r suffers from inherent infirmities and want, of jurisdiction. Contention tha the Assistant ommissioner could pass any order whether legal or illegal completely devoid of any force and cannot be accepted by any can on o reasoning and law. In law every public functionary and particularly a quasi judicial authority is expected to act legally, fairly, reasonably and strict!; within the sphere of law and its jurisdiction. If a public functional' transgresses the scope of authority vested in him the order cannot be uphel or said to be immune from judicial review. A complete answer to th contention advanced by Mr. Eijaz Ali Hakro is available in Utility Store Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal PLD 198 SC 447 which has been followed in subsequent judgments without an reservations. In the present case Assistant Commissioner not only acted I 'violation of the principles of natural justice by not affording an opportune !>t hearing; to "he nytitioners, lie alsij exceeded Im iurisdsction bv condone delay of seven years in entertaining the appeal without assigning any reason. The order, therefore, cannot be held to have been passed with lawful authority. We are fortified in this view also by another judgment, in Ronaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 which lays down the following dictum : — "It is now well-established that where an inferior Tribunal or Court has acted wholly without jurisdiction or taken any action "beyond the sphere allotted to the Tribunal by law, and, therefore, outside the area within which the law recognises a privilege to err', then such action amounts to a 'usurpation of power unwarranted by law' and such act is nullity; that is to say 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well-established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful." 11. Evidently Assistant Commissioner acted in abrupt and haphazard manner by proceeding to decide the appeal without due service of notice of hearing on the petitioners inasmuch as he acted on the report of a Tappedar that the petitioners' whereabouts were not known. This approach on the part of respondent No. 3 is patently improper and unwarranted. Obviously petitioners were not only owing huge agricultural property but also engaged in raising cultivation on it and undisputedly available in their village but they were not heard and thus condemned behind their back. In Anisa Re.hman v. P.LA, Corporation 1994 SCMR 2232 it was held that there is judicial consensus that the maxim 'audi alterant parteni is applicable to judicial as well as to non-judicial proceeding. The above maxim will be read into as party of eveiy statute if the right of hearing has not been expressly provided therein. 12. Adverting to the last contention advanced on behalf of the respondents that the petitioners ought to have preferred an appeal from the impugned order or filed ei\'il suit to challenge the impugned order we see no substance in the argument as the impugned order has been found to be without lawful authority and passed in violation of law. Besides, appeal provided under the provisions of Land Revenue Act, had become barred by time and cannot be considered to be adequate remedy. Likewise availability of remedy by suit for declaration may not operate as bar for assumption of writ jurisdiction this Court which is more effective and efficacious remedy in such cases. Conversely this argument may be advanced even against the respondents who had preferred to invoke the jurisdiction of Assistant Commissioner for ventilation of their grievances. With regard to forgery in he matter of transfer of property rights on the basis of a statement it could ilsn be said thai remedy hv wav of a civil suit as provided in section 53. Land Revenue Act was also available to the respondents but it was not availed of and instead a short cut method was adopted to seek the remedy before the Assistant Commissioner. We are fortified in this view by the judgments reported as Hyderi Ship, Breaking Industries Ltd. v. Sindh Government 1988 MLD 1863 and Kamran Industries v. Collector of Customs (Exports) PLD 1996 Kar. 68. In both the authorities' view expressed by two different Benches of this Court was that where the impugned action is completely without jurisdiction and patently illegal it is not essential to avail the alternate remedy. In Hydri Ship-Breaking case Division Bench consisting of Ajmal Mian and Nasir Aslam Zahid, JJ. (as their Lordships then were) referred to a large number of cases from the Supreme Court and High Courts in support of the view that the rule that High Court will not entertain a writ petition while other appropriate remedy is yet available is not a rule of law barring jurisdiction of Courts but is a rule by which Court regulates exercise of its own discretion. It was further laid down that in case of total lack or absence of jurisdiction or authority or apparent excess of jurisdiction, Courts in general would not hesitate in entertaining a Constitutional petition. In our view ratio in both the cases is attracted to the facts of the case in hand and the petition cannot be dismissed on this grounds alone. 13. For the aforesaid facts and reasons we allow this petition. The order impugned in this petition is declared to have been passed without lawful authority and of no legal effect. The parties would be at liberty to agitate their rights before proper forum, if so advised. (K.K.F.) Petition accepted.

PLJ 1998 Karachi 273 PLJ 1998 Karachi 273 Present: zahir hussain K. mirza, J. RAMDAS-Applicant versus Mst. BERNADAT-Respondent Revision Application No. 47 of 1997, decided on 25.9.1997. (i) Jurisdiction-- -—Jurisdiction-Determination of-Court must decide issue of jurisdiction and then proceed further with the case—Where Court having no jurisdiction had proceeded with the matter, entire proceedings would be illegal and without jurisdiction. [P. 275] A (ii) West Pakistan Family Courts Act, 1964 (XXXV of 1964)-- —-S. 5 & Sched.-Provisions of Family Courts Act, 1964-Applicability to non-Muslims-Case of every non-Muslim pertaining to Family matters irrespective of religion would come under the provisions of West Pakistan Family Courts Act, 1964. [P. 276] B 1976 PCr.LJ 1976; 1981 CLC 195; PLD 1982 FSC 48 and PLD 1985 Kar. 362 rel. PLD 1978 Kar. 336 ref. Naimatullah Soomro, Advocate for Applicant. S. Iftikhar Hussain, Advocate for Respondent. order 1. Learned counsel for the respondent does not press this application which is accordingly disposed of as not pressed. 2 and 3. This revision application arises out of the order passed by the learned Ilnd Additional District Judge, Nawabshah on 13.3.1997 in Family Suit No. 4 of 1996 rejecting the application under Order 7, Rule 10, ('.P.O. filed by the petitioner/defendant. Briefly the facts are that the petitioner is Hindu by religion whereas the respondent/lady a Christian. They got married about 17 years ago b\it both of them did not waive their religion. Out of the wedlock three children were born. The eldest being 16 years of age, whereas the youngest is aged about ten years. The lady by profession is a mid-wife and works as Nurse in a Missionary Hospital, Nawabshah whereas the petitioner also works there as Dispenser. It is alleged that the petitioner/defendant had indulged in bad habits of gambling and taking intoxicants and despite the request of the respondent he did not leave these habits and started maltreating her. Finally, he asked the lady to quit her religion and adopt Hindu religion which she refused. It is said that 15 days before filing of the suit the petitioner came having drunk and demanded Rs. 10,000 from the lady and on her refusal he maltreated her and drove her out of the house. She finding no resort, filed the suit. The petitioner/defendant filed his written statement and denied the .'.u:t;gations and stated that from the date of their marriage the brothers of tie respondent were unhappy with the marriage and due to their pressure she has filed the suit on false, frivolous and vexatious grounds. During the proceedings the defendant/petitioner moved an application under Order 7, rule 10, C.P.C. read with section 151, Cr.P.C. on 13.8.1997, when perhaps the matter was fixed for evidence of the parties. The learned trial Court straightaway rejected this application without going into the merits. Hence this revision petition. I have heard the learned counsel for the parties and perused the record and also the authorities referred to at the bar. It has been contended on behalf of the petitioner that the order of the trial Court is illegal and irregular for the simple reason that it was incumbent upon the Court to have decided the legal issue of jurisdiction when point was raised. It is a settled law that before proceeding with the matter it is for the Court to decide the issue of jurisdiction first and then proceed with the case further. The simple reason is that if the Court has no jurisdiction and proceeds with the matter the entire proceedings will be illegal and without jurisdiction. It was, therefore, for the trial Court to have decided the issue of jurisdiction first before proceeding to record the evidence. It appears that the examination-in-chief of the witnesses was recorded and at the time when they were to be cross-examined by the advocate, who was late in time, moved the present application under Order 7, Rule 10, C.P.C. In this situation there was no harm if the point of jurisdiction was decided first and the witnesses could have been called for the purpose of cross-examination subsequently, if the Court held that it had jurisdiction. Reference has been made, on behalf of the petitioner, to section 2(d) of the Family Courts Act, 1964 which is a defining section reads as under- "(d) 'party' shall include any person as such is considered necessaiy for a proper decision of the dispute and whom the Family Court adds as a party to such dispute." It is contended that this section does not distinguish between any religion but for the purpose of this section any party would be a party in the matter in the capacity of the plaintiff or defendant. Reference has also been made to the schedule to section 5, according to it all the matters pertaining to:- (1) Dissolution of marriage. (2) Dower. (3) Maintenance. (4) Restitution of conjugal rights. (5) Custody of children. (6) Guardianship. (7) Jactitation of marriage come within the scope of Family Courts Act, 1964. It is vehemently argued that the Family Courts Act being a special enactment overrides the ordinary law which may be Christian Personal Law or Hindu Personal Law etc. This lends suppoii from the General Clauses Act which says that where on the same matter schedule general law and the special law exist the special law has to be preferred. Consequently, the Family Courts Act being a special enactment as already submitted it has the overriding effect. Thus the suit in fact should have been filed in the Family Court and not before the District Judge as it is objected by the learned counsel for the respondent that because the respondent being Christian the case was rightly filed before the District Court. The learned counsel for the respondent has placed reliance on the case of Mrs. Daphne Joseph v. Malik Eric Roshan Khan (PLD 1978 Karachi 336). In this authority it has heen held that since the parties were Christians hence they are governed by the Divorce Act, 1869 which is the Central Statute and not by the Provincial Act (Family Courts Act) which is the authority seems to have been overruled by chain of authorities wherein it has been held that the Family Courts Act has only made a procedural change but has not disturbed the substantive right of the parties. Reliance has been placed on the case of Gasper v. Jennifer and another (1976 PCr.LJ 1976) where both the parties were admittedly Christians and non-Muslims and, .where the dispute had arisen between the parties on the ground of maintenance and the proceedings were filed under section 488, Cr.P.C. It was held that this issue could be settled by the Family Court and not by way of proceedings under section 488, Cr.P.C. Reliance has also been placed by the learned counsel for the petitioner on the case of Neema Ahmad v. Nuzhat Almas (1981 CLC 195). In this reported case the parties are Qadianis and in this authority it has been held that the Family Courts Act applies to non-Muslims and the Family Court concerned would have jurisdiction to decide the family dispute between the parties who are Qadianis and the contention which seems to have been made by the other side regarding the non-applicability of said Act was held to be without any substance. There is yet another authority which has been relied on by the learned counsel for the petitioner is a Full Bench authority in the case of Sultan Ahmad v. Mehr Khan (PLD 1982 FSC 48). It has been held in this authority that West Pakistan Family Courts Act is generally applicable to non-Muslims also. In Moolchand v. Smt. Indra and others (PLD 1985 Kar. 362) it has been held that cases relating to the marriage and family affairs of non-Muslims including Hindus, not excluded from ambit of section 5 of West Pakistan Family Courts Act, 1964 and that the said Act does not come into conflict with Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. It seems that case of every non-Muslim pertaining to the family matters irrelevant of the religion shall come under the provisions of Family Courts Act, 1964. In view of the above facts the impugned order passed by the learned Additional Disuict Judge, Nawabshah, seems to be unfounded, illegal and irregular. Hence I have no hesitation in accepting the petition and so I do accordingly. The impugned order of the trial Court is set aside. The parties to bear their o>vn costs. (K.K.F.) Revision accepted.

PLJ 1998 Karachi 281 PLJ 1998 Karachi 281 Present: syed deedar hussain shah, J. GHAFFAR IMPEX-Appellant versus Mst. HAJIRA-Respondent F.R.A. No, 301 of 1995, dismissed on 29.11.1997. Sindh Rented Pl-emises Ordinance, 1979 (XVII of 1979)-- —-S. 14--Tenant--Ejectment of--PersonaI bona fide need-Ground of~ Signature of landlady on application and her thumb impression on N.I.C. is of no significance in view of admission of appellant before Rent Controller-Power of attorney given by her in favour of her son is attested by Notary Public and bears signatures of landlady and witnesses alongwith death certificate of her husband-Notice as required under Sections 14 & 18 of Ordinance has also been filed and adduced in evidence-Evidence of son of landlady and her attorney has gone unchallenged-Contention of counsel for appellant is that appellant had paid Rs. 1,25,000/- as, Pugree, to Thekadar-None mention of amount in written statement clearly shows that this document has been produced later on to create defence-In any case, payment of pugree is not legal transaction which cannot be given protection at all—Held: Rent Controller • after discussing evidence has rightly allowed ejectment application. [P. 289] A, B & C Mr. M. Farooq Hashim, Advocate for Appellant. Mr. Shamdas B. Chhangani, Advocate for Respondent. Date of hearing: 24.11.1997. judgment Appellant being aggrieved and dis-satisfied by the order of the learned III Senior Civil Judge and Rent Controller Karachi South, dated 25.4.1995, in Rent Case No. 323/93 whereby the application filed by the respondent under section 14 of Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, seeking ejectment of the appellant, was allowed. Facts of the matter are that the respondent widow of late Muhammad Soomar who was the owner/landlord in respect of the godown at Ground Floor of the Building on plot No. 29/LY-14, Fida Hussain Shaikha Road, Bughdadi Karachi. The appellant/opponent is the tenant in respect of the aforesaid property at the rate of Rs. 305/ per month excluding other •charges. Muhammad Soomar expired on 5.11.1991. Mst. Hajira, the widow, alongwith other 6 L.Rs. inherited the case property. Notice under section 14 of the Sindh Rented Premises Ordinance, 1979 was served upon the opponent so that he may vacate the property for her personal bonafide need as she required the same to start motor workshop through her sons Muhammad Sharif and Muhammad Shakeel. Mst. Hajira the widow also informed the appellant through notice that she has no other such commercial premises in her possession to run the workshop. Notice under section 18 of the Sindh Rented Premises Ordinance was also served upon the opponent. The appellant despite service of notice did not vacate the case property. Before the trial Court written statement was filed on behalf of the appellant/opponent and alleged that the application is frivolous and has been filed to pressurise to enhance the rent and agitated that the application is not maintainable. The appellant/opponent also submitted in written statement that the respondent/landlady has failed to produce the Letter of Administration and no death certificate is supplied to him and has denied acknowledge of death of late Muhammad Soomar. Further that she only inherited l/8th share in the property if she is widow and that she is in occupation of building of similar categoiy owned by her. From the pleadings of the parties the trial Court settled the following issues: 1. Whether the applicant requires the case premises under section 14 of the Ordinance in good faith to cany out her business through her sons ? 2. What should the order be ? The learned trial Court recorded evidence on behalf of the parties and after hearing the parties was pleased to allow the application and directed the appellant/opponent to handover the vacant peaceful possession of the demised premises of the property in question to the respondent/landlady within 90 days from the date of the order. I have heard Mr. Muhammad Farooq Hashim, learned counsel for the appellant, who vehemently argued that the impugned order of the Rent Controller is erroneous and is not maintainable. That the Rent Controller did not appreciate and did not take into consideration the ingredients required for under section 14 of the Ordinance which are totally missing and that the respondent is not entitled the benefit of section 14 of the Ordinance. That the Rent Controller did not appreciate and did not take into consideration that the respondent alongwith the others 6 are also legal representatives of Muhammad Soomar and that she being widow of Muhammad Soomar can only inherit l/8th share in the demised premises. That the respondent/opponent is in possession and occupation of building of similar categoiy owned by her and other heirs on the same Fida Hussain Sheikha Road; only at a distance of few yards. That Mst. Hajira had no knowledge about the present ejectment case and that the same has not been signed by her and the signatures on the application are also fabricated. That the respondent does not need the building premises for her personal bonafide use. That the Rent Controller did nt take into consideration thatthe premises in occupation of the appellant has heen obtained on 'pugree' basis and that the entire building has been constructed from the amount contributed by all the tenants including the appellant who paid the such amount to the Contractor/Thekaidar. That the Rent Controller did not appreciate and take into consideration that the alleged affidavit-in-evidence filed by the respondent is not the affidavit-in-evidence on behalf of the respondent in eye of law in as much as the photostat of NIC of Mst. Hajira bears her thumb impression only and she being an illiterate lady cannot sign as such the alleged and so called General Power is fabricated and the signatures of Mst. Hajira are not and cannot be the signatures of Mst. Hajra. That the Rent Controller did not appreciate the law and the impugned order is liable to be set aside. Mr. Muhammad Farooq Hashim, learned counsel for the appellant, has cited the following case laws: 1. PLD 1982 Karachi 406 - AS. Mughal v. Mst. Khurshid Azmat All; 2. 1984 CLC 755 - Mst. Begum Jan v. Abdul Rasool; 3. 1985 SCMR 291 - Bakhsh Elahi v. Qazi WasifAli; 4. 1988 CLC 2078 - Muhammad Abdullah v. Sughra Begum; 5. 1992 CLC 2235 - Messrs Bara Imam Bara Trust v. Messrs Hakirn & Co.; 6. 1994 SCMR 971 - Mrs. Fakhara Javed v. Noor Ali; 7. 1995 CLC 1117 - Haji Rehmatullah v. Mst. Munawar Jehan. Mr. Shamdas B. Chhangani, learned counsel for the respondent/landlady, contended that the respondent is the widow of Muhammad Spomar, the landlord of the premises. Notice as required under sections 14 and 18 of the Ordinance have already been served. The learned Rent Controller after considering the evidence so adduced by the parties was pleased to allow the application. The order of the Rent Controller is based on proper appreciation of evidence and case law which does not require any interference. Mr. Shamdas B. Chhangani has cited the following case laws:- 1. 1983 CLC 3237 - Muhammad Ali vs. Mst. Hameeda Begum 2. 1988 SCMR 705 It would be pertinent to refer here para 3 of the application under section 14 of the Sindh Rented Premises Ordinance, 1979, before the trial Court which reads as under:- "That the applicant served a notice under Section 14 of Sindh Rented Premises Ordinance 1979 on the opponent requesting him to vacate the premises in question and hand over its vacant and peaceful possession to her as the same is required for her personal bonafide need as after death of her husband income of the family has been reduced and she will start Motor Workshop in the said premises and her two sons namely Muhammad Sharif and Muhammad Shail, who are driver/Mechanic and will run the Motor Workshop. She further stated in the said notice that she has no other such commercial premises in her possession for opening the Motor Workshop business. The said notice was served upon the opponent alongwith another notice under section 18 of the Sindh Rented Premises Ordinance, 1979. Both the notices were duly served and registered A/D slip also returned to the applicant. Photostat copy of notice under section 14 and 18 of Sindh Rented Premises Ordinance 1979 alongwith A/D slip are annexed herewith as annexure 'D', D-l, D. 2 and D. 3 respectively." On behalf of the respondent Muhammad Rafiq son of Muhammad Soomar Baloch, who is attorney of Mst. Hajra was examined who also produced General Power of Attorney executed in her favour, death certificate of Muhammad Soomar, NIC of Mst. Hajra and the heirship certificate showing Mst. Hajra the 1 widow and L.Rs. of Muhammad Soomar. On behalf of the appellant/opponent Muhammad Ilyas son of Haji Qasim has filed his affidavit-in-evidence, who also produced document as Exh. A/2 showing therein that Muhammad Soomar received Rs. 1,25,000/- as 'Pugree' of the godown (demised premises). The contention of Mr. Muhammad Farooq Hashim that NIC of Mst. Hajra bears her LTI whereas she has signed the application which shows that Mst. Hajra has not signed the General Power of Attorney and the ejectment application and both these documents cannot be considered and that the learned Rent Controller has not considered that amount of Rs. 1,25,000/- was paid as 'Pugree' by the appellant/opponent. The only answer to the above contention of Mr. M. Farooq Hashim is the answer furnished by Muhammad Ilyas, proprietor of the opponent, which reads as under:- "It is correct that after the service of notice u/Ss. 18 and 14 of SRPO 1979 I am depositing rent in Court in the name of . L.Rs. of late Soomar including the applicant. It is correct that applicant do no possess any other godown except the case premises. It is correct that Muhammad Rafiq is a son of late Soomar. It is correct that Mst. Hajra is a widow of late Soomar. It is correct that the applicant demanded the possession of case premises for her use occupation. It is correct that in my written statement I did not mentioned about the Exh. A/2. It is correct that the present application has been filed by Mst. Hajra widow of Soomar against me. In the written statement also it is not mentioned that an amount of Rs. 1,25,000/- was paid to Soomar as pugree but the actual words in WS filed by the appellant/opponent which read as under: "The premises has been obtained by the opponent on pagree basis and it was agreed and understood that the opponent shall not be ejected in view of the consideration of pagree paid by opponent for the said premises." The none mention of the amount Rs. 1,25,000/- clearly shows that it is an after-thought and the defence has been created by submitting this document. The very admission of the appellant/opponent mentioned hereinabove clearly establishes that Mst. Hajra the widow of late Muhammad Soomar requires the premises in question for her personal bonaftde need as after the death of her husband the income of the family has reduced and she intends to start motor workshop in the demised premises with her two sons namely Muhammad Sharif and Muhammad Shakil who are drivers and mechanics want to run the motor workshop. It would be pertinent to discuss the case laws cited by the learned counsel for the parties: 1. PLD 1982 Karachi 406: In this case it was held that the respondent already attained the age of 60 years. Ejectment application filed beyond 6 months is barred under the proviso of section 14 of the Ordinance. Whereas in the case in hand admittedly Mst. Hajra is the widow of Muhammad Soomar and notice as required under sections 14 & 18 of the Ordinance were served upon the opponent and the admission of Muhammad Ilyas, referred hereinabove, has sufficiently itself proved that actually Mst. Hajra being widow has filed ejectment application as required under section 14 of the Ordinance. This authority has no bearing to the facts of the present case. 2. 1984 SC 755: In this matter it was held that the landlady became widow during pendency of the appeal, such ground could not be pressed in appeal. The facts on the face of it are not attracted. 3. 1985 SCMR 291: In this case the respondent who was landlord of the premises and was in service of National Bank of Pakistan retired on reaching the age of 60 years on 26.3.1981 and within a period of 6 months before his retirement, as required by section 14(1) of the Ordinance, he informed the appellant that he needs the demised building consisting of the ground floor of a house at Nazimabad, Karachi, in the occupation of the appellant, for personal use and required him to deliver the vacant possession thereof within one month. The appellant failed to comply with the notice, the landlord filed an application under section 14 of the Ordinance. The matter was contested befoz-e the Rent Controller but on 12.3.1981 the respondent applied for withdrawal of the case on the ground that "the same in the circumstances is not feasible to proceed and the applicant may be permitted to file the same in proper form". The learned Rent Controller disposed of this application by passing the order in the following terms: "Application disposed of as withdrawn but no order as to cost with permission to file afresh." Thereafter the landlord filed fresh application for ejectment on the ground that he had retired from service on attaining the age of 60 years, and that previously the applicant was not in need of such premises as he was all along on postings to different places in the interior of Sindh but now on leave preparatory to retirement he came down to Karachi and was constrained to put up with his in-laws at Karachi. In this back ground, the matter reached upto the Supreme Court whereas in this case the widow appz'oached in time to the Couzt after proper notice as required under the law and adduced sufficient evidence which was considered by the Rent Controller and the application was granted. In my humble opinion with all due respect to the authority, the same is not relevant and helpful to the case of the appellant. 4. 1988 CLC 2078: In this matter it was found that the landlord seeking ejectment of tenant on ground of personal bonafide requirement of his jobless sons, neither mentioned in ejectment application names and ages of his sons nor suggested therein as to what business was proposed to be done by his sons in disputed premises. Whereas in this case the application was filed under section 14 of the Ordinance by the widow after the death of her husband. The facts of which are admitted by the appellant in his evidence referred hez-einabove. Under the circumstances in may humble opinion this authority izi any case is not relevant to the facts of the present case. 5. 1992 CLC 2235: In this matter also the landlord demanded the demised premises for personal bona fide need and the learned Judge of this Court dismissed the appeal whereas in the pz-esent matter the application has not been filed for personal need of the landlady but the same was filed under section 14 of the Ordinance by the widow. In my humble opinion this authority is different and distinguishable and is not favourable to the case of the appellant. 6. 1994 SCMR 971: In this case also landlord had sought ejectment of the tenant on the ground of personal bonafide need whereas the present case has been filed by a widow to get possession of the demised premises, therefore, this authority in any case is not applicable to the appellant's case. 7: 1995 CLC 1117: In this matter it was held that best possible evidence to deny payment of rent could be that of landlady herself, but she deliberately did not appear for her evidence whereas in the present matter widow has sought ejectment of the tenant as required under section 14 of the Ordinance. None payment of rent in any case is not pressed or agitated. Attorney of the appellant appeared in the Court and has produced power of attorney attested by Notary Public. The authorisation of the same has not been shaken in the cross-examination. With due respect the authority in my humble opinion is not applicable to the present case. I would like to refer the provisions of section 14(1) of the Sindh Rented Premises Ordinance, 1979 which reads as under:- "Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof. Provided that nothing in this subsection shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has become widow or orphan." The admission of the appellant Muhammad Ilyas before the Rent Controller that Mst. Hajra has filed ejectment application who is the widow of Muhammad Soomar and the notices as required under sections 14 & 18 of the Ordinance have also been served and the same have been discussed by the Rent Controller in his order. Contention of Mr. Muhammad Farooq Hashim that the appellant paid Rs. 1,25,000/- as 'pugree' is not getting support from the written-statement filed by the appellant/opponent as has been referred hereinabove. The document Exh. A/2 was not mentioned in the written statement and the same was produced subsequently and the same was challenged by the respondent/landlady in cross-examination. Mr. Shamdas B. Chhangani, learned counsel for the respondent, has relied upon 1983 CLC 3237, referred hereinabove, wherein it was held that landlady co-owner of rented premises and rest of co-owners authorising her to receive its rent and to get it vacated and use it for her own occupation. The above ejectment order of the Rent Controller was upheld by my lord B.G.N. Kazi, J. (as he then was) and against this order Civil Appeal No. 142- K of 1983 was filed before the Supreme Court. Their lordship of the Supreme Court also upheld the order of the Rent Controller as well as learned Judge of this Court with the following observation: "It is difficult to agree with the contention raised on behalf of the appellant. Quite obviously the object of section 14(1), ibid, is to lessen the hardship which a widow not infrequently faces on the death of her husband and to assist her in settling down again. Therefore, it will not be proper to construe this provision in a manner which would defeat the veiy purpose for which it has been enacted. The relevant words in the subsection are: "the landlord of a building who is a widow". There is no reason at all why these words should be taken to refer only to a widow who was the owner of the building before the death of her husband or who is sole heir of the original landlord. Such a narrow construction would leave out from the benefit of the • provision in question a widow with minor children who has to leave the residence which was formerly given to her husband by his employer or one who purchases a house for personal use from the funds made available to her on the death of her husband; there is no compelling reason for placing such a narrow construction on the provision. There is also no merit in the contention that an application made by a widow under section 14(1) would be in derogation of the rights of the other heirs in the property." I have gone through the material placed with the case and I have perused the evidence so recorded by the Rent Controller. I have also minutely given my anxious thought to the authorities referred and discussed hereinabove. Case of the respondent/landlady Mst. Hajra is that she is widow as admitted by the appellant Muhammad Ilyas in the evidence recorded by the Rent Controller which is referred and discussed hereinabove. The signature of Mst. Hajra on the application and her thumb impression on the NIC is of no significant in view of the admission of the appellant before the Rent Controller. The power of attorney given by her in favour of her son Muhammad Rafiq son of Muhammad Soomar is perused which is attested by a Notary Public and bears signatures of Mst. Hajra and witnesses alongwith death certificate. The notice as required under sections 14 & 18 of the Ordinance has also been filed and adduced in evidence. Evidence of Muhammad Rafiq, son and attorney of Mst. Hajra has gone unchallenged. The contention of learned counsel for the appellant is that the appellant has paid Rs. 1,25,000/- as 'Pugree' to the The.ked.ar. This amount is not mentioned in the written statement filed by the appellant as opponent in this case, which has been referred hereinabove. The document has been challenged by the appellant and they alleged that it is a fabricated document. None mention of amount of Rs. 1,25,000/- in the written statement clearly shows that this document has been produced lateron as to create defence in the matter. In any case it has been held that payment oipugree is not a legal transaction which cannot be given protection at all. Learned Rent Controller after discussing the evidence has rightly allowed the ejectment application. In view of the facts, circumstances and case laws, I am of the considered opinion that the appeal deserves to be dismissed which is hereby dismissed with no order as to costs. The appellant is required to handover the vacant and peaceful possession of the premises in question to the respondent/landlady within a period of four months from 24.11.1997 the date of hearing. After hearing the learned counsel for the parties on 24.11.1997 the appeal was dismissed by short order. Above are the reasons for the same. (K.K.F.) Appeal dismissed.

PLJ 1998 Karachi 289 PLJ 1998 Karachi 289 Present: rashid A. razvi, J. DISTRICT COUNCIL THARPARKAR-Appellant versus Syed MUHAMMAD WALI AND GOVT. OF SINDH-Respondents Civil Revision No. 65 of 1993, decided on 12.1.1998. Civil Procedure Code, 1908 (V of 1908)-- —-0. XLI, R. 20-Non-joinder of defendant No. 2 (Govt. of Sindh) of suit while filing appeal-Whether appeal before High Court was not properly constituted for non-impleading necessary party and was fatal-Question of--Provisions of Rule 20 of order XLI, C.P.C. shows that appellate court is empowered during hearing of appeal to implead any person as respondent who was party to suit in Court from whose decree appeal is preferred but was not made party to appeal and that such person who is required to be joined in appeal, is interested in result of appeal-- Therefore, it is left to discretion of Appellate Court to determine whether party who is required to be arrayed as one of respondent is necessary puriy and nite rested in result of appeal-It is to be seen that under Order XL!, Rule 20, C.P.C. no consequences is provided for error if appeal was filed without. impiKulmg necessary or interested person-In order to determine that non-joining of Government of Sindh as one of respondent before . ippellato Court was fatal to proceedings, it would be pertinent to see that in that manner defendant No. 2 would have been affected as result, of disposal of said appeal-In case, appeal had been allowed by District Judge, definitely it would not have been to prejudice or to disadvantage of defendant/Government—-All relevant documents upon winds plc.iiiuff h.-id base;i his claim were already brought on record by him-Real contest of" ownership, thus appears to be between plaintiff and defendant. No. 1 and Provincial Government (defendant No. 2) does not appear to be interested in decision of litigation-No claim was set up by this defendant on suit property-It appears to be proforma defendant- Objection has been raised at very belated stage-Despite fact that appeal before District Judge was pending for period of nearly five years, No. 1 nevur raised this objection—In case said Government ^erest.-^ j r , mw codings and had been adversely affected by 'f 01 d 1 c fi t\ m uould have filed appeal—From conduct of '{ 15! Court as well as before this Court, it -a" 11- not interested in dispute between 'i \Wb not shown that defendant No. 2 tbt-jnco Appellate Court was not able to ,.Jt issues involved in appeal-Held kiie stage was not fatal-Objection m ' Pp 244. 295 & 296] A, B, C, D, E, F & G".'' T ,u i.-e 76, PLD 1960 Lahore 277, S( 321 and PLD 1987 Lahore 232 l Mivuaio or Appellant. Ko jjondent. No. J. lh for Respondent No. 2. '71 '110.1997, 7.11.1997, 14.11.1977, Hi ,,, i oc)7 order On 7.11.1997, while hearing this Revision Application Mr. Syed Masood Ali, Advocate raised preliminary objection to the maintainability of this revision petition on the ground that the first appeal filed by the present applicant before the District Judge, was incompetent due to non-joinder of Defendant No. 2 of the suit, namely Government of Sindh. He argued that this petition is liable to be dismissed on this short point. Apart from Order I of the Civil Procedure Code, 1908, which provides joinder and non-joinder of parties in a suit, the other provision is Order 41 Rule 20, CPC which is relevant, as admittedly the first appeal was filed without impleading one of the parties before the trial Court. It would be advantageous if Rule 20 of Order XL, C.P.C. is reproduced which reads as here-under:- "20. Power to adjourn hearing and direct persons appearing interested to be made respondents.--Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred but who has not been made a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent." 2. I have heard Mr. Syed Masood Ali, Advocate for respondent No. 1 in support of aforesaid preliminary objection and Mr. Jhamat Jethanand, Advocate for the applicant who vehemently urged that this revision application is still maintainable despite commission of the alleged irregularity. No argument was advanced on this point by the learned Assistant Advocate General, Sindh, appearing for the respondent No. 2. Mr. Syed Masood Ali Shah, in support of his objection, has relied upon the following cases:- (r) Jiando Khan v. Hakim Muhammad Ishaq (PLD 1964 Karachi 61); (ii) Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 S.C. 97); (iii) Mst. Murad Begum etc. v. Muhammad Rafiq, etc. (PLJ 1974 S.C. 233); (iv) Punjab Road Transport Board, Lahore v. Tanvir Ahmad and 4 others (PLJ 1983 Lahore 530); (v) Mst. Mehr Nishan v. Mst. Gulzar Begum and 2 others (PLJ 1986 Lab, 309); (vi) Abdul Qadir and 5 others v. Muhammad Umar & others (PLD 1987 Lahore 232); (vii) Haji Muhammad Zaman v. Zafar Ali Khan & others (PLD 1986 S.C. 88); and (via) Sadiq Muhammad v. Madad Ali and 2 others (1990 S.C.M.R. 694). 3. Mr. Jhamat Jethanand, Advocate for the Applicant has placed reliance on the case Ghulam Muhammad and others v. Mchtab Baig and others (1983 SCMR 849) where one of the questions before the Honourable Full Bench of the Supreme Court was whether the appeal before the High Court was not properly constituted inasmuch as necessary parties were not impleaded as respondents. Reference was made to the cases Ghafur Ali and others v. Mt. Kaman (AIR 1930 Lah. 352) and Shah Muhammad v. Muhammad Bakhsh (PLD 1972 S.C. 321). It was held that it is essential to first form the view whether the person who was not arrayed as respondent in appeal was a necessary party in whose absence no effective decree could be passed. The rule laid down in the case of Sarshar Ali v. Roberts Cotton Association Ltd. (PLD 1963 S.C. 244) was reiterated where it was held by the Hon'ble Supreme Court that non-joinder of a party does not render an appeal as incompetent against those from whom no relief was sought. The case of Muhammad Swaleh (PLD 1964 S.C. 97) is not relevant as in that case provision of Section 115, CPC was considered in reference to the exercise of jurisdiction by the High Courts. However, this question was considered by a Full Bench of Honourable Supreme Court in the case ofMurad Begum (PLJ 1974 S.C. 233). where it was held that once the decree appealed from by some of the defendants was joint and indivisible against all the defendants, then the failure to implead remaining defendants or any of them would render the appeal incompetent on the principle that otherwise inconsistent and contrary decrees would come into existence regarding same subject matter and arising out of same decree. In the case of Punjab Road Transport Board, Lahore (PLJ 1983 Lahore 530) first appeal was preferred against the judgment and decree of Civil Judge, Rawalpindi which was for damages against the appellant and one Nazar Muhammad who was driver by profession. That decree was passed jointly and severally against the appellant and the driver for payment of monetary compensation. One application under Order XLI, Rule 20, CPC was filed at the belated stage seeking Nazar Muhammad (driver) to be impleaded as one of the parties which was dismissed by the appellate Court, on the ground, inter alia, that since Nazar Muhammad being a necessaiy party was not joined as respondent the appeal was not properly constituted and was, therefore, incompetent. It was also pleaded before a Division Bench of Lahore Higl Court that no relief was sought against the driver Nazar Muhammad therefore, he being not a necessary party, non-joinder of such party was not fatal to the said appeal. This contention was not upheld by the learned Division Bench of Lahore High Court comprising Rustam S. Sidhwa and Ghazanfar Ali Gondal, J.J. (as their lordships then were) in the following words:- "7 .... We would first like to deal with the submission of the learned counsel for the appellant that Nazar Muhammad Driver is not a necessary party in this appeal. It is hardly possible to agree with the submission of the learned counsel for the appellant that when no relief is sought from a person in an appeal, he is not a necessary party. In onr opinion, existence of a prayer for relief against a person is not the only criterion for judging as to whether such a person is a necessaiy party or not. The true test laid . down in Order I rule 10 CPC is that a necessaiy party is a person who ought to be joined as a party or, as explained in the precedents, a person in whose absence no effective decree can be passed. No relief may be sought from a person, yet he may be affected by the decree to be passed in appeal. When a person is likely to be affected by relief sought in appeal, he is a person in whose absence no effective decree can be passed and must, be considered to be a necessary party in the appeal. The impugned decree in this case held the appellant and Nazar Muhammad severally and jointly liable for the decretal amount. As already shown, in this appeal by the appellant, the prayer is for setting aside the said decree with costs or in other words for setting aside of the said decree in toto both against the appellant as well as Nazar Muhammad driver." 4. Same view as above was upheld by another Single Judge of Lahore High Court in the case oiMst. Mehr Sishan (PLJ 1986 Lahore 309). In that case, reference was made to the Full Bench case of Labhu Ram and others v. Rani. Partap and others (AIR 1944 Lahore 76), Allah Dad and others v. Nawab and others (PLD 1960 Lahore 277), Ghulam Mohyuddin through LRs v. Mian Amiruddin and 12 others (PLD 1977 Lahore 381), Shah Muhammad and others v. Muhammad Baksh (PLD 1972 S.C. 321), P.R.T.B. v. Tanvir Ahmad (Supra) and Mst. Murad Begum fSupra). Much emphasis was placed on the presence of necessaiy parties before the Court of appeal as the said Court cannot pass an order prejudicial to the interest of persons who are not parties to the appeal. In the case of Abdul Qadir (PLD 1987 Lahore 232) a learned Single Judge of Lahore High Court Mehboob Ahmed, J. (now Chief Justice of Federal Shariat Court) held that non­ joinder of necessaiy party against whom joint decree was passed was fatal and that such negligence cannot be cured at the stage of revision before a High Court. It was further held that the appellate Court had no j urisdiction under Order XLI rule 20, CPC to implead persons omitted from being impleaded after the period of limitation for filing an appeal had expired and when no such plea was raised before the Appellate Court. The case of Lubhu Ram (Supra) was followed. The cases Muhammad Bakhsh (1986 SCMR 412), Hqji Muhammad Zaman (PLD 1986 S.C. 88) and the case of Sadiq Muhammad (1990 SCMR 694) related to the powers of High Court in exercising its discretion under section 115, C.P.C. Presently, this question is not under consideration. 5. A perusal of above case law and provisions of Rule 20 of Order XLI, C.P.C. shows that an appellate Court is empowered during the hearing of an appeal to implead any person as a respondent who was a party to the suit in the Court from whose decree the appeal is preferred but was not made a party to the appeal and that such person who is required to be joined in appeal, is interested in the result of appeal. Therefore, it is left to the discretion of the appellate Court to determine whether a party who is required to be arrayed as one of the respondent is a necessary party and interested in the result of appeal. In order to determine whether a party could be termed to be interested, it would be necessary to ascertain whether such party was a necessary party in the suit or whether in his absence no effective relief can be passed by the Appellate Court. It is to be seen that under Order XLI, Rule 20, CPC no consequences is provided for an error if an appeal was filed without impleading necessary or interested person. None of the advocates have argued the nature of Rule 20 whether it is directory or mandatory. Rule 4 to Order XL!, CPC provides that where there are more plaintiffs/defendants in one suit and the decree appealed from proceeds on any ground Common to all the plaintiffs or to all the defendants, any one of the plaintiffs or the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. It impliedly suggests that a decree can be reversed by any one of the party to the proceeding by preferring an appeal. However, this does not mean that appeal couid be heard in absence of necessary and interested respondents. There may be a situation where a decree is passed jointly against several defendants or plaintiffs but appeal was preferred by only one or two of such persons. Take an example of a suit for administration of estate or properties left by a deceased whose legal heirs are contesting a suit as plaintiffs and defendants. A final decree is passed which becomes acceptable to some of the defendants who in turn choose not to prefer an appeal against such final decree. In other words, they may have joined with the plaintiffs. In such circumstances, if an appeal is filed by other defendants who feel aggrieved with the Judgment/ Decree without impleading such party who had accepted and acquiesced in the said Judgment/decree, what should be the fate of such appeal. Whether it is still to be treated as an incompetent appeal. In my humble view, the answer should not be based while resorting to Rule 20 only. Rules 4 and 33 of Order XLI, C.P.C. would also help in meeting such situation. It would be pertinent to observe that in addition to the det&nuinai,Ki;i necessary party, if an appellant successfully established that the purpose for j not joining other party in appeal was for the reason that such oast has j 1 accepted and acquiesced in the said judgment/order then an appellant may i not be non-suited merely on this technical ground. However, a party would \ not be entitled to take advantage of Rule 4 to Order XL!, C.P.C, in case of abatement of appeal on the ground of default to substitute legal heirs of the necessaiy party. (For detailed discussion, see Shah Muhammad and others a, Muhammad Bakhsh (PLD 1972 S.C. 321)). 6. Respondent No. 1 filed a suit: for declaration arid injunction against the present applicant as well as against respondent No, 2 namely Government of Sindh on the ground thai he is lawful owner and in possession of a sikni plot bearing No. A, admeasuring 4000 sq. yds. at; Kot, Ghulam Muhammad. Full description of the property \van given in the plaint. It was further averred that the plot in suit originally belonged to the Deputy Commissioner, Tharparkar who trunsferrrd it to the plaintiff/respondent No. 1; that the plaintiff/respondeai. No, 1 completed the construction of his house over the plot in January 1982 ami since the plaintiff/respondent No. 1 apprehended bis uniav/ful dispossession at the hands of defendant No. 1 (now applicant) from the premises in his possession and as his title was challenged, he filed the suit for the following relief.- (a) Declaration that the plaintiff is owner of the plot in suit and the Defendants have no right, or interest therein. (b) Permanent Injunction restraining the Defendants from interfering in the plaintiffs peaceful possession andenjoyment of the plot in suit, and the construction thereon, personally or through their agents and subordinates directly or indirectly, in any manner and by any means (c) The Defendant to bear (d) Any other relief whichand proper." After dismissal of appeal, this revision under section 115, C.P.C. has been filed where all the parties are now before this Court. Mr. S. Masood Ali was not in a position to explain as to how his client was in a dis-advantageous position or in any manner suffered any prejudices for non-joining of the Provincial Government/defendant No. 2. All the relevant documents upon which the plaintiff had based his claim were already brought on record by him. The real contest of ownership, thus, appears to be between plaintiff and defendant No. 1 and the Provincial Government (defendant No. 2) does not appear to be interested in the decision of this litigation. No claim was set up by this defendant on the suit property. In my view, it appears to be a proforma defendant. 8. This objection has been raised at a very belated stage. Despite the fact that the appeal before the District Judge was pending for a period of nearly five (5) years, the respondent No. 1 herein never raised this objection. In case such objection had been raised before the Appellate Court then it could have been more properly adjudicated as Rule 20 to Order XLI, C.P.C. empowers an Appellate Court to adjourn the hearing and to order joining of a party which in the view of Appellate Court appears to be interested in the result of such appeal. In the instant case, the person who was not joined as party at the Appellate stage is the Government of Siiidh which has a full fledged Legal Department and a batteiy of Lawyers. In case the said Government had been interested in the proceedings and had been adversely affected by any judgment or decree, it would have filed an appeal. From the conduct of Government/defendant before the trial court as well as before this Court, it is now established that the Government is not interested in the dispute between applicant and respondent No. 1. It was not shown that the defendant No. 2 was a necessary party and in its absence Appellate Court was no able to effectively and properly adjudicate all issues involved in the appeal. Even during hearing of this legal objection, the learned Assistant Advocate General appears to be least interested and did not advance any arguments. All these circumstances, lead me to conclude that the Government was not interested in the result of the appeal proceedings and, therefore, its non-joinder at appellate stage was not fatal. I am fortified in my view by the case Sarshar Ali v. Roberts Cotton Association Ltd. and another (PLD 1963 S.C. 244). 9. By a short order on 5.12.1997 the aforesaid legal objections to the maintainability of this revision as well as to the maintainability of first appeal were overruled and it was ordered that the Revision Appli­ cation be fixed for Regular Hearing. These are the reasons for the said short order. (B.T.) Orders accordingly.

PLJ 1998 Karachi 297 (DB) PLJ 1998 Karachi 297 (DB) Present: WAJiHUDDiN ahmad and ali muhammad baluch, JJ. ZAIBTUN TEXTILE MILLS (PVT) LTD. A/8, S.I.T.E., KARACHI-Petitioner versus FEDERATION OF THE ISLAMIC REPUBLIC OF PAKISTAN through THE SECRETARY, MINISTRY OF FINANCE, ISLAMABAD and 4 others-Respondents C.P. No. D-703, 704 and 845 of 1996, accepted on 23.12.1996. (i) Central Excise Rules, 1944-- —Rule 240--Availing of exemption from excise duty by petitioner on pretext of export of goods-Imposition of penalty-Challenge to-What should be quantum of penalty-Question of—It is obvious that in each case of contravention the department, besides recovery of excise duty defaulted in given case, has to determine extent of penalty to be imposed-That penalty, is discretionary power to but because it is to be exercised at quasi judicial level, such is to be rational, just and reasonable—This aspect has not been adverted to at departmental level at all—Rules contemplate higher of two penalties is, occurring side by side—All these indicate legislative intent-Even then, where discretion is left and maximum penalty is envisaged, it must always he seen whether given case qualifies for maximum or less and if less, how much less-In point of fact, operative mechanism of provisions of Rules 13, 185 and 210 itself indicates criteria, which department has to keep in mind while exercising its jurisdiction in matters of this genus—What is more, when these powers are exercised, relevant rules are to be strictly construed, favouring tax payer rather than department, as is settled principle of law. [Pp. 302 & 303] A, B & C (ii) Central Excise Act, 1944-- —S. 35 (lA)-Contravention of rules and imposition of penalty by department-Dismissal of appeals for non-deposit of excise duty- Challenge to—Proviso, attached to sub-section of section 35 (1A) in cases of hardship, incorporated discretionary powers of relaxation in making deposit of excise duty demanded or penalty levied-Opinion as to hardship in such cases is to be formed by appellate authority, mind was not brought to bear on that aspect and at least two such appeals were dismissed solely on ground of non-deposit—Here, it may bear mention that in so far as recoveiy of excise arrears is concerned, department could all time resort to insurance guarantees but, somehow, it did not do so- Held : It is matter calling for due inquiiy and surely, such would be held in course of time-Petitions allowed and cases remanded back to Deputy Collector for action in terms of judgment. [Pp. 303 & 304J D, E & F Mr. Munir A. Malik, Advocate for Petitioner. Mr. Abdul Sattar Silat, Advocate for Respondents No. 2 to 5.. Date of hearing: 5.11.1996. judgment Wajihuddin Ahmed, J.-We have heard these petitions together because common questions pertaining to the same production unit namely, the petitioner here, were involved. While the petitions still remain to be admitted for regular hearing, the controversy being short and the petitioner being under an embargo, the same, by consent, were heard in totality with such outcome as may arise In so far as the facts are concerned, Const. Petitions Nos. D- 703/1996 and 704/1996 involve a purported contravention of Rules 13, 185 and 240 of the Central Excise Rules, 1944. The contravention of the Rules is based on pleas from the department that goods were cleared from the petitioner mills on the pretext of being exported, exemption of exercise duty was availed of'but the goods, in the ultimate analysis, were not exported at all. The petitioner mills claim to have pleaded that they had sold such goods to third parties, who did not do the needful and that accounted for default on the petitioner's part. As things emerged, the Deputy Collector passed orders of recovery of excise and duty, correspondingly imposing a penalty of ten times in each case. Thus in C.P. No. D-703/1996 the recoverable duty was Rs. 3,89,460.90 and penalty amount was Rs. 38,94,609.00 whereas sin C.P. No. D-704/1996 the duty involved was Rs. 27,89,458.56 and penalty imposed was Rs. 2,78,94,585.60. In the third Const. Petition, which is the last in the chronological order, as also in terms of time, viz. Const. Petition 845/1996 the question involved is somewhat different namely, clandestine removal of some of the inventor! sed products of the petitioner, the discrepancy having been discovered upon inspection and comparison with the records maintained. The relevant order operated to ensure recovery of excise duty on the missing stocks together with a penalty of five times, the actual figure being 11,71,447.00. In the face of the above Central Excise Orders-in-Original, passed by the Deputy Collector, the petitioner appealed but the appeals were dismissed by the Collector and Revisions taken, in turn, also failed. During the course of hearing, we have noted with concern some of the aspects of this case. In the first place, it has been pointed out by the learned counsel for the petitioner, something which is not disputed by the department, that in spite of there having been insurance guarantees in relation to the clearance of goods by the petitioner, such guarantees were not resorted to by the department at any stage whatsoever. Secondly, huge penalties were imposed, which, at least in one case, resulted in the dismissalof the petitioner's appeal solely on the ground of not, having deposited the relevant duty together with the penalty. Lastly, when the petitioner had failed upto the level of the Government, un-qualified embargo was imposed on its taking out the manufactured goods, with the result that the petitioner claims to be out of production since December, 1993, something which, at the very least, can be construed to be a national loss. The sole question in these petitions, which requires closes scrutiny, has a nexus with the interpretation of Rules 13, 185, 210 and 240 of the Central Excise Rules, 1944. These rules, with relevant portions marked, are reproduced hereinbelow:- "13. Export under bond of goods or which duty has not been paid.--(l) Excisable goods, except those notified by the Central Board of Revenue under proviso to the sub-rule (1) of rule 12, may be exported without payment of duty from a licensed factoiy or warehouse in accordance with the procedure set out in the relevant provisions of Chapter IX of these Rules:Provided that the owner enters into... a .general bond in the proper Form with such surety, security, bank guarantee or insurance guarantee in a sum equal at least to the amount cf duty chargeable on all such goods under export at a time, and under such conditions as the Collector approves, for the removal of such goods for export from time to time and due arrival thereof at the place of export and their .export therefrom within a.period .of three months^frgm the date of application under rule 185 or rule 240 or such extended period as the Collector may, in any particular case, allow. 2) The Collector may^pji^n^pplication_made_jtoMm hi writing, before the expiry gf_the, period allowed for export under sub-rule (1), permit the goods to be consumedwithin Pakistan after the duty thereon has been duly paid at the rate which is in force on the date on which the dirty is paid with the Collector's permission: Provided that if the rate of duty on such date is lower than the rate which was in force on the date on which the goods were removed from the licensed factory or ware­ house under sub-rale (1), duty'shall be payable at the higher rate which was in force on the earlier date. (3) Except as providedI m_ sub : riile (2), if the entire quantity of the goods is not exported in due time, or if at any time subsequent to their removal from the licensed factory or warehouse under sub-rule (1) the whole or part of the Xo, 2 v.-;.iv; been i±fu:ted a; ; resu.i- A..a;.'J rc;u in case trie a goods is consumed or otherwise disposed of within Pakistan, or if the Central Excise Seals on the packages placed under rule 185 or the relative Central Excise documents are found to have been tampered with, duty due on the entire quantity of the goods removed under sub-rule (1), subject to the proviso to sub-rule (2), shall be paid forthwith on demand, and the person to whom permission was granted under subrule (2) to remove the goods from the licensed factory or the warehouse shall be liable to a penalty which may extend to twenty thousand rupees or ten times the amount of the duty involved, and the whole or any part of the goods which is recovered shall be liable to confiscation. (4) If a manufacturer renders himself liable to any action under sub-rule (3), the Collector may disallow removal of goods from the licensed factoiy or the warehouse pending payment of the total amount of duty demanded: Provided that if the manufacturer has an accountcurrent with the Collector and sufficient balance at his credit is available in the account-current, the amount of duty demanded may be recovered by the Collector by adjustment in that account-current. (5) Action under sub-rules (3) and (4) may be takenwithout prejudice to any other action under other provisions of the Act or the rules. (6) The manufacturer shall maintain an export register in the proper Form showing therein removal of excisable goods from the factoiy without payment of duty in bond for export. 185. Examination of goods prior to despatch.-(1) When goods other than salt are to be exported under claim for rebate of duty as provided in rule 12, or without claim of rebate as provided in proviso to the sub-rule (1) of rule 12, or under bond for their due export, as provided in rule 13, or as provided in any notification tinder sub-section (4) of Section 3 of the Act, the cases or packages in which such goods are packed shall be legibly marked in ink or oil colour (or in such other durable manner as the Collector may in any particular case allow), with a progressive number commencing with No. 1 for each year and with the owner's name and special mark, if any, and shall be presented to the proper officer atleast twenty-four hours before the intended removal of the goods, together with an application in the proper Form, in triplicate. (2) A separate application shall be submitted in respect of each consignment. (3) When both indigenous and foreign motor spirit ' or kerosene are simultaneously held in stock at the depot from which export is to be made, each class of motor spirit or kerosene shall be stored in a separate tank and the transfer to containers shall be done under the proper officer's supervision. (4) After verifying the particulars entered in the application, and in the case of duty-paid goods, after satisfying himself that the goods are indentifiable as the goods in respect of which the payment of duty cited in the application was made, the proper officer shall seal each package with the Central Excises Seal, where practicable, and, after endorsing all copies of the application, shall returnthe duplicate to the owner, who. after despatching the goods, shall enter the number and date of the railway receipt in the duplicate and shall communicate these particulars to the officer for entry in the other copies. (5) Further procedure in respect of goods exported by parcel post.--After goods intended for export by post havebeen sealed, the exporter shall affix to the duplicate application sufficient postage stamps to cover a fee at the rate of six paisa per package and shall present the document, together with the package or packages to which it refers to the post-master at the office of booking. (6) Goods removed from a factory for export under the provisions of any notification under sub-section (4) section 3 of the Act shall be exported within a period of three months from the date of such removal or within such longer period as the Collector may, if a written request is received by him within fifteen days of the expiry of the specified period of three months and he is satisfied that the special circumstances of the case so .justify, directs: Provided that, where the goods are not exported within six months from the date of such removal, the manufacturer shall, without prejudice to any other action that may be taken under the Act or any notification under the said sub-section and notwithstanding the fact that the Collector has extended, or has the power to extend, the said period of three months, be liable to a penalty not exceeding ten times the amount of duty leviable on such goods. 210. General Penalty.-A breach of these Rules shall, where no other penalty is provided herein, be punishable with a penalty which may extend to twenty thousand rupees or ten times the amount of duty involved, whichever is greater and with confiscation of the goods in respect of which the offence is committed 240. Special provision for clearance without payment of duty under bond for export.-(l) The manufacturer may remove excisable goods from the factoiy, without payment of duty. in bond, for export after preparing a clearance application in the proper Form and after making the necessary entries in the prescribed register. (2) The clearance application shall be prepared in triplicate, in type or ink, using double-faced carbon. The original and the triplicate shall be delivered by the manufacturer to the proper officer the same day or, at the latest, the day following the day of removal of goods, eitherby messenger or by registered post. The duplicate shall within the manner prescribed in rules 187, 188 and 189. (3) If any excisable goods are removed or loaded for removal for the purpose of export otherwise than in the manner prescribed in this rule or rule 185, the manufacturer shall be liable to a penalty which may extend to twenty thousand rupees or five times the duty leviable on , such goods, whichever is the greater, and the goods in respect of which the offence has been committed shall be liable to confiscation." Contention of Mr. Munir A. Malik, for the petitioner, is that Rule :J10 is not applicable at all because the specific rules invoked themselves envisage the relevant penalties. He may be right. Fxirther, what rules apply and whether Rule 240, imposing a maximum penalty of five time does, are questions that would require a more explicit examination by the department in terms that follow What is involved in these petitions is a much larger question. Such relates to the quantum of penalties to be imposed under the Rules aforequoted. It is obvious that in each case of contravention the department, besides the recovery of the excise duty defaulted in a given case has to 4 determine the extent of penalty to be imposed. That, plainly, is a discretionary power but because it is to be exercised at a quasi judicial level, such is to be rational, just and reasonable. This aspect has not been adverted to at the departmental level at all. The matter, therefore, requires reexamination. It will not be feasible, at this level, to lay down any hard and fast rule as to how any adjudicating officer is to exercise his discretionary powers upon due examination in an individual case. We, may, however, note that specific figures invariably appear side by side with the relevant times of penalties in the quoted Rules. Those figures carrying specific amounts, we dare say, are obsolete now. Manifestly, a sum of Rs. 20,000/- in 1944 when the Rules were framed and promulgated must have been quite a different quantity. Besides, the Rules contemplate the higher of the two penalties, occurring side by side. All these indicate the legislative intent. Even then, where discretion is left and a maximum penalty is envisaged, it must always be seen whether a given case qualifies for the maximum or less and if less how much less. In the circumstances, where a serious action has been taken and, in effect, the petitioner mills stand closed down totally depriving, according to Mr. Malik, livelihood of some 400 workmen, such-like exercises of imposing of embargos, consequent upon levy and non-realisation of exemplary penalties is to be invoked with considerable care and caution. In point of fact, the operative mechanism of the above provisions itself indicates the criteria, which the department has to keep in mind, while exercising its jurisdiction in matters of this genus. What is more, when these powers are exercised, the relevant rules are to be strictly construed, favouring the tax payer rather than the department, as is a settled principle of law. At this stage, we may also, briefly, advert to Section 35(1 A) of the Central Excises Act, 1944, whereunder the relevant appeals (then) lay to the Collector. The proviso, attached to the sub-section, in cases of hardship, incorporated a discretionary power of relaxation in making deposit of the excise duty demanded or the penalty levied. Regretably, while opinion as to hardship in such cases is to be formed by the appellate authority, mind was not brought to bear on that aspect and atleast two such appeals namely, in Const. Petitions Nos. 703/1996 and 845/1996 were dismissed, solely, on the ground of non-deposit, Here, it may bear mention that in so far as recovery of the excise arrears is concerned, the department could all the time resort to the insurance guarantees but, somehow, it did not do so, a matter calling for due inquiry and, surely, such would be held in course of time. In the'circumstances, we set-aside the impugned orders and remand these cases back to the Deputy Collector. We may note here, as urged now, that the excise duty in dispute in the petitions has since been paid by the petitioner. All that, remains on that score, therefore, is the penalty in each case but because we have set-aside the relevant orders, the penalty momentarily disappears. Even so, we impose a condition on the petitioner within a month of the date of this order, to provide insurance guarantees to the satisfaction of the Nazir of this Court equivalent to the same amount as the claims of excise duty in these petitions, which may be appropriated by the department in case it is still thought fit to re-impose the penalty. This, at the same time, would not preclude the department from imposing higher or lower penalties, if permissible by law. Correspondingly and in the same terms the petitioner would also provide bank guarantees in relation to some arrears of capacity tax, about which Mr. Malik says that there were instalments but part of which, according to Mr. Abdul Sattar Silat, for the Department, still remains outstanding. The bank guarantees last mentioned, figures for which would be provided by Mr. Abdul Sattar Silat to the Nazir of the Court within a week's time of the signing of this order, would be encashable, if and when the Deputy Collector, upon applications to be moved by the petitioner within a further two weeks time, either does not allow any installments of such outstandings or there is a failure to pay any part thereof, if the Deputy Collector, in his discretion, in course of time, allows instalments relatively. The foregoing order would apply mutatis mutandis to Const. Petition No. D-845/1996 as well but that case, being one involving alleged clandestine removal of goods, would be promptly attended to by the department with due action according to law. Subject to the foregoing, these petitions are allowed. (K.K.F.) Appeals accepted.

PLJ 1998 Karachi 304 PLJ 1998 Karachi 304 [Original Civil Jurisdiction] Present: RANA BHAGWAN das, J. KARIM CHARANIA-Plaintiff Versus MUHAMMAD YOUSAF MEMON and 2 others-Defendants Suit No. 476 of 1981, dismissed on 12.12.1997. Civil Procedure Code, 1908 (V of 1908)-- —O. XXI, R. 89 and 90 read with Section 151-Suit for specific performance decreed on application for compromise for payment of earnest money- Judgment debtor failed to appear and contest execution proceedings and according his property which was plot of land, allotted in his name by K.D.A., auctioned-Judgment debtor filing objection application regarding nori service of notice title to property etc.-Validity-Judgment debtor was duly served in person with notice of sale of property for satisfaction of decree on 12.8.1991 for hearing before Additional Registrar on 22.8.1991, but he did not bother to appear either in person or through authorised agent—Presumption of correctness and regular performance is always attached to official acts-despite personal service of notice on judgment debtor, he was served by way of publication in daily "Morning News" for hearing fixed but without any response-Likewise, delay in deposit of costs of sale proceedings on part of decree holder having been condoned and being past and closed transaction cannot be re-opened in present proceedings-It is needless to emphasise that judgment debtor having slept over matter for nearby 12 years after consent decree and for more than 10 years of this execution, as come up with irrelevant and frivolous objections to defeat sale which has been duly accepted and confirmed by this Court (High Court) followed by deposit of purchase money, delivery of vacant possession and transfer of property in favour of auction purchaser-At any event, there is no evidence to hold that market value of plot in question was Rs. 5 million at time of public notice for sale of property-Argument that it is worth Rs. 10 million at moment is without any substance as past and closed transaction cannot be re-opened at instance of inscrupulous litigant who has kept silent, for pretty long time after consenting to decree and not paying paltry amount of earnest money as undertaken by him in judicial proceedings, to which sanctity is always attached-Application is made after more than 5^ years in as much as judgment debtor was personally served with notice of sale on 12.8.1991- Held : Application is liable to dismissal on this preliminary ground alone-There is absolutely no merit in this application which is accordingly dismissed with special costs of Rs. 5,000,/-. [Pp. 307 & 308] A & B Mr. Muhammad Umar Qureshi, Advocate for Auction Purchaser. Mr. Jhamat Jethanand, Advocate for Objectors. Mr. AmirNaqvi, Advocate for K.D.A. Date of hearing: 12.12.1997. order In this execution application for recovery of money by attachment and sale of the property of the judgment debtor by this C.M.A. judgment debtor Nahi Bux Bhurgari under the provisions of Order XXI rules 89 and 90 read with section 151 CPC seeks an order to declare the sale in respect of plot No E-61, Block-4, Scheme No. 24, Gulshan-e-Iqbal, Karachi as nullity arid to set aside the sale on the grounds: firstly that the judgment debtor was not served with any notice of the execution application; secondly that he had not yet acquired title to property despite his best efforts in as muc.h"a lease agreement was not executed in his favour; thirdly that the market value of the plot in suit in 1987 was about Rs. five million whereas it is worth about Rs. ten million; fourthly that the decree holder and the auction purchaser had obtained sale through misrepresentation and fraud; and lastly that the judgment debtor is prepared to deposit the decretal and requisite amounts in court. 2 Decree holder filed a suit for specific performance against Muhammad Yousuf Memon, Nabi Bux Bhurgari and K.D.A. in respect of the property in suit and alternatively claimed a sum of Rs. 3,90,000/- as damages for breacli of contract, compensation and losses together with refund of Rs. ],10,uuO/- paid by him to defendant No. 1 as earnest money and part payment of the purchase money. This suit came up for hearing on 24.11.1985 before Justice Nasir Aslam Zahid (as his Lordship then was) when parties filed an application for compromise whereupon suit was decreed for payment of Rs. 1,10,000/- against the judgment debtor by 22.12.1985 with the stipulation that if the amount was not paid by this date judgment debtor will be liable to pay interest at the rate of 15% per annum from this date till realisation. 3. In execution proceedings as the judgment debtor did not appear to contest the same execution was ordered to issue as prayed vide order dated 24.4.1988. On CMA No. 1074/1989 moved by the decree holder the property was put to auction and the highest offer of the auction purchaser in the sum of Rs. 21,55,000/- was accepted vide order dated 10.4.1994, After the deposit of the said amount with the Nazir by order dated 4.9.1994 he was directed to take steps for transfer of the plot in question in he name of auction purchaser and to deliver the possession to him free from all encumbrances whatsoever in terms of the auction purchase and a sale certificate may also be issued in his favour. 4. In^ the counter-affidavit to the C.M.A. filed in this Court on 14.3.1997 auction purchaser has controverted various pleas taken by the judgment debtor. It is urged that this application is barred by limitation, that after obtaining physical possession and performing other legal formalities he had applied for mutation of the property if question in his name but the judgment debtor being an influential person was creating hurdles in the way of mutation in the office of K.D.A. Withoiit the leave of the curt an additional counter-affidavit was filed on behalf of auction purchaser stating tht thesuit was decreed on the basis of compromise between the parties, that th judgment debtor failed to make payment of the decretal amount within the period fixed by this Court; that after filing of execution within one year of the decree he was duly served with the notice but, he tnalafidc and intentionally avoided the service of notice, that, service was also effected by publication, that the plot was disposed of by this court, after inviting public offers for us purchase; that after obtaining peaceful and vacant possession of the plot he applied to K.D.A. for the transfer of the plot and made payment of a sum uf Rs. 2,23,701/- to K.D.A. It was lastly urged that by this application moved after relevant years of filing of the execution and more than three years from the date of auction, the judgment debtor was attempting to blackmail the auction purchaser and trying to re-open the closed and past transaction upheld by this court. On a legal objection raised by the auction purchaser in terms of Order XXI rules 89 and 90 of CPC I directed the judgment debtor to deposit 5% of the auction purchase amount with the Nazir which was duly complied with. 5. At the hearing it was noticed from the record that in fact, the judgment debtor was duly served in person with notice of sale of property for satisfaction of the decree on 12.8.1991 for hearing before the Additional Registrar on 22.8.1991 but he did not bother to appear either in person or through an authorised agent. A presumption of correctness and regular performance is always attached to official acts. In this view of the matter Mr. Jhamat Jethanand, learned counsel for the judgment debtor fairly onceded that he would not press the ground of absence of service of notice of execution or the sale of property. It may further be pertinent to observe that, despite personal service of notice on the judgment debtor he was served by way of publication in Daily "Morning News" dated 23.8.1991 for hearing fixed on 26.9.1991 but without, any response. 6. Finding him on weak wicket, learned counsel for the judgment debtor contended that despite repeated directions to the decree holder to produce documents of title in respect of the plot in the name of judgment debtor he could not produce any before the office of the court whereas the sale proceedings were held and confirmed without verifying the title of the judgment debtor to the property. Learned counsel also urged that from 1989 uptil 1994 even the costs for sale proceedings were not deposited by the decree holder. Main thrust of the argument of the learned counsel is that on the day when the property was put to sell through public notice, judgment debtor was merely an allottee of the plot without any title to it which matured during the pendency of this C.M.A. when this court issued a notice to Law Officer of K.D.A. as well as Assistant Director ('Lands) K.D.A. Scheme No. 24, Gulshan-e-Iqbal, Karachi. Be that as it may. irrespective of the fact whether, the judgment debtor was able to obtain title documents in his favour or not, he was the allottee of the plot in question and atieast prospective owner to the best of his knowledge. In case the office of the court omitted to secure title docinnents in respect of the plot, auction purchaser cannot be made to suffer for the mistake of the office of the court. It is well settled that, no person shall suffer for the mistake or lapse on the part of the court. Likewise delay in deposit, of costs of sale proceedings on the part of decree holder having been condoned and being a past and closed transaction cannot, be re-opened in the present proceedings. 7. As to the inadequacy of consideration for the price, learned counsel for the auction purchaser has referred to various court orders reflecting the offers received for the purchase of the property. From the record it, transpires that reserve price of the plot, in question was fixed at Rs. 20,00,0007- and initially offers from prospective purchasers were received below this price as well as equivalent to reserve price but the court did not accept the same. It was on account of care and caution taken by the court for readyertising the sale that the maximum offer of Rs. 21,55,000/- was accepted being the highest market price obtaining on the date of sale in April, 1994, to which no exception can be taken at this belated stage. It is needless to ower-emphaise that the judgment debtor having slept over the matter for nearly 12 years after the consent decree and for more than 10 years of this execution has come up with irrelevant and frivolous objections to defeat the sale which has been duly accepted and confirmed by this court a followed^by deposit of the purchase money, delivery of vacant possession and transfer of the property in favour of the auction purchaser. At any event, there is no evidence to hold that the market value of the plot in question was Rs. 5 million at the time of public notice for sale of the property. The argument that it is worth Rs. 10 million at the moment is without any substance as past and closed transaction cannot be re-opened at the instance of an unscrupulous litigant who has kept silent for a pretty long time after consenting to the decree and not paying paltry amount of Rs. 1,10,000/- as undertaken by him in judicial proceedings, to which a sanctity is always attached. 8. Adverting to the question of limitation with regard to the present application, it may be observed that application under order XXI rule 90 CPC has to be made within 30 days of the date of sale. Article 166 of the First Schedule to the Limitation Act prescribes a period of 30 days from the date of sale for an application to set aside the sale in execution of a decree including any such application by a judgment debtor. Analysing the case of the judgment debtor in the light of this express provision of law, there is hardly any necessity to refer any case on the point. The position may perhaps be different where an application is made under section 47 CPC to set aside the sale for which a period of three years would be available. In the present case however the application is made after more than 5% years in as much as the judgment debtor was personally served with the notice of sale on 12.8.1991. The application is liable to dismissal on this preliminary ground alone but since the counsel for judgment debtor did raised vital questions of fact tending to touch the merits of the sale proceedings and as the Supreme Court has disapproved the decision of causes in a fragmentary manner, I decided to deal with the questions of fact and law raised in this CMA. 9. No other point was urged at the Bar. For the aforesaid facts and reasons, I am convinced that there is absolutely no merit in this application which is accordingly dismissed with special costs of Rs. 5,000/- which sum on payment shall be credited into High Court Employees Welfare Fund. (B.T.) Petition dismissed.

PLJ 1998 Karachi 309 PLJ 1998 Karachi 309 Present: abdul hameed dogar, J. MUHAMMAD MUNAF-Petitioner versus FAMILY JUDGE etc.-Respondents C.P. No. 178 of 1997, dismissed on 28.8.1997. (i) Civil Procedure Code, 1908 (V of 1908)-- —-O. IX R. l3'-Ex-parte decree-Setting aside of-Application for-Dismissal of-Challange to--No decree passed ex-parte shall be set aside merely on the ground of any irregularity in service of summons, if court is satisfied, for reason to be recorded, that defendant had knowledge of date of hearing in sufficient time to appear on that date and answer claim. [P. 312]A (ii) Civil Procedure Code, 1908 (V of 1908)-- —-O. IX R. 13 read with Art. 199 of Constitution of Pakistan, 1913-Ex-parte decree-Setting aside of-Application for-Dismissal of-Challenge to- Constitutional jurisdiction—Question of—Constitutional jurisdiction of High Court is designed and intended to faster cause of justice and not to perpetuate on injustice-It is not eveiy illegal order which is liable to be set aside in exercise of Constitutional jurisdiction-Paramount consideration should be, whether, setting aside of an order, which suffers from a legal infirmity, .,.l advance cause of justice or would it perpetuate on injustice. [P. 312] B Miss Syeda Riffat Bano, Advocate for Petitioner. Mahmood A. Baloch and Irfan Haroon, Advocates for Respondents. Date of hearing: 28.8.97. judgment Through this petition, the petitioner seeks setting aside the exparte order dated 13.5.1997 and judgment and decree dated 31.5.1997 passed by learned IVth Civil Family Judge, Karachi (East). 2. The facts, precisely, of this petition are that respondent Mst. Ambreen filed suit for dissolution of marriage by way of khulla against the petitioner, her husband, Muhammad Munaf, on 13th March, 1997. It was inter alia, contended that petitioner married with the respondent on 10.3.1988 and prompt dower of Rs. 500/- was paid then and there. Irrespective of this, parents of respondent gave articles worth Rs. 7,50,000/- in Jaheez to the respondent so also the relatives and friends of her parents gave articles, goods, clothes and ornaments worth Rs. 50,000/-. Though in Para No. 4 of the suit respondent has mentioned no amount of what ever as a worth of the articles given to her by the petitioner, his relatives and friends but in affidavit, she has disclosed that the said articles were worth Rs. 2,00,000/-. It is further averred that respondent took all the articles to the house of in-laws and she started living with the petitioner in accordance with Sharia. Since the very same time the petitioner neither provided any maintenance nor accommodation to the respondent and has always been forcing her to bring entire maintenance from her parents which she used to bring. The further facts disclosed that on account of non-maintenance and mis-statement made by the petitioner about his business etc., there erupted a severe version and hatred in the mind of respondent against the petitioner and the relations went to such an extent that it became impossible for the spouses to live within the limits prescribed by Almighty Allah, as such she offered to for go her entire maintenance amount and claimed for dissolution of marriage on the basis ofKhulla. 3. After admission of the suit, the summons were directed and the matter was fixed on 31.3.1997, on which date bailiff returned the process unserved and mentioned that petitioner refused to receive the same and the trial Court postponed the matter to 4.4.1997 and ordered for the service by way of pasting. In response the bailiff pasted the summons at the door of the petitioner in presence of two witnesses whose copies of NIC were also annexed with .endorsement but the petitioner did not prefer to attend the Court and file written statement. The trial Court examined the bailiff who stated the above facts and passed an order on 4.4.1997, holding the service good upon the petitioner and fixed the matter for filing of written statement on 16.4.1997. On this date, petitioner was called absent and no intimation of any sort was received from his side till 2:15 p.m. as such proceedings were declared exparte against him and the matter was fixed on 22.4.1997 for filing affidavit in ex-parte proof by the respondent. The respondent filed such affidavit on 22.4.97 and learned trial Court decreed her suit pronouncing dissolution of marriage on 31.5.1997. 4. I have heard learned counsel for the petitioner as well as learned counsel for the respondent at length and have gone through the impugned orders and perused the record. It is contended by the petitioner's counsel that learned Family Judge granted Khulla, to respondent Ambreen in hurriedly manner within a period of two months from the filing of the suit, without notice to him as required under Section 8 of Family Courts Act, 1964, (hereinafter referred to as the Act) as such it suffers from violation of principles of natural justice also. Learned counsel pointed out that the trial Court has not complied with the provisions laid down under Section 8(a)(i), of the Act whereby intimation about presentation of plaint is to be sent, by registered post acknowledgment due, a notice of suit together with copy of plaint and other documents within 3 days of presentation of plaint and the same has not been complied with as such the impugned order as well as judgment and decree suffers from serious illegality and are liable to be set aside. On the point of delay in filing application under rule 13 of West Pakistan Family Courts Rules, 1965 it is argued that the amoment petitioner came to know about ex parte decree, he approached the Court and filed such application. 5. On the other hand learned counsel for the respondent vehemently opposed the contentions advanced by the petitioner's counsel and stated that impugned order as well as judgment/decree passed by the trial court do not suffer form any illegality and were passed in proper manner. He next argued that the petitioner deliberately did not appear and contest the suit, having full knowledge that the same has been filed against him and had deliberatley refused to receive the summons from bailiff and had sufficient "knowledge of affixing summons on the door of his house. He stressed that the petitioner has not given cogent reason either in his application under rule 13 of Family Court Rules. 1965 nor in affidavit attached to the same, that he had no knowledge of filing of the suit by the respondent; and that summons were neither brought to him by the bailiff for personal service nor the same was affixed at the door of his house. He lastly contended that even one mode of service of summons out of three modes mentioned in Order V of CPC is sufficient for the reqiiirement of service on the party, which has been fully done in this case. In support of his contentions, he has relied upon case of Muhammad Nazim vs. Mst. Rchana Parveen Begum and 3 others, 1990 MLD 344 anti-Inayat vs. Mst. Jalala 1991 CLC 1326. 5. Admittedly it is for the first time that the petitioner has taken the ground in petition that rule laid clown in Section 8(a)(i) of Act, has been violated by the trial Cou ^y not sending the summons to him by registered post with acknowledgment due. He has also not. agitated this ground in application under Rule 13 of West Pakistan Family Courts Rules 1965, about setting aside exparte judgment and decree passed in the suit against him. In view of such position, this fresh plea, not raised in the lower forum, cannot be raised in the Constitutional jurisdiction. Moreover, his contention is also found false from the record of the lower Court which appears that on the date of presentation of pliant, learned trial Judge ordered for issuance of summons to the petitioner through bailiff as well as through registered post A/D. According to sub-section (6) of Section 8 of the Act, the summons issued under clause (b) of sub-section (i) of Section 8 shall be served in the manners provided under Order V rules 9, 10, 11, 16, 17, 19, 21, 23, 24, 26, 27, 28, and 29 of CPC. Order V CPC provides three modes of service, i.e. personal service, service by affixation and substituted service. In this case summons have been sent through personal service which according to the bailiffs reports, petitioner refused to accept and thereafter his second mode of service was applied, by which the summons were pasted at the door of his house. Superior Courts have held that in circumstances where law allows more than one mode of service of process, effective service by any of the modes, provided in good service. This Court in the above referred case of Muhammad Nazim vs. Mst. Rehana Parveen Begum has dealt with the case, identical to that of petitioner and nearly all the pleas raised in this petition have been answered. On the point of modes of process as contemplated by Section 8 of the Act, 1964, it has been observed that effective service on any of the three modes if proved is good service. It is also held that the point not agitated in the lower forum, is not open to scrutiny, in petition. Same view has been taken by Lahore High Court in another referred case of Inayat us. Mst. Jalala, in which revision filed challenging setting aside of exparte decree, was dismissed. To strengthen it further, reference is made to the case of Ahmed Autos and others vs. Allied Bank of Pakistan, PLD 1990 SC 497 wherein Honourable Supreme Court has observed that service is to be held good if a defendant is served by any of the three modes of service provided for in CPC as well as rule 8 of Banking Companies (Recovery of Loans) Ordinance, 1980. Irrespective of this, the exparte order cannot be set aside for the reasons, firstly, that application under rule 13 of the West Pakistan Family Courts Rules, 1965 was filed in the lower Court beyond the period of limitation whereby it is to be filed within 30 days of the passing decree and no cogent reason of such delay was shown or explained in the application. Secondly it has been properly held by the trial Court that it was well within the knowledge of the petitioner that the respondent had filed suit for dissolution of marriage against him. As such in view of proviso to rule 13 of Order IX CPC the decree passed exparte cannot be set aside even though any irregularity in the service of summons is shown. Reference is made to said proviso as under:- "(Provided further that no decree passed ex-parte shall be set aside merely on the ground of any irregularity in the service of summons if the Court is satisfied, for reason to be recorded, that the defendant had knowledge of the date of hearing in sufficient time to appear on that date and answer the claim.)" 6. On invoking the extraordinaiy writ jurisdiction of this Court under Article 199 of the Constitution, it has been observed by Honourable Supreme Court in the case of Syed Ali Shah vs. Abdul Saghir Khan Sheerwani, PLD 1990 SC 504 (e) as follows:- "-—Art. 199-Constitutional jurisdiction-Scope-Paramount consideration in view-Constitutional jurisdiction of High Court is designed and intended to foster the cause of justice and not to perpetuate an injustice-It is not every illegal order which is liable to be set aside in exercise of the Constitutional jurisdiction-Paramount consideration should be, whether setting aside of an order, which suffers from a legal infirmity, will advance the cause of justice or would it perpetuate an injustice." 7. With the above observations, this petition being devoid of merit, stands dismissed in limine, with no order as to costs. (K.A.B.) Petition dismissed

PLJ 1998 Karachi 313 (DB) PLJ 1998 Karachi 313 (DB) Present: WAJIHUDDIN AHMAD & HAMID ALI MlRZA, JJ. Mrs. KEHKASHNA NAJMI, ATTORNEY WIFE OF ABDUL QADAR NAJMI-Petitioner versus ADMINISTRATOR, ABANDONED PROPERTIES ORGANIZATION, KARACHI and other-Respondents C.P. No. D-497 of 1996, dismissed on 15.10.1996. (i) Abandoned Properties (Management) Act, 1975 (XX of 1975)-- —S. 16(l)-Termination of Tenancy of M/s Singer Limited and grant of same to petitioner—Revival of tenancy in name of Singer Limited and termination that of petitioner-Challenge to-What is concept of tenancy in law-Question of-With revival of exclusive tenancy of Singer (Pak) Limited, corresponding tenancy of petitioner ceased to exist-Tenancy in law, much as ownership, is valuable right and exclusive tenancy or title to property cannot brook another like and independently co-extensive right in same property and at same time. [P. 317] A (ii) Qnaun-e-Shahadat Order, 1984 (P.O. 10 of 1984)-- —Ait. 115-Abandoned Properties (Management) Act (XX of 1975), S. 16(l)-Tenancy of. Singer Limited in respect of Abandoned property terminated and given to petitioner who was licensee of actual Tenants- Termination of Singer Limited revived and petitioner ordered to vacate premises-Challenge to-Whether licensee can object to title of licensor- Question of-A.Q. Najmi being licensee of Singer (Pak) Limited could not lawfuly by pass right or title of his own licensor-Held: Lessee is estopped from questioning title of his lessor, licensee is estopped from raising challenge to title of licensor-Petition without merit is accordingly dismissed. [Pp. 317 & 318] B & C Mr. Javed Siddiqui, Advocate for Petitioner. Mr. Hisamuddin, for Respondent No. 2. Date of hearing: 15.10.1996. order According to the petitioner, the Administrator Abandoned Properties Organization, Respondent No. 1, in relation to property bearing No. 37-C, 5th Street, Phase I, D.H.A., Karachi, entered into a tenancy agreement with her husband (A.Q. Najmi) on 30.3.1991, the monthly agreed rent being Rs. 3,000.00. The relationship continued but when rent for the months of May and June 1995 was sent through a pay order, such was refused. The petitioner, therefore, filed Misc. Rent Case No. 73/1995 and started depositing rents with the Controller of Rents, Clifton Cantonment Board, Karachi. Meanwhile, A.Q. Najmi fell sick and went abroad for treatment. However, the petitioner, in January 1996, received a letter dated 9.1.1996 from the Respondent No. 2 (Deputy Administrator) through which the property was required to be vacated within 15 days, such letter for the sake of convenience is reproduced herein below: - "You are hereby given notice that you are in illegal possession of the above mentioned premises, which is an abandoned property. These premises were in occupancy of M/s. Singer Ltd., whose tenancy was terminated by an order . dated 30.9.1991 and in the same order you were granted the tenancy of the above mentioned premises. Against this order M/s. Singer filed Constitutional Petition No. D--1428/91. You were also party in that petition. That order was declared to have been passed without lawful authority, and of no legal effect. You Counsel Mr. Javed Siddiqui was also present there and lie does not oppose. As per orders of the Hon'ble High Court M/s. Singer continued to be the tenant of above mentioned premises, so an order granting you tenancy, is not in accordance with law, and was set aside by the Hon'ble High Court. In these circumstances we cannot accept any rent from your. You are further given notice to vacate the above mentioned premises within fifteen days of service of this notice otherwise we will be constrained to take action against you under the Abandoned Properties (Management) . Act XX of 1975." This led to a legal notice from the side of the petitioner and reply thereto dated 12.3.1996. This petition was filed on 28.3.1996 with the following prayers:- "PRAYERS:- It is therefore respectfully prayed that this honour­ able Court may be pleased to pass an Order as under:- (i) to declare the impugned Notices dated 9th January, 1996 and 12th March, 1996 as illegal and without lawful authority; (ii) to declare that the respondent No. 2 cannot terminate the tenancy of petitioner under the provision of Abandoned Properties Act, 1975; (iii) to direct the respondents not to act in any manner contradictory to the vested tenancy rights of the petitioner in respect of the premises; (iv) any other relief(s) as this honourable Court may deem fit and proper." Meanwhile, counter affidavit and rejoinder have been exchanged. Hearing the learned counsel on 3.10.1996, we had, through a short order, dismissed this petition as well as the Misc. application in it. Herein are recorded reasons for the order. Examining the controversy we found that, admittedly, the property in these proceedings is an abandoned property having been duly notified under the Abandoned Properties Act, 1975. to start with M/s. Singer (Pak) limited were tenants of the Abandoned Properties Organisation whereas A.Q. Najmi occupied the property as a licensee of the tenants, being their employee. He was dismissed from the service of Singer (Pak) Limited on 8.4.1991 and was asked to vacate. A.Q. Najmi, however, approached the Administrator to secure the tenancy of the property directly in his name. Per letter dated 30.9.1991, the Administrator terminated the tenancy of Singer (Pak) Limited,, allegedly, on the ground that the property was being used for a godown, which was a commercial purpose and besides it had been let out to A.Q. Najmi at a higher rent of Rs. 6,000.00, whereas M/s. Singer (Pak) Limited were paying only Rs. 2,480.00 as rent to the Organisation. Through the same letter viz. that dated 30.9.1991, the Administrator correspondingly granted the tenancy to A.Q. Najmi. This led to the filing of Constitutional Petition No. D-1428 of 1991 by Singer (Pak) Limited and that petition was allowed through an order dated 19.12.1991, operative portion whereof is as below :-- "It is informed by Mr. Farooq H. Naek that the respondent No. 2 is no longer in existence at present. The name of respondent No. 2 is deleted from the array of the respondents. It is conceded by Mr. Farooq H. Naek that the impugned order dated 30th September, 1991 was passed without any notice to the petitioner and the order is being withdrawn. Mr. Javaid also does not oppose the withdrawal of the order dated 30th September, 1991. The impugned order dated 30th September, 1991 is declared to have been passed without lawful authority and to be of no legal effect. In case further action is to be taken by respondent No. 1 against the petitioner, a prior notice will be given to the petitioner and sufficient opportunity will be given to the petitioner to place his defence before the respondent No. 1. Petition No. 1428/91 stands disposed of accordingly. There will be no order as to costs." Case of the petitioner, though not duly set out in the petition, as argued before us, was that around the same time, A.Q. Najmi filed Suit No. 724 of 1991 on the original side of this Court against Singer (Pak) Limited which prompted a counter suit in the same jurisdiction bearing No. 240 of 1992 by Singer (Pak) Limited against such A.Q. Najmi. These suits are claimed to be pending. Having heard the learned counsel and examined the record, we have been of the view that this litigation does not in any manner come in the way of the present proceedings though the same would remain to be decided according to its own merit. The short question involved in these proceedings is that, basically and essentially, A.Q. Najmi was a licensee of Singer (Pak) Limited and that position is not disputed. Besides, tenancy rights were conferred on A.Q. Najmi through the same order, in the earlier part of which the tenancy of Singer (Pak) Limited was terminated and this entire order dated 30.9.1991 was declared to have been passed without lawful authority and, therefore, of no legal effect in Constitutional Petition No. D-1428 of 1991, substance of the order therein having been reproduced above. We would also take this opportunity to reproduce the letter order dated 30.9.1991 in extenso and such is this:- "M/s. Singer (Pak) Ltd. had been awarded the tenancy of house No. 37--C, 5th East Street Defence Housing Authority Karachi for using the same for residential purpose but instead the house was commercialized in the following manner:- (i) First, a Warehouse was opened in the premises, which is situated in a purely residential area, whish is not only against the terms of tenancy of the APO, but also against the By-Laws of Defence Housing Authority. (ii) The house was let out to one Mr. A.Q. Najmi (g> Rs. 6,000/- p.m. while paying the rent to APO (a> Rs. 2,840/- p.m. Hence payment of Rs. 3,160/- p.m. was illegally derived from it. 2. In view of the above in exercise of the powers vested in the undersigned under Section 16(1) of the Abandoned Properties (Management) Act XX of 1975, it has been decided to discontinue the tenancy of M/s. Singer (Pak) Ltd. regarding the above said Abandoned Property w.e.f. 12.8.91 (A.N.). 3. On his request, the occupant of the house, namely Mr. A.Q. Najmi who has been put in possession by M/s. Singer (Pak) Ltd. has been granted the tenancy. The income derived from Mr. A.Q. Najmi will be deposited in the A.P.O's account." It follows upon the foregoing that the tenancy of A.Q. Najmi came into being because that of Singer (Pak) Limited had stood displaced. Now, if the tenancy of Singer (Pak) Limited was revived such would automatically displace the tenancy of A.Q. Najmi. This precisely is what has happened pursuant to the orders in Constitutional Petition No. D-1428 of 1991. Our conclusion to this effect is based on the concept that tenancy in law, much as ownership, is a valuable right and an exclusive tenancy or title to property cannot brook another like and an independently co-extensive right in the same property and at the same time. It therefore follows, as we have said, that with the revival of the exclusive tenancy of Singer (Pak) Limited, the corresponding tenancy of A.Q. Najmi ceased to exist. A.Q. Najmi, therefore, has been left with no right to urge in this petition. This brings us to another aspect of the matter. Such consists of A.Q, Najmi approaching the Administrator and, in the process, upon getting the tenancy of Singer (Pak) Limited terminated, obtaining the same for himself. This could not be done because much as a lessee is estopped from questioning the title of his lessor, a licensee is estopped from raising a challenge to the title of the licensor. A.Q. Najmi being a licensee of Singer (Pak) Limited could not lawfully by pass the right or title of his own licensor. Such was impermissible under Article 115 of the Qanun-e-Shahadat Order. What is more, the same also appears to have been mala fide because for the B precise reason, partly on account of which Singer (Pak) Limited tenancy was terminated namely, allegedly higher rent being paid by A.Q. Najmi to Singer (Pak) Limited, the same benefit was conferred on A.Q. Najmi, who was admittedly the other contracting party of Singer (Pak) Limited to the allegedly illegal transaction. It is another matter though that A.Q. Najmi was not the tenant of Singer (Pak) Limited at all and was in occupation solely as its licensee, being an employee of Singer (Pak) Limited. Another facet of malafides is that even though Constitutional Petition No. D-1428 of 1991 was disposed of on 19.12.1991 and with it the tenancy of A.Q. Najmi under the Administrator ceased, rents were continued to be received by the Administrator and, as stated in the counter affidavit, it took the death of the concerned Assistant in the Organisation and many years before truth dawned upon the Respondents Nos. 1 arid 2 to refuse to accept rent from A.Q. Najmi and recognise Singer (Pak) Limited as the tenant of the property, which ought to have been done much earlier. As it is, the respondents, in the current state of things, do not dispute the tenancy of Singer (Pak) Limited and recognise it explicitly. For the aforesaid reasons, we have seen no merit in this petition and besides on account of questionable conduct, reflected above and avoidance in stating full facts in the petition, no relief is warranted herein and the petition was dismissed through the short order above referred. (B.T.) Petition dismissed.

PLJ 1998 Karachi 318 [DB] PLJ 1998 Karachi 318 [DB] Present: WAJIHUDDIN AHMED AND HAMID ALI MlRZA, JJ. M/s PETRO COMMODITIES (PVT) LTD.-Appellant Versus RICE EXPORT CORPORATION OF PAKISTAN-Respondent HCA No. 196 of 1996, disposed of on 2.12.1996. Law Reforms Ordinance, 1972 (XII of 1972)-- —S. 3-Contact for sale of goods-Breaking of--Suit against with stay application-Refusal to grant interim relief-Appeal against-Appellant never came up with requisite consideration money which was a pre­ condition involved in opening of letter of credit within 21 days of contract- A contract for sale of goods is not a contract-In relation to such a contract, a permanent injunction under Specific Relief Act cannot be issued-Where a permanent injunction cannot issue, an interim injunction also does not arise to be administered-Moreover in relation to contract of sale of goods, compensation in terms of money would be adequate consideration, and, therefore, no element of irreparable loss would subsist, again coming in way of grant of interim injunction relative to such contract-No cause for interference in impugned order-Appeal disposed of. [Pp. 319, 320 & 321] A to C Mr. Yawar Farooqui, Advocate for Appellant. Mr. ArafHussain Khilji, Advocate for Respondent. Date of hearing: 2.12.1996. order Wajihuddin Ahmed, J.--This appeal arises from an interlocutory order passed by a learned Single Judge of this Court on the original side in Suit No. 1132/96, whereby interim relief of injunction was declined to the appellant-plaintiff. Such was a suit based on application under Sections 20 and 41 of the Arbitration Act, 1940. The suit pertained to a contract between the plaintiff-appellant and the defendant-respondent concluded on 11.7.1995 for the sale of 10,000 metric tones of Basmati rice. The appellant was to establish a letter of credit within 21 days of the date of agreement and the respondent-seller had to do the needful at its end in such manner that the goods, which were sold on FOB basis, were put on board on or before 31.12.1995. It is nobody's case that the letter of credit was opened in time or the rest of the requirements were fulfilled within the contractual period. According to the appellant, the letter of credit was established on 16.10.1996 but respondent, Rice Export Corporation of Pakistan (RECP), says that, by the time it received the intimation of that having been done, the contract had already been cancelled by it on 5.11.1996. This is controverted from the side of the appellant and it is maintained that two memorandums were issued on 24.10.1996 for 2500 metric tones and 1000 metric tones each by the RECP for supply of those quantities to the appellant. As to this, without conceding anything, Mr. Arif Hussain Khilji for respondent-RECP says that such, even if th» case, could merely have been an internal act of RECP. Correspondently, it has been pointed out by Mr. Yawar Farooqui for the appellant that, during the course of time, the appellant had agreed to take Irri-6 in place of Basmati rice and the contract had been kept alive all the while. In this background, according to him, the suit was filed and the interim relief was claimed. As seen the same was declined. The learned Single Judge, in disallowing relief, seems to have been impressed by several factors. He referred to non payment of the contractual price by the appellant within time. Mention was also made of the revocation of the contract by the RECP. He cited V.K. Muinaraswami Chettiar and others v. PA.S.V. Karuppuswarni Mooppanar, AIR 1953 Mad. 380, Messrs Gharibwal Cement Ltd. Lahorr v. Messrs Universal Traders, GakharMandi, PLD 1977 Lahore 481. Hafiz Misbahul Hasan v. The Director General of Suppliers, 1984 CLC 1129 and Hqji Abdul. Satar Chapri v. Secretary Karachi Grains & Seeds MerdiwilK Group and another, 1991 MLD 2697 to hold that in such a contract, as was before him, interlocutory relief by way of interim injunction could not be granted. The same decisions are relied upon by Mr. Arif Hussain Khilji for t,)io respondent. On his part Mr. Yawar Farooqui refers to Mcrkunc Si.tcdc.ii v. Rice Export Corporation of Pakistan, 1993 CLC 714, where interim relief relative to a rice sale and purchase was allowed by a learned Single .Judge of this Coi;r. Disposition that. aiice a contract is \vilnuly b.i-;i;-.t>ii. h 's relegaten to U.c status of a dead letter and no question of its performance arises. That, is svhat rim learned Single Judge seems to have said on account, of the fact that the appellant never came up with the requisite consideration money, which was pre-condition involved in the opening of letter of credit within 21 days of remains tentative in nature, not intended to affect the ulr.imate decision of the case, which would be decided on its own facts. Another aspeei of the matter is that a contract for sale of goods, speaking generally, is not routinely a contract, which is capable of being B specifically performed. In relation to such a contract not usually capable of specifically performed, a permanent injunction under Section 56(f) of the Specific Relief Act cannot issue. Where a permanent injunction cannot issue, an interim injunction also does not arise to be administered. Correspondingly, in relation to contracts of sale of goods, unless otherwise shown and established, compensation interims of money would be adequate consideration, .and therefore, no element of irreparable loss would subsist, again coming in the way of grant of interim injunction relative to such contracts. There, however, are general principles of law and have to be applied in the specific circumstances of a given case, which in itself may pose an exception. As said before, none of it is calculated to affect the disposal of the main dispute between the parties. As to the order of a learned Single Judge of this Court in the case of Merkuria Sucden (supra) all that needs to be said is that where the goods, which are the subject matter of the contract, are specific or ascertained goos and it is shown that the property therein already stood passed even interim relief can be addressed, as was the position in the cited case. Several factors in the precedent case, including issuance of some documents of possession and creation of third party interests, may have accomplished just that. In that case yet another aspect may have been that, at the time, the RECP alone was dealing in the export of rice and the goods were claimed to be unavailable elsewhere. That aspect also could have weighed with the learned Single Judge. Relevant to the provisions of law pertaining to the passing of the property or the title in the goods, the rule as enshrined in Section 19 of the Sale of Goods Act is that the property in the goods inter alia passes at the time when the parties intend the same to pass. Intention of the parties, subject to contract, may be ascertained from the rules set out in Sections 20 to 24 of the same Act. In the instant case, Mr. Arif Hussain Khilji, for the respondent, maintains that because the contract was on FOB basis, the property would have passed only as from the time the goods were actually put on board because prior to that the same shall have remained at the risk of the RECP, the seller. The provisions of Sections 20 to 24 of the Sale of Goods Act, as can be seen immediately, are explanatory of the various circumstances in which the intention of the parties may be gaudged. All such questions would come up for consideration as and when the matter is decided in the ultimate analysisReference may here be made to Section 58 of the Sale of Goods Act. Such Section runs thus:- 58. Specific performance.-- Subject to the provisions of Chapter II of the Specific Relief Act, 1877, in any suit for breach of contract to deliver specific or ascertained goods, the Court may, if it thinks fit, on the application of the plaintiff, by its decree direct that the contract shall be performed specifically, without giving the defendant the option of retaining the goods on payment of damages. The decree may be unconditional, or upon such terms and conditions as to damages, payment of the price or otherwise, as the Court, may deem just, and the application of the plaintiff may be made at any time before the decree." The reproduced Section would show that, in the cases covered by it, specific performance can be ordered even in relation to sale of goods. But that, as hinted above, is to be relative to specific or ascertained goods. As regards such goods, Section 56 of the Specific Relief Act would not become a bar for grant of permanent injunction, nor an interlocutory injunction may be refused on that score in such behalf. Even then it would always be a question of fact as to whether the goods involved quality as specific or ascertained goods. A variety of articles may fall under the category of "specific goods", which is defined by Section 2(14) of the Sale of Goods Act to involve and mean "goods identified and agreed upon at_the_time contract of sale is made". An example, which instantly occurs to mind, may be that of a painting or other piece of art or a thing having a special meaning to the buyer. Such goods arguably may be covered by the description. However, with reference to the subject matter of the suit and the present appeal, it can hardly be said that the goods were specific goods, because Basmati rice, except in rare cases and unlike old (specific or ascertained) wine from year to year, may remain similar, if not the same. As it is, according to the appellant-buyer's own case even Basrnati Rice came to be substituted by Irri-6. On the other hand, the concept of ascertained goods, in the view we take, should he still different. I lie exprc-:"-'',!r! } not defined. Thar, inter alia, may connote ear-marked or appropriated goods in terms contracted to be sold and purchased; in other words goods identified, as agreed upon after the contract of sale is made. at any event, each individual case of the nature in such context shall have to be determined on its own facts. Nothing more on the subject need be said here. Seeing no cause for interference, while we dispose of the appeal and | also the applications filed with it, subject to the foregoing, the appellant' would be free to re-agitate all such questions, as be relevant to its case, just „ as the respondent may do likewise. Nothing said here or in the order of the learned Single Judge, except the bare pi'opi.'HJtions, would affect, the rights of the parties, when the case proceeds either 10 rnal or in arbitration, as the case rimy be. (MYFK..I Orders accordingly.

PLJ 1998 Karachi 322 (DB) PLJ 1998 Karachi 322 (DB) Present: wajihuddin ahmed and syed saeed ashhad, JJ. ABDUL SATTAR DADABHOY etc.--Petitioners versus HONORARY SECRETARY PAKISTAN EMPLOYEES COMP-HOUSING SOCIETY and another--Respondents C.P. No. D-1443 of 1996, allowed on 12.7.1997. Transfer of Property Act, 1882 (IV of 1882)-- --Ss. 123. 129--Constitution of Pakistan, 1972 Ail, 199 read with Arts 2-A and 31--Purchase of property—Application for mutation—Oral gift inclusive of acceptance and delivery of possession to sons (Petitioners)-- Application for mutations pursuant to gift in respondent's record- Rejection of-Challenge to-A person may dispose of whole any part of his property by way of gift in his life time and for such purpose, formality of registration under registration Act. 1908 is not a pre-requisite, but pre­ requisites of a valid gift are. declaration by donor, acceptance by donee and delivery of possession of corpus-A Muslim donor, however, may record a formal declaration orally or subscribe to a memorandum in writing—Neither any local authority nor Government itself can disregard a transaction such as a gift, etc., which satisfies requirements of Muslim Personal Law—Gift made by deceased without mutation in his name, cannot be called imperfect-Deceased had clear cut rights in property-He could tiunsfer those rights subject to necessary formalities being complied with and that is precisely what he did—Petition allowed- Resporidem's refusal to tmnaUun held illegal. [Pp. 323. 324 & 325] A to E 1977 SCMR 154 ref. M,-: Afanr Rchinun, Advocate for Petitioners Af/.s Saifuddiii and Akhtar Huasain. Standing Counsel for Respondents. Date-1 if hearing: 19.3.1997. judgment Wajihuddin Ahmad, J.-This petition is directed against the Pakistan Employees Co-operative Housing Society Limited (PECHS) and the Government of Pakistan through Secretary, Ministry of Housing & Works. The two petitioners here are sons of late Ghulam Muhammad Dadahhoy. who had purchased the property bearing No. 185-E/2, PECHS., Karachi per Deed of Conveyance dated 08.04.1982. Ghulam Muhammad Dadabhoy applied for mutation in the PECHS record through an application dated 18.3.1993. This gentleman died on 06.12.1993 but, the mutation, applied for during his life-time, materalised only on 17.4.1996. However, while alive, the said Ghulam Muhammad Dadabhoy, allegedly, had, through an oral gift inclusive of acceptance and delively of possession, passed on the property to his two sons, the petitioners here. A Memorandum of Gift, incorporating the oral transaction, was executed by the donor on 4.11.1993. On 14.5.1996, the two petitioners, pursuant to the gift, applied for mutation of their names in the PECHS record and with the application appended several documents, including indemnity bond, undertaking and a copy of public notice in Daily "Jasarat" of April 21, 1996, inviting objections before mutation. The application was turned down through a letter dated 04.6.1996 from the Honorary Secretary, PECHS Limited addressed to the petitioners. Such letter, in cxtenso, is reproduced below: " "Subject: "TRANSFER/MUTATION OF PLOT NO. 185-E Dear Sir, With reference to your application dated 11.04.1996, on the above subject, it, is for your information that mi-registered, documents/papers in respect of transaction of property are neither accepted by the Society nor entertained by the Ministry of Works. At present stage when the owner of the property has expired, mutation of record in your name can only be effected if other legal heirs, if any, relinquish/gift, their respective shares/rights in your favour or the matter pertaining to un-registered gift is scrutinized by the Court of law." This state of facts gave rise to the filing of the present Constitutional Petition on 17.8.1996. Notices of the petition were issued to the respondents and replies have been exchanged. Per order dated 26.11.1996 the petition was heard with the stipulation that the same may be admitted and disposed of at the same time. Through a short order, recorded on 19.3.1997. the petit.ii >n was allowed but for reasons to be separately recorded. Appearing below are our reasons for the said short order: It is now more or less settled law, as applicable to Pakistan, that a person, pursuing the Muslim faith, in accordance with the Personal Law to which he is subject, may disposed of the whole or any part of bis property by way of gift in his life-time and for such purpose the formality of registration under the Registration Act, 1908, is not a pre-requisite. In deed Section 129 of the Transfer of Property Act, 1 882, expressly exempts the rules of Muslim Law from the operation of Chapter VII thereof, which deals with the subject of gifts. The exclusion extends, in turn, to Section .123 in the Chapter, which makes registration and attestation by at least two witnesses compulsory to all transfers, through gifts of immovable properties. Nothing in the Registration Act, 1908. has deviated from such specific exclusion. All that is j required f ; . be eiit-ured is thu r the pre- iesjuisH.es of a valid gift under the j Muslim Personal Law namely, declaration by the donor, acceptance of the I ("hr- dune;' and ''pH-. on" c.f ?>osses«ion of the (>i>rpu« h,--ive been duly satisfied. Due 1 conditionalities of a valid gift met, no one including a presumptive heir, can lawfully question the factum or validity of such gift. A muslim donor, however, in order to lend authenticity to the transaction, which in essentials must remain oral, may record a formal declaration or subscribe to a memorandum in writing recording the r completed event of the making and acceptance of the oral gift, as also of the delivery of the subject matter thereof.The foregoing legal incidents relate back to the British times when it was decided that the Personal laws, which were applicable to the British Indian Subjects, were not to be touched and left in tact by the ten Indian Legislature. The same state of Laws has continued in Pakistan. The principle discussed here have been judicially reviewed from time to time and in support, may be referred to Abdul Ghaffar vs. Ghularn Jan, PLD 1975 Pesh. 12, Umar Bibi vs. Bashir Ahmad, 1977 SCMR 154, and Suffer Ahmad vs. Abdul Rashced, 1992 CLC 1896. In view of the foregoing legal position, neither any local authority functioning in.Pakistan nor the Government itself. Federal or Provincial, can disregard a transaction such as a Gift etc., which satisfies the requirements of Muslim Personal Law. Rights of persons thus claiming have further been strengthened by the principles and provisions set out in the Objectives Resolution being made substantive part of the Constitution and given effect to accordingly, through the insertion of Article 2A in the Constitution of Pakistan, which alongwith other directives in the Constitution itself e.g. Article 31 etc. sanctifies the Islamic way of life, in the individual and collective spheres. However, the learned advocate for the respondent No. 1 and the learned Standing Counsel for the Federal Government have drawn our attention to I.G. of Regis. & Stamps vs. T. Begum, AIR 1962 A.P. 199, and Ismail vs. Commr. of Karachi, 1968 SCMR 509. The first of these cases, we are afraid, was incorrectly decided by the Andhra Pradesh Full Bench. In spite of conceding that the document there reflected recitals relating to a "past transaction", registration and deficit stamps were found necessary, solely on the ground that the Iqrarnarna was intended to be evidence of the transaction. If that was the correct approach, reliance by the court on Subramaniam'vs. Lutchman, AIR 1923 PC 50, would render all memoranda of deposit of title deeds to be compulsorily registerable, which surely was not the intention behind the Privy Council decision. As regards the Supreme Court-case of Ismail ibid, the observation therein appears to be having a nexus with Section 123 of the- Transfer of Property Act rather than to Section 129 of such Act. Indeed the subsequent 1977 decision of the Supreme Court makes that assumption substantially viable. Emphasis has also been laid by the learned counsel for the respondents that if mutations were allowed on mere declarations of gift, such is likely to lead to foreseeable foul play at the hands of wrong-doers. For ages now mutations in the record of rights are being made on the basis of mere declarations. Complications, in fact, can and do arise but reasonable care and caution would obviate the same. What actual steps a particular agency would take to forestall foul-play would depend on the procedure that it evolves as also on the circumstances of the case. The respondents, undoubtedly, can adopt all necessary precautions to protect themselves as also to protect unwary third parties. In the instant case, the petitioners have brought on record relevant no objection affidavits of the other legal representatives of late Ghulam Muhammad Dadabhoy as also a public notice to invite possible objections to the mutation. These appear to be admissible steps and if necessary to PECHS can also record the personal statements of the deponents, in order to make assurance doubly sure. A somewhat faint argument was also raised to contend that late Ghulam Muhammad Dadabhoy slept over his rights for eleven long years before applying for mutation and allegedly made the gift in question without even having the mutation effected in his name. Nothing turns on this. A person may become a legal or equitable owner of property without the formality of mutation. It is a common malaise of modern life that people are unable to tie all lose ends because of the multifarious functions that they have to perform. Mere delay in seeking of mutation, the right itself not being in any doubt, should be of no consequence. On the score of the deceased having made a gift without the property getting mutated in his name, no plausible argument can be raised that the gift was based on an imperfect title. The deceased had clear-out and unambiguous rights in the property. He could transfer those rights subject to necessary formalities being complied with'and that is precisely what he did. In the circumstances, this petition is allowed and the respondent's refusal to mutate the names of the donees in their records is held to be illegal. The respondents shall proceed to do the needful though at the same time ensuring that no one is prejudiced in the process. (MYFK) Petition allowed.

PLJ 1998 Karachi 325 (DB) PLJ 1998 Karachi 325 (DB) Present: wajihuddin ahmad and ali muhammad baluoh, JJ. RAJWANI APPAREL (PVT) LTD.-Petitioner versus GOVT. OF PAKISTAN etc.-Respondents C.P. No. D-1384/1994, dismissed on 16.12.1996. Constitution of Pakistan, 1973-- —-Art. 199-Textile quota allocations-Alteration thereof-Challenge to- Petitioner did get notice and did participate in general body meeting of Respondent No. 2--Respondent No. 1 seems to have correctly dealt, with Respondent No. 2 (of which petitioner is a member) who exercised option given to it-Petitioner, therefore, cannot question collective will of its compatriots-Federal Government has to fulfil its international commitments and individual grievances must make way to larger good-­ Current scheme appears to he all round more beneficial and caters to expertise quality and merit-Petitioenr does not seem to have suffered on account, of,change introduced--No vested right is shown to have been taken away to the prejudice of petitioner nor petitioner can ventilate an individual grievance of an uncertain character against larger body of persons of which petitioner is only one-Petition dismissed. [P. 327 & 328] A to D Mr. Haroon Ishaquc Jangda, Advocate for Petitioner. Mr. S. Tariq Ali. Standing Counsel and Mr. Khalilur Rahman, Advocate for Respondents. Date of hearing: 16.12.1996 judgment Wajihuddin Ahmed, J,--Through this petition the petitioner has questioned the manner and mode of tiu; textile quota allocation currently in vogue. The petitioner claims that, it is an exporter of men and boys' trousers, slacks and shorts to the USA . Referring to SRO No. 166(1 )/92 dated 7.3.1992 the petitioner maintains that the petitioner has a vested right in the continuation of the Quota allocation Policy/Rules & Procedure, envisaged therein. Allocation of export authorisations to performance holders under such SRO was to be in the ratio of 50 : 50 for quantity and value. The Rules and Procedure enunciated in the SRO were designed "for implementation of bilateral textile agreements from 1st January, 1992 to 31st December, 1996". It is the case of the petitioner that dining the period postulated such could not, be altered to the petitioner's detriment. However, the very rules and regulations in the SRO contemplated that the Federal Government shall have "the authority to review the policy and of textile and clothing export authorisations and make suitable changes therein as may be necessary. The Federal Government also reserved the right and power to issue its own interpretation, clarification or amplification of the rules, as and when found necessaiy. As it, transpired, another SRO viz. 228(l)/94, in exercise of the same powers under Sub-section (1) of Section 3 of the Imports and Exports Control Act, 1950, was issued by the Federal Government, whereby the aforesaid SRO was superseded on 8.3.1994 and an lustered procedure was provided, again operative upto 31st December, 1996. For our purposes, the only alternation was that in the year 1994 quota entitlements were to be determined either in accordance with the relevant provisions in SRO No. 166(l)/92 "or on the basis of quantity exported by the performance holders in 1993, if the Associations concerned with a category so opt". It would appear that the respondent No. 2, Pakistan Readymade Garments Manufacture and Exporters Association, of which the petitioner is a member, called a general body meeting for 26.4.1994 to exercise such option through a notice issued to its members on 16.4.1994. The petitioner maintains that such was not the requisite 10 day's clear notice under the Articles of Association. It is. however, admitted that, the petitioner received the notice on 23.4.1994 and duly attended the deliberations of the meeting on 26.4.1994, when the association decided to opt for seeking allocations to its members on the basis of quantity exported by the performance holders in 1993. According to the petitioner, the decision in the meeting was illegal and the petitioner has suffered in consequence. This petition was brought on 26.5.1994 for seeking redress. It is no doubt correct that quota rights are valuable rights. What, however, is to be seen is whether the petitioner has suffered any injury and further whether the injury has been inflicted unlawfully. In the first place, the Memorandum and Articles of Association of the respondent No. 2, of which the petitioner is a member, merely provide that ten days' notice would only "ordinarily" he given for a general meeting and besides a shorter notice would suffice, if opinion be that convening of the meeting involves an element of urgency. Besides, non-receipt of the notice is stipulated not to invalidate the proceedings of any general meeting (Article 22). It would, thus, appear that the matter being urgent a shorter notice may | not have been, out of place. What is more, the petitioner did get the notice! and did participate in the general body meeting. No cavil, therefore, on that j score should be in order. Coming to the larger controversy, it is to be noted that matters of the kind, involved in these proceedings, are best resolved on a collective basis and individuals must bow to collective wisdom and collective aspirations. For this reasons, the Federal Government seems to have correctly dealt with the respondent No. 2 and the respondent (of which undeniably the petitioner is a member) exercised the option given to it, the option being none other than either to insist on the modalities of the scheme of 7.3.1992 or to opt for the rule of quantity exported by the performance holders, contemplated in the new version notified on 8.3.1994. The petitioner, therefore, cannot legitimately question the collective will of its compatriots. It must be emphasised here that these are no trifling matters. The Federal Government on the basis of such-like schemes has to fulfil its international commitments, in this case with the Government of the United States of America and individual grievances, even if subsisting, must make way to the larger good Even otherwise, it has not been shown to us that the petitioner has suffered on account of the change introduced. We repeatedly asked the learned counsel for the petitioner as to how the alteration had adversely operated against the petitioner. The yardstick for that could be none other than whether or riot the petitioner has earned the same or greater amount of foreign exchange on its exports, subsequent to the new r policy. Apparently the petitioner may have earned more because that, is what we have inferred from the argument. Indeed, the current scheme appears to be all round more beneficial aud caters to expertise, quality and merit. It is easy to conclude this. Assunrug restrictions as to quantity, for restrictions under the current controversial state of International trade cannot be excluded, it is obvious that those who export better quality of goods are likely to earn more from the same quantity than those who were to export inferior goods necessarily entailing lesser returns. All said and done, the petitioner does not seem to have suffered and does not merit relief. Several cases, however, have been relied upon by the learned counsel for the petitioner. They are Rchmatullah v. Deputy Settlement Commissioner, PLD 1963 S.C. 633, Shaikh Fazai Ahmed vs. Raja Ziaullah Khan, PLD 1964 S.C. 494, Mardan Industries Ltd. v. Government of Pakistan, PLD 1965 Pesh. 47, Collector of Central Excise, and Land Customs v. Azizuddin Industries, PLD 1970 S.C. 439, Muhammad Nawaz v. Government of Punjab, 1981 SCMR 523, Abdul Jalil Khan v. Addl. I.G. Police 1983 PLC (CS) 1042, Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420 and Army Welfare Sugar Mills v. Federation of Pakistan, 1992 SCMR 1652. While we must express our appreciation for the hard work and tenacious pursuit of his case on the part of Mr. Haroon Ishaque Jarigda, we regret that none of these precedents, in the circumstances of the case, is helpful to the petitioner. These cases, speaking broadly, lay down that a notification cannot arbitrarily curtail any vested rights nor can it operate retroactively and besides the principles of Animus Revertendi and Locus Poententiae preclude the recall of earlier dispensations or re-tracing of the steps after a decisive step has been taken. None of these principles applied here because no vested right is shown to have been taken away to the prejudice of the petitioner nor the petitioner can ventilate an individual grievance of an uncertain character against the larger body of persons of which the petitioner is only one. For the foregoing reasons, through a short; order passed on 16.12.1996, we had dismissed this petition. We, however, leave the parties to bear their own costs. (T.A.F.) Petition dismissed.

PLJ 1998 Karachi 328 PLJ 1998 Karachi 328 Present: dr. ghous muhammad, J. NAZIR HUSSAIN-Appellant versus ABDUL MANAN--Respondent Revision Application No. 201 of 1996, dismissed in limine on 4.9.1997. Civil Procedure Code, 1908 (V of 1908)- —S. 115 read with O, XVIII, R. 17 & S. 151 -Suit for specific performance of contract at final stage-Application for further cross-examination allowed by trial Court while matter was pending for final arguments-Challenge to-Whether after closing their respective side by parties, can witness be recalled for further cross-examination and if so under what circumstances-Question of-Even in absence of any express provision at any state of trial or proceedings either on its own motion or upon request of either party may call and recall witnesses for purpose of reexamination or cross examination if dictates of justice and equity so demand—This can be done in exceptional and special circumstances-­ Central idea being that court has to make endeavours to discover truth-­ Such powers have been vested in courts under Order XVIII, Rule 17 C.P.C.-Courts can press into service section 151 C.P.C. if such requests are made at instance of parties-Held: Trial Court having jurisdiction in matter has not committed any illegality or material irregularity by passing impugned order-Petition having no merits, is accordingly dismissed, ~ [Pp. 330 & 331] A & B Mr. Muhammad All, Jan, Advocate for Petitioner. Mr. Usman Ghani. Rasfiid, Advocate for Respondents. Date of hearing: 4.9.1997. order This order will dispose of revision under section 115 C.P.C. The applicant has challenged the u.'d,: •: J.atocl 15.4.1996 passed by the learned Ill- Senior Civil Judge, Karachi West, in Civil Suit No. 904/1985 (Old No. 1711/1983.) whereby application under section 151 C.P.C., fded by the respondent for further cross-examination of the plaintiff was allowed Briefly stated the background of the matter is that the applicant filed suit for specific performance against late Abdul Man nan whose L.Rs. are now contesting the case as respondent/defendants. The prayer clause in the plaint reads as under:- (a) decree for specific performance of the agreement of sale dated 25.2.1981 directing the defendant, to execute and sign the documents of transfer of an area of 200 sq. yds. out of plot bearing No. M-2-612 (0-694) Block 'IT Shershah Colony, Karachi. b) to execute and sign all the documents to effect mutation in regard to the Excise & Taxation Department and in the record of other authorities which may be declared competent by the concerned authorities to maintain the record of right of the said proper Cost, of the suit (d) Any other further and better relief which this Hon'ble Court may deem fit and proper under the circumstances of case." The parties led their evidence and while the matter was pending for final arguments application was submitted by the respondents under section 151 C.P.C., for recalling the applicant/plaintiff for further cross-examination. In the supporting affidavit it was stated that the learned counsel for respondent was busy before this court therefore the defendant/respondent Abdul Maunau Pasha himself cross-examined the applicant but after looking into the cet, fied copies of the statement it transpired that material crossexamination could not be done due to serious illness and engagement of the learned counsel for the defendant. The applicant filed his counter affidavit and opposed the application on the plea that he was cross-examined at great length on 27.11.1995. Ultimately the learned trial court allowed that application vide the impugned order. I have heard learned counsel for the parties at length and have perused the record. Learned counsel for the applicant contended that, the impugned order is illegal, prejudicial and liable to be set, aside. He further submitted that the learned trial court ought to have considered that there is no provision of law whereby the respondents may be entitled to recall the witnesses for further cross-examination once the side stood closed after effecting cross-examination at length. Lastly he submitted that the learned lower court also failed to appreciate that the application for further crossexamination had been filed only to fill up the lacuna to which the respondents are not entitled under the law. Learned counsel for the respondent supported the impugned order and submitted that the said order is just and proper. The question which require consideration is whether after closing of their respective sides by the parties, can a witness be recalled for further cross-examination and if so under what circumstances? In my considered opinion even in absence of any express provision the court may at any stage of trial or proceedings either at its own instance or that, of a patty recall a witness for further examination or crossexamination in the interest of justice though the party may have closed its side. This can be done in exceptional and special circumstances where the interest of justice so demand. (See Phipson on Evidence, 14th Edition page 215). The wisdom expressed by Phipson is squarely extendable to the present case. The court, either on its own motion or upon the request of either party may call and recall witnesses for the purposes of re-examination or cross-examination if the dictates of justice and equity so demand. The central idea being that the court has to make endeavours to discover the truth. Such powers have been vested in the courts under Order XVIII rule 17 CPC. The courts can press into service section 151 C.P.C. if such requests are made at the instance of the parties. Following the above principle in the facts and circumstances of the case in my humble view the learned trial court, having jurisdiction in the matter has not committed any illegality or material irregularity by passing the impugned order. Accordingly, this revision having 110 merits is dismissed in limine alongwith M.A. No. 917/96. (K.K.F.) Dismissed in limine.

LJ 1998 Karachi 331 (DB) LJ 1998 Karachi 331 (DB) Present: wajihuddin ahmed and amanullah abbasi, JJ. SHAUKAT ALI QADRI-Petitioner versus KARACHI BUILDING CONTROL AUTHORITY etc.-Respondents. C.P. No. D-449 of 1996, decided on 10.9.1996. Constitution of Pakistan , 1973- —-Art. 199-Construction without obtaining permission and approved plan, blocking petitioner's right of light and air Challenge to~KMCA was directed to issue notices to all concerned and to take necessary action if structure is unauthorised-No element of danger should be countenanced and rights of petitioner etc. would be fully secured-Occupancies created by respondent No. 2 should pose no difficulty because rights created in an illegal building, must stand or fall with building itself. [P. 332] A Mr. Haider Iqbal Wahniwal, Advocate for Petitioner. Date of hearing: 10.9.1996. judgment Wahjihuddin Ahmed, J.--This order would be read in continuation of the earlier orders in the petition and, more particularly, the orders dated 15.4.1996 and 10.9.1996. Inspite of the fact that Mrs. Zahida Naqvi for respondent-KBCA, on 15.4,1996. stated that she would be filing comments, none seem to have been filed. The petition in the absence of the learned counsel for the respondents was taken up and disposed of on 10.9.1996, for reasons which follows: The petitioner is the owner of building situated on Plot No. OT-5/3, Mithadar, Karachi, ana Respondent No. 2 dismantled the adjoining property, OT-5/4. Mithadar, Karachi, allegedly, causing damage to the petitioner's building. This being accomplished, the Respondent No. 2, according to averments in the petition, to which no counter affidavit has been filed, started raising construction on the plot last mentioned. He undertook the construction work on such plot, allegedly, without obtaining approval/permission and without an approved plant. The KBCA, Inspite of notices, seems to have dilly-dallied in the matter with the result that the Responden No. 2 was able to raise a ground plus six storeys structure allegedly impairing the petitioner's right of enjoying his property, blocking the petitioner right of light, and air. The structure of the Respondent No. 2 has been described in the petition an a "concrete bomb". Meanwhile, the petitioner approached this court and on 3.4.1996 further construction was ordered to be stopped. Two consecutive inspections were ordered through the Nazir and it would seem that the structure, in effect, was given a touch of finality, inasmuch as portions thereof were allocated to various persons. No approved or completion plan has been brought on record. As a result, the allegations remaining uncontroverted, an unauthorised building seems to be standing on the site posing serious hazards to life and property. In the circumstances and for reasons to be recorded, we, through a short order, allowed the petition. It will now be for the KBCA to proceed with the matter upon issuance of notices to all the parties. The structure being unauthorised would be dealt with in accordance with law. Notices would be issued by the KBCA to all concerned, the petitioner, the Respondent No. 2 and the occupants such as they may be. If the structure is unauthorised, necessary action at the level of the KBCA would be taken through a speaking order. Under all circumstances, it would be ensured that no element of danger is countenanced. Besides, the rights of the petitioner and other neighbours of the property would be fully secured. Occupancies/created by the respondent No. 2 should pose no difficulty because rights created in an illegal building, upon due process must stand or tall within the building itself. The decision of the KBCA would be communicated to this court in writing and every effort would be made to effect early disposal. Order accordingly. (MYFK) Order accordingly.

PLJ 1998 Karachi 333 PLJ 1998 Karachi 333 Present: ali muhammad baluch, J. MUHAMMAD RASHID JANJUA-Appellant versus GHULAM HUSSAlN-Respondent F.R.A. No. 510 of 1993, dismissed on 13.01.1998. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)— —Ss. 2(f)(i), 15 & 21-Relationship of landlord and tenant-Landlord filed ejectment application against tenant on ground of default—Tenant denied relationship of landlord arid tenant asserting that he was owner of premises in question—Landlord filed copy of original sale deed in respect of pren '. es in question stated to have been executed in his favour by original landlord—Tenant filed photocopy of similar sale deed and also failed to produce electricity bill, water charges bills in his favour while landlord successfully proved his ownership over premises by production of such documents & affidavits etc.—Appraisal of evidence—On a question put to counsel for appellant by Court as to why appellant could not produce any document like payment receipt for electricity and watercharges from year 1985 when he claims to have purchased premises from landlord (Actual) learned counsel was unable to satisfy court-Similarly. as to why original agreement of sale executed by landlord (Actual) in favour of appellant was not produced before Rent Controller, learned counsel for appellant merely stated that its photostat copy was enough which was produced—Had appellant actually purchased premises in year 1985 and occupied same, he must have come into possession of documents like receipts of payment of electricity charges and water charges—In juxta position to above case respondent, who claims to have purchased this house from landlord (Actual in 1987, has produced receipt of payment of electricity and water charges for year 1987-Held: Rent Controller has quite correctly scrutinised and discussed evidence led by parties 'on issue of relationship and his finding on same is neither incorrect nor absured-Appeal without force is accordingly dismissed. [P. 337 & 338] A, B & C Mr. Attaullah Khan, Advocate for Appellant, Mr. Abdul Sattar Osrnan Mernon, Advocate for Respondent. Dates of hearing : 24.10.97, 22.12.97 and 23.12.97. judgment By this appeal Order of VI Rent Controller. Karachi-East dated 30.10.1993, ordering ejectment of the appellant/tenant from residential premises within a period of 30 days from the date of the order, has been challenged. 2. The disputed premises are a residential house bearing No. ( -22, situated in Noorani Basti. Shakra Goth. Korangi No. I. Karachi. These premises originally belonged to one Musafir Khan^The landlord/opponent Ghulam liussain claimed that in the month of June, 1987 he had purchased the abovesaid residential house from Musafir Khan for a sum of Rs. 60,000/- and obtained its possession. In fact it was the sale of a superstructure i.e. the building, by Musafir Khan as the land could not be sold being katchi abadi. Ghulam Hussan claimed that in presence of witnesses, Musafir Khan had executed the agreement of sale in his favour and handed him over the vacant possession of the premises also. Ghulam Hussain further claimed that in the month of August, 1989 appellant Muhammad Rashid Jarijua approached Ghulam Hussain's father and sought the premises above described on rent as he needed the same as he had to vacate the official quarter in which he was residing as a serviceman on his retirement. At first Ghulam Hussain and his father refused the premises to be let on rent to Muhammad Rashid Janjua but he brought two respectable persons i.e. Shafi Wadero and Muhammad Umar to Ghulam Hussain and on account of their recommen I. tions Ghulam Hussain let the premises in dispute on rent in the sum of Rs. uOO/- per month for a period of three months to Muhammad Rashid Janjua. The possession was handed over to the tenant in August. 1989 by Ghulam Hussain in presence of the said two respectable persons. Ghulam Hussain further claimed that the rent for 3 months viz. August, September and October. 1989 was paid to him by Muhammad Rashid Janjua in installments. However, the tenant could not vacate the premises as he pleaded further difficulties. Ghulam Hussain finding that he was not getting back possession of the premises by the Ex. Service man Muhammad Rashid. Janjua, he filed 145 Cr.P.C. proceedings in the Court of a Magistrate. However, such proceedings were challenged in revision before the Sessions Judge by Muhammad Rashid Janjua, who decided that the dispute between the parties was of a civil nature and, therefore, the order of the Magistrate was set-aside and the proceedings xmder Section 145 Cr.P.C. came to an end. Ghulam Hussain perhaps kept, the pressure for getting the possession from Muhammad Rashid Janjua, therefore, he had to file a suit in which he for the first time came out with a piea that he himself was the owner of the house and requested for an injunction against Ghulam Hussain not to dispossess him. However, the said suit was disposed of by the civil court on the basis of statements made by both the parties. Ultimately, Ghulam Hussain filed Rent Case No. 699/1990 pleading that his tenant Muhammad Rashid Janjua was liable to be ejected as lie had committed default in payment of the rent after the month of October, 1989. Muhammad Rashid Janjua contested the rent case on the plea that Ghulam Hussain was neither the owner nor the landlord of the premises as he himself and purchased the disputed premises from the owner Musafir Khan by an agreement in the year 1985 and that on that account he was not. liable to pay any rent to Ghulam Hussain and, therefore, was neither a cu''--a!lter nor the tenant. The Rent Controller on these pleas framed the following issues for decision:- 1. Whether there existed relationship of landlord and tenant between the applicant and the opponent regarding house No. C-22. Noorani Basti Chakra Goth, Korangi No. 1, Karachi? 2. Whether the opponent committed a wilful default in payment of rent since November, 1989 to the applicant? 3. What should the order be? 3. Both the parties led their evidence in shape of their affidavits, affidavits of their witnesses and produced documents in support, of their contention. The learned Rent Controller on assessment of the evidence led before it came to the conclusion that Ghulam Hussain was the landlord/owner of the premises while Muhammad Rashid Janjua was the tenant. The learned Rent Controller further held in his judgment that applicant Muhammad Rashid Janjua had committed a wilful default in payment of the rent from November, 1989 and, therefore, he was liable to be ejected. The tenant was given 30 days time to vacate the premises. 4. In the present appeal the tenant Muhammad Rashid Janjua challenging the order of the Rent Controller had contended that since he had challanged the relationship of landlord and tenant between him and Ghulam Hussain, t ' v learned Rent Controller had erred in coming to the conclusion that he was defaulter in payment of the rent, and in support of this contention the learned counsel for the appellant argued that, on the basis of the evidence led before the Rent Controller it should not be held that he is a defaulter. 5. Further technicality challenging the proceedings before the Rent, Controller the learned counsel for the appellant pointed out that the verification of the affidavits-in-evidence produced by the landlord was not in accordance with law and, therefore, the same should not be considered as evidence of the landlord. Further contention of the learned counsel for the appellant was that till the pendency of the suit, the learned Rent Controller could not have ordered his ejectment from the premises. 6. On going through the record of the learned Rent Controller it is found that the landlord Ghulam Hussain filed his affidavit-in-evidence and produced the original agreement of sale executed in his favour by Musafir Khan. The said original agreement is Ex. A/1 on the record of the Rent Controller and it is attested by witnesses Haji Murad, Muhammad Nawaz and Haji Imtiaz Hussain. Ghulam Hussain also produced in evidence the original receipts of payment made towards the charges of water supply to the premises, issued by Karachi Water & Sewerage Board. These receipts are Exhibits 'A-2' and 'A-3'. There is also a receipt called Test Report Receipt (Ex. A-4) issued by Karachi Electric Supply Corporation, which is dated 29.3.1986 denoting that an application for supply of electricity was moved on that date. The receipts of Karachi Water & Sewerage Board were dated 5 th March, 1986 and 25th February, 1987. These receipts are in the name of Musafir Khan, bearing House No. 22, Noorani Basti, Korangi No. 1, Karachi. In addition, Ghulam Hussain also produced many other receipts showing that electricity charges were paid during the year 1986 and J987 for many months-in the name of Musafir Khan by him. The other evidence led by Ghulani Hussain comprised the evidence of Muhammad Nawaz. Haji Murad, Shafi Muhammad arid Muhammad Umer. Witnesses Muhammad Nawaz and Haji Murad had stated that Musafir Khan had actually sold the premises for the first, time to Ghulam Hussain in their presence, and that agreement was executed also in their presence, which they had signed as witnesses. Witness Shafi Muhammad and Muhammad Umar deposed that in their presence in the month of August, 1989 the tenant Muhammad Rashid Jaiijua was inducted by Ghulam Hussain on their pursuation and that a rent of Rs. 500/- per month was settled and Muhammad Rashid had paid rent for one month in their presence to Ghulam Hussain. The evidence of these witnesses after due cross-examination was duly scrutinised and assessed by the learned Rent Controller and believed. Form the side of the tenant there is evidence of his own and he produced only a photo stat copy of the agreement of sale executed by Musafir Khan in his favour in the year 1985. In addition, Muhammad Rashid Janjua produced certain documents but all these documents pertain to the years 1989 and 1990. Two of these documents are receipts for purchase of bricks and paints while three are the receipts of payment of electricity charges in the name of Muhammad Rashid Janjua pertaining to the year 1990. The other document on which much reliance was placed by the learned counsel for the tenant was a membership form show i g that Muhammad Rashid, a retired Sergeant, was member of a "Anjuman Bashindgan-e-Noorani Basti" from the year 1985. This document appears to have been signed by the President and the General Secretary of the said Anjuman but neither affidavits were filed in support of issuance of such certificate of membership nor they were produced in evidence for cross examination. Besides, significantly the number of the house in occupation of Muhammad Rashid shown in this membership form is C/912. Noorani Basti, Sector 40/C, "Y" Area, Korangi No. 1, Karachi 31. This is definitely in respect of sume other premises and, therefore, it wa. 1 ^ riot re!.!',".! upon by t.!k Rent Controller as he did not rely on the evidence of Muhammad Rashid Janjua about his contention of his being himself the owner of the premises in dispute. On going through the judgment of the learned Rent Controller, it appears to me to be well reasoned and having all discussed in detail the entire evidence on record and does not appear to suffer from any material illegality or irregularity. The only contention of the learned counsel for the appellant of some substance is decide this appeal was whether the learned Rent Controller could pass the order of ejectment when the tenant had challenged his relationship. On this ground reliance is placed on the case of Province of Punjab through Education Secretary and another vs. Mufti Abdul Ghani, reported in PLD 1985 S.C. 1, wherein their lordships of the Supreme Court observed as under: 'And thirdly, it was emphasised in that case atu! we reiterate it that the Rent Controllc; iui.p io ev^rv Mich crvtst. to makt distinction between genuine and well f-nuiiled dispute about the title and that which is vexatious uiesiiMH-u to achieve delay), frivolous or without foundation. Unless this aspect is willingly ignored, a Presiding Officer of ordinary experience would be able to make the distinction between the two. And in the latter case he shall be under a duty not to permit the challenge to the title. Guidance in this behalf is also available in the case of Rehmatullah itself. The Rent Controller who ignores these veiy vital considerations might be deemed to be failing in an important duty." 7. In the present case the Rent Controller has passed his judgment on the evidence and the documents produced by the parties before him and to me it appears that he has fully justified the same in the reasons given by him in the judgment. 8. On a question put to the learned counsel for the appellant by the Court as to why Muhammad Rashid Janjua could not produce any document like payment receipt for electricity and water charges from the year 1985 when he claims to have purchased the premises from Musafir Khan, the learned counsel was unable to satisfy the Court. Similarly, as to why the original agreement of sale executed by Musafir Khan in favour of Muhammad Rashid was not produced before the Rent Controller, the learned counsel for the appellant merely stated that its photo stat copy was enoxigh, which was produced. Had the appellant actually purchased the premises in the year 1985 and occupied the same, he must have come into possession of the documents like receipts of payment, of electricity charges and water charges. In juxta position to the above case, Ghulam Hussain, who claims to !. ive purchased this house from Musafir Khan in 1987, has produced the -receipts of payment of electricity and water charges for the year 1987. Following the principle laid down in the case of Province Punjab vs. Mufti Abdul Gham (PLD 1985 S.C. 1) the duty of the Rent Controller to check whether the plea of denial of relationship was frivolous or genuine, I find that the learned Rent Controller has quite correctly scrutinised and discussed the evidence led by the parties on the issue of relationship and his finding on the same is neither incorrect nor absurd. 9. Reverting to the objection of the learned counsel for the appellant that the verification of the affidavits was not proper and hence their consideration by the Controller in evidence should lie held as improper, I find that the affidavits of witnesses Muhammad Nawaz, Haji Murad and Muhammad Umar has been verified in the following manner:- That whatever stated above is correct to my knowledge." The objection of the leanu'd counsel for the appellant is that requirement of law is that the contentions of fact, should be separately verified to denote the contention of the fact must be correct to the knowledge of the deponent while the contention of law must be correct to his belief. The learned counsel for the appellant has omitted to note that these affidavits contained only the facts which the deponents had stated to be correct according to their knowledge. No legal pleas have been taken in these affidavits, therefore, there is no necessity to state that the same were correct according to the belief of the deponent. Apart from what is stated above, these are the proceedings before the Rent Controller and not before a civil court where adherence of such principles of law were to be strictly attracted. As regards the affidavit of Ghulam Hussain, it is also entirely on factual ideal and there is no legal plea which ought to have been stated to be correct on the basis of the belief of the deponent. For the above reasons, I do not find any force in the arguments of the learned counsel for the appellant to discard the evidence led by the appellant. The learned counsel had placed his reliance on the case ofHabib Bux vs. Zahoorul Husan reported in 1986 CLC 1119. For the reasons discussed above, I hold that the principles laid down in the reported case are not attracted in the present case. 10. The last objection of the learned counsel for the appellant finding errors in the evidence of the landlord was that affidavit-in-evidence of witnesses Muhammad Nawaz and Haji Murad were typed at one stroke keeping the names of the deponents, blank, and similarly the affidavits-inevidence of Shafi Muhammad and Muhammad Umar suffered from same defects. It was stated that only the names of the deponents were typed again filling the blanks in the affidavits and, therefore, these affidavits may be discarded from the evidence. The learned counsel had relied upon 'a case of Muhammad Saeed vs. Khawar Raft, decided by Justice Sajjad Ali Shah, the erstwhile Judge of this Court has reported in 1985 CLC page 2125. On going through the cross-examination of the witnesses abovenamed, on the question of infirmity of these affidavits, I find that the affidavits were not challenged on that point in the cross-examination as no such question was ever put to them. Apart from that, leading of evidence through affidavits before the Rent Controller has been permitted by law and the affidavits have to be draf e I and then typed. It is the reading over of the evidence and the verification which is important and if the evidence of two witnesses is short and exactly the same as is in the present case, comprising of a single paragraph, I do not agree that it is such a defect as to take the affidavits out of consideration. Consequently, I do not think the principle laid down in the case of Muhammad Saeed vs. Khawar Raft is attracted in the present case. Even otherwise, in the case of Muhammad Saeed vs. Khawar Raft, the evidence was held to be not trustworthy not only for the defect of filling in the blanks but for the reason that deponents stood falsified in view of the documentary evidence and admissions made by the tenant in the crossexamination also. Such circumstances are lacking in this case, therefore, I do not find force in this objection from the learned counsel for the appellant. As a result, I find no force in the present appeal and, therefore, dismiss the same. However, since the appeal has been pending for sufficiently long time, I order that the appellant is allowed 60 days time from the date of this judgment for vacating the premises. (B.T.) Appeal dismissed.

PLJ 1998 Karachi 339 (Original Jurisdiction) PLJ 1998 Karachi 339 (Original Jurisdiction) Present: rana bhagwan das, J. SUALEH SONS (PVT.) LIMITED-Plaintiff Versus KARACHI DEVELOPMENT AUTHORITY-Defendant Civil Suit. No. 1 of 1987, dismissed on 29-12-1996. (i) Karachi Development Authority Order, 1957-- —-Art. 131-Suit for recovery of amount from KDA--Suit whether maintainable for want of legal notice as required under Art. 131- Question of-Plain reading of aforesaid provision requiring a written notice in respect of any purporting to be done under KDA order or Rules or Regulations made thereunder tends to show that delivery of such notice at the office of authority is mandatory before filing of suit- Strictly speaking such notice must state cause of action, name and place of intending plaintiff and nature of relief sought-Besides, in eveiy such suit brought against KDA plaint, should contain a definite statement that such notice has been ho delivered, one month before suit. [P- 343] A (ii) Estoppel-- —Estoppel-Principle ot'-Applicability of-Contract between plaintiff and KDA for planing, designing and construction of water reservoir-Dispute about change in design and escalation in prices—Plaintiff a company was paid a lumpsum compensation of 5 lacs and executed on undertaking in favour of defendant, that this amount is accepted as full and final in connection with pending claims with K.D.A.-Suit. for recovery of further amount is whether maintainable—Question of—Defendant sanctioned payment of Rs. 5 lacs on account of escalation in prices in full and final satisfaction of claims made by plaintiff-Having accepted this payment without any protest plaintiff is legally estopped from questioning same after a lapse of nearly three years by stating that acknowledgment, as executed by him under duress-Plaintiff did not. state at. time acceptance of amount that same was accepted under duress or protest-Explanation that had it been so stated plaintiff would not. have been paid even this amount, is hardly any justification for backing out, of his undertaking that he would not claim any other grant-Likewise there is absolutely no evidence as regards commission of fraud and duress as pleaded and convassed at, the Bar-Suit dismissed. [P. 349] B Gitlzar Ahmad. Advocate for Plaintiff. Nr.rtio for Defendant, Date of hearing : 12-12-1P96. judgment Plaintiff a private limited company engaged in the business of builders, engineers and contractors has brought this suit for recovery of Rs. 42.46.791.00 in the following circumstances. 2. In 1975 KDA invited tenders for planning, designing and construction of 10 M.G. Reservoir under the third phase of Greater Karachi Bulk Water Supply Scheme, Plaintiffs tender for execution of the work in the sum of Rs. 1,10,20.5487- being lowest was accepted. On 21.7.1975 agreement for execution of work was executed between the parties on the terms and conditions contained in the tender documents. Execution of the work was commenced from this date and was required to be completed within 18 months but subsequently the period was extended from time to time. It is the case of the plaintiff that initially it was require to prepare design foi the work with the cede BSCP 2007 but on or about 9.9.1976 defendants directed it to prepare a fresh design of works as per code BSCP 5337 which was complied with resulting in substantial increase in the cost of the work and additional use of steel needed for completion of the works. According to the plaintiff, in view of change in design as against original qxiantity of 338.75 tons 622.437 tons of steel was used for completion of the work and it was entitled for payment of the additional use of steel. On its claim for the additional quantity of steel defendants paid for 204.664 tons of steel leaving a balance of 79.023 tons of excess steel which remained unpaid. 3. On 30.9.1975 Government, of Pakistan granted escalation in prices. Likewise the Government of Sinclh issued instructions for grant of escalation in prices through its letter dated 22.10.1978 which according to plaintiff are binding upon the KDA and plaintiff therefore became entitled to escalation in prices by virtue of the agreement. It is averred that the Claims Committee of the defendant vide, its resolution dated 10.5.1980 accepted the proposition that the plaintiff was entitled to escalation in prices. Plaintiff therefore computed its claim on accoxmt of escalation at Rs. 32,13,109/- and submitted the same to the defendant, on 25.6.1980 but the Executive Engineer of the defendant on 20.8.1980 computed the amount on account of escalation in prices at Rs. 13,67,233.35 and recommended payment to the plaintiff which being endorsed by Law Officers of the defendants as well was acceptable to the plaintiff. Governing Body of the defendant, however, in its meeting held on 15.12.1983 sanctioned a payment of Rs. five lacs to the plaintiff on account of escalation in prices which was paid to it on 29.12.1983. 4. It may be observed that by way of resolution in its meeting Governing Body of KDA approved the payment of Rs. five lacs to the plaintiff in view of recommendation made by the Claims Committee due to rise in prices and as a result of negotiations by the Committee with the plaintiff. In this resolution cases of two other contractors were also considered who were also sanctioned lump sum payment of Rs. 5.8 lacs and Rs. 3.8 lacs respectively subject to an undertaking by each of the contractors that this amount shall be paid in full and final settlement of their pending claims and that they shall have no further claim against the authority in respect of their works. However the situation as explained by the plaintiff is that since its claim had already been delayed for nearly five years and it was under pressure from woikers, suppliers and bankers who were threatening of legal proceedings when called upon to execute a written undertaking that no further claim shall be made by it, it executed the same under compelling ciraimstances. Undertaking executed is therefore invalid and ineffective for reasons of duress, public policy, lack of consideration, informality and inadequacy of the writing. 5. The plaintiff claims a sum of Rs 8.G7.233/- on account of escalation after the adjustment of Rs. five lacs received by it. a sum of Rs. 5.92.6727- on account of the excess steel consumed due to change of design and Rs. 3,00.000/- for preparation of a fresh design. Total claim of the plaintiff works out at Rs. 17.59.905 which alongwith interest at the rate of 1/W per annum with effect from 31.12.1978 upt.o the date of suit works out, at Rs. 42.46,791;-. Plaintiff maintains that the defendant through its officers and agents has been from time to time acknowledging its liability on account of aforesaid claims and on 29.12.1983 made a partial payment to the plaintiff therefore the suit is within the period of limitation. There is a recital in the plaint that the plaintiff has been fiom time to time serving notices in respect of its claims upon the defendant which satisfy the requirements of notice to defendant under the KDA Order 1957. 6. In its written statement defendant raised preliminary objections to the effect that the suit is not maintainable in law: that it is incompetent and bad in law foi want of valid legal notice as required under article 131 of KDA Order and that it is barred by time. On facts defendant admitted the contract between the parties but denied any negotiations between them concerning escalation and the quantity of steel to be consumed in the construction of the work. Defendant denied the plaintiffs claim on account of escalation it being violative of clause 46 of the agreement, between the parties. 7. With regard to the change in design defendant stated that the design of work prepared by the plaintiff was objected by their consultant who suggested minor corrections in the design which were carried out by incorporating the same in the revised design. There was no direction for change of the design altogether as alleged. Defendant admitted that, it was decided between the parties that difference ol quantity of steel due to change of code shall be paid to the plaintiff which comes to 204.664 tons and was duly paid. According to the defendant plaintiff completed the work on 1 ].5,1979 and not on 31.12.1978 as asserted Plaintiffs claim for additional payment for preparing revised design and escalation in prices was duly considered and rejected by the Chief Engineer 'Construction' KDA vide its letter dated 17.5.1979. As regards the instructions for grant of escalation charges defendant pleaded that these are not binding on the defendant authority being contrary to the terms of the agreement. After the rejection of plaintiff's claim regarding escalation on its request, it was placed before Claims Committee and after negotiations between the parties it was finally agreed to pay a lump sum compensation of Rs. five lacs account of increase in prices. It is urged that the plaintiff voluntarily accepted the said amount and executed an undertaking in favour of the defendant that no claim on account of compensation due to the rise in prices in respect of the work will be advanced and this amount was accepted as full and final in connection with pending claims with the KDA. Defendant denied that any valid and legal notice was given by the plaintiff for recovery of the suit amount and asserted that the suit was filed without any cause of action and in violation of Article 131 of KDA Order 1957. 8. Pleadings of the parties were reflected in the following issues : ISSUES: 1. Is the suit not maintainable for want of legal notice as required under Article 131 of the KDA Order (President's Order No. V of 1957) ? 2. Is the suit barred by limitation ? 3. Whether the plaintiff is entitled for payment for preparing the revised design? 4. To, what amount, if any, plaintiff is entitled? 5. Whether the plaintiff after receipt of an amount of Rs. five lacs is estopped from claiming further amount in respect of the said work? 6. Whether the defendant at any stage made any acknowledgement of the plaintiffs liability as alleged ? 7. What should the decree be? 9. In support of plaintiffs case Manzoor Ahmed Qureshi, Managing Director of the Company appeared as witness while the defendant KDA examined Amanullah Chachar, Executive Engineer Incharge of the work. 10. Mr. Gulzar Ahmed, advocate for the plaintiff addressed this Court at the final hearing of the suit while the KDA remained unrepresented without any sufficient cause. 11. With the assistance of the learned counsel for the plaintiff I have gone through the evidence on record. My findings are as under for the following reasons : Reasons. Issue No. 1. 11. Article 131 of KDA Order 1957 reads as under : "131. Notice of suit against Authority, etc.-tl) No suit shall be instituted against the Authority or any member or any person associated with the Authority or against any servant of the Authority or against any person or persons acting under the direction or authority of the Chairman or of any officer or servant of the Authority, in respect of any act purporting to be done under this Order or the rules or regulations made thereunder until the expiration of one month from the delivery of a written notice at the Authority office or the place of abode of such member, officer, servant or person, stating the cause of action, the name and place of the intending plaintiff, and the nature of the relief sought. (2) In eveiy such suit the plaint, shall contain a statement that such notice has been so delivered. (3) Notwithstanding anything in the Limitation Act, 1908 (IX of 1908), no such suit as is described in clause (1) shall, unless it is a suit for the recovery of immovable property or for a declaration of a title thereto, be commenced otherwise than within six months next after the accrual of the cause of action." 12. Plain reading of the aforesaid provision requiring a written notice in respect of any act purporting to be done under the KDA Order or the Rules or Regulations made thereunder tends to show that the delivery of such notice at the office of the authority is mandatory before filing of the suit. Strictly speaking such notice must state the cause of action, the name and place of the intending plaintiff and the nature of the relief sought. Besides, in eveiy such suit brought against KDA plaint should contain a definite statement that such notice has been so delivered, one month before the suit. 13. On perusal of the plaint it is evidently clear that the plaintiff company is undoubtedly aggrieved by the act of the officials of the KDA with regard to non-payment of its claims and it is also dis-satisfied with the resolution of Governing Body of the KDA in sanctioning lump sum payment of Rs. five lacs in satisfaction of its pending claims. Accordingly the plaintiff described the undertaking and payment of this amount vide Ex. 5/35 as part payment towards its claim. There is however no express or implied averment in the plaint that a legal notice as required by Article 131 was actually delivered at the office of the authority stating the cause of action, the name and address of the plaintiff and the proposed relief sought. 14. Faced with this situation learned counsel referred to plaintiffs letter Ex. 5/30 dated 25.9.1980 addressed to Executive Engineer KDA calling upon him for payment of dues. Copies of this letter are endorsed to the Chairman Claims Committee, Chief Engineer (Construction) and Superintending Engineer (Construction) Circle II KDA which at any rate do not satisfy the requirements of Article 131 of KDA Order. Reliance on this letter is therefore completely displaced, misconceived and preposterous also for the reason that the plaintiff on its own showing actually accepted a sum of PvS. five lacs much subsequent to this letter on 29.12.1983 in full and final settlement of his claim undertaking that no further claim against the Authority in respect of the work shall be lodged. Learned counsel next referred to letters Ex. 5/36 to 5/39 in this connection. While letter Ex. 5/36 dated 22.1.1984 is addressed to Executive Engineer KDA requesting for payment of balance amount for use of additional quantity of steel to the tune of 48.302 tons at the rate of Rs. 7.500/- per ton and payment on account of new design prepared for the execution of the work. Ex. 5/37 is a letter dated 24.4.1984 addressed to Chief Engineer (Construction) KDA inviting attention to the earlier letter addressed to Executive Engineer. Ex. 5/38 dated 6th June, 1985 is a reminder of the earlier letter addressed to the Director General KDA in continuation of the earlier letter Ex. 5/39 dated 5.8.1984. 15. On a careful consideration of these letters I am of the definite view that these letters by themselves at best constitute a time barred demand for payment of claims and by any stretch of reasoning not a valid and legal notice as contemplated by Article 131 of the KDA Order. Needless to emphasise there is neither mention of the amount claimed in the suit; the alleged cause of action and intention to file a suit in case the claim was not accepted in the aforesaid letters. Mere recital in the letter Ex. 5/36 to the effect that the plaintiff signed the measurement book and the receipt dated 29.12.1983 under duress or that this amount was received as an interim part payment towards long-standing dues would not. tantamount a mandatory legal notice as required by KDA Order. To my mind the letters at best may be treated as acts of resiling from the solemn commitment made by the plaintiff company while executing undertaking on receipt of payment of Rs. Five Lacs as sanctioned by the Governing Body of the KDA in full and final satisfaction of its pending claims with the KDA. 16. After the judgment was reserved, learned counsel cited Karachi Development Authority v. Evacuee Trust Board (PLD 1984 Karachi 34), in order to meet the legal objection with regard to statutory notice by the defendant. In this case Salim Akhtar, J. (as his Lordships then was), while referring to Zairwh Hajiani's case (PLD 1978 Karachi 848) observed that it is not in every case that notice under Article 131 is necessary before instituting a case against, KDA. Such notice is necessary against KDA if suit has been filed in respect of an act purporting to be done under the Order or Rules or Regulations made thereunder. In the said case plaintiff had challenged the action of the KDA on the ground that their act of dispossessing them was illegal, without jurisdiction and not according to law as the property belonged to Evacuee Trust Properly Board. In the present case neither the authority of the KDA is challenged nor is there any dispute with regard to a property between the parties. Evidently plaintiff claimed nou payment of his dues on account of contract which was completed and KDA acted under the Rules and Regulations made under the KDA Order hy making lump sum payment to the plaintiff after the claim was sanctioned by its Board of Governors in their meeting. Reported case is therefore completely out of context and not relevant to the facts of the case in hand. For the aforesaid facts and circumstances, the issue : . answered against the plaintiff. Issues Nos. 2 & 6. 17. Both the issues may be discussed together for the sake of convenience and brevity. According to learned counsel for the plaintiff Article 56 of the First Schedule in the Limitation Act is attracted to the suit which provides a period of three years for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment from the date when the work is done. According to the plaintiff, execution of work was completed on 31.12.1978 whereas according to the defendant it was completed on 11.5.1979. In his evidence PW-Manzoor Ahmed Qureshi admitted that in all 35 running bills were paid by the defendant and 36th bill being final was paid to the company on 24.4.1979. Computing the period of limitation from the date of completion of the work as asserted by either of the parties, the suit filed on 24.12.1986 is patently barred by time and no other view can possibly be taken in the circumstances. 18. Learned counsel referred to a Single Bench judgment from this Court as well as Division Bench case from Lahore jurisdiction reported as Abdul Latif Khan u. D.B. Chadially (1992 CLC 827) and Federation of Pakistan v. Javed Nasecrn (PLD 1994 Lahore 303). In the Karachi case, suit for recovery of amount in respect of construction work done by the plaintiff though filed after stipulated period of three years was filed within one year from submission of final bill by him which was refused by defendant alleging that contract had ceased. In these circumstances, the Court held that the suit was within time as starting point for computation of period of 3 years would be from date when contract was allegedly broken or same was ceased. Suffice to say neither the suit has been filed within 3 years from the date of payment of final bill nor from the date of completion of the contract. Admittedly there was no breach of contract in the present suit thus the reported case is of no avail to the plaintiff. 19. In the Lahore case, a Division Bench sitting in its appellate jurisdiction, observed that the contractor had received payment of final bill without raising objection regarding payment of the additional work allegedly done by him. He also did not plead coercion and strain in accepting final bill without objection. His attorney even did not mention such fact in his examination-in-chief. The court accordingly held that the principle of estoppel could be pressed into service as strong inference would be raised from the factum of receiving payment of final bill without raising any objection that in fact no such work was got done, for had it been done he would not have received payment, against, the final bill or at least would have raised objection for non payment of same or could have received payment under protest, and kept, the question of payment regarding dispute open for decision by the department as per terms of contract. On the issue of limitation Court found that the suit, was filed within 3 years from the date of accrual of cause of action and was thus within time. I am unable to comprehend as to how this judgment advances the plea raised by the plaintiff which is hopelessly barred by time and the doctrine of estoppel. 20. Learned counsel for the plaintiff, however referred to the undertaking dated 29.12.1983 Ex. 5/35 when according to the plaintiff partial payment of Rs. Five Lacs was made by the defendant through a cheque. To re-enforce his contention learned counsel referred to Section 19 of the Limitation Act, for computation of fresh period of limitation from this date. This provision of law postulates that where before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against, whom such property or right is claimed or by some person through whom, he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. In order to appreciate this provision of law, it seems necessary to reproduce the undertaking executed by the plaintiffs Managing Director which reads as under: "We give an undertaking that no claim on account of compensation due to the rise in prices against the work of construction of 10 M.G. Reservoir at University Hill (under 3rd phase) will be demanded after the payment of Rs. 500,000/- as approved by the G.B. KDA. This amount, is full and filial in connection with our pending claim with KDA. We further give an undertaking that no further claim against the authority in respect of the above work will be demanded in future.' 21. It may be observed that in the first instance unqualified and voluntary undertaking executed by the plaintiff does not at, all amount to acknowledgement of liability and secondly it is neither signed nor acknowledged by any agent or officer on behalf of the defendant. Moreover, the period prescribed for filing the suit had already expired in as much as according to plaintiff the work was completed on 31.12.1978 while the undertaking is dated 29.12.1983. Confronted with this situation learned counsel for the plaintiff referred to explanation I to section 19 which postulates that "for the purpose of this section an acknowledgement may be sufficient though it omits to specify the nature of the property or right, or avers that the time for payment, delivery pe ifor ma nee or enjoyment has not come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy or is coupled with a claim to a set-off or is addressed to a person other than the person entitled to the property or right. 22. Argument on the face of it is without any substance and superfluous. As observed earlier firstly the undertaking executed by the plaintiff does not amount to an acknowledgment of liability and secondly this is hardly a case of acknowledgement coupled with refusal to pay the amount. To my mind there is absolutely no admission of debt or liability which does not operate as waiver of the time that had already elapsed. In law, the acknowledgement suffices to exclude the operation of statute and to set time running against the right of action. An acknowledgement merely saves the running of limitation and is relatable to a subsisting liability or legal relationship. The acknowledgement is supposed to rest upon the rebuttal afforded thereby of the presumption of payment of debt and therefore any acknowledgement which repels that presumption is as a rule sufficient. 23. Long after the judgment was reserved, learned counsel cited United Bank Ltd. u. Begum Fazal Ahmed (PLD 1994 Karachi 248). In this case G.H. Malik, J. (as he then was) dealing with a plea raised by reason of section 20 Limitation Act held that fresh period of limitation would be computed in terms of section 20 Limitation Act. 1908, where there was payment; such payment was on account of a debt or, of interest on legacy; payment in question, should be by the person liable to pay the debt, or interest on legacy, or by his authorized agent and; acknowledgement of payment in question, must appear in the hand-writing of, or in a writing signed by, the person making the payment. Learned Judge further observed that payment by a cheque signed by a debtor and delivered to, and encashed by the creditor was payment of the- amount thereof. Even a cheque drawn by a third person in favour of judgment debtor and endorsed by him in favour of decree holder, who subsequently encashed it, fulfilled the requirement of acknowledgement in terms of section 20 Limitation Act. Learned Judge further held that part payment by such cheque on specified date before expiration of period of limitation would extend period of limitation and suit filed before expiiy of such extended period would be within time. Authority on the face of it, is hardly applicable to the facts of the suit and of no avail to the plaintiff on the facts pleaded and established in the reported case. 24. No other point was urged in support of these issues. In my view there is hardly any force in the contention of the plaintiff that the defendant having acknowledged liability after the payment of Rs. five lacs to the plaintiff, a fresh period of limitation started running from the date of payment. Both the issues are therefore answered against the plaintiff. irkucs Nos. 3, 4 & 5. 25. These issues may be discussed together for the sake of convenience and to avoid possible repetition of evidence and reasoning. After the decision on foregoing issues seemingly findings on these issues may not be called for but since evidence on such issues has been adduced, dispensation of safe administration of justice demands that these issues may also be adjudicated upon. 348 Kar. SUALEH So MS (Pvr.) LTD. v. K.RA. PLJ (Riuia B/utgivan /)c;.s, J.j 26. As regards the claim on account of change of design plaintiff failed to establish by evidence of unimpeachable and high order that in terms of the agreement between the parties, it is entitled to the payment of Rs. three lacs on this account. No clause in the agreement between the parties has been referred to in support of this claim whereas according to the defendant design prepared by plaintiff involved amendments and corrections as noticed by its consultant. Plaintiff relied upon defendants' letter Ex. 5/11 dated 9.9.1976 in order to substantiate its claim, which tends to show that the design calculations submitted by the plaintiff had been approved by Consulting Engineer with minor corrections. Accordingly the plaintiff was requested to submit the revised design incorporating all the corrections and amendments. By another letter Ex. . r

/12 bearing the same date, the plaintiff was informed that due to revision of BS 2007 Code department was considering to revise the design of the structure in accordance with the revised BS 5337 ("ode but lief ore taking any decision it was essential to determine the extra cost involved. Plaintiff was therefore requested to calculate the cost of the items design as per BS 2007 Code and revised cost of the effected items designed as per the revised BS 5337 Code. By another letter Ex. 5/13 dated 12 1.1977 plaintiff was informed that M/s Umer Mmishi Consulting Engineers bad advised revision of the design in accordance with new British ("ode of Practice i.e. B S. 5337. The plaintiff was therefore requested to get the revised design completed through their Consultants and to supply the same immediately. By its letter Ex. 5/14 dated 20.10.1976 however the plaintiff wrote to the Superintending Engineer iConstruction) Circle No. Ill KDA enclosing therewith two sets of design calculations one based on BSCP 2007 in 47 sheets and another design based on BSCP 5337 in 46 sheets respectively. Plaintiff added that they had already taken the work in hand according to the new design as verbally ordered. There is no mention of the difference in cost actually involved except an averment in the letter that the same had already been intimated and was payable to the plaintiff. Quite inordinately by its letter Ex. 5/16 dated 5th March, 1978 plaintiff emphasised the Superintending Engineer (Construction III) KDA. by referring to sub para (1) of para 3 of the Contract Agreement on page 33 stating that in general. Civil Engineering works shall be designed and constructed in accordance with BS Code of Practice No. 310, 114 and 2007. latest if revised. Plaintiff further pointed out that BSCP 2007 was not revised but it, had been scrapped and another Code BSCP 5337 introduced one year after the submission of the tender. This letter refers to earlier letters of 9.1.1978 and 18.1.1978. While letter dated c ,'.1.1978 was not produced for the reasons better known to plaintiff, letter dated 18.1.1978 Ex. 5/46 by the plaintiff tends to show that revision of ("ode had resulted in requirement, of additional quantities of steel, concrete and cement. A sum of Rs. 32,77,766/- was claimed on this score and adjusting a sum of Rs. 5,40.00()/- already received balance payment of Rs. 27.37.766/- was claimed against the KDA but not responded 27. From these letters the plaintiff led this Court to believe that in fact there was complete change of design from one Code to a different design Code with consequential entitlement to an additional amount on this account. Be that as it may, it seems that there was some change/revision/ modification in the design in the structure of the work at the initiative of the defendant but there is no promise, agreement and commitment for extra payment on account of this change or revision in the design. True hat the plaintiff was paid the cost for use of additional quantity of steel on account of this change but no payment was made for preparation of new design as none was agreed upon. 28. As regards claim of the plaintiff on account of escalation in prices notwithstanding clause 46 of the agreement between the parties that no claim on account of fluctuation in prices will be entertained during the currency of this contract for terms of the work as per schedule of quantities attached to this agreement, in view of clause 17 of the Contract as no schedule of quantities is attached to the agreement and because of the advice rendered by Law Officers of the KDA Ex. 5/33 it would be ust, fair and equitable to accede the demand of the plaintiff for escalation on account of increase in the prices of material used in the execution of the contract. The question for consideration now is whether the plaintiff is entitled to claim such escalation in this suit after the acknowledgment of Rs. Five Lacs in full and final settlement of his pending claims with KDA. No doubt plaintiff in his evidence claimed that, negotiations had taken place between the parties regarding escalation in prices in relation to quantity of steel, defendant expressly and unequivocally denied any kind of negotiations or commitment, on their part. Be that as it may, the plaintiff failed to establish that Claims Committee of the KDA had recommended for payment of Rs. 13.67,233.35 on account of escalation in prices as urged. Indeed this issue was placed before the Governing Bod}' of KDA at the request of the plaintiffs who sanctioned the payment, of Rs. Five Lacs on account of escalation in prices in full and final satisfaction of the claims made by the plaintiff. Having accepted this payment without any protest the plaintiff is legally estopped from questioning the same after a lapse of nearly three years by stating that the acknowledgment was executed by him under duress. Admittedly, plaintiff B did not state at the time of acceptance of amount that the same was accepted under duress or protest. The explanation that had it been so stated plaintiff would not have been paid even this amount, is hardly any justification for backing out of his undertaking that he would not claim any other grant. Likewise there is absolutely no evidence as regards the commission of fraud and duress as pleaded and canvassed at the Bar, On plaintiff's own showing he had given this undertaking in full and final satisfaction of claim. Plaintiffs witness admitted that he did not send any letter of protest either to the Governing Body or the Chairman KDA but seat letters to the Director General KDA on 24.4.1984. 5.8.1984 and 6.6.1985 long after the execution of the undertaking and receipt of the amount. To my mind, the plaintiff should thank himself for the conduct and att.inule adopted by him while receiving payment of Rs. Five Lacs. In law he is estopped and debarred from raising any objection, protest, reservation to it at a highly belated stage of the suit in the absence of any strong evidence and plausible explanation. Obviously there were no compelling and exceptional circumstances warranting the acceptance of the amount on the part of the plaintiff o entitle him to claim the said amount subsequently. 29. For the aforesaid facts and reasons these issues are decided against the plaintiff. Issues No. 7. 30. In the light of the aforesaid findings suit, must fail and is hereby dismissed with no order as to costs. (K.A.B.) Suit dismissed.

PLJ 1998 Karachi 350 PLJ 1998 Karachi 350 Present: RASHEED A. RAZVI. J. AKBAR ALI & 5 others-Plaintiffs versus VAZIR ASHIQUE ALI & 2 others-Defendants C.M. No. 4006 of 1986 in Suit No. 331/86, dismissed on 12.1.1998. (i) Civil Procedure Code, 1908 (V of 1908)-- —-O.VII. Rule 11-Suit for declaration and permanent injunction-Rejection of plaint for want of cause of action-Prayer for-There is no cavil to this proposition of law that while considering an application only plaint is to be treated as correct-Even after such presumption, if there appears that plaint has failed to disclose any cause of action or is barred by any law, plaint is liable to be rejected-Courts are also competent to look into documents filed by plaintiffs-Held : Existence or absence of cause of action is to be discovered from allegations in plaint and not from written statement or any other document. [Pp. 359 & 360] A 1983 CLC 1165, PLD 1954 Sind 70. AIR 1921 Sind 106. (ii) Civil Procedure Code, 1908 (V of 1908)-- —-O.VII, Rule-11-Cause of action not available-Duty of Court-It is settled law that provisions of Order VII, Rule-4 are not exhaustive-Incompetent suit which is abuse of process (.flaw is to be hurried at early stage. [P. 360] B PLD 1967 Dacca 190, PLD 1991 Kar. 190, 1990 CLC 1997. (in) Civil Procedure Code, 1908 (V of 1908)-- —S. 9--Plaintiffs are seeking injunction against defendants from interfering in their rights to offer Narnaz, individually and ba-jamaat and to call Azan in Jamat Khana- Whether suits raising question of religious rites and ceremonies are not suits of civil nature and are not maintainable in civil courts—Question of—Provision of Section 9 does not bar filing of any suit but merely confers jurisdiction in civil courts to try all suits of civil nature—Term "Suit of civil nature" has been defined under explanation to Section 9 which includes suit wherein right to property or to office is contested, notwithstanding that, such right revolves entirely on decision of question as to religious rights or ceremonies-Suit for injunction restraining one party from interfering by one sect with religious rites of other sects to worship is maintainable under section-9 of C.P.C.-Most crucial question which is involved in suit and which needs serious consideration is status of "Jammat Khana" which is place wherein plaintiffs want to offer prayer and to call Azan—This is question of public importance which requires production of evidence from both parties—It is also to be seen whether these Jarnaat Khanas are dedicated to God or it is private property in order to treat these Jammat Khanas at par with mosques—Held : All these issues are of civil nature and that suit to try such issues is not barred by Section-9 C.P.C. [Pp. 360, 36-3, 365 & 367] C, D, E, F, G & H (1988) 2 Supreme Court cases 31, AIR 1933 PC 193, 1992 SCMR 1908, AIR 1936 Pesh. 65. Messrs Ismail Padhiyar, Muhammad Asar Hussain and Khaliq Hiwiayuii, for the Plaintiffs. Messrs Ali Ahmed Fazed and J.H. Rahirntoola, for the Defendants. Date of hearing : 12.1.1998. order This is an application (CMA 4006/1986), filed by the defendants under Order VII rule 11 CPC, praying for rejection of plaint, on several grounds. Surprisingly, this application was heard on previous several occasions but remain undisposed of. Lastly, on 6.2.1994, it was heard by my learned brother G.H. Malik, J., (as he then was) when Mr. Muzzafarul Haque. advocate, then appearing for plaintiff No. 4, stated that the right which plaintiff seeks to enforce in this suit is the right to offer prayers in Jammat Khana in accordance with the Farman of Agha Khan. On the said date, it was observed by this Court that the prayers in the suit is wider than the relief mentioned by the plaintiff. In view of these observation, Mr. Muzzafarul Haque, agreed that it is necessaiy to amend the plaint to reflect more accurately the reliefs actually sought by the plaintiffs and requested for time to do the needful. Therefore, no amendment was sought by the plaintiff. Mr. Muzzalarul Haque. advocate, has filed his statement dated 3.3.1994, which reads as follows :-- "STATEMENT AT BAR. The undersigned counsel was permitted to apply for amendment in the plaint and in the best interest of plaintiff No. «f\ namely Muhammad Rafiq, I have persuaded him to do the needful but the said plaintiff No. 5, Muhammad Rafiq. is not agreeable to apply for amendment of plaint on the plea which had been argued by the under-signed counsel at the time of hearing of application under Order 7 Rule 11 CPC, therefore, the undersigned counsel is not in a position to apply for amendment. Karachi. Sd/- Dt: 30.3.1994 (MUHAMMAD MUZAFFARUL HAQUE) Advocate For Plaintiff No. 5 (Muhammad Rafiq)" 2. Initially, this suit was filed by the two plaintiffs as a representative suit. Publication was effected and in response to the same several applications were filed under Order 1 Rule 8(2) read with Rule 10 CPC, for joining as plaintiffs as well as defendants. These applications were dismissed except two. which were granted and as a result plaintiffs Nos. 3. 4 and 5 were joined vide this Court order dated 17.11.1986. Plaintiff No. 6, namely. Muhammad Rafique, was substituted in place of plaintiff No. 5, namely, Ramzan, after the latter's death, vide order dated 4.10.1989. Despite all such exercise, the plaint remain unamended. 3. The plaintiffs have filed this suit for declaration and permanent injunction claiming that they being Muslims belonging to Lsmailiya Khoja community are entitled to offer Namaz (prayers), individually and ba-jarnaat as well as to say Azcm in Jcwiat Khana and for permanent injunction to restrain the defendants, their employees, agents, servants, etc. etc. from interferring in performance of their religious rites. In the plaint, it is averred that the plaintiffs are Muslims and have unfettered faith that Almightly Allah is the Rab-ul-Alamm and that Hazrat Muhammad Mustafa (Salallaho-Alaih Wa Alehi Wasallum) in his last, messenger/prophet: that the Holy Quran is the devine book of Almighty Allah; that they are also followers of Sunnah and that no person has any right, title or authority to deny them from following any directions or instructions of Holy Quran or any directions, instructions or the practice of Holy Prophet Muhammad Mustafa (PBUH). It is the further case of the plaintiffs that like their fore fathers they have also paid handsome amount, out of their well earned income to the defendants and to the predecessors of the defendants, who were Incharge of the Council and are at the helm of affairs of Aglia Khan community. The plaintiffs, as claimed in the plaint, believe that no Imam has ever given or shall give any instructions, directions, farmans, etc. which is violative of the Injunctions of Islam, Holy Qur'an or sayings of Holy Prophet Muhammad Mustafa (PBUH) and with this believe they had always paid great respect to every Imam and have followed their farmans faithfully. The grievance of the plaintiffs are that the only place to offer prayers for Agha Khani Muslims are the places commonly called "Jamat Khana". Since the present controversy revolves against this question, it would be advantageous if the following paragraphs of the plaint are reproduced :-- "4. That according to the procedure and system prescribed, since the days of Aga Khan the First, for Aga Khani Muslims the only place for all EBADAT-E-ELLAHI, such as Namaz (Individually as well as five times Bajamat Namaz with Azan}, and all Religious performances are the Jamat Khanas and no other separate Masajids (Place for offering Namaz and doing other Ebadats) has been provided, constructed, raised, reserved or maintained (like other sects of muslims such as Bohries, Isna Asharees and Sunnis) by the defendants anywhere within the whole Pakistan. The Jamat Khanas are situated at many places and the chief/main Jamat Khana is situated within the area of Garden East, Karachi, while the next big Jamat Khanas are situated at Kharadar and Karimabad Areas apart from other small local Jamat Khanas maintained in various localities of Karachi. 8. That the plaintiffs whenever tried to offer individual prayer (Namaz) in the Jamat Khanas, they were not allowed by the defendants to offer the prayer (Namaz) within the premises of Jamat Khana. This happened many time. The defendants also restrained by force the plaintiffs and other Aga Kharie.e Muslims, whoever tried to speak Azan and offer Namaz-e-Bajamat or even individual Namaz in any Jamat, Khana, on the false plea that the offering of Namaz has been dispensed with by the present Hazar Imam. 12. That the plaintiffs have vested right to speak Azan and offer/prayers individually as well as collectively in the Jamat Khanas and the defendants, any of them or any other person claiming through under or in the trust, for them or any of their employees, servants, scouts or volunteers has no right, title or authority to restrain, disallow or prevent the plaintiffs or any of them or any other Agha Khani Muslim from entering the Jamat Khana and from offering Namaz (individual or Bajamat} and/or speaking Azan. The defendants have also no right or authority to force the plaintiffs or any other Agha Khani Muslim to do, perform or cause to be performed or done by plaintiffs or any other Agha Khani Muslim inside or outside of any Jamat Khana, anything not permitted by Quran, Sunnah or any Farman of any Imam and/or to refrain them from doing or causing to be done any act deed or thing, which is permitted, allowed or declared as Faraz, Wajib, Sunnat, or Nafil in Islam, according to Quran and Sunnah and not prohibited by any Farman issued by any Imam." 4. It is further stated in the plaint, that the plaintiffs strongly "apprehend" that the defendants are planning to ban the entry of the plaintiffs and their colleagues, whenever they desire to offer Namaz in Jamat Khana; that on 20th April, 1986 when the plaintiffs tried to enter one Jamat Khana at Lea Market, Karachi, to offer Namaz-e-Asr, they were not allowed to enter the premises by the scouts, posted at the said Jamat Khana. It is pertinent to note that despite this specific allegation against these scouts none of the said scouts or such group was impleaded as defendant in the suit. In the end the plaintiffs have claimed that there are thousands of Agha Khani Ismaili Muslims, who have the same views as of the plaintiffs and who also desire to offer prayers, individually as well as Ba-Jamat and to offer Azan and to be relieved of "the un-islamic customs, rusooms, ( f jr"J ) and performances, enforced upon them by the defendants illegally and unauthorisedly, and in violation of the Farmans of Imam". In view of these alleged facts, the plaintiffs have prayed for the following relief :-- "1. Declaring that the plaintiffs and all other Agha Khani Ismailia Muslims have full right, complete title and vested interest to offer prayer (Namaz) either individually or Bajamat and to speak Azan before every Narnaz-e-Bajamat, within the premises of each and every Jamat Khana and the defendants or any of them, their employees, servants, scouts, volunteers or any other person or persons claiming through, under, or in trust for them or any of them has no right, title, interest or authority to restrain, refrain, neglect, ban or prohibit the offering of Namaz individual as well as Bajamat and speaking Azan before eveiy Namaz-e-Bajmat every day within the premises of Jamat Khanas. 2. Issue permanent injunction restraining the defendants, their employees, servants, scouts, volunteers or any other person or persons claiming through, under, or in trust for them or any of them from restraining the plaintiffs or any other Agha Khani Muslims from offering prayer (Namaz) either individual or Bajamat and to speak Azan before eveiy Narnaz-c-Bajamat, within the premises of the Jamat Khanas. 3. To issue permanent injunction restraining the defendants, their employees, servants, scouts, volunteers or any other person or persons claiming through, under, or in trust for them or any of them from restraining, banning or prohibiting the entiy in any of the Jamat Khanas of the plaintiffs or any of them or any other Agha Khani Muslim who believes in offering prayers and/or is not agreeable to the customs, rusooms and performances adopted by the defendants against the Quran, Sunnah and the Farmans of Imam. 4 ........................................................................ 5 ........................................................................ " 5. I have heard Mr. Ismail Padhiyar, Mr. Muhammad Asar Hussain and Mr. Khalique Humayun, (now deceased) for the plaintiffs and Mr. Ali Ahmed Fazeel and Mr. J.H. Rahimtoolah, for the defendants. Before considering arguments of all the parties, it would be advantageous to consider the emergence and the present set-up of this popular sect of Shia faith, namely, Khoja Ismaili. 6. "Ismailiya" or "The Ismaili" is the major branch of Shai sect, who traces the lines of Imam through Hazart Ismail (AS) son of Hazart Imam Jaffar Sadiq (AS), the last mentioned being the sixth Imam, who died on 148 AH/765 AD. The Shias, on the basis of some Quranic Verses and certain Hadith have maintained that the great Prophet has appointed a successor or an Imam as the Leader of the Ummah and that Hazart, Ali (AS) son of Hazrat Abe Talib (AS) was the first such successor. In the subsequent period of history, on the basis of Imamat there emerges several groups claiming their respective leaders as Imams, which further bifurcated Shias into different communities. Presently, amongst them, are Bohras, Nizari, Ismailis, Druzes and Zaydiyya. (For further reference please see Shorter Islamic Shi 'ite Encyclopaedia by Hasan-ul-Amine, Beirut, 1969. Encyclopaedia of Islam, Volume IV, edited by C.E. Bosworth, E. Van Donzel, B. Lewis and Ch. Pellat 1978 and Shorter Encyclopaedia of Islam, Sought Asian Publishers, Karachi, 1981 and Encyclopaedia of Britannica Volume 12). 7. His Highness Agha Khan-I, while writing his memoirs "the Memoirs of Agha Khan-World Enoguh and Time", (Cassell and Company Ltd.. London, First Edition 1954 at page 179), define the sub-division of Shia sect according to the beliefs of Ismailis, Nizaris in the following words :— "Of the Shias there are many sub-divisions; some of them believe that, this spiritual leadership, this Imamat which was Hazart Ali's, descended through him in the sixth generation to Ismail from whom I myself claim my descent and my Imamat. Others believe that the Imamat is to be traced from Zeid, the grandson of Imam Hussain, the Prohpet's grandson martyred at Kerbela. Still others, including the vast majority of the people of Persia, and Indian Shias, believe that the Imamat is now held by a living Imam, the twelfth from Ali, who has never died, who is alive and has lived 1,300 years among us, unseen but seeing; those who profess this doctrine are known as the Asna Asharis. The Ismailis themselves are divided into two parties, a division which stems from the period when my ancestors held the Fatimite Caliphate of Egypt. One party accepts my ancestor, Nosar, as the rightful successor of the Caliph of Egypt Mustansir, while the other claims as Imam his other son the Caliph Mustalli." 8. The rise of Ismailia sect can be traced back to the year AH 286/899 AD after the succession of the view of Fatimid Caliph Ubaidullah Al Medhi in Salamiwya, which resulted in the split of Shiasim. During the period of Fatimid reign Ismailism got its roots. However, at subsequent stage there was further division in Ismailis, resulting in formation of Dawoodi Bohras and Nizari Ismailis, the latter commonly known as Agha Khani Ismailis in the sub-continent of Indo Pakistan. "The Encyclopaedia of Religion," edited by Mircea Eliade, Volume 13, published by Macmillan Publishing Company, New York, has sunmied-up the growth and present status of Nizari Ismailis/Agha Khanis with reference to Indian sub­ continent, in the following words :— "....The Indian subcontinent. The origins and early histoiy of the Nizari community on the Indian subcontinent are largely obscure. The Nizariyah they are often collectively referred to as Khojas, although there are other, smaller Nizari groups such as the Shamsiyah and Momnas, while some Sunni and Twelver Shi'i Khoja groups have split from the main body of the Nizariyah. According to their legendary history, the Nizari faith was first spread by Pir Shams Al- Din, whose father is said to have been sent as a dai from Alamut. The community was ruled thereafter by pirs descended from Shams Al-Din. Pir Sadr al-Din, who can be dated with some likelihood in the later fourteenth centuiy, is credited with the conversion of the Khojas from the Hindu caste of the Lohanas and to have laid the foundation of their communal organization, building their first jama'at-khanahs (assembly and prayer halls) and appointing their mukhis (community leaders). The center of his activity was in Ucch in Sind. A substantial section of the community seceded in the sixteenth century under the pir Nar (Nur) Muhammad Shah, who broke with the imams in Iran claiming that his father, Imam Shah, had been the imam and that he had succeeded him. This community, known as Imam-Shahis or Satpanthis, has further split on the issue of leadership and lives chiefly in Gujarat and Khandesh. It has tended to revert to Hinduism but shares much of its traditional religious literanture with the Nizari Khojas. This literature, which is known as Sat Panth (True Path) consists of ginans or gnans, religious poems composed in, or translated into, several Indian languages and meant to be sung to specific melodies in worship. Most of them are attributed to the early pirs but cannot be dated accurately and may have undergone substantial changes in the transmission. They include hymns, religious and moral exhortation and legendary histoiy of the pirs and their miracles, but contain no creed or theology. Islamic and Hindu beliefs, especially popular Tantric ones, are freely mixed, While idol worship is rejected, Hindu mythology is accepted. 'AH is considered the tenth avatar (incarnation of the deity), and the imams are identical with him. The Qur'an is described as the last of the Vedas, which are recognized as sacred scriptures whose true interpretation is known to the pirs. Faith in the true religion will free believers fr further rebirths and open paradise, which is described in islamic terms, to them, while those failing to recognize the imams must go through another cycle of rebirths. (See Ginan) The Arabic and Persiah Ismaili literature has been virtually unknown among the Khojas except for the Persian Pandiyat-ijawanrnardi, a collection of religious and moral exhortations of the late fifteenth-century Nizari imam al-Mustansir which was adopted as a sacred book. Khojas live chiefly in lower Sind, Cutch, Gujarat, Bombay, and in wide diaspora, particularly in East and South Africa, Arabia, Ceylon, and Burma. Further Nizari communities are found in the mountains of Chitral, Gilgit and Hunza in parts of Aghanistan, and in the region of Yarkand and Kashgar in Chinese Turkistan. Organization, religious practices, and observance of shari'ah rules vaiy among the scattered communities. The recent Agha Khans have stressed the rootedness of the Nizari Ismailiyah in Shi'i Islam and its continued bonds with the world of Islam " 9. Reverting to the arguments of Mr. Ali Ahmed Fazeel, who hasstrenuously argued that the plaint is liable to be rejected, being without cause of action, on the ground, inter alia, that the right to offer Namaz is a right, which, in law, can only the claimed or exercised in a mosque /masj'id, which is dedicated in the name of Almighty Allah and not as of right in other places like Jarnat Khana, which is not a mosque/masjid but it is a place which exclusively belongs to and is owned by present Hazir Imam i.e. Agha Khan, the Third. In support, he has referred to the following cases :-- (i) Sheikh Hasansab and others v. Mohidinsab and another (AIR 1923 Bombay 42(2).) (ii) Muhammad Yusuf and others v. Muhammad Shaft and others (AIR 1934 Allahabad 1013). (iii) Musaheb Khan and others v. Pt. Raj Kumar Bakshi and another (AIR 1938 Oudh 238). (iv) Sri Sinha Ramanuja Jeer Alias Sri Vanamamalia Rarnanjua Jeer Swamigal v. Sri Ranga Ramanuja Jeer Alias Emberumanar Jeer and others (AIR 1961 SC 1720). 10. In the case of Sheikh Hasansab and others (ibid) the question before a Division Bench of Bombay High Court was whether a building with a Mehrab and Mimber is sufficient to make a mosque dedicated to public. Reference was made to the Baillies Digest on Mohamedan Law and Amir Ali's Mohamedan Law, Volume I, Fourth Edition, whereafter it was held that, mere existence of structure called Mehrab and Mimber are not sufficient to prove that the building in question was a mosque. It was further held that the question whether a particular building is a public mosque or not is a question of fact and for such determination existence of a Mehrab and Mimber may form part of evidence. In the case of Musaheb Khan and others (Supra} again the question before a Division Bench of Oudh High Court was whether a mosque, which was situated in a graveyard and was being maintained by minor, under the guardianship of his mother, was a public waqf, in which the Muslamans could offer their prayers. A representative suit was filed seeking declaration of such nature where one of the defence took by the defendants was that the building described in the plaint as a mosque had never been dedicated or used as a place of worship. Reference was again made to Baillies and Aamir Ali's Mohamedan Law as well as to the cases Ata Ullah v. Azimullah (1890) 12 All. 494, Adam Sheik v. Isha Sheik, (1897) I CWN 76, M. Ahmad Shah Mubarak Shah v. Atta Khan (AIR 1934 Peshawar 57), Muhammad Yusuf u. Muhammad Shaft (AIR 1934 Allahabad 1013) and Kaniz Bcgam v. Mirza Rasul Beg (AIR 1918 Oudh 379). It was held that once a building is proved to be dedicated as a mosque it cannot, be undedicated and that the mere construction of a mosque in a private house does not make it a mosque in the sense of a public place of worship. At this stage, I would also like to refer the commentary on the Principles of Mahomedan Law, by D.F. Mulla's edited by Dr. M.A. Manna. In para 218 the entitlement of a Muslim is discussed with reference to offering Namaz in a mosque. While referring to several cases including Ata- Ullah (Supra) and P. Majllissac Islamia v. Sheikh Muhammad (63) A.Ker. 49. Follg), it was observed that the right to offer prayers in a mosque is a legal right and in case such right is denied then a Muslim is entitled to seek relief in a Court of Law. It would be advantageous if Para 218 is reproduced which is as under "218. Public mosques .-Every Mahomedan is entitled to enter a mosque decidated to God, whatever may be the sect or school to which he belongs and to perform his devotions according to the ritual of his own sect or school. But is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of another sect or school. The right to offer prayers in a mosque is a legal right, for the disturbance of which a Muslim is entitled to seek relief in a Court of law." 11. It was argutu on behalf of the plaintiffs that they have a cause of action to maintain this suit as being Muslims they are entitled to offer Namaz, individually as well as ba-jammat and to call "Azan in Jamat Khana and since they have been illegally and unauthorisedly restrained by the defendants, 'as such they have cause of action to maintain this suit. In support, Mr. Muhammad Asar Hussain, has referred to the case of Muhammad Fazil v. Mst. Resham Jan & another (1983 CLC 1165), where the Supreme Court of Azad Jammu & Kashmir while discussing Rule ll(a) of Order VII CPC held that the existence or absence of cause of action is to be discovered from allegation in the plaint and not from the written statement or any other documents. The rule laid down by this Court in the case of M. Moosa v. Muhammad & others (PLD 1954 Sind 70) was referred with approval. It was further held by the Supreme Court of Azad Jammu & Kashmir, after referring to another case of this Court L. Collins v. Charles Booth and Co., Ltd. (AIR 1921 Sind 106) that the Court has to presume that eveiy averment made in the plaint is true. There is no cavil to this proposition of law that while considering an application, as of the instant case, only the plaint is to be looked at and that contents of such plaint is to be treated as correct. Even after such presumption, if there appears that the plaint has failed to disclose any cause of action or is barred by any law then the plaint is liable to be rejected. I may observe that for this purpose the Courts are also competent to look into the documents, filed by the plaintiffs, alongwith their plaint. It is also settled law that the provisions of Order VII rule 11 are not exhaustive and that an incompetent suit which is an abuse of B process of law is to be buried at an early stage (For further reference please see Burmah Eastern Ltd., v. Burmah Employees' Union (PLD 1967 Dacca 190), Pakistan State Oil v. KESC (PLD 1991 Kar. 190) and Trustees of the Port of Karachi v. Gitjranwala Steel Industries and another (1990 CLC 1997 at 200). . 12. Much emphasis has been placed by the learned counsel appearing for the defendants on the application of Section 9 CPC, who all have vehemently pleaded for rejection of plaint as the question involved in the suit consists of religious rights. Section 9 CPC empowers a civil Court to entertain suits of civil nature except such suits whose cognizance is either expressly or impliedly barred and subject to the provisions of CPC. As held in the case of Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), a litigant has a general right to institute a suit of civil nature, independently of any statute, unless such general right is expressly or by necessaiy implication barred by a statute to the contrary. This view was time and again reiterated by Hon'ble Supreme Court of Pakistan and recently in the case of Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCMR 1908). This provision does not bar filing of any suit but merely confers jurisdiction in civil Courts to tiy all suits of civil nature. The term "suit of a civil nature" has been defined under explanation to Section 9 which include a suit wherein the right to property or to an office is contested, notwithstanding that such right revolves entirely on the decision of question as to religious rights or ceremonies. In the words of Wajihuddin Ahmed, J., (now Chief Justice of this Court), the statutory rules of Ubi jus ibi remedium (where there is a right there is a remedy) is supplemented by Section 9 and unless jurisdiction of a Court is expressly or impliedly barred, civil Courts are vested with jurisdiction to entertain and tiy all suits of civil nature. Section 9 CPC was interpreted by a Division Bench of Lahore High Court in the exhaustive judgment of Abdur Rahman Mobashir and 3 others v, Syed Amir Ali Shah Bokhari and 4 others (PLD 1978 Lahore 113), where a distinction was drawn between religious property or religious office with the religious rites and ceremonies. In that case plaint filed against Qadianis/Ahmadis by some Muslims, challenging the acts of Ahmadis/Qadianis calling themselve Muslims and calling their prayers as Namaz and calling their place of worship as Masjid, was dismissed at the level of High Court as being barred by the provisions of Section 9 CPC r/w Sections 42/54 of the Specific Relief Act. However, the rule laid down in the case of Abdur Rahman Mobashir and 3 others (ibid) is quite different to the facts of the instant case. Here, the plaintiffs are seeking injunction against the defendants from interferring in their rights to offer Namaz, individually and ba-jamaat and to call Azan in Jamat Khana. The religious rites or ceremonies either of plaintiff or of defendants are not under question in the present suit. It would be pertinent to reproduce relevant paragraphs of the said judgment, which read as follows :-- "66. It is evident from these cases that the principle underlying section 9 in respect of rites and ceremonies is the fundamental principle of there being no compulsion in religious affairs ^J'(J o|/>!J. It has thus been unanimously held that it is not the province or duty of the Court to pronounce on the truth of religious tenets or to regular religious rites or ceremonies v. Ramalinga Mudaliar v. E. Sundara Sastrigal and others (AIR 1929 Madras 526), Sri Emberumanar Jeer Swamigal v. Board of Commissioners for Hindu Religious Endowments (AIR 1936 Madras 973), Aiyanachariar v. Sadagopachariar (AIR 1939 Madras 757), Thiruveng adachariar v. Krishanasami Thathachariar (AIR 1915 Madras 877), Deuchand Totoram v. Ghanashyam (AIR 1935 Bombay 361), Maine Mailor v. Islam Ahmanath (ILR 15 Madras 355) and Sn Tinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer (AIR 1961 SC 1720). 67. Not only this, the law recognises the right of religious denominations to full autonomy except in the case of infringement of justiciable rights of a group or individual. Cases of ex-communication or exclusion from denomination or caste fall in this category. Sarfuddin Saleh v. State of Bombay (AIR 1962 SC 853), Hassanali v. Mansoorali (PLD 1947 PC 223), Ratansey Virji and another v. Meghji Harji Janqeali and others (AIR 1934 Bombay 431), Devchand Totaram Kirange v. Ghanethyam Sakham Chaudhari and others (PLD 1935 Bombay 361), Abdul Razzak Haji Mahomed v. Adam Haji Usman Noorani and others (AIR 1935 Bombay 367), Appaya and another v. Padappa (ILR 23 Bombay 122), Naraindas Assanmal and others v. Valabdas Vishandas and others (AIR 1929 Sind 1). 68. From these authorities it will be clear that the Courts while interpreting section 9, C.P.C. have drawn a distinction between religious property or religious office on one hand and religious rites and ceremonies on to other. I am, therefore, of the view that the right to perform the Shiar-i- Islami including the manner in which prayer (Namaz) can be offered are matters relating to religious rites or ceremonies within the meaning of the explanation to section 9. A suit regarding such matter is competent only if it involves dispute about right to property or office. I, therefore, agree with the argument of the learned counsel for the petitioners that the case of the respondents so far as it pertains to prayer (Namaz) and Azan is not covered even by section 9 of the Code of Civil Procedure and is incompetent." 13. Earlier, some 37 years ago, this Court has considered the issue as to what constitute a mosque and a right to offer prayer in such place, by a learned Single Judge of this Court Sajjad Ahmad Jan, J., (as his lordship then was) in the case of Rangal Shah and others v. Mula Jadal (PLD 1960 (W.P.) Karachi 512). This case was not considered by the Lahore High Court in Abdur Rahman Mobashir (supra). In that case a suit was filed by Mula Jadal for declaration that he be declared Mutawali of a mosque, which belongs to Sunni sect of Muslims and also prayed for permanent injunction to restrain appellants RANGAL SHAH AND OTHER from forceably taking possession of that mosque. After making reference to the cases Ata-ullah (Supra), Maula Bakhsh v. Amir-ud-Din (ILR 1 Lah. 317) and Jiwan Khan v. Habib (ILR 14 Lah. 518) it was held, inter alia, that there is no such thing as a Shia mosque or a Sunni mosque or a mosque of any other sectarian denomination. It was observed that a Shafai may join in a congregational worship though the majority of worshippers may be Hanafis and likewise Shias may worship in a mosque where the rest of congregation are Sunnis. However, mark of a caution was laid down in the said case, to the extent that in the interest of public order such persons, who are offering Namaz may not have a right for a separate prayers to call "Azan" or to hold a congregation behind Imam of their own. In that case reliance was placed on the case of Amir Hussain Shah v. Hafiz Ghulam Rasul (AIR 1936 Peshawar 65). In such circumstances appeal filed by the appellant-defendant was dismissed and the decree passed by the First Appellate Court i.e. District Judge was maintained with the following observations : "4. I am of the view that a public mosque in legal concept and by its veiy nature is not capable of exclusive physical possession in the sense that one Muslim has no right to exclude another from offering prayers therein. From that angle, all Mussulmans are in possession without any one being in exclusive physical possession. And where neither party is in possession in the physical sense inconsistently with the rights of the other, and the plaintiffs rights are obstructed by the defendant, a suit by the former for a declaration of his rights is maintainable and an injunction against the defendant not to interfere with these rights is the proper consequential relief for the purposes of the proviso to section 42 of the Specific Relief Act." 14. Section 9 CPC, in relation to a dispute involving right to worship, was also considered by a Full Bench of Indian Supreme Court in the case of Ugam Singh and Another v. Kesrimal and others (AIR 1971 SC 2540). In that case a suit was filed by the respondents for declaration that they are entitled to carry on Darshan, Prakshal and Pooja etc. without interference from the defendants. The suit was decreed by the Civil Judge while the First, Appellate Court namely, District Judge allowed the appeal and dismissed the suit on the ground that it appears to be barred by Section 9 CPC. Here, I would like to observe that Section 9 of Pakistan CPC is paramateria to Section 9 of the Indian CPC except explanation II, which is an additional provision in Indian CPC. On an appeal, filed against the judgment of District Judge, the Rajhistan High Court set aside the judgment of District Judge and restored the order of Civil Judge dismissing the suit of the respondents. Order of Rajhistan High Court was up-held by the Indian Supreme Court. It was held that a suit for injunction restraining one party from interferring by one sect with the religious rites of other sects to worship is maintainable under Section 9 of the CPC. Reliance was placed on The Privy Council in Sir Seth Hukarn Chand v. Mahraj Bahadur Singh (AIR 1933 PC 193). It was further held that a right to worship is a civil right, interference with which raises a dispute of a civil nature and that disputes, which are in respect of rituals or ceremonies cannot be adjudicated by the civil Courts, if such suits are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit is filed. In another case of Indian Supreme Court Sri Sinha Ramanuja Jeer Alias Sri Vanamamalia Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer Alias Emberumanar Jeer and others (AIR 1961 SC 1720) where, after reference to several Indian reported cases it was held, inter alia, that suits raising question of religious rites and ceremonies are not suits of civil nature and are not maintainable in civil Courts. It was further held that suit for declaration of religious honours and privileges will not lie in a civil court. For further reference see District Council of United Basel Mission Church and others v. Salvador Nicholas Mathias and others (1988) 2 Supreme Court Cases 31) where the rule laid down hy the Indian Supreme Court in the case Ugamsingh u. Kesrimal (ibid) was reiterated. In that case respondents filed a declaratory suit challenging the resolution, through which merger of appellant's church with the church of Sought India was proposed. That suit as well as first appeal was dismissed while these judgments were reversed by a learned Single Judge of Karnataka High Court against which defendants/appellants filed appeal before Indian Supreme Court, which was allowed and the judgments of Karnataka High Court was set aside and the judgment of first appellate Court affirming those of the trial Court were restored. It would be pertinent to quote paragraphs 11 and 12 of the said judgment as the same are very relevant for disposal of this application :-- "11. The first point that has been urged by Mr. Krishnamurthy Iyer, learned counsel appearing on behalf of the appellants, is that the dispute between the parties is not one of a civil nature and, as such, the suit was not maintainable. It has been already noticed that all the courts below including the High Court have concurrently come to the finding that the suit was of a civil nature within the meaning of Section 9 of the Code of Civil Procedure and, accordingly, it was maintainable. It is the case of the respondents that if the impugned resolution is implemented or, in other words, UBMC of Sought Kanara and Coorg is allowed to merge in CSI, the right of worship of the members of UBMC will be affected. It is now well established that the dispute as to right of worship is one of a civil nature within the meaning of Section 9 of the Code of Civil Procedure and a suit is maintainable for the vindication or determination of such a right. The question came up for consideration before this Court in Ugamsingh and Mishrimal v. Kesrimal where this Court observed as follows : (SCC p. 837, para 16) It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies along cannot be adjudicated by civil courts if they are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit is filed. 12. In this instant case also, there is a question as to whether the right of worship of the respondents will be affected in case of implementation of the impugned resolution. It must be made clear that maintainability of the suit will not permit a court to consider the soundness or propriety of any religious doctrine, faith or rituals. The scope of the enquiiy in such a suit is limited to those aspects only that have direct bearing on the question of right of worship and with a view to considering such question the court may examine the doctrines, faith, rituals and practices for the purpose of ascertaining whether the same interference with the right of worship of the aggrieved parties. In view of Section 9 of the Code of Civil Procedure, the enquiry of the Court should be confined to the disputes of a civil nature. Any dispute which is not a civil nature should be excluded from consideration." 15. The most crucial question which is involved in this suit and which needs serious consideration is the status of "Jamaat Khana" which is the place wherein plaintiffs want to offer prayers and to call Azan. It is claimed in the plaint that this is the only place where Ismailis are offering their religious rites like Namaz etc. which fact, has been denied in the written statement. This is a question of public importance with requires production of evidence from both the parties. My attention was drawn to the terms "Masjid" and "Jammat Khana" by the counsel for defendants, who contended that Jamaat Khana is not a place of workshop but it is a sort of community center. Undoubtedly, if defendants succeed in establishing such contention than the plaintiffs would be out of Court but as I have observed earlier that a plaint could not be rejected on mere assertion made in the written statement. It is to be seen whether Jamaat Khana is a place dedicated to God in order to enable all Muslims to offer prayers therein. Again, this is a matter which requires production of evidence from all sides. It would be advantageous to refer the case Haji Bibi v. H.H. Sir Sultan Mahomed Shah, The Aga Khan (1909 BLR Vol. XI page 409) where amongst 128 issues in that suit a question to the ownership of Jammat Khana and Ismailis graveyard also came up for consideration. Jammat Khana was defined by Justice Russel of Bombay High Court as a meeting hall or guild-hall where Ismailis of Bombay used to offer Doowa ( vo ) three times a day on their knees. (Pages 425 and 426). Jamaat Khana was also referred on several occasions in the book "THE ISMA'ILIS THEIR HISTORY AND DOCTRINES" by Farhad Daftary (Cambridge University Press, U.K., 1992) in the following manner :-- " ... Sadr al-Din is credited with building the first Nizuri jamaat-Khana. or assembly and prayer hall, in Kotri, Sind ............. " (at page 479) " But the recusants were summoned before the jamaatkhana in Bombay and, since they persisted in their refusal to pay the dues, they were outcast by the whole Koha jama at assembled there for the occasion ........... " (At page 514) " The Barbhai dissidents, with their tacit Sunni leanings, now seceded from the Khoja community and established themselves in a separate jamdat-khana in Bombay, but in Mahim they used the upper floor of the existing jamaatkhana while the Khoja followers of the Agha Khan held the lower floor. It was at the jamaat-khana of Mahim that, in 1267/1850, four members of the Barbhai party were murdered by the Khojas loyal to the Agha Khan ...... " (at page 515) " As a result, the Barbhai party was again outcast in 1862 by the unanimous vote of all the Khojas assembled in the jamaat-khana of Bombay ..... " (at page 515) " After the earliest challenges to his status, Agha Khan Ill's leadership was accepted unquestionably by his followers. He remained in direct contract with many Nizaris in different lands and guided the community frequently in the form of firmans (farmans), or, written directives read in the local jamaat-khanas ....... " (at page 526) " At the jamaat level, the communal affairs are under the jurisdiction of a mukhi and a kamadia, who until 1987 were selected for each jamaat-khana by the relevant Provincial Councils...." (at page 528) " ... After Khurasan, the largest number of Persian Nizaris are to be found in the countiy's central province, especially in Tehran where a jamaat-khana has been established, and in some nine villages around Mahallat ......... " (at page 543) At pages 562 of the above-mentioned book author Farhad Daftry has defined Jamaat Khana as an assembly house or congregation place used by the Nizari Ismailis for their religious and communal activities. Thus, the burden would be on the plaintiffs to show that Jamaat Khana is being used in the shape of mosques/Masjids where they are legally entitled to offer Namaz and 1998 akbar ali v. vazir ashique ali Kar. 367 (RasheedA. Razvi, J.) that the defendants are not entitled to restrain them from offering Namaz. Pakistan is an Islamic State and for a Muslim Namaz is its important and one of the basic Rukh ( (./j ). If a building or place is proved to be a mosque (Masjid), dedicated to Allah, than every Muslim has a right to offer Namaz therein. However, calling of Azan and other religious rites would always be a subject of public order as held by this Court in the case of RANGAL SHAH AND OTHERS (ibid). 16. A detailed discussion on the nature and construction of mosque may be found in Book IV of the HEDAYA by Charles Hamilton, (Premier Book Shop, Lahore, Edition 1975 at page 239). It is stated inter alia, that if a person build a mosque, his right of property in it is not extinguished unless it is separated from the rest of his property or unless a general right is granted to people to come and worship in it. It is further mentioned that the moment a single person or the people in general start saying their prayers in such building the right on property of owner stands extinguished according to Hanafi Fiqh. Emphasis was placed on dedication of such property to God for making it a mosque. Several instances were cited including case of a mosque connected with dwelling place and the question whether a mosque can be reverted to its previous owner. In reference to such instances, it would be at trial to see whether the present Jarnaat Khana falls within the concept of a mosque dedicated to God. At present there is no evidence and mere on verbal assertion or on the strength of affidavit(s) such question of public importance cannot be decided at this inter locutory stage. There are several issues involved in this suit, which may also include the nature of worship being practiced by Ismailis. From the reported cases of HAJI BIBI AND OTHERS as well as from the commentaries quoted above, it prima facie appears that Ismailis generally offer Doowa in their Jamaat Khana. It is not clear even from the plaintiffs pleadings whether the defendants or their other co-followers also follow the same faith and belief as of plaintiffs. In order to grant reliefs as prayed in the instant suit, which includes offering of prayers, which in our religion stand at a higher footing, this Court is required to look into the question of public order as held by this Court in the case of RANGAL SHAH (ibid). It is also to be seen whether these Jammat Khanas are dedicated to God or it is a private property in order to treat these Jamaat Khanas at par with mosques. All these questions are matter of evidence. In my tentative view all these issues are of civil nature and that suit to try such issues is not barred by Section 9 of CPC. 17. The above discussions lead to conclude that prima facie. plaintiffs' case does not appear to be barred by any specific provision of law and, therefore, application, filed by defendants under Order VII rule 11 CPC H (CMA 4006/86) is hereby dismissed with the direction that the suit be fixed for regular hearing within three (3) months. (B.T.) Petition dismissed.

PLJ 1998 Karachi 368 (Circuit Court Larkana) PLJ 1998 Karachi 368 (Circuit Court Larkana) Present: SYED DEEDAR hussain SHAH, J. Mst. ALAM KHATOON-Petitioner Versus GHULAM HYDER and 5 others-Respondents Civil Revision No. 51 of 1994 and Civil Revision No. 23 of 1988, allowed on 27-2-1997. Civil Procedure Code, 1908 (V of 1908)-- —-S. 115-Revision Petition-Sxut for declaration and permanent injunction-­Suit decreed-Appeal against-Appellate court on application of appellant, and with consent of learned counsel of parties remanded case with direction that legal heirs of one A may be impleaded as party in case, who's share in property was not under dispute before trial court and against whom no adverse findings were ever given by trial court-­ Challenge to—Documents which have been produced by petitioner/ plaintiff have gone unchallenged and unrebutted—So far share of A is concerned that in any case is not under dispute and findings of trial court in any case are not adverse to share of A-Appellate court on application of appellant and by getting consent from Advocate for petitioner was pleased to remand case for joining legal heirs of A party to suit, is not sustainable—Moreover order of appellate Court has been passed without considering evidence and documents produced by parties before trial court order of learned appellate court remanding case with consent of learned counsel of parties, without discussing, analysing and examining evidence prima facie appears to be without jurisdiction—As regards consent of learned counsel of petitioner it is held that, that admission which is wrong on point of fact or is made in ignorance of a legal right, has no binding effect on person making it—Revision petition allowed. [Pp. 375 & 379] A & B Mr. Mohan Lai, Advocate for Petitioner. Mr. Muhammad Sharif Qazi, Advocate for Respondents. Date of bearing : 27-2-1997. judgment Brief facts of the matter are that petitioner/plaintiff filed Suit No. 4/1982 for declaration and permanent injunction stating therein that Survey Nos. 337,310 in full and 50 paisa share in S. No. 322 of deh Fatehpur taluka Khairpur Nathan Shah were purchased by Walio/Mevo and Mirzo s/o Ladho, both uncle and nephew inter se, from one Syed Qutub Shah s/o Nabi Shah in equal shares. Walio expired and left his legal representatives Shah Muhammad and Manghio, who were ultimately survived by Mst. Hakim Zadi and Mst. Sahib Khatoon as her legal representatives. Shah Muhammad and Manghio during their life time, disposed of their share to the extent of 2-11 acres in S. No. 310 and 1-21 acres in S. No. 322 and Mst. Hakim Zadi and Mst. Sahib Khatoon will only be entitled to 50 paisa share in S. No. 337 and to the extent of 19% ghuntas in S. No. 322 and nothing in S. No. 310. The plaintiff being the only daughter and legal representative of Mirzo became the owner of suit land to the extent of 0-8-0 annas share in S. No. 310, 337 and 0-4-0 annas share in S. No. 322; that plaintiff has been in possession and enjoyment of her own hare of the suit property and has been paying land revenue since long back. According to plaint, defendants were interfering with the possession of plaintiff and were falsely claiming their ownership right over the share of plaintiff in the suit land; that defendants managed with the Revenue authorities in order to garb the share of plaintiff. The plaintiff approached the Revenue Authorities but both the parties were advised to get the dispute decided through Civil Court. Defendant No. 3 filed written statement while other defendants except defendant No. 7 adopted 'his written statement. The defendants denied the claim of plaintiff in their written statement and stated that S. Nos. 337, 310 and 322 were standing in village form VII in the names of the following persons :-- 1. S. No. 322 1. Dolat s/p Miran Jarawr 0-8-0 2. Manghio s/o Walio Jarwar 0-8-0 2. S. No. 337 1. Shah Muhammad s/o Walio 0-8-0 2. Manghio s/o Walio 0-8-0 3. S. No. 310 1. Manghio s/o Walio 0-8-0 2. Muhammad Aqil s/o Abdul 0-8-0 Latif Soomro. 2. According to defendant, after some time, Manghio died and left his legal heir Abdullah as son, Bhagwandi as daughter and Zainab as wife. After the death of Bhagwandi and Zainab, Abdullah was in possession and enjoyment of S. Nos. 322, 337 and 310 since their fore-fathers but later-on Abdullah sold 0-3-0 annas share from S. No. 322 to Mehar and after the death of Abdullah, following persons were his legal representatives :-- 1. Mst. Sahib Khatoon as daughter 2. MKt. Neinoi as wife and both became owners of 0-8-0 annas in S. No. 310 and 337 and 0-5-0 annas share in S. No. 322. Due to death of Mst. Sahib Khatoon, Ghulam Hyder. Ghulam Akbar, Niaz Hussain and Ghulam Asghar as sons and Mst. Habiban, Mst. Hakiman as daughters and Mst. Nemoi survived her as legal heirs: that, now-a-days defendants except No. 7 were in possession and enjoyment since fore-fathers. According to written statement, there was no name of Mirzo s/o Ladho; that, plaintiff having document remained silent since long and defendant No. 7 got mutation in her name but where she did not state whether there was any share ofMst, Alam Khatoon and Mirzo s/o Ladho; that the document in custody of plaintiff was forged and false one and that Revenue record did not carry the name of Mirzo and that plaintiff has no right or title over the suit land. After filing of the written statements, trial Court itemed the following issues :— "1. Whether Walio and Mirzo purchased the suit land in equal share from Syed Qutub Shah? 2. Whether the plaintiff is only the legal heirs of Mirzo and has inherited 0-8-0 annas share in suit S. Nos. 310 and 337 and 0-4-0 annas in suit S. No. 322 of deh Fatehpur, taluka K.N. Shah? 3. Whether the plaintiff is in cultivating possession of the suit land to the extent of her share? 4. Whether suit S. Nos : belong to Dolat, Manghio and Shah Muhammad and Muhammad Aqil according to their respective shares as shown in the W,S. If yes, whether they and their legal heirs are in cultivating possession of suit land? 5. Whether entries in Record of Rights can confer any right of ownership or titlement? 6. Whether the suit is not maintainable? 7. Whether this Court has no jurisdiction to entertain the suit? 8. Whether the plaintiff is entitled to any relief? 9. What should the decree be ?" The parties adduced their evidence and finally Civil Judge, K.N. Shah decreed the suit of the plaintiff with costs vide judgment dated 23.6.1986. Against this judgment, Civil Appeal No. 59 of 1983 was filed which was decided by Ilnd Additional District Judge, Dadu vide order dated 12.5.1987 with the following observation :-- "Both the learned advocates have frankly conceded that the issues cannot be decided without joining of L.Rs of Muhammad Aqil as parties and have conceded that the case may be remanded to the learned trial Court for joining legal heirs of Muhammad Aqil as parties to the suit." 4. Being aggrieved and dis-satisfied with the order of Ilnd Additional District Judge, Dadu, this revision has been filed. 5. I have heard Mr. Moohan Lai learned counsel for petitioner who has contended that the order dated 12.5.1987 passed by Ilnd Additional District. Judge, Dadu is illegal, void and contrary to facts, law, equity and natural justice; that judgment/decree passed by learned Civil Judge in suit (4/1982) dated 23.6.1983 are proper, legal and according to facts of the case; that the order of the Ilnd Additional District Judge, Dadu is arbitrary one and learned appellate Court has seriously erred in remanding the case to trial Court with the direction to re-hear the suit which is not sustainable; that learned appellate Court has also seriously erred on relying over the Village Form VII as there was entry of 0-8-0 annas share in the name of Muhammad Aqil in S. No. 310 which in any case was not under dispute, even before the learned trial Court because plaintiff has not agitated 0-8-0 annas share of Muhammad Aqil in any manner and petitioner/plaintiff has no concern with that 0-8-0 annas share and that plaintiff has not claimed any relief regarding this share of Muhammad Aqil and that appellate Court has also seriously erred in remanding the case for deciding the same 0-8-0 annas share of Muhammad Aqil in S. No. 310 which in any case is not disputed; that appellate Court has seriously erred in mis-reading of proceedings of the record of the suit. Mr. Moohan Lai has referred following case law:- (1) Muhammad Yousafv. Faiz-ud-Din and another (1979 CLC 247). , (2) Punjab Road Transport Board v. Tanvir Ahmad and 4 others (1983 CLC 1160). (3) Abdul Salam and others v. Noor Nisa (1983 SCMR 1012). (4) Ch. Nasiruddin v. Maulvi Muhammad Maskin and others (1987 SCMR 1310). (5) Nasir Abbas v. Manzoor Haider Shah (PLD 1989 Supreme Court 568). (6) Barkhurdar v. Muhammad Razzaq (PLD 1989 Supreme Court 749). (7) Haji Noor Muhammad Jamote and another v. Osman and 3 others (PLD 1993 Kar. 26). 6. Mr. Muhammad Sharif Qazi, learned counsel for respondents No. 1 to 6 has contended that revision application is not maintainable; that patently there is no illegality in the order passed by the Ilnd Additional District Judge, Dadu; that order was passed with the consent of learned counsel for both the parties and the case was remanded to the trial Court for re-hearing. Mr. Qazi has relied upon the following case law:~ (1) Khadim Hussain through Legal Heirs and 5 others v. Mst. Fazlan Bibi and 4 others (PLJ 1996 SC 1814). (2) Abdul Hamid etc. v. Haji Shabir Khan and another (PLJ 1996 SC 518). S (3) Taj Muhammad v. Mst. Zaitooney and another (PLD 1995 Peshawar 135). (4) Ilyas etc. v. Jan Muhammad (1992 Law Notes (Lahore) 45). (5) Mst. Umari and another v. Faqir Muhammad and another (1983 Law Notes (Lahore) 430). i. Mr. Gulab Jesrai learned counsel for respondent No. 7 has supported the contentions of Mr. Moohan Lai. 8. For the convenience, it will be pertinent to refer the findings of the learned trial Court particularly on issues No. 1, 2 and 4 which is as under:— "Issue. No. 1. Burden lies on the plaintiff to prove issue No. 1 in her favour. She has stated (Ex. 30) that suit land consists of S. Nos. 337, 310 and 322 of deh Fatehpur taluka K.N. Shah was purchased by Mirzo and Walio from one Qutub Shah in equal share, suit S. No. 337 and 310 and whole and 0-8-0 annas out of S. No. 322. In support of her contention, she has produced Registered sale deeds at Ex. 31 and 32. Perusal of Ex. 31 reveals that Syed Qutub Shah s/o Nabi Shah had sold out S. No. 310 admeasuring 4-25 acres to Mirzo s/o Ladho and Walio s/o Mevo through Registered sale deed on 3rd October, 1888. The vendees were put into the possession of the said suit S. Number. Perusal of Ex. 32 reveals that Syed Qutub Shah sold out S. No. 305 admeasuring 5-5 acres of deh Fatehpur to Walio and Mirzo in equal shares through Registered sale deed on 10th October 1887. Ex. 36 is deh Form I, perusal of it reveals S. No. 337 of deh Fatehpur in place of old S. No. 305 as stated above. Now by virtue of Exs. 31 and 32, it stands proved that Walio and Mirzo had purchased suit S. Nos. 310 and 337 in equal shares through Registered sale deeds on 3.10.1888 and 10.10.1887. Exs. 31 and 32 are the deeds of title and there is nothing against them which can derogate their validity and genuineness. Even otherwise, claim of the plaintiff stands proved by the statement of defendant Ghulam Akbar (Ex. 40) who has stated in his cross examination that the suit S. Numbers originally belonged to one Qutub Shah. He has stated further that Mirzo and Walio nephew and uncle inter sc purchased the suit survey numbers jointly from Syed Qutub Shah. Now by this piece of evidence, the position has become admitted. I feel it unnecessary to go into further details but hold that the suit survey numbers were purchased by Walio and Mirzo from Syed Qutub Shah in equal shares. On the other hand the defendants have no titlement deed in support of their claim, which has been admitted by defendant Ghulam Akbar in his cross examination. In light of the above discussion and evidence on record, issue No. 1 is replied affirmatively. ISSUE No. 2. It has not been disputed as to whether the plaintiff is not only the legal heirs of Mirzo and it has been found by me in discussion of issue No. 1 that Walio and Mirzo pTirchased suit survey numbers in equal share i.e. S. No. 310 and 337 as whole and 0-8-0 annas of suit S. No. 322. Now it has become crystal clear that Mirzo owned 0-8-0 annas in suit S. Nos. 310 and 337 and 0-4-0 annas in suit S. No. 322. Now I am going to discuss the evidence a bit ahead. Plaintiff has deposed (Ex. 30) that after the death of Walio, Shah Muhammad and Manghio, inherited his share, while she inherited the share of Mirzo as his being only survival daughter. Now this fact stands supported and corroborated by the depositions of defendant Ghulam Akbar (Ex. 40) and Lai Bux D.W. 2. Defendant Ghulam Akbar has. stated in his cross examination (Ex. 40) that the plaintiff is only the survival of deceased Mirzo as his daughter. Lai Bux D.W.2 has stated in his cross examination that, the plaintiff Mst. Alam Khatoon is daughter of Mirzo. Hence the question of inheritance does not stand complicated. The plaintiff is not only inherited the share of her father in suit survey numbers but also 1/8 share in the property of Mevo as being his widow. Because not only per case of the plaintiff but also according to the statement, of defendant Ghulam Akbar, that Walio left behind his two sons namely Manghio and Shah Muhammad. Manghio had a son Abdullah and Shah Muhammad had a son Mevo, the husband of plaintiff Mst. Alam Khatoon and father of Mst. Hakim Zadi, defendant No. 7. Hence it cannot be unreasonable to say that Abdullah and Mevo inherited the shares of Manghio and Shah Muhammad respectively. Therefore it would be easy to say that the plaintiff can get 1/8 and Mst. Hakim Zadi 1/2 share from the share of deceased Mevo as being his widow and daughter respectively. The plaintiff has deposed that Shah Muhammad and Manghio during their life time sold out 7 jarebs out of the suit survey numbers, therefore the left over the property of Mevo stands inherited by the plaintiff and defendant No. 7 only. Now from the above discussed evidence, it stands proved that the plaintiff is only legal heir of deceased Mirzo and has inherited her share. Accordingly the issue No. 2 is answered affirmatively. ISSUE NO. 3 ................................................................ ISSUE Nos. 4 & 5. Burden lies on the defendants to prove these issues in their favour. Defendant Ghulam Akbar has been examined vide Ex. 40. He has stated that he has seen the suit land. Suit S. No. 322 belongs to them and Haji Mehoon in equal shares, which is not consistent with para No. 2 of the written statement, according to which S. No. 322 stands in the names of one Dolat and Manghio. Admittedly the defendants are descendents of deceased Manghio s/o Walio but the said Dolat is not one of his descendents. The defendant (Ex. 40) has admitted that they have no titlement deed in their favour. The defendant has further stated that suit S. No. 337 belongs to them and Shah Muhammad. In cross examination he has stated that Shah Muhammad had one son Mevo father of defendant No. 7 and husband of plaintiff, but despitb this the defendants are not admitting any share of the plaintiff and defendant No. 7, which is much more surprising. Perusal of examination inchief of defendant Ghulam Akbar, reveals that it is just in contradictions of what he has stated in his cross examinations. Lai Bux D.W. 2 has stated that Haji Mehoon Khan, Haji Mehar, Haji Mevo, Mst. Nemoi and legal heirs of deceased Abdullah are in possession of suit S. Nos. 322. S. Nos. 337 and 310 are uncultivated. In cross examination, he has stated that he cannot give exact area of the suit survey numbers and lastly he has also admitted that Haji Mevo used to cultivate the suit survey numbers. Statements of both the D.Ws are not confidence inspiring and not wroth reliance. I am at loss to believe their version for want of other cogent and reliable evidence. The defendants have miserably failed to make out their case of titlement regarding the suit survey numbers. The defendants claim their titlement on basis of the entries of their names in the relevant revenue record. It is held in AIR 1926 PC 100 (PLD 1976 K-114) that it is an error to assume that proceedings for mutation of names are judicial proceedings in which titlement to and the proprietory rights in immovable property are determined. They are more in the name of fiscal enquiries instituted in the name of the state in the interest of the collecting revenue from the claiming occupants. It is held in PLD 1970 Pesh. 141 (PLD 1976 Kar. 114) that the mutation & subsequent entries in the record of rights do not create title in favour of the persons as these documents are not documents of title. Hence I am of the humble opinion that the defendants have no title, right or interest in the suit survey numbers. Issues No. 4 and 5 are answered negatively." 9. The trial Court after examining the evidence, and analysing the documents produced by the parties, decreed the suit of the plaintiff and perusal of the judgment shows that 0-8-0 annas share of Muhammad Aqil in any case is not under dispute and findings of the trial Court are not adverse against Muhammad Aqil, therefore, the order of the learned appellate Court remanding the case with the consent of the learned counsel for the parties, without discussing, analysing and examining the evidence in any case prima facie appears to be without jurisdiction. I would like to discuss the case law relied upon by Mr. Moohan Lai, learned counsel for the petitioner, hereunder :-- (1) 1979 C.L.C. 247. In this authority, dictum laid down is that even a question of fact could be determined by this Court under section 103 C.P.C. The civil Court got the entire evidence and exhibited all the documents being relied upon by the parties. The question involved is only a question of law. In the circumstances, it is not necessary to send this case back. Here in this case also Civil Judge, K N. Shah recorded the evidence and got exhibited all the necessaiy documents produced by the parties, referred and discussed hereinabove, therefore, in my humble view, it is not necessaiy that case be sent back to the trial Court. (2) 1983 C.L.C. 1160. In this case the learned Division Bench of High Court has held that exercise of discretionary power under Order XLI, rule 20 C.P.C. in favour of an applicant is not automatic and cannot be had just for the asking. It is dependent upon existence of some valid and reasonable cause. (3) 1983 S.C.M.R. 1012. The Honourable Supreme Court in this case held as follows :— "It cannot be seriously disputed that where a manifest misreading of evidence on a material point affecting the application of law is involved or material evidence has been altogether ignored, the revisional powers can be appropriately exercised as it would not be proper exercise of jurisdiction possessed by the fact finding Courts." (4) 1987 S.C.M.R. 1310. The dictum of Supreme Court is that any concession made against the appellant by his counsel in proceedings before the Court could not be binding on the appellant as it, was made under an obvious mistake of fact and without instructions from the party. (5) P.L.D. 1989 S.C. 568. The rule laid down by the Honourable Supreme Court is that, if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. (6) P.L.D. 1989 S.C. 749. The Supreme Court considering the Art. 31 of the Qanun-e- Shahadat held that admission which is wrong on the point of fact or is made in ignorance of a legal right, has no binding effect on the person making the same. (7) P.L.D. 1993 Karachi 26. In this case Abdul Rahim Kazi, J. (as he then was) has laid down that this Court can interfere with or reverse the concurrent findings of fact if the same were based on misreading of evidence or were perverse. In the case in hand, the learned Ilnd Additional District Judge, Dadu has not analysed, assessed and examined the evidence so recorded by the trial Court and on application and with the consent of the counsel for defendants, by consent allowed the appeal and remanded the case to the Civil Court which order itself appears to be perverse and is based on non-reading of the evidence recorded by the trial Court. 10. Mr. Muhammad Sharif Kazi, learned counsel for respondents No. 1 to 6 has cited the following case law :— (1) P.L.J. 1996 SC 1814. In this authority Honourable Supreme Court has held that 90 days period is prescribed for filing the civil revision and further that nothing has been pointed out to support the contention that any material aspect of the case has not been considered by the learned courts below. Again I am compelled to say that this authority in any case is not applicable to the facts of the present case. The revision has been filed within time and it has rightly been pointed out that learned lower Court has not considered the material aspect of the case and has also not analysed the evidence so recorded by the trial Court which contained even certified copies of the record of rights issued by the Revenue authorities and original registered sale deed pertaining to the period of 1887 and 1888 which have gone unchallenged and unrebutted by the learned trial Court. (2) P.L.J. 1996 S.C. 518. This case pertains to N.W.F.P. Pre-emption Act, 1950 which in"any case has no concern with the facts of the present revision application because suit of the petitioner/plaintiff hefore the trial Court was for declaration and permanent injunction. Pre-emption in any case is not involved at-all. (3) P.L.D. 1995 Peshawar 135. The revision application was dismissed with the observation that no reason exists and none indeed has been made out as to why this Court should interfere, with the findings of the learned Courts below who have not acted illegally or with material irregularity in the exercise of the jurisdiction vested in them. As pointed out hereinabove, the suit of the petitioner/plaintiff was decreed by the trial Court with cogent reasons and considering the unimpeachable documentary evidence, the order was set aside in appeal by the appellate Court without analysing or considering the evidence so recorded, without consent of the petitioner/plaintiff and with the consent of learned counsel for the plaintiff who in any case was not authorised by the plaintiff to enter into any compromise with the other party at the time of hearing of the appeal. The order of the appellate Court patently appears to be without merit or substance and without jurisdiction. Rather this authority appears to be helpful to the case of the petitioner/ plaintiff. (4) 1992 Law Notes (Lahore) 45. The facts of this case were that Muhammad Din owned land measuring 12 kanals, comprised in khasra No. 73/23 of khatauni No. 312 (8 konals), khasra No. 73/24-min sharq of khatauni No. 315 (4 kanals) situated in Chak No. 31/22 in Tehsil Okara, sold the above land to Ilyas, Hassan, Rehmat, Razzaq and Ghulam Muhammad alias Gama sons of Suleman through registered sale deed on 27.2.1980 for a price of Rs. 10,000/-. Registered sale deed was implemented in revenue records in favour of vendees. Jan Muhammad claimed pre-emption in respect of the above sale and filed a suit for enforcement of pre-emptive rights against the vendees in the Court of Civil Judge, Okara. Pleadings by the parties were submitted, trial Court framed issues and finally held that plaintiff had superior right of pre-emption and consequently decreed the suit subject to payment of Rs. 10,000/- as a sale price. Vendees/defendants preferred an appeal against the judgment and the District Judge finding no merit, dismissed the same. Against the judgment of both the Courts, this revision was filed. After admitting the revision, execution proceedings were stayed without any terms. Jan Muhammad respondent after service, applied under Order VI, rule 17 C.P.C. for amendment seeking correction for substituting correct khasra number in the plaint. Petition for amendment was registered as C.M. and notice was ordered to issue to other side and Court ordered that in view of the nature of the matter. C.M. shall be heard alongwith the main case as suggested by the learned counsel for the petitioners. The only point involved for decision in the civil revision turned around the stated mis-description of the property which was siibject matter of pre-emption and its consequential effect. The revision was dismissed by the learned Single Judge with the following remarks :-- "Apart from express provisions in the Code of Civil Procedure giving extensive powers to the Court to permit amendment for meeting the ends of justice in variety of circumstances, the Court is also amply equipped with inherent powers for remedying the clerical error and accidental omissions creeping in the pleadings and also in its judgments, orders and decrees. It was clearly a pardonable fault and excusable in the existing circumstances of the case. The error was human, and consequently condonable. Neither culpable negligence nor any malafide was involved in the case. Error came to be committed by an Advocate, who coxild not read the correct khasra number given in the registered sale deed and mentioned it in the plaint as 22, instead of 23. The pre-emptor was not at fault. He had handed over the relevant papers to his Advocate and reposed confidence in him. If, the latter did not describe the property correctly in the plaint by an inadvertence, the fault could not be laid at the doors of the plaintiff." The facts of this case in any case are not relevant to the facts of the revision in hand. The application for recording additional evidence was allowed by the Ilnd Additional District Judge, Dadu without applying its judicial mind and without analysing or assessing the evidence so recorded by the trial Court, wherein I have already held that share held by Muhammad Aqil in any case was not under dispute and nothing adverse was held by the trial Court agents Muhammad Aqil. Under these circumstances, application was granted by the appellate Court for recording the additional evidence and remanding the case for re-hearing to the trial Court is without substance/merit. With due respect to the authority, this is not favourable to the case of respondent. (5) 1983 Law Notes (Lahore) 430. The facts of this case are that Faqir Muhammad and Imam Bibi filed a suit in the Civil Court at Mianwali, against defendants/petitioners Mst. Umari and Mst. Rehmate for declaration that the orders of Commissioner, Sargodha dismissing respondent/plaintiffs revision and maintaining said mutation order were wrong, against law, void and inoperative against their rights. There was also a prayer for injunction agents petitioners/defendants. The suit was decreed in favour of respondents/plaintiffs Faqir Muhammad and Imam Bibi. The petitioners/defendants Mst. Umari and Mst. Rehmate filed an appeal before the District Judge and subsequently petitioners/ defendants filed an application under Order XLI rule 27 C.P.C. for permission to adduce additional evidence on the ground that they had now brought certified copies of extracts from birth Register of Municipal Committee, Jullundur, duly attested by the Second Secretary of Pakistan Embassy in New Delhi conclusively showing them be daughters of Ghulam Muhammad and that same should be allowed to be produced in evidence. Notice of application was given to the other side and District Judge decided the main appeal and dismissed the same although he had heard arguments on the application for production of additional evidence also. Learned District Judge made on mention of the said application in his judgment nor made any adjudication on the same in his judgment, therefore, the revision against the order was filed. I am afraid, facts of this case in any case are not applicable to the facts of the revision in hand. In as much as, in this revision, the civil Court recorded the evidence, parties produced the certified copies of the extracts from the Village Form VII and also registered sale deeds pertaining to the period as hack as 1888 and parties were provided full opportunity for rebuttal of the documents and evidence, if any, but nothing substantial was produced/adduced before the trial Court. Under these circumstances, this authority, in any case, is not favourable to the case of respondents. 11. I have gone through the material placed with the case and have minutely analysed the evidence recorded by the trial Court. The documents which have been produced by the petitioner/plaintiff have gone unchallenged and unrebutted. So far the share of Muhammad Aqil is concerned that in any case is not under dispute and findings of the trial Court in any case are not adverse to the share of Muhammad Aqil. The appellate Court on the application of appellant and by getting consent from the Advocate for petitioner Mst. Alam Khatoon, was pleased to remand the case for joining legal heirs of Muhammad Aqil as party to the suit, is not sustainable. Moreover the order of the appellate Court has been passed without considering the evidence and the documents produced by the parties before the trial Court. The case law cited by Mr. Moohan Lai, learned counsel for the petitioner, referred and discussed hereinabove, is very much relevant, applicable and helpful to the case of plaintiff/petitioner which I most respectfully follow. The order of the appellate Court remanding the same for joining the legal heirs of Muhammad Aqil as legal representatives and for rehearing, in my humble opinion, is not sustainable. Suit was filed in the year 1982 and was decided by the trial Court on 23.6.1983 against which appeal was filed in the year 1983 and the appellate Court was pleased to remand the same on 12.5.1987 again for hearing for which no useful purpose will be served at-all. The petitioner/plaintiff has already suffered a lot and again they will be put into further-unnecessary protracted unfruitful litigation which should be curbed and plaintiff/petitioner should be allowed to enjoy the fruits of the judgment/decree after lapse of about 14 years. 12. Up-shot of the above discussion is that I allow the revision, set aside the judgment of Ilnd Additional District Judge, Dadu and restore the judgment of Civil Judge, Khairpur Nathan Shah. By short order, revision was allowed on 27.2.1997, above are the reasons for the same. (K.A.B.) Petition allowed.

PLJ 1998 Karachi 380 PLJ 1998 Karachi 380 Present: M.L. SHAHANI, J. M/s KHAN MEDICAL STORE-Appellant versus Mst. MUSARRAT-Respondent F.R.A. No. 206 of 1992, dismissed on 12.12.1997. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 14 & 18—Ejectment application—Acceptance of—Appeal against-While deciding application u/s 14 of Ordinance, 1979 first and foremost duty cast on Rent Controller is to see that jurisdictional requirements are that (a) there should be relationship of landlord and tenant (b) that landlord/landlady should either be widow, or a minor whose both parents are dead or a salaried employee due for retirement within next six months or already retired or a person who is due to attain age of 60 years and (c) inform tenant through a notice in writing that in view of such contingency mentioned in paragraph (b) that he or she shall need building in occupation of tenant for personal use and in such notice also mentions delivery of vacant possession of building within such period as may be specified in notice which shall not be earlier than two months from receipt of notice-Once these jurisdictional requirements are established, in ordinary course, ejectment will follow—However, tenant through positive evidence, if establishes on record that case of landlord falls within proviso of S. 14(1) or subsection (2) of S. 14, ejectment of tenant must not be allowed by Rent Controller-With this particular position of law, evidence led by parties is to be scrutinised by court-On behalf of respondent landlady her son examined himself as a witness and from evidence it will be seen that landlord has satisfied all jurisdictional requirements which are necessary in terms of S. 14 of Sind Rented Premises Ordinance, 1979-Relationship of landlord and tenant is not under dispute—Notice u/s 18 and 14 was served on tenants and they admitted such fact that premises were demanded from tenants and such fact was also not in dispute-Only dispute which requires settlement is whether there is cabin and that cabin is a shop and whether that cabin is in possession of respondent-Building has only four shops and all four shops are rented to appellants—Cabin is not permanent structure nor it was built to be 5th shop and not mentioned in building plan, thez-efore, requirement of landlord could not be denied due to so called cabin- Held : Respondents has established her case for her requirements u/S. 14 and there is no other option but to order ejectment-Appeal dismissed. [Pp. 386, 387 & 388] A, B, C, D & E Mr. Muhammad Anwar Tariq, Advocate for Appellants. Mr. Ziauddin Qurcshi, Advocate for Respondent. Dates of hearing : 25.3.97, 26.3.93 and 7.11.97 judgment By this common judgment I am disposing of F.R.A. No. 206 of 1992 and F.R.A. No. 228/1992 filed by the tenants against their landlady arising out of common judgment delivered by the IVth Rent Controller, Karachi (East) on 2nd March, 1992, whereby he ordered both the appellants to vacate one shop each in their possession and hand over vacant peaceful possession, to the landlady. 2. The facts giving rise to F.R.A. No. 206 of 1992 are that the appellants are a tenant in respect of shop let out to them by late Khawaja Ziauddin, who was the landlord and the appellants are running medical store, namely, Khan Medical Store. The shops in their possession are shops Nos. 1 and 2. The rent of shops is Rs'. 500/- per month. Late Khawaja Ziauddin in his life time after his retirement from service filed rent case No. 109 of 1987 under Section 14 of Sindh Rented Premises Ordinance, 1979 which was pending in the Court of Vth Senior Civil Judge and Rent Controller Karachi (East) and since he died on 14th March, 1988 the proceedings abated. Thereafter, the respondent landlady served notice under Section 14 as well as 18 of the Sindh Rented Premises Ordinance, 1979 on the appellants intimating about the death of Khawaja Ziauddin and calling upon them to pay the monthly rent to the legal heirs of late Khawaja Ziauddin, she also demanded that the appellate should vacate one shop for her personal use as she intended to do the business thixmgh her son. After the reply of notice which was negative of course, the respondent landlady approached the court for ejectment of the appellants from one shop. 3. Notice was ordered on such application. The appellants in the written statement denied for want of knowledge as to whether the property in question has been inherited by her, however they admitted that they are tenant of shops No. 1 and 2. They also admitted that late landlord Khawaja Ziauddin in his life time filed rent case after his retirement and the case has since abated. According to them shop No. 5 was in possession of the landladyand the plea of ejectment was opposed. 4. Appellant Allah Rakha in F.R.A. No. 228 of 1992 in his appeal has also stated that the is tenant, the need of the landlord which was expressedin the same terms as in F.R.A. No. 206/1992 was disputed and opposed all other facts, urged the same grounds and the pleas as were urged by the appellants in the F.R.A. No. 206/1992 therefore, in order to avoid repetition they are not stated here. Additionally he stated that pugree was taken by late landlord from him. 5. On the basis of pleadings learned Rent Controller framed the following issues : 1. Whether present applications are maintainable and applicant is entitled to avail the benefits of Section 14 of Sindh Rented Premises Ordinance, 1979? 2. Whether applicant's husband late Khawaja Ziauddin obtained/received pagree of Rs. 45,000/- for shop No. 3 and Rs. 30,000/- from the opponent Allah Rakha, who is opponent in rent case No. 746/1988? 3. What should the order be ? Shahid Iqbal, Attorney as well as son of the respondent was examined. He filed his affidavit in-affidavit. He was cross-examined and thereafter closed his side. In F.R.A. No. 206 of 1992 on behalf of the appellants Aqeel Ahmad Khan who is running Khan Medical Store filed affidavits in evidence, was cross-examined and his side was closed. Appellant Allah Rakha in Appeal No. 228 of 1992 was examined thereafter he closer? his side. 5. Learned Rent Controller decided issues No. 1 in affirmative, issueNo. 2 in negative and allowed the rent application and ordered as follows "In view of above discussion and findings on issue Nos. 1 and 2, the opponent M/s Khan Medical Store in rent case No. 746/88 and opponent Allah Rakha in rent case No. 748/1988 are directed to vacate one of their two shops each but in the middle side. Demised premises be vacated by each tenant/opponent within 60 days from this order." 6. This appeal was heard by me firstly on 25th March, 1997, it was adjourned to 26th March, 1997, one such contention urged by the learned counsel appearing for the appellants in both these rent appeals was that an application was filed for summoning Officer of Excise and Taxation of Ward- H Government, of Sindh, Karachi. Such application was rejected by the Rent Controller regarding verification of Form PT-I, therefore, this Court issued notice to the responsible Officer of Excise and Taxation Department H- Division with the direction to appear on 28th March, 1997, On 28th March, 1997 since the notice was not served the case was adjourned to 3rd April, 1997. On 3rd April, 1997 Mr. Mushabul Qadir son of A. Qadir, who isAssistant in Excise and Taxation Department H-Division appeared and produced on record PT-I form for the year 1996-97. He did not bring the record from which the extracts were prepared. He also stated that he has not visited the site and the extracts so given by him in this Court were not verified physically. This case was adjourned on llth April, 1997 and he filed memo of inspection as Ex. 1/2. He was not cross-examined further by the learned counsel. Thereafter, parties were heard at length. On 13th May, 1997 the following order was passed : "After arguments were heard at some length a proposal has been made for conversion of four shops into three shops and both the appellants shall possess one shop and one shop will be given to the respondent. For acceptance of this proposal learned counsel for the parties request for time. Time granted. Adjourned to 16.5.1997. Thereafter the case was being adjourned on one or the other grounds. However, on 7th November, 1997 the parties agreed that they shall file written argument within one week and Mr. Muhammad Anwar Tariq, Advocate has filed his written arguments in F.R.A. No. 206 of 1992. Mr. Muhammad Sadiq, Advocate appeared for the appellant in F.R.A. No. 228/1992 has stated that he has already argued the case and has nothing to add. Equally Mr. Ziauddin Qureshi, Advocate has argued the case also stated that he has nothing to add. 7. During the course of arguments it was admitted that the noticeunder Section 14 and Section 18 was received by the tenants who are the appellants and they are, therefore, not agitating the issue. The main contention of both the learned counsel appearing for the appellants before me w .- chat there is 5th shop in the possession of the respondent and since the - .ancient is in occupation of 5th shop the application of respondent .: Section 14 was not maintainable. 8. Mr. Muhammad Sadiq, Advocate appearing for the appellant has diied upon the following case law : 1. Muhammad Ali Ahmed Khan u. Messrs Toufiq Engineering Works (1991 C.L.C. 1051). 2. Hazart Shah v. Dr. Muhammad Hanif(1992 M.L.D. 910). Mst. Zulekha and 7 others v. Masjid-e-Mahrajul Nab Trust (1984 C.L.C. 3057). 3. Abubakar and another v. Abdul Haleem (PLD 1991 S.C. 302). 5. Iqbal Yousufv. Kishwar Jehan (1995 SCMR 864). G. Buksh Elahi v. Kazi WasifAli (1985 SCMR 291). 9. In the first mentioned authority one of the Judges of this Court held that if the premises are needed by the landlord under Section 14 in order to prevent serious complications and dishonest claim, the Rent Controller was justified in granting ejectment in respect of one premises according to the convenience and nature of business and in so holding option was left to the tenant. In the case of Hazart Shah late Mr. Justice Qaiser Ahmed Hamdi allowed the rent appeals which were filed on the grounds mentioned in Section 14 on the plea that the application under Section 14 could not be converted to Section 15 of the Ordinance. 1979 and such course was not permissible. In the case of Zulekha and others the definition of building as defined in Section 2(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 was given by Honourable Justice Ajmal Mian while presiding a bench at Karachi in this capacity as a Judge of this Court. Reliance in this case was only to the extent that the building as a whole is to be seen before ordering the ejectment. In the case of Abubakar it was held by Honourable Supreme Court that the ejectment cannot be granted if the landlord has rented out a building or be in occupation of a building of the nature or the character of which is identical for which he has sought the ejectment order under Section 14. The building includes a part thereof in terms of clause (a) of Section 2 of the Ordinance, 1979. Honourable Mr. Justice Ajmal Mian, who is author of the judgment has further clarified in the following words : "In another words he or she seeks the ejectment of a shop, he or she must be in possession of a shop in any locality irrespective of the fact whether it was suitable or not suitable for the purpose." 10. In the case of Iqbal Yousuf in which Honourable Supreme Court did not order ejectment because house was not specifically mentioned. However, in this case it was held that the provision of Section 14 are to be given liberal construction. Similarly in the case of Bux Elahi since the landlord was in occupation of a building order of ejectment was refused. 11. Mr. Muhammad Anwar Tariq, Advocate in his arguments has laid stress that since the landlady was already in possession of a shop that there is electronic store on the ground floor, therefore, application under Section 14 was not maintainable and his second contention was that the order of the Rent Controller ordering each appellant to vacate one shop (out of two shops) in their occupation/possession for respondent is not in consonance with law. 12. Mr. Ziauddin Qureshi. Advocate appearing for the respondent lias stated that there is no shop in possession of the respondent who is landlady. The shop so mentioned and stressed by the learned counsel for the appellants is not a shop bur a small passage ad measuring 3' X 7'. It was never constructed as a shop nor it was treated to be the shop for the payment of taxes under various laws including Excise Act. It. was not mentioned in the building plan or map. The building consists of four shops which wore let to the two appellants. According to him the need was fully established, therefore. Rent Controller has passed impugned order in favour of respondent and since the shops were four in number and two shops are in possession of each tenant, therefore, in order to avoid any discrimination, the Rent Controller lias ordered both the tenants to vacate one shop each and hand-over possession to the respondent/landlady. According to him these four shops could not lie converted into three shops and the directions of this Court dated 13.5.1997 are not leasable i.e. to convert the four shops into three shops with equal measurement. According to him whole structure will have to be rebuild. He has relied upon the following case law : In the case of Muhammad Ali v. Hameeda Begum (1983 C.L.C. 3237), one of the Judges of this Court ruled that while ordering ejectment under Section 14 it is not necessary for the Rent Controller to go into the question of bona fides and mala fides and a question of bonafides could not be investigated into an application under Section 14, in view of the difference in the language employed under Section 14 and Section 15 by the legislature and thereby upheld the order of ejectment. 13. In the case of Raisa Begum v. Ali Zafar Naqvi (1993 M.L.D. 404) one of the Judges of this Court also held that bonafides and good faith are not, the requirement of Section 14 of the Sindh Rented Premises, 1979. 14. Perusal of preamble of Sindh Rented Premises Ordinance, 1979, shows that it was promulgated to regulate the relationship between landlords and tenants and protect their rights and interest in respect of the rented premises within the urban areas. It appears that the intention was neither to make this law as pro-landlord nor a pro-tenant but to maintain proper balance in order to protect the interest of both the parties. Such is the law laid by Hon'ble Supreme Court in the case of Iqbal Yousuf v. Kishwar Jchan (1991 S.C.M.R. 864). It is obligatory upon the landlord to enquire into the jurisdictional facts in terms of Section 14 which are specifically mentioned in that section. In this case one jurisdictional fact is that the landlord should be a widow which admittedly is established on record through death certificate of the then original landlord, placed on record through the affidavit-in-evidence of the attorney of the respondents. It is not disputed by the tenants. The defence of tenants in this case all along has been that there is 5th shop and that 5th shop is in possession of the landlady and in view of the 5th shop already in possession of landlady she was not entitled to avail the provisions of Section 14. In other words the plea of tenants in both these appeals is that by virtue of the proviso to Section 14 the landlady has not satisfied other jurisdictional requirement that she is not in possession of any other shop and since she has the possession of the 5 th shop with her. therefore, the application under Section 14 was not maintainable. 15. I have given anxious considerations to such pleas urged by the learned counsel and have gone through the record which their assistance. I have also gone through the case law relied upon by the learned counsel and my findings on this issue are as follows : 16. Indeed, it is true that Sindh Rented Premises Ordinance, 1979 is a law to create balance bt't\vrn the relationship of landlord and tenant. Landlord would ordinarily not be entitled to eject the tenants from the premises let to him except his case is covered either under Section 14 or any of the clauses of Section 15 of the Sindh Rented Premises, 1979. The endeavour of the Court always has been to apply the provisions of law by going through the pleadings and the evidence. For ordering ejectment it is the primary duty of the Rent Controller to assess and weigh the evidence led by the landlord in support of his ejectment application. If the evidence of the landlord inspire confidence, truthful and fits within the requirement of law then such evidence is to be accepted and the ejectment is to be ordered. Ejectment could only be ordered provided that the evidence led by the landlord is justified and only on the strength of such evidence order of ejectment should be passed. Thus means that the order of ejectment could not be passed due to weakness in the defence and evidence led by the tenant. In another words it is the quality of the evidence of the landlord which should prevail. 17. If the evidence of the landlord inspires confidence, then the Rent Controller must assess evidence given by the tenant in defence. The Rent Controller must assess whether any plea has been taken by the tenant which is genuine and as and when established through evidence on record, would create dent in the requirement established by the landlord through his evidence led by him earlier, and whether such dent is permissible within the para-meters of law relating to ejectment of tenant. Once that dent is established which is permissible in law through positive evidence in order to protect the interest of the tenant the Rent Controller may not order ejectment of the tenant as the Rent Controller is under bounden duty, cast on him by the law to protect the interest of the tenant. 18. While deciding application under Section 14 of the Ordinance, 1979 the first and the foremost duty cast on the Rent Controller is to see that jurisdictional requirements are that (a) there should b'e relationship of landlord and tenant (b) that the landlord/landlady should either be widow, or a minor whose both parents are dead or a salaried employee due for retirement within in the next six months or already retired or a person who is due to attain the age of 60 years and (c) informs the tenant through a notice in writing that in view of such contingency mentioned in paragraph (b) that he or she shall need the building in occupation of tenant for personal use and in such notice also mentions delivery of vacant possession of building within such period as may be specified in the notice which shall not be earlier than two months from the receipt of notice. Once these jurisdictional requirements are established, in the ordinary course, ejectment will follow. However, the tenant through positive evidence, if establishes on record that the case of the landlord falls within the proviso of Section 14(1) or subsection (2) of Section 14, ejectment of the tenant must not be allowed by the Rent Controller. With this particular position of law stated, the evidence led by the parties is to be scrutinised by the Court. 19. On behalf of the respondent landlady her son Shahid Iqbal examined himself as a witness he has stated in both these cases that the appellants are tenants. Notice under Section 18 and Section 14 was served B on the appellants (this is not an issue). He further stated that the appellants were called to vacate the premises and the call was not heeded by the appellants. He further stated that his late father was government servant and retired after attaining the age of sixty years. He also filed rent case under Section 14 and due to his death the cause abated. In paragraph No. 7 he stated that the landlady does not possess nor occupy any other shop in any locality. He denied that the assertion of the appellants that there is one shop in the name and style of Siddiq Electric. He denied that the landlady or her late husband had received any pugree. In cross-examination he has stated that there is a cabin of electrical appliances in our building " There is no 5th shop but there is a space which is like cabin, he stated that " it is incorrect to suggest that space like cabin is in our possession. It is a fact that the said cabin like space is not in possession of any tenant. It is a fact that I have not filed any rent case in respect of the cabin like space. There is a door in the above said cabin like space. Space of cabin 3' X 7'." From this evidence it will be seen that the landlord has satisfied all the jurisdictional requirements which are necessary in terms of Section 14 of the Sindh Rented Premises Ordinance, 1979. 20. The relationship of landlord and tenant is not under dispute. Notice was served on the tenants and they admitted such fact that premises were demanded from the tenants and such fact was also not in dispute. The only dispute which requires settlement in this rent case is whether there is cabin. Whether that cabin is a shop and whether that shop is in possession of the respondent. From the record I find that the building has four shops. In respect of four shops the landlady is paying taxes to the authorities concerned such as property tax. All the four shops are given to the tenants i.e. appellants in both these appeals. Cabin is not mentioned in the building plan. It is not a permanent structure. It is in a passage. It could not be termed to be a shop in possession of the respondent so that it may be create dent in the requirements of the landlady under Section 14 of the Sind Rented Premises Ordinance, 1979. Even in the PT-form which was verified by the witness in this Court where are four shops. I would, therefore, hold that the building has only four shops and all the four shops are rented to the appellants which is admitted position on record. Cabin is not the pei ±anent structure nor it was built to be 5th shop and, therefore, the requirement of the landlord could not be denied due to the so called cabin. I would, therefore, hold that the respondent has established her case for her requirements under Section 14 and there is no other option but to order ejectment. 21. This brings me to the relief, admittedly it is not possible to have three shops without altering structure and converting the four shops into three shops. The Rent Controller ordered both the tenants to vacate one shop each. This order has been so passed to avoid any discrimination as it was not possible for the Rent Controller to tell one of the two tenants to vacate one shop. Since two tenants were equally placed on the same footing, therefore, the Rent Controller was justified in directing each tenant to surrender one shop. Such order is in consonance with law although I am mindful that if one shop would have been in possession of the respondent, the respondent would not be entitled to get another shop. I would, therefore, maintain the order of the Rent Controller but would like to attach one condition. The condition is that if the landlady does not require second shop it shall only be let, out to either of the tenants and no new tenant shall be inducted. This condition has been imposed to satisfy the requirement of equity. In F.R.A. No. 206 of 1992 the appellant shall vacate shop No. 2 and the appellant in F.R.A. No. 228/92 shall vacate shop No. 3. With the above observations these Rent. Appeals are dismissed and since question of law was involved no order as to costs is being passed. (A.S.) Appeal dismissed.

PLJ 1998 Karachi 388 (DB) PLJ 1998 Karachi 388 (DB) Present -. abdul hameed dogar and wajihuddin ahmed, JJ. YASEEN KHAN & 8 others-Petitioners versus GOVT. OF SINDH-Respondent C.P. No. 1171 of 1997, dismissed on 3.12.1997. Motor Vehicles Ordinance, 1965-- —-S. 50(2) & 62(i) 37-Refusal by Regional Transport Authority to issue fitness certificate to petitioners to their Mini buses and couches on their failure to instal barrier/partition in between ladies and gents seats-- Challenge to--Conditions referred in sub-section (37) of Section 2 of Ordinance are further elaborated under sub-section (2) of Section 50 of Ordinance, whereby Regional Transport Authority may attach to a stage carriage permit any prescribed condition or all of conditions-Permit to ply a stage carriage is issued in form P.St.S. mentioned under rule 65(ii) of Rules-One of conditions for grant of route permit as contained in clause-26 of proforma of permit, is that partition between ladies and gents compartments should be closed permanently-In rule 73(3) of Rules, where under it is mentioned that when in any stage carriage some seats have been reserved for ladies, space in region of such seat shall be reserved for lady standing passengers and no male passenger shall stand in that portion-Section 62(i) of Ordinance authorises transport Authority which granted permit to cancel same or suspend it on breach of any of conditions prescribed in permit-On perusal of permits it has been found that same are not in the names of petitioners but are in the names of others-Held : It is well within domain of respondent No. 3 to cancel/suspend petitioner's certificates of fitness as they have violated conditions mentioned in para-26 of permits by not installing/fixing partition/barrier in between male and female seats-Held further : Petitioner do not seem to be aggrieved persons—Petition dismissed. [Pp. 391 & 392] A, B, C, D & E 1969 SCMR 137. Mr. Abdul Qadir Siddiqi, Advocate for Petitioner. Mr. Naraindas C. Motiani, Addl. A.G. for Govt. of Sindh. Date of hearing : 29.10.1997. judgment Abdul Hameed Dogar, J.-By this petition, the petitioners have called in question the refusal, by the Regional Transport Authority (respondent No. 3), to issue fitness certificate to their Mini buses and Coaches on the ground that they have failed to instal barrier/partition in between ladies and gents seats. 2. Briefly stated, the facts of petition are that the petitioners, the owners of valid route permits, ply their Mini buses and Coaches from various points on 35 routes. The owners of vehicles were issued certificates of fitness on the basis of registration documents under the Motor Vehicles Ordinance. 1965 (hereinafter referred to as the Ordinance) being renewable from year to year. The case of the petitioners further is that as usual they applied for renewal of the certificates of fitness some-where in 1997 and were surprised to receive the intimation vide Form CFX, whereby the Authority suspended their certificates of fitness till fixing of the partitions/barriers in between ladies and gents seats in their vehicles. It is further mentioned that the said decision was taken behind their back and without affording them an opportunity of being heard, as such the same is without lawful authority. In the petition, the petitioners have stated that their vehicles are 25 seaters and 15 seaters and in fact four seats on the front side behind the driver seat are reserved for ladies and technically it is not possible to instal a partition in the small and narrow space as is done in the larger buses. The petitioners were also verbally informed that the said decision is taken in pursuance of the order of the Provincial Ombudsman directing respondent No. 3 to have the partition separating ladies and gents seats installed. 3. Dr. Riaz Ahmed' Siddiqi, Secretary of R.T.A., Karachi in his counter affidavit to the petition has maintained that the petitioners are not aggrieved persons as the vehicles as well as route permits stand in the names of some other persons. This fact they have not disclosed in the petition, have not come with clean hands and have concealed the material facts. Alongwith the counter affidavit copies of route permits have been filed. 4. The petitioners in their rejoinder to the counter affidavit denied the averments to be true and submitted that by virtue of having purchased the vehicles from the original owners, they have locus standi to file the aforesaid petition. 5. Inter alia, it is contended by Mr. Abdul Qadir Siddiqi, counsel for the petitioners that there is no rule which provides for allocation of separate seats of ladies in Mini buses and Coaches. He refers to rule 182 of Motor Vehicles Rules, 1969 (hereinafter referred to as the Rules), which according to him relates to seating of passengers alone in public service vehicles. He further argued that Form-CFX refusing to renew the certificates shows that action has been taken under the provisions of Chapter-V of Motor Vehicles Act, 1939 and rules framed thereunder which are no longer an existing law and has been repealed by the Ordinance. As such the purported action is of no legal effect. The learned counsel further urged that the respondent No. 3 while cancelling the said certificates of fitness failed to record the reasons in writing as such not only violated the principles of natural justice but also the mandatory provisions laid down under sub-section (3) of Section 39 of the Ordinance. 6. Mr. Naraindas C. Motiani, learned Addl. A.G. Sindh, vehemently refuted the contentions of the petitioners' counsel and maintained that rule 73(3) of the Rules speaks of reserved seats for lady standing passengers in stage carriages and no male passenger shall stand in that portion. He further argued that proforma of the permit produced by him indicates that one of the conditions for grant of such permit, as contained in clause 26, is that partition between the ladies and gents compartment was to be provided by closing the two compartments permanently. He further referred to Section 64 of the Ordinance and argued that no owner of transport vehicle is authorised to use the vehicle, in any public place except in accordance with the conditions of the permit issued by the competent authority. He submitted that respondent No. 3 in the above circumstances was competent enough to suspend/cancel the route permits of the petitioners. Irrespective of this he argued that the petition is not maintainable as the petitioners have not availed the alternative remedy of filing an appeal provided in law. 7. For proper appreciation of the submissions of the learned counsel for the parties, we feel it appropriate to refer the applicable provisions of the Ordinance and Rules relating to stage carriage and conditions for grant of permits. Stage carriage is defined under section 2(37) as under :-- "(37) "Stage carriage" "means a Motor Vehicle carrying or adapted to cany more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers, either for the whole journey or for stages of the journey". Section 44 of the Ordinance mandates that transport vehicles ; re not to be used or driven without permit and under its sub-clause (1) as well as first provision, it is provided as under : "No owner of a transport vehicle shall use or permit the use of, and no driver of a transport vehicle shall drive or cause or permit to be driven, the vehicle in any public place, save in accordance with the conditions of a permit authorise the use or driving of the vehicle in such place granted or counter­ signed by a Regional or Provincial Transport Authority. Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit authorise the use of the vehicle as a contract carriage." The conditions referred in this sub-section are further elaborated under sub­ section (2) of section 50 of the Ordinance, whereby a Regional Transport Authority may attach to a stage carriage permit any prescribed condition or all of the conditions mentioned hereafter. The permit to play a stage carriage is issued in Form P.St.S. mentioned under rule 65(ii) of the Rules. One of the conditions for grant of route permit as contained in clause-26 of the proforma of permit, produced by the learned Additional Advocate General Sindh, is that partition between ladies and gents compartments should be closed permanently. To strengthen this further it will be appropriate to refer to rule 73(3) of the Rules, whereunder it is mentioned that when in any stage carriage some seats have been reserved for ladies, the space in the region of such seat shall be reserved for lady standing passengers and no male passenger shall stand in that portion. Section 62(i) of the Ordinance authorises the Transport Authority which granted the permit to cancel the same or suspend it on the breach of any of the conditions prescribed in the permit. On the analysis of the above provisions of law, it is well within the domain of respondent No. 3 to cancel/suspend the petitioners certificates of fitness as they have violated the conditions mentioned in Para-26 of the permits by not installing/fixing the partition/barrier in between the male and female seats. 8. Another aspect of the matter which cannot be lost sight is that it is usually observed that the ladies while travelling in the Mini buses and Coaches are being harassed and the male passengers usually stand along with them which according to our culture and society is not only uncivilized but unlslamic. These must have been the main reasons which compelled the learned Ombudsman to make such order and directed the Authorities to get barriers fixed in the Mini buses and Coaches. According to the respondents more than 60% buses have erected partitions in between the ladies and gents compartments. AS such there seems to be no reason for the petitioners not to install such partitions. It may be added that on a perusal of the permits it has been found that the same are not in the names of the petitioners but are in the names of Wahid-ur-Rehman, Fida Younus, Khan Wali, Mir Zaman, Abdul Hamid, Mir Ali Khan, Syed Muhammad Tahir, Abdul Rahim Khan and Syed Ahmed Shah. 9. In view of the above position, the petitioners do not seem to be the aggrieved persons. The first contention raised by the learned counsel for the petitioners merits no consideration mainly for the reasons that rule 182 of the Rules referred by him relates to the sitting of passengers alone in the public service vehicles. His next contention that the action of refusal to renew certificates have been taken under Chapter-V of the Motor Vehicles Act, 1939 and rules framed thereunder which are no longer an existing law, has no force because the action has been taken under the Motor Vehicles Ordinance, 1965. The Supreme Court in the case of M/s Talagang Bus Service Ltd. vs. Regional Transport Authority, Rawalpindi, 1969 SCMR 137 had granted leave to appeal and discussed the question whether Rules made under any provisions of the repealed Motor Vehicles Act, 1939, continue in force. The third ground that respondent No. 3 while cancelling the certificates of fitness failed to record the reasons in writing has no basis, as the Authority had clearly made known to the petitioners about the orders of Ombudsman and had also held several meetings with them wherein they had admitted to instal such partition. Irrespective of the above an alternate remedy by way of appeal being available to the petitioners under the Ordinance has not been availed , 10. For the foregoing reasons, we have been of the considered view Jthat the petitioners failed to make out a case to invoke the Constitutional j jurisdiction of this Court. The petition failed and was dismissed accordingly. Above are the detailed reasons for the short order announced in Court on 29-10-1997. (AAJS) Petition dismissed.

PLJ 1998 Karachi 393 PLJ 1998 Karachi 393 Present: RASHEED A. RAZVI, J. ASRAR HASAN-Plaintiff Versus HABIB BANK LTD. KARACHI & 4 others-Defendants CMA No. 3944/92, CMA No. 7068/92 & CMA No. 290/93 in suit No. 468/92, partly accepted on 23.6.1997. (i) Civil Procedure Code, 1908 (V of 1908)-- —-0. XXXIX, R. 1 & 2 and O.VII, R. 10 read with S. 11-Liquidation of B.C.C.I-Redemption of mortgage-Prayer for-Defendants No. 2 & 3 namely B.C.C.I (OS) and B.C.C.I (SA) not voluntarily residing or carrying business within territorial jurisdiction of High Court, Karachi-Whether High Court Karachi had jurisdiction to deal with properties of said Bank-Question of--It is undeniable fact that subject matter of suit is, inter alia, immovable pi'operty, which is located within territorial limits of this court (High Court Karachi)-Held : To extent of relief of redemption of mortgage or relief to extent of interest in immovable property, it cannot be denied that some part of cause of action arose at Karachi where mortgage was created and property is situated- Defendants restrained for delivering, handing over or parting with title documents of mortgaged property/Suit property. [P. 402] B (ii) Civil Procedure Code, 1908 (V of 1908)-- —S. 16(c). 20(c) & Order XXXIV Rule-7 read with Form 7-A Appendix D- Employee of B.C.C.I terminated from service after liquidation of Bank- Obtained house loan from Bank against property documents- Redemption of mortgage and repayment/adjustment of Provident Fund- Whether High Court at Karachi has jurisdiction to adjudicate upon matter when properties of Bank are in custody of Foreign Court since winding-up of Bank-Question of-In suit, plaintiff has also prayed for preliminary as well as final decree in respect of redemption of mortgage for mortgaged property-Immovable property involved in suit is situated within territorial limits of High Court Karachi-Section 16(c) of C.P.C. puts emphasis on institution of suit for foreclosure, sale or re-demption of immovable property mortgaged of or charged to be instituted in court within local limits of whose jurisdiction property is situated-It is not denied that appointment letter was issued to plaiatiff at Karachi-Held : Part of cause of action accrued at Karachi and since immovable property is situated within territorial limits of this court, therefore, High Court at Karachi has jurisdiction to try and adjudicate suit to extent of relief for re-demption of mortgage and for repayment/adjustment of provident fund-Held further : Claim for repayment of part of principal loan amount coupled with claim of Provident Fund entitles him for grant of preliminary decree for redemption of mortgaged property-Preliminary decree in terms of Order XXXIV Rule-7 read with Form 7-A, Appendix-D to C.P.C. is passed and official assignee appointed as Commissioner for concluding proceedings. [Pp. 402, 403 & 405] C, D, E, F & G (iii) Damages­ '—Petitioner was employed in BCCI--As result of liquidation of BCCI, he was transferred from Egypt and thereafter terminated from service-He was kept under detention in Egypt and Exit permission declined-Suit for damages on account of physical distress and mental agony-Suffice to say that said cause of action was accrued, if any, against B.C.C.I Misr and Egypt and against Egyptian Authorities which does not fall within territorial limits of this Court (Pakistan)-All such persons and authorities against whom plaintiff has alleged maltreatment and detention are not before High Court-Plaintiff, even at this stage is required to show that people responsible for causing alleged acts have acted under instructions of present defendants, (at Karachi) which element is absolutely absent in plaintiffs case. [P. 400] A PLD 1994 Lah. 525, 1997 MLD 438, 1981 SCMR 494, 1987 SCMR 393, 1992 SCMR 1174, 1993 SCMR 468. Mr. Abrar Hasan, Advocate for Plaintiff. Mr. Mchmad Mandviwala alongwith Mr. Abdul Haleem Siddiqui, Advocates for Defendant No. 1. Mr. S.A Sarwana, Advocate for Defendants No. 2 to 4. Mr. Zahid Burhani, Advocate for Defendant No. 5. Date of hearing : 21.5.1997. order The admitted facts of this case are that the plaintiff, who in past had served defendant No. 1, joined BCCI (SA) in the year 1978 and was posted at Saudi Arabia as Country Manager. A copy of appointment letter dated 25th July, 1978 is filed as annexure 'C' to the plaint. It is also a fact that the plaintiff served with defendant No. 2 till 3rd June, 1992 when his services were terminated vide letter dated 5th May, 1992 when at the relevant time plaintiff was serving with BCCI Egypt SAE; that the plaintiff has also obtained house loan of US $ 71,000.00, which was disbursed at Karachi in Pak Rupees 6,98,400.00 as against property documents of House No. E-52, Block 4, Gulshan-e-Iqbal, Karachi, which were delivered as security. It is also not denied that the rate of interest on the said house loan was fixed at the rate of 5% per annum upto US $ 33,300.00 and 7% per annum for the remaining amount. The plaintiff has also admitted disbursement of US $ 70,580.53 as house loan. It is further case of the plaintiff that the surrender of title documents is neither an equitable nor any other kind of mortgage but at the same time he had admitted that the title documents were handed over to the defendant No. 2 namely BCCI (SA). It is claimed by the plaintiff that upto March, 1992 he has repaid installments of the house loan amounting to US $ 17,730.00. The main claim of the plaintiff in suit is for recovery of provident fund, which is lying with the defendant No. 2, which is equal to Pak Rupees 30,82,375.00. In support he has filed annexure 'B' as well as annexure 'E' to the plaint; the latter is a statement of BCCI SA, issued by the Branch BCCI Misr H.O. Cairo, showing an amount of US $ 1,10,072.04, lying as provident fund belonging to the plaintiff, who has also included in this suit the claim for the amount of outstanding salaries, amount of notice period, air fare, baggage and transportation charges from Egypt to Pakistan, amount of litigation incurred by the plaintiff in defence of his prosecution at Egypt as well as damages of US $ 200,000.00 for the hardship, mental agony and dislocation of his personal life and that of his family life as a result of liquidation of BCCI and his transfer from Egypt. He has also prayed that the purported equitable mortgage in respect of the house at Gulshan-e-Iqbal be declared to be void, inoperative and being opposed to the public policy. He has also prayed for a money decree for Rs. 1,35,60,625/-, recovery of his provident fund and in alternate preliminary and final decree for redemption. Following is the break-up of the different claims of plaintiff as mentioned in Schedule "A" and "B" to the plaint :— SCHEDULE "A" 1. Arrears of salary US$9308.00 2. Accrued holiday pay US$ 18152.94 3. Outstanding severance/ redundancy payment US$ 65164.40 4. Outstanding payment in lieu of notice US$13964.00 5. Amount of claim in respect of air fare, baggage, Income Tax subsidy, tax refund, remittance made to Provident Fund but withheld by BCCI (Misr) US $ 102540.00 6. Hardship, mental agony dislocation of personal life and family rehabilitation cost and recompense etc. US $ 200000.00 7. Litigation expenses incurred in Egypt and cost of prosecution of case in Pakistan US $ 10000.00Total US $ 4,19,129.34 equivalent to Rs. 1,04,78,250.00 SCHEDULE "B" PROVIDENT FUND Total balance of Provident Fund without addition of Investment Income from January, 1991 onward. US $ 1,13,484.04 upto Dec. 1990 January 1991 to May, 1991 US $ 3,270.00 June 1991 to March 1992 US $ 6,540.00 Total US $ 1,23,294.04 Equivalent to Pakistani Rs. 30,82,375.00 Note, : The plaintiff is entitled to the addition of Investment Income upon the investment of the Provident Fund. The deductions of Provident Fund were made at source out of the monthly salary of the plaintiff each month." 2. Defendants have raised objection to the maintainability of this suit on the grounds, inter alia, want of jurisdiction; pending of liquidation proceedings which is earlier in time; limitation and finally, competency of this Court to decide the claims of the plaintiff which are sub judice before the liquidators. In respect of the illegality and mala fide proceedings of liquidation of BCCI (SA) and BCCI (OS) and in respect of illegality of the amalgamation of BCCI (Pakistan) with Habib Credit & Exchange Bank Limited such allegations have been vehemently denied by all the defendants. However, in respect of the service and other claims of the plaintiff, the same have been denied for the lack of knowledge. The present suit, to some extent is on different footing to the other cases arising out of dispute between former employees and BCCI, which lack material particulars. In the instant case, the plaintiff has filed his initial appointment letter dated 9th February, 1988 of BCCI (OS) issued from Karachi, Pakistan, showing receipt of remittance of Rs. 6,98,400.00 from BCC London as outstanding loan amount of US $ 30.580.53. Letter dated 5th May, 1992 from Attorneys of BCC Cairo, Egypt terminating services of the plaintiff. The plaintiff has also established the fact that he has already lodged his claim of US $ 1,02,540.00 with the liquidators to the exclusion of amount mentioned against items Nos. 6 & 7 above. 3. During the course of hearing, Mr. Abrar Hasan, advocate for the plaintiff has placed before this Court a report of the English Liquidators of BCCI (SA) to the Secretary of State for Trade and Industry, U.K. which was submitted before the High Court of Justice, Chancery Division, Companies Court. London, (Ref. No. 007616 of 1991) in the matter of BCCI SA Liquidation. It reveals several facts pertaining to the dates and orders passed for liquidation of BCCI and about its assets. Following few pages from the aforesaid report would be relevant in order to understand the submissions of Mr. Abrar Hasan, thus reproduced as follows :-- "The collapse of the BCCI Group has received wide publicity. Nevertheless, the English Liquidators believe that it may be of assistance to summarise the progress of the liquidation so far. BCCI SA was incorporated in Luxembourg in September 1972. By 1991 BCCI SA was one of the two principal operating subsidiaries of BCCI Holdings, also incorporated in Luxembourg. The other principal operating subsidiary of BCCI Holdings was BCCI Overseas, which was incorporated in the Cayman Islands. By 30 June, 1991, the BCCI Group operated in some 69 countries as follows :-- BCCI Holdings BCCI SA BCCI Overseas Other Subsidiaries and affiliates 47 branches 63 branches 260 entities in 13 countries in 28 countries in 30 countries At 1 pm on 5 July, 1991, Christopher Morris, John Richards and Micholas Lyle of Touche Ross & Co. were appointed Provisional Liquidators of BCCI SA by the High Court ("the Court") on the application of the Bank of England. Following the application by the Bank of England to wind up BCCI SA in England the BCCI Group collapsed. Within days, most branches of BCCI SA and BCCI Overseas and most subsidiaries of BCCI Holdings had been placed in liquidation (or its equivalent) by local authorities • in the countries in which they were situated. On 8 July 1991, Brian Smouha of Touche Ross & Co. was appointed "Commissaire de Surveillance" of BCCI SA by the District Court of Luxembourg. Mr. Smouha was also appointed Commissaire de Surveillance of BCCI Holdings, together with Jacques Delvaux, a Luxembourg lawyer. In the Cayman Islands, a receiver was appointed over BCCI Overseas and associated companies on 5 July, 1991 and on 22 July 1991, Ian Wight and Robert Axford of Deloitte Ross Tohmatsu were appointed Provisional Liquidators of (inter alia) BCCI Overseas by the Grand Court of the Cayman Islands. Pursuant to Letters of Request issued by the High Court in England on 5 July 1991, partners in Touche Ross & Co. were appointed Provisional Liquidators of BCCI SA by the Court of Session in Scotland on 5 July 1991 and by the High Court of the Isle of Man on 6 July 1991 On 3 January 1992, the Luxembourg Court ordered the liquidation of BCCI SA and appointed Brian Smouha, Georges Baden and Julien Roden as Liquidators (Maitres Baden and Roden are Luxembourg lawyers). On 14 January 1992, an order for the winding up of BCCI SA was made in the High Court in England. On the same day the Secretary of State for Trade and Industry appointed Christopher Morris, Kohn Richards, Nicholas Lyle and Stephen Akers as Liquidators of BCCI SA under Section 137 of the Insolvency Act 1986. Winding up orders were made in Scotland and the Isle of Man on 14 and 15 January 1992 respectively. Partners of Touche Ross & Co. were appointed Liquidators. Also on 14 January 1992, the Cayman Court ordered BCCI Overseas to the wound up and Ian Wight, Rober Axford and Michael Mackey of Deloitte Ross Tohmatsu were appointed Official Liquidators. On 17 August 1992, the Luxembourg Court ordered the liquidation of BCCI Holdings in Luxembourg and appointed Georges Ravarani and Claude Penning as Liquidators (Maitres Ravarani and Penning are Luxembourg lawyers). In addition to the preservation and realisation of tangible assets, considerable effort has been devoted to the areas of documentation and investigation. Until 1990, the BCCI Group's head office was situated in London. In 1990 the head office was moved to Abu Dhabi which also necessitated moving much of the relevant documentation. The liquidators have had, therefore, not only to take control of (and collate) the very considerable amount to documentation which remained in the UK, but also to negotiate, with the relevant authorities, access to documentation in other jurisdictions. The scale of the problem facing the Liquidators is set out in more detail in Section 5.13.3. below. Another veiy significant area of the Liquidator's work to date has been the investigation of a wide range of major debtors, as well as individuals and companies closely involved with the activities of the BCCI Group (including the former auditors). These investigations have resulted in the commencement of a number of substantial pieces of litigation, and are dealt with in Section 5.13.1 below. The intermingling of the affairs of BCCI SA and BCCI Overseas was such that it would be impracticable without veiy considerable delay and enormous expense, and might well be impossible, to determine as between the two companies, their respective assets and liabilities. In addition, since the closure, almost all of the different companies in the BCCI Group, and the foreign branches of BCCI SA and BCCI Overseas, have become the subject of a multiplicity of local liquidations or similar proceedings in the jurisdictions in which they were incorporated or located. In order to avoid the expense, difficulty and delay which would otherwise arise, a Pooling Agreement was negotiated between the Liquidators of the principal BCCI companies and was initialled on 20 February 1992. In brief, the Pooling Agreement provides for the pooling of the assets of the principal BCCI companies and their branches which agree to participate, and for admitted creditors all to receive the same rate of dividend out of the pooled assets Final court orders authorising execution of both the Pooling Agreement and the Majority Shareholder Agreements have been obtained in England and the Cayman Islands, but an appeal is pending in Luxembourg. It should be noted that if the Pooling Agreement does become unconditional, the proceeds of realisation in the hands of the English Liquidators will (subject to the provisions of the Pooling Agreement requiring or permitting retention by the English liquidators) be transmitted to Luxembourg for the purposes of the liquidation of BCCI SA by the Luxembourg Court I have heard Mr. Abrar Hasan, for the plaintiff and Messrs Mehmud Mandviwala. S.A. Sarwana and Mr. Zahid Burhani, advocates, for the defendants. CMA 3944/1992 is an application under Order XXXIX rules 1&2 CPC, filed by the plaintiff seeking interim injunction against defendant No. 1 that they be restrained from handing over or from parting with the title documents of the plaintiffs property till disposal of the suit. CMA 7068/1992 is again filed by the plaintiff under Order XXXVIII rule 5 CPC with the prayer that an amount of US $ 5,42,423.38 equivalent to Pak Rupees 1.35,60.625.00 lying in Pakistan with defendant No. 1 be attached till disposal of tins suit or in alternate the defendants be required to furnish security in the amount as prayed. The last application CMA 290/1993 is filed by the defendants Nos. 2 to 4, which is under Order VII rule 10 read with Order VII rule 11 CPC praying for return of the plaint for presentation before the Court of competent jurisdiction or in alternate rejection of the plaint for the ground which I would like to discus herein after. 5. Plaintiff has also challenged the action in winding up of the BCCI and appointment of the liquidators on the ground of the same being illegal and mala fide. It is claimed in the plaint that due to winding up proceedings the plaintiff has suffered extreme mental anguish, physical distress including family sufferings tarnishing of his image, particularly in Pakistan in his home circle. It is also alleged by the plaintiff that he was subjected to interrogation by the Egyptian Authorities and was unreasonable and unlawfully detained there; that he was released after obtaining orders from the Administrative Court of Egypt. It is further alleged that for a long period he was not granted exit permission and, therefore, all his family suffered mental and physical distress due to the treatment and harassment suffered by the plaintiff. It is also claimed that the plaintiff lias suffered huge losses for the liquidation proceedings of BCCI. As far as claim of damages is concerned for the acts as narrated herein before, suffice to say that the said cause of action was accrued, if any. against BCCI Misr and Egypt and against the Egyptian Authorities which does not fall within the territorial limits of this Court. All such persons and authorities against whom the plaintiff has alleged maltreatment and detention are not before this Court. The plaintiff, even at this stage is required to show that the people responsible for causing alleged acts have acted under the instructions of the present, defendants, which element, is absolutely absent in the plaintiffs case. The question of amalgamation of three branches of BCCI in Pakistan as a result of scheme framed by the Federal Government under Provisions of Section 47 of the Banking Companies Ordinance, 1962 was considered by G.H. Malik, J., (As he then was) in the unreported case of Shaukat and Raza (Private) Limited & another v. Habib Credit and Exchange Bank Limited & others (Suit No. 439/1994). I am also of the same view as of Justice G.H. Malik, relevant portion of the said judgment for convenience sake is reproduced as follows :-- "The arguments that the scheme of merger framed by State Bank of Pakistan whereby the Karachi Branches of BCCI Overseas were merged with Habib Bank and subsequently with defendant No. 1 and whereby the rights and liabilities of those Branches devolved on Habib Bank Limited and subsequently on defendant No. 1, is not binding on the plaintiffs is sought to be supported by the provisions of section 47(7) of the Ordinance on the ground that no suggestions or objections were invited by State Bank of Pakistan from the plaintiff as contemplated by that provision. The argument is entirely devoid of merit. By sub­ section (6) of Section 47, State Bank is required to send a draft of a scheme to the banking company which is to be amalgamated, the transferee bank and any other banking company concerned in amalgamation for suggestions and objections; and, by sub-section (7), it is empowered to make such modifications in the draft scheme as it may consider necessary in the light of the suggestions and objections received from the banking company, the transferee bank or any other banking company concerned in the amalgamation and from any members, depositors or other creditors of each of those companies and the transferee bank. It is, however, not the case of the plaintiffs that the draft of the scheme was modified or that they are or were members, depositors or creditors of either BCCI Overseas or Habib Bank Limited or of any other bank that may have been concerned in the amalgamation for which the scheme was made. The provisions of Section 47 therefore do not apply." 6. Before proceeding any further first. I would like to take up the objection of Mr. S.A. Sarwana, in respect of jurisdiction of this Court. He has filed CMA 290/93 under Order VII rule 10 read with 11 CPC on the grounds, infer alia, that the defendants Nos. 2 & 3, namely BCCI (OS) and BCCI (SA) were not voluntarily residing or were carrying business within the territorial limits of this Court, at the time of commencement of this suit and secondly that all the properties and effects of both the two banks are in the custody of a Foreign Court from the date of the order of winding-up, which is earlier in time and was passed by the competent Court at Luxembourg and Grand Cayman; therefore, it is argued that this Court has no jurisdiction to deal with the properties of the said Bank. It is an undeniable fact that the subject matter of the suits is, inter alia, the immovable property, which is located within the territorial limits of this Court. In my view, therefore, to the extent of the relief of redemption of mortgage or the relief do the extent of interest in the immovable property, it cannot be denied that some part of cause of action arose at Karachi where the mortgage was created and the property is situated. Earlier this question was considered by me in the case of Tajuddin Khan v. Habib Bank Limited and three others (Suit No. 544/1993). In all there were five suits, in which more or less similar facts were involved. The objection as to the maintainability of suits on the ground of want of jurisdiction was overruled and interim injunction was granted subject to deposit of balance amount of house loan with the Nazir of this Court. Now, I am told that none of the parties have gone in Appeal, which order has attained finality. I would like to point out that the case of Tajuddin Khan and other suits were heard earlier with sixteen (16) other cases including the present suit. The orders were announced only in respect of five (5) cases and the remaining suits were fixed for rehearing as a result of the view taken by me in the earlier cases. Therefore, these cases were reheard at length. In the case of Tajuddin Khan (Supra) through an order dated 4th December, 1996 the objection to the maintainability of suit on the point of jurisdiction was over-ruled while making reference to Section 16 of the Civil Procedure Code. 1908 and after referring to the case of Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others (PLD 1994 Lahore 525). In yet another case Irshad Begum v. Habib Credit & Exchange Bank Limited and Another (1997 MLD 438) where BCCI through its liquidators were also parties to the suit and where objection was raised to the maintainability of the suit for want of jurisdiction, on the ground that the Head Office of defendant-company was at, Abu Dhabi and the same was not maintaining any Branch office in Pakistan, it was held by me that the suit was maintainable in view of the principles enunciated in Section 20(c) of the Code of Civil Procedure, 1908. Fxuther reliance was placed on the case of Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. (1981 SCMR 494), State Life Insurance Cororation of Pakistan v. Rana Muhammad Saleem (1987 SCMR 393), Messrs Kadir Motors (Regd.) Rawalpindi v. Messrs National Motors Ltd., Karachi and three others (1992 SCMR 1174). In the present suit the plaintiff has also prayed for preliminary as well as final decree in respect of redemption of mortgage for the aforesaid mortgaged property. This immovable property involved in suit is situated within the territorial limits C of this Court. Section 16(c) of CPC puts emphasis on the institution of a suit for foreclosure, sale or redemption of an immovable property mortgaged of or charged to be instituted in the Court within the local limits of whose jurisdiction the property is situated. Mr. S.A. Sarwana has also argued that there are certain claims in the suit which are outside the jurisdiction of this Court as the cause of action in respect of such claim accrued outside (Pakistan and that the defendants, legally speaking were not in existence at Djthe time when the suit was filed. This argument has some force but in my tentative view it requires production of evidence. It is not denied that the appointment letter was issued to the plaintiff at Karachi. Since a part of cause of action accrued at Karachi and since the immovable property is situated within the territorial limits of this Court, I am of the considered view that this Court has jurisdiction to try and adjudicate this suit to the extent of relief for the redemption of mortgage and for repayment/ adjustment of provident fund. 7. It was also argued by Mr. S.A. Sarwana that the facts of the present case differ from the case of Tajuddin Khan (ibid). According to him plaintiff in the above suit was engaged outside Pakistan while the three branches of BCCI (Pakistan) were merged/amalgamated with Habib Bank Limited on 14th March, 1992. It was further argued by the learned counsel for the defendants that the plaintiff has approached for his claim of salaries and other entitlements which are pending before the foreign liquidators and, therefore, in respect of such claim the jurisdiction of this Court is ousted. He has further contended that the so-called claim of damages arising out of illegal termination, harassment or mental shock arose while the plaintiff was serving abroad. If the argument of Mr. S.A. Sarwana is taken on the face of it then it appears to have some force. However, the factual position that Mr. S.A. Sarwana asserts is not so clear from the material that has so far come on record. The liquidation of BCCI (OS) and BCCI (SA) was ordered by the competent Courts on findings that their conduct was not overboard. Even in the pi-esent case, if it is true as Mr. S.A. Sarwana contends that the plaintiff was serving abroad, then the fact that the loans made to the plaintiff were disbursed through BCCI (Pakistan) at Karachi and the title documents were retained by BCCI (Pakistan) calls for detailed enquiiy as it may well be that the activities of all the BCCI entities were so intertwined that the doctrine of piercing the corporate veil may be attracted. (For reference see the case of Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Ltd. (1993 SCMR 468). In these circumstances, all such allegations and counter allegations and the question whether this Court also has jurisdiction over the money claims to the plaintiff require production of evidence. Such claims of all the parties cannot be decided on the filing of affidavits. Therefore, for the time being this application is dismissed with the above observations. 8. The second application has been filed by the plaintiff under Section 151 read with Order XXXVIII rule 5 CPC, praying for an attachment order of the funds to be remitted by the Habib Bank Limited to the liquidators of BCCI as the plaintiff is claiming certain amount against the BCCI and if such amount is allowed to be remitted abroad he will suffer irreparable loss. The attachment application is essentially in the nature of a garnishment application against the funds belonging to the liquidators of BCCI. If the case of the plaintiff is that Habib Bank Limited is transferring its properties to defeat any decree that may be passed against Habib Bank Limited then the plaintiff must show that Habib Bank Limited is about to dispose of its properties or to remove it from the local limits of this Court to defeat the execution of the decree. Such a stance on the part of the plaintiff would be entirely untenable. In any event the plaintiff has contended that he is claiming certain amount from BCCI and would suffer irreparable loss if this amount is remitted to the liquidators. So far as BCCI (Pakistan) is concerned, it is pertinent to note that under the scheme framed by the Federal Government under Section 47 of the Banking Companies Ordinance, 1962 all the three branches of BCCI (Pakistan) were amalgamated/merged with Hahib Bank Limited on 14th March, 1992 while the present suit was filed on 14th July, 1992 after the day when the BCCI (Pakistan) stood dissolved and merged into Habib Bank Limited. It is in furtherance of this amalgamation scheme framed by the State Bank of Pakistan with the approval of Federal Government that Habib Bank Limited is delivering title docTiments to the Liquidators of the BCCI and not with the intent to defeat or delay the execution of decree, if any. This ingredient is absent in plaintiffs case. It is settled law that in order to obtain an order of attachment before judgment a party is required to show that the defendant with intent to obstruct, defeat or delay the execution of a decree, that may be passed against, it, is about to dispose of the whole or any part of its property or is about to remove whole or any part of its property from the local limits of the jurisdiction of the Court with intent to defeat any decree that may be passed against it. All these ingredients are absent in the plaintiffs application. Even otherwise, entitlement of a Creditor is fully protected under the scheme framed by the Federal Government. In case the plaintiff has any genuine claim against the defendants and this Court comes to the conclusion that his claims are maintainable then he can always seek support from the said scheme framed under Section 47 of the Banking Companies Ordinance, 1962, if the Habib Bank Limited or BCCI (Pakistan) are found liable by this Court. I am also of the view that the plaintiff was not able to _ place enough material to support claim for the salaries and other dues. However, in my tentative view plaintiff has succeeded in establishing a prima facie case for refund of provident, fund. The defendants were not able to specifically deny this claim. Their stand in their written statements are evasive to this extent. Merely on the ground of damages which are being claimed due to the suffering of the plaintiff as a result of liquidation and harassment at the hands of authorities and BCCI Officers at Egypt the plaintiff is, at this stage, not entitled for the relief as prayed in the instant application and, therefore, the defendants cannot be restrained from remitting the said amount. Even otherwise, the plaintiff has himself filed his claim before the liquidators. 9. Now coming to the other application filed by plaintiff under Order XXXIX rules 1&2 CPC (CMA it is prayed that the defendant namely Habib Bank Limited be restrained from handing over, delivering or in any manner parting with the title documents of all the properties to the defendants/liquidators of the BCCI till disposal of the suit. In this suit the plaintiff has also prayed for a preliminary as well as final decree for redemption. A preliminary decree as provided under Order XXXIV rule 7 CPC is to be passed when to the satisfaction of the Court a plaintiff succeeds" to prove a case of passing of preliminary decree. The intent and scope of passing of a decree, preliminary and final, were defined by the Hon'ble Supreme Court in the case of Sultan AH v. Khushi Muhammad (PLD 1983 SC 243) in the following words :-- "Now the Code of Civil Procedure requires by the provision of Order XXXIV rule 7 that in a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree. The form in which such a preliminary decree is to be passed has been provided in great detail to declare, inter alia, the mortgage amount that is due to the mortgagee on the date of the decree and further direct that if the plaintiff pay into Court the amount so declared due, on or before such date as the Court may fix within six months from the date on which such amount is declared and pays other costs, charges and expenses, the defendant shall do the acts described in the provision to effect the redemption of the mortgage. The preliminary decree also is to direct that in case of failure to pay the amount as aforesaid, within time fixed by the Court, the defendant shall be entitled to apply for a final decree for sale of the mortgaged property or for the plaintiff to be debarred from all rights to redeem the property. Rule 8 of the same Order provides for passing a final decree in such a redemptio" suit in favour of the plaintiff, if he makes payment of the amount found due from him, inter alia, before a final decree debarring him from all rights to redeem the mortgage property has been passed. Sub-rule (3) gives a similar right for obtaining a final decree to the defendant in case of failure to pay the amount on the part of the plaintiff, inter alia, to debar from him all rights to redeem the mortgage property " 10. In the present suit the plaintiff is able to satisfactorily show that his amount of provident fund is still lying with BCCI. His claim for E repayment of part of principal loan amount coupled with his claim of provident fund entitles him for grant of preliminary decree for redemption of mortgaged property. I am also conscious of the fact that a large number of people are still awaiting settlement of their claims before the liquidators. Any delay in conclusion of proceedings of this suit would cause hardship and inconvenience to those claimants. Therefore, it would be just, fair and reasonable as well as in the interest of all the parties that the claim of the plaintiff as well as his liabilities vis-a-vis mortgaged property are settled at any early date. As a result of above discussion, I dispose of all the three applications with the following directions :— (a) For the time being the defendants including Habib Bank Limited, its concerned Officers and employees are (b) restrained from delivering, handing over or parting with the title documents of the mortgaged property/suit property. A preliminary decree in terms of Order XXXTV rule 7 read with Form 7-A Appendix D to the CPC is hereby pas' and the Official Assignee is appointed as Commissioner. (c) The learned Commissioner is directed to conclude his proceedings in terms of the preliminary decree on or before 30th day of November, 1997. (d) Tentatively, the Commissioner's fee is fixed at Rs. 10,000/- . Share of the plaintiff is Rs. 5,000/- while the remaining amount of Rs. 5,000/- would be paid by the defendants equally. The parties are directed to deposit their respective share of fees within two weeks hereof. (e) That the defendants or the Commissioner, as the case may be, shall be entitled to move this Court for vacation of interim injunction granted vide para (a) above in the case from the conduct of plaintiff he finds it difficult and hard to conclude proceedings within the time as allowed by this Court in above paragraph. It would be open to the plaintiff as well as to the Commissioner to make reference to this Court in case the defendants attempt to delay the proceedings before the Commissioner. (f) The parties are directed to appear before the learned Commissioner/Official Assignee at an early date and are required to supply copies of their respective pleadings, claims, counter claims (including claim for payment/adjustment of provident fund) and detailed statements of accounts. (g) The claims of the plaintiff for damages and outstanding salaries etc. etc. shall be tried as a regular suit and the question of maintainability and jurisdiction shall be decided after recording of evidence. 11. With the above observations all the three (3) applications in the above suit stand disposed of. (T.A.F.) Petitions partly

PLJ 1998 Karachi 407 PLJ 1998 Karachi 407 Present: RASHEED A. RAZVI, J. M/s. MUHAMMAD YASIN and Co.-Plaintiff versus K.D.A.-Defendant Suit No. 630 of 1992, decided on 3.2.1998. (i) Civil Procedure Code, 1908 (V of 1908)-- —S. 96(3)-Arbitration Act, 1940, S. 20-Arbitration agreement-Reference to Arbitration made by consent of parties-Award-Pronouncemeiit of- Whether an appeal of a party, who consented to an agreed order, can be entertained-Question of-One of principles, as envisaged in S. 96(3) CPC, is that a party after having consented to an agreed decision cannot .appeal against same-Once a mode/"procedure" is adopted by High Court on request of parties, decision given in pursuance of that mode should be given effect-A 'necessary corollary of this rule will be that same parties are estopped from subsequently challenging that mode of decision in an appeal-Award is made rule of court. [Pp. 410 & 417] A, B & D (ii) Karachi Development Authority (Abatement of Arbitration Proceedings) Ordinance, 1965 (XXV'of 1965)- —-S. 3-Abatement of p ^eedings before arbitrators-Effect of-There is no provision in entire ordinance, through which defendant (KDA), was restrained or prohibited from entering into any agreement in future for referring a dispute in arbitration-Preamble to ordinance is very clear, which states that KDA has entered into agreement with certain contractors/companies in furtherance of KDA Order, 1957; therefore, reference made to arbitration was pursuant to such agreement which have failed to achieve objects-Thecefore, it was deemed necessaiy that proceedings pending before arbitrator be annulled-Provisions of Ordinance 1965 are very clear that KDA was not barred or prohibited for all times to come to execute any agreement or arrangement for referring any dispute to arbitration. [P. 411] C Mr. Muhammad All Jan, Advocate for Plaintiff. Mr. Dasti Muhammad Ibrahim, Advocate for Defendant. Date of hearing: 3.2.1998. judgment This is an Award dated 2.9.1992, given by Mr. Justice (Rtd.) Muhammad Jaffer Nairn, which h as come before this Court in a proceeding under Section 14(2) of the Arbitration Act, 1940 read with Rule 282 of the Sindh Chief Court Rules (OS) ("Act 1940"). Following is the operative portion of the award :- "On the basis of grounds stated above, I make an award that the respondent K.D.A. shall return the cable of the quality and condition specified above and in the alternative pay Rs. 79,800/- to the petitioner with costs of the proceedings before me which includes arbitration fee as well. I had fixed Rs. 20,000/- as arbitration fee to be borne equally by the parties. The K.D.A. had paid its share. The petitioner has to pay Rs. 10,000/-. Since cost has to be borne by the respondent, the petitioner's part of the fee should also be paid by the respondent. The K.D.A. will make arrangement to pay the balance fee." 2. The dispute between the parties pertains to a contract dated 12.1.1962, which was in relation to the works to be carried out by the plaintiff. In the said agreement there was an arbitration clause through which parties were entitled to refer any dispute to a sole arbitrator. Since the defendants failed to pay the outstanding bills of the plaintiffs and to return the materials laying on the site, the plaintiff invoked Section 20 of the Arbitration Act, 1940, and filed a petition, which was numbered as Suit 188/1987, which was granted by this Court and the matter was referred by consent of the parties to the sole arbitration of Mr. Justice (Rtd.i Muhammad Jaffer Nairn. Thereafter, proceedings were conducted and finalized before the Arbitrator, who pronounced the Award and referred the same to this Court for making it rule of the Court. Notices were served on the parties. In response to the said notices only defendant filed its objections. Mr. Muhammad Ali Jan has supported this Award. During the period of all these proceedings i.e. from 1987 till 1997, for the first time on 9.9.1997 Mr. Dasti Muhammad Ibrahim raised an objection that by virtue of Ordinance XXV of 1965 namely, Karachi. Development Authority (Abatement of Arbitration Proceedings) Ordinance, 1965 all the provisions of arbitration in the agreements between KDA and other contractors were abrogated and annulled. Reliance was placed on Section 3 of the said Ordinance, which reads as follows :-- "3. Abatement of proceedings before arbitrators, etc.-(l) Notwithstanding anything to the contrary contained in any law for the time being inforce, or any order of a Court or any agreementfa) any provision in an agreement between the Authority (or deemed to be between the Authority) and a contractor relating to the execution of any works or projects or the supply of any goods or labour or for the hiring or renting of accommodation providing for reference to arbitration of any dispute arising out of the agreement or any term or condition thereof, shall stand abrogated and annulled and be of no effect; (b) all arbitration proceedings in pursuance of any such agreement as is referred to in clause (a), whether the reference to arbitration was made by consent of parties, by order of Court or otherwise, pending before an arbitrator or arbitrators or an umpire prior to the coming into force of this Ordinance, shall forthwith abate, and save as provided in this section shall be of no effect; (c) any award made by an arbitrator, arbitrators or umpire in 'pursuance of any such agreement as is referred to in clause (a), if such award has not been made the rule of the Court, or partly or wholly implemented or acted upon, shall stand annulled and be of no effect, arid any proceedings in respect of such award, if pending immediately before the coming into force of this Ordinance, shall abate; (d) all proceedings in relation to an application made to a Court for referring a dispute to arbitration pursuant to an agreement referred to in clause (a) shall abate, and any order made by a Court on such application referring the dispute to arbitration shall be deemed to be of no effect; (e) any dispute referred to arbitration, the proceedings whereof have abated by reason of the provisions of this section, shall be decided in accordance with the provisions of the law for the time being in force. (2) (3) 3. It was argued by Mr. Muhammad Ali Jan that by conduct of the defendants they are estopped from raising this plea. It was further argued that in the previous proceedings (Suit 188/1987) the matter was referred to the arbitration by consent of the parties and during the period of nearly ten years no such objection was raised. It was further argued that by conduct of the defendants a fresh agreement for arbitration was created and accordingly the matter was referred to the arbitration and that they are now estopped in law from raising the plea that the agreement was annulled by virtue of Ordinance XXV of 1965. On the other hand, it is vehemently argued by Mr. Dasti Muhammad Ibrahim that the provision of arbitration agreement was annulled by virtue of Law; therefore, even if the some officers of the KDA has acted in the manner as referred by Mr. Muhammad Ali Jan, it does not constitute a fresh arbitration agreement and that there is no estoppel against law. Mr. Muhammad Ali Jan has referred to the cases GhuUnn Mutu ud-Din v. Chief Settlement Commissioner (Pakistan) Lahore and others (PLD 1964 SC 829), Abdul Wahab and others v. Habib Ali and others (PLD 1969 Lahore 365) and the case of Nasrullah Jan and 3 others v. Muhammad Karim and 14 others (1986 CLC 1). The case of Ghulam Mohi-ud-Din arises out of a Constitutional petition, which was filed against the order of Chief Settlement Commissioner. It was pleaded before the Hon'ble Supreme Court that the Chief Settlement Commissioner has no authority to pass the impugned order. In that case it was within the knowledge of petitioner that a second revision petition was filed before the Chief Settlement Commissioner and that the said Commissioner, in law, had no power of review. Notwithstanding this, the petitioner did not raise any objection to the hearing of the review but actually participated in its hearing on merits. Because of such conduct of appellant the Settlement Commissioner proceeded with the hearing and passed the impugned order. It was held by a Full Bench of Hon'ble Supreme Court that the principle, upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction, the persons seeking to have it quashed should not be granted discretionary relief as he has stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality. In addition to the cases cited by Mr. Muhammad Ali Jan, there are two other authorities on this point namely, Yasin Khan and another v. Settlement and Rehabilition Commissioner and others (PLD 1967 Karachi 295) and the case of Muhammad Rafiq Gazdar v. Additional Commissioner, Karachi and 3 others (PLD 1972 Karachi 119). It was held in both these cases that where a party has acquiesced in passing of an order the same could not be challenged through writ petition. 1. In the case of Abdul Wahab and others the parties consented for passing of order by the Court. It was held that if a party by its conduct obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising the objection as to the procedure on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same. Reference was made to the case of S.E. Makhdam Muhammad v. T.V. Muhammad Sheikh Abdul Kadir and another (AIR 1936 Madras 856). In the case of Abdul Wahab and others one of the question before a Division Bench of Lahore High Court was whether an appeal of a party, who consented to an agreed order, can be .entertained. Reference was made to sub-section (3) of Section 96 of the CPC, 1908. It was held, inter alia, that one of principles, as envisaged in Section 96(3) CPC, is that a party after having consented to an agreed decision cannot appeal against the same. Reliance was also made on the case Sh. Maqbool Elahi and others v. Khan Abdul Rehman and others (PLD 1958 SC (Pak.) 96) and it was further held that once a mode/"procedure" is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect. A necessary corollary of this rule will be that the same parties are estopped from subsequently challenging that mode of decision in an appeal. One of the question before the Division Bench of Balochistan High Court in the case of Nasrullah Jan (Supra) was whether the proceedings before the Tribunal and Assistant Commissioner, Pishin were conducted in flagrant violation of the provisions of the Ordinance I of 1968. Such contention was held to be devoid offeree and the proceedings before that Tribunal upheld by a Division Bench comprising of Ajmal Mian, J., (now Chief Justice of Pakistan) and Mir Hazar Khan Khoso, J., (as his lordship then was). It was observed that the said Tribunal referred the matter to the arbitrator at the joint request of parties and that the course contrary to the provisions of Ordinance I of 1968 was conducted by the Tribunal at the request of the petitioners, who cannot raise such objection subsequently when such objection resulted due to their own conduct and acquiescence, such objections were held not sustainable in law. Mr. Muhammad Ali Jan has placed reliance on the following observations made in the case ofNasrullah Jan and 3 others :- "10. On going through the above said authorities the High Court held "that once a mode (procedure) is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect to; a necessary corollary of this rule will be that the same parties are estopped from subsequently challenging that mode of decision in appeal. We also adhere to the same view taken by the Lahore High Court. In the instant case that the petitioners themselves had asked the Tribunal to refer the . matter to shariah hence subsequently it cannot lie in their mouth to say that the Tribunal followed a procedure contrary to the provisions of the law." 5. It was next contended by Mr. Dasti Muhammad Ibrahim, that the KDA was not competent even to enter into any agreement for referring a dispute to arbitration in view of the provisions of Ordinance XXV of 1965. He has placed strong reliance upon sub-clause (e) to subsection (1) of Section 3, which provides that any dispute "referred" to arbitration the proceedings whereof have been abated by virtue of Section 3(1) (a) and (b) shall be decided in accordance with the provisions of law for the time being in force. This Ordinance was promulgated on 16.8.1965 and all such agreements, which were entered by that time, stand abrogated and annulled. There is no provision in this entire Ordinance, through which the defendant namely, | KDA, was restrained or prohibited from entering into any agreement in j future for referring a dispute in arbitration. In this connection preamble to Ordinance XXV is very clear, which states that the KDA has entered into agreement with certain contractors/companies in furtherance of KDA I Order, 1957; therefore, reference made to arbitration was pursuant to such j agreement, which have failed to achieve the objects. Therefore, it was deemed necessary that the proceedings pending before the arbitrator be j annulled. Provisions of this Ordinance, 1965 is, therefore, veiy clear that the j KDA was not barred or prohibited for all times to come to execute any agreement or arrangement for referring any dispute to arbitration. There are several matters pending before this Court wherein KDA has entered into j arbitration agreements and the matter was referred to the arbitration. One of such case has rightly been pointed out by Mr. Muhammad Ali Jan namely Q.M.R. Export Consultants v. KDA and another (1997 CLC 503) where this Court revoked the authority of named arbitrator and directed that the parties to suggest new name for the appointment of two arbitrators vide order dated 29.8.1996, against which an appeal was filed (HCA 164/1996), which was dismissed in limine. vide order dated 4.11.1996 by a Division Bench of this Court and by consent of the parties, including KDA Mr. Justice (Rtd.) Imam Ali G. Kazi, was appointed sole arbitrator. This agreement was executed after promulgation of Ordinance XXV of 1965. In these circumstances, the contention that the KDA was not competent to enter into any agreement after 1965 is untenable. 6. On merits, Mr. Dasti Muhammad Ibrahim, has raised objection that Karachi Water & Sewerage Board ("KW&SB") was necessary party as after promulgation of the Sindh Local Government (Amendment) Ordinance, 1983, the defendant-KDA has transferred all the assets and liabilities of bulk water supply system to KW&SB and that it was that department who was responsible for return of cables or for payment of its compensation. Secondly, he contended that the claim of the plaintiff was time barred and lastly that the arbitrator has exceeded his jurisdiction. All these questions were elaborately discussed and were answered by the learned arbitrator. No irregularity was pointed out in the reasons given in favour of Award. 7. The plaintiff has filed two claims before the arbitrator: one was for payment of Rs. 18,958.80, for the work done by the plaintiff, which was rightly held to be time barred by virtue of Article 56 of the Schedule to the Limitation Act, 1908. However, the first claim was not pressed by Mr. Muhammad Ali Jan, advocate. The second claim filed was for the return of cables or in alternative a payment of Rs. 79,800/-. Mr. Dasti Muhammad Ibrahim, was not able to show any perversity, illegality or even a minor irregularity in the Award. The reasoning for granting second claim reads as under:-- "As stated above the Governing Body of the Karachi Development Authority had recommended for payment as well as for return of cable lying in the Filter Plant. No action was taken by the respondent towards return of the cable. The petitioner sent a notice to the respondent on 1.10.1985 which was ignored. He then sent a notice to the Karachi Water & Sewerage Board for which the Chief Engineer of the Board sent a repl-, copy of which is Ex. A/64. The Karachi Development Authority should have taken steps to return the cable or refuted the petitioner's claim for return of the cable. They did nothing in this behalf. This conduct of the K.D.A. would constitute a refusal on their part to deliver the cable. For recovery of movable property, time for filing suit would start running from the date of refusal and applying Article 49 of the Schedule I of the Act, I hold that the petitioner's case for return of the cable is well within time. Before adverting to the respondent's second objection, viz. the transfer of liability to the K.M.C. on the promulgation of Sind Local Government (Amendment) Ordinance, 1983, it will be appropriate to examine the factual position as to the cable lying at the Filter Plant and admission of the liability to return it. In the statement of claim, the petitioner has claimed Rs. 79,800/- for 266 yards of cables of the specification given in the statement of claim. The respondent admitted its liability to return the cable in its General Body meeting on 8.7.1982. The copy of the resolution is Ex. A/61 and it reads as under :— "RESOLUTION NO. 582. 20th. Meeting of the G.B. held Aug. 7. 1982. Item note was presented by CHIEF ENGINEER (W), Resolved that approval be accorded to the acceptance of the recommendations of claims Committees for payment of Rs. 18,958.80 and for the return of the Electrical Cable said to be lying at Filter Plant which belonging to M/s. Yasin & Co. (Action : CHIEF ENGINEER, (W))" As will be seen, the General Body recommended payment of Rs. 18,958/80 and return of the cable. The Superintending Engineer Filter Plant was asked to take necessary action in this behalf by a latter, copy of which is Ex. A/62. These documents have not been specifically denied by the respondent. A copy of the resolution was also forwarded to the petitioner with copy of the letter Ex. A/62. As late as 7.8.82 the respondent had admitted the petitioner's claim of cable. The respondents, in their written statement denied the claim of the petitioner about payment of money for work done. They refrained from denying the petitioner's claim for return of the cable. After 7.8.82 nothing seems to have been done by the Karachi Development Authority in the matter of return of the cable. Admitted position is that the cable had been lying with the respondent when the meeting was held of the General Body (7.8.82). The letter, copy of which is Ex. A/60, shows that the petitioner was informed about release of the fund for payment of Rs. 18,958/80 to the petitioner. The letter was issued on 22.9.82. It is silent about the return of cable. There is no document after 22.9.1982 mentioning "The Cable" or any reference to it. Notice was given to the respondent on 1.10.85, copy of which is Ex. A/63. The lawyers notice is Ex.A/64. The notices were not replied. The petitioner also gave notice to the Karachi Water & Sewerage Board which was replied by letter, copy of which is Ex. A/65. The Board refused to accept any claim of the petitioner without specifically referring to the cable. The silence of the K.D.A. in respect of the petitioner's claim for return of the cable amounts to refusal to it. This refusal to return or silence in the matter after service of notice of 1.10.85 would give rise to a cause of action to the petitioner. The K.D.A. at no stage from 8.7.82 to the date of filing of the application in the Court ever pointed-out to the petitioner that the cable had been given in the charge of the K.M.C. or the K.W.& S.B. In the first instance, the K.D.A. never denied the existence of the cable with them; when once they had admitted the entitlement of the petitioner in their Resolution No. 582, and secondly they never pleaded even after service of notice on 1.10.85 that they were not liable for return of the cable on account of promulgation of the Sind Local Government (Amendment) Ordinance, 1983. The respondent K.D.A. has not made any plea in their written statement about the quantity, quality or the price of the cable. The respondent K.D.A. pleaded that on the promulgation of the Amendment Ordinance 1983, the KD.A. had transferred the Bulk Water Supply System to the K.M.C., all liability was transferred to the K.M.C. and later to the Karachi Water & Sewerage Board. The respondent also pleaded that the petitioner had given an undertaking on 18.8.82 relinquishing all claims against the KD.A. The undertaking, for whatever it is worth, relates to claim of money and not in respect of the petitioner's claim for return of the cable. The K.D.A. never informed the petitioner that the cable had been transferred to the K.M.C. on or after 1.2.83 when the Ordinance amending . the Sind Local Government Ordinance, 1979 came into force. They maintained a sullen and callous attitude. It is correct that the petitioner should have knowledge about -the change of law, but. such presumption cannot lighten the burden of the K.D.A. especially in Arbitration Proceedings. Mr. S.H. Kizilbash appearing before the Court had communicated that he had no objection if reference was made. This means that he had admitted the existence of the dispute. The petitioner's undertaking given by him on 18.8.82 nor by bar of limitation as suggested by Mr. N. A. Kazi. The next objection of the counsel of the respondent is that the K.D.A. was absolved of all responsibility for return of the cable or payment of money on account of the enforcement of Sind Local Government (Amendment) Ordinance, 1983, which according to Ex. R/l came into force on 1.2.83 The counsel of the respondent relied upon Section 147(2) (i) of the amended Ordinance as it stood on 1.2.83. The provision is reproduced below for ready reference :-- "Section 147(2)(i): all property, movable and immovable, including all water works and installations held by the Karachi Development Authority in relation to bulk water supply, inventory whereof shall be prepared by the • Chartered Accountants, appointed by Government, with the help of a representative each of the Karachi Metropolitan Corporation and the Karachi Development Authority, shall vest in the Karachi Metropolitan Corporation;" This provision has got one very material limitation atleast which is that such property would vest in the K.M.C. after 1.2.83 which was listed in the inventoiy to be prepared jointly by the representative of the K.D.A. and K.M.C. It has not been shown that such inventoiy was prepared and the cable was included in the inventoiy. The K.D.A. also did not mention the existence of such inventoiy at any stage and as such this provision would not help the respondent in releasing them of their liability. The counsel of the respondent also referred to the provisions as contained in Section 147(x) of the Sindh Local Government Ordinance as it came to be, on amendment, by the Amending Ordinance, 1983. It reads as under :-- "147(2)(x): all suits and other legal proceedings instituted by or against the Karachi Development Authority in relation to bulk water supply, and the Karachi Water Management Board, before the coming into force of this Chapter may be continued by or against the Karachi Metropolitan Corporation;" This provision has application only to proceedings commenced before coming into force of the Amending Ordinance of 1983 of which the relevant date is 1.2.83. The present proceedings are not effected by this provision and this is of no avail to the respondent. There is another aspect of this saving provision and that it is of permissible nature and not mandatory. After Mr. Kizilbash pleaded no objection in the Court, there will be no impact of this provision on these proceedings. The bare facts are that the cable is still with the Karachi Development Authority and the petitioner is entitled to its return. The respondent is also responsible to return the cable of the quantity and quality it was when it was left there and in the alternative to pay such compensation to the petitioner as is equal to present market value." 8. It is evident from the above reproduction of the reasonings of the Award that the question of limitation was considered by the learned Arbitrator who rightly held that the claim of the plaintiff was within time. Neither before the learned Arbitrator nor before this Court, any reference was made by the K.D.A. to any Article of the Limitation Act, 1908, to support their contention that the plaintiffs claim was barred by limitation. It was observed by the Arbitrator that the K.D.A. never denied possession of the cables with them. This fact stands proved from the Resolution No. 582 adopted by the Government Body of the K.D.A. on 7.8.1982; from the conduct of the defendant/KD.A. during the proceedings of Suit. No. 188/1987 and even during the arbitration proceedings. It is regrettable to note that a very lame and frivolous objection was raised by the respondent/K.D.A. that as a result of promulgation of the Sindh Local Government (Amendment) Ordinance, 1986, they are not liable for the return of cables. This does not suit an organisation established by the Presidential Order and being controlled by the Provincial Government to raise such pleas and to deprive a citizen of his valuable properties. Once K.D.A. admitted having these cables in their possession, it was their moral and legal duty to see that it be returned to its real claimant. It was more incumbent upon them when a resolution in this connection was also adopted by its Government Body. Before this Court also, the objections raised on behalf of the K.D.A. are hypertechnical in nature, perhaps with the aim not ro perform their statutory duties and other obligations. 9. It was argued by Mr. Dasti Muhammad Ebrahim, that as a consequence of introduction of clause (x.) to subsection (2) of Section 147 of the Sindh Local Government Ordinance, 1979 the liabilities of K.D.A. stand transferred to K.M.C. This is not the right interpretation. This provision was enacted strictly for the purpose of protecting litigations filed by and against the K.D.A. or Water Management Board in relation to bulk water supply which were to be continued by or against the Karachi Metropolitan Corporation. In no manner it absolves K.D.A. from its admitted liabilities. It is pertinent to note that the plaintiff filed proceedings under Section 20 of the Arbitration Act, 1940, in the year 1987 when by consent, the matter was referred to the arbitration. This was done al'tar the amendment was made in the Sind l> Local Government Ordinance, 1979. In the year 1986, when the said amendment was made no litigation in respect of bulk water was pending between the present parties. In the aforesaid circumstances, the provisions of Section 147(2)(x) are not attracted. The other objections are not relevant. 10. As a result of the above discussion, the Award dated 2.9.1992 is made rule of the Court. Decree to follow. i A.S. i Orders accordingly.

PL J 1998 Karachi 417 PL J 1998 Karachi 417 Present: SYED DEEDAR hussain SHAH. J. SULTAN AHMAD and FARMAN ELAHI-Appellant versus SYED KAZIM RAZA ABIDI and others-Respondents R.F.A. Xos. 306 and 307 of 1997. dismissed on 2.12.1997. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- 15-Default in payment of Rent-Ejectment, of appellants by Rent Controller-Challenge to-Appellants in their evidence recorder by Rent Controller, admitted that after payment of rent in month of July, 1993 to K i a legal heir! they have not sent any rent, through money order to K--It is also admitted fact that, they did not send any notice to K stating that he has refused to accept rent and it is also admitted fact that they did not send any notice to any of respondents to the effect that they have started depositing rent in court-It is also admitted fact that after death of A rent. was paid to K one of legal heirs of A and suddenly thereafter without any notice or tendering rent through money order both appellants started depositing rent in Misc. Rent cases-Held : Wilful default in payment of rent has substantially been proved through mouth of appellants themselves and wilful default in payment of rent is fully proved--Held further : Appellants have rightly been held to be wilful defaulters in payment of rent by Rent Controller-Dismissed in liininc. [Pp. 424 & 425] A, B & C Mr. M. Umar Qurcshi, Advocate for Appellants. Mr. Khalid Javc.d, Advocate for Respondents. Date of hearing : 2.12.1997. judgment I intend to dispose of these two FRAs thorough this common order as the facts, parties and case law involved are common and the same. Respondents filed the applications under section 15 of the Sindh Rented Premises Ordinance 1979 (hereinafter to be referred as the Ordinance). The respondents/landlords are the owners of shop No. 1 (and 2- A) constructed on plot No. C-37. Rizvia Society, Nazimabad Karachi, whereas appellant Sultan Ahmed (in FRA No. 106/97) is the tenant of shop No. 1 at the monthly rent, of Rs. 300.00 payable by 10th of each calendar month against receipt exclusive of all other charges. Farman Ellahi appellant (in F.R.A. No. 307/97) is the tenant of shop No. 2 constructed on plot No. C-37, Rizvia Society. Nazimabad Karachi at the monthly rent of Rs. 200.00 payable by 10th of each calendar month against receipt exchtsive of all other charges. The rent, cases were filed before the 1st Rent Controller Karachi Central for ejectment of the appellants being wilful defaulters in payment of rent in respect, of the demised shops with effect from 1st August 1993. The appellants/opponents were served and they have submitted their written statement denying the contentions of the landlord regarding the default in payment of rent and they further agitated that, appellants are not, in the knowledge as to whether respondents/landlords are the only legal heirs of late Muhammad Ali Abidi or whether the same legal heirs have got mutated the property in then' name from the authority concerned. They have denied the allegation of default and claimed that they had already paid t.he rent in advance. Appellants further stated that respondent was pressing hard for ennaneement nt rent and thev refused to accept the same thereafter appellants were compelled tu approach rhe Coun nf Rent Controller for depositing the current and future rents and accordingly they deposited the rent in MRCs No. 783/93 and 788/93 on 30.9.93 they deposited the rent, at first instance for five months and on 27.12.1993 for one year and on 28.12.1994 for one year as such they are not. defaulters. Out of the pleadings learned Kent Controller was pleased to settle The following issues : 1> Whether the opponent has committed default in payment of monthly rent with effect from 1st, August 1993? (.2) Whether the landlords/applicants have refused to accept the monthly rent? (3) What should the order be Or: behalf -1 respon onta Sved Kazim Raza filed affidavit-in-evidence on behaF if himself and also as .-norney 01, behalf of other respondents. On behalf of appellants Sultan Ahmed and Farman Ellahi submitted affidavitm-evidence. After hearing the learned counsel for the parties learned Rent Controller was pleased to allow the rent applications and appellants were directed to vacate the demised premises and handover peaceful vacant possession to the respondent/landlords within 30 days vide order dated 20.10.1997. Hence these First Rent Appeals. Mr. Muhammad llmar Qureshi. learned counsel for the appellants contended That appellant Sultan Ahmed has taken the shop No. 1 from one Syed Baqar Hussain who was the previous tenant of shop No. 1 on pugree of Rs. nvo lacs out of which 15'-<- was paid to the late father of the respondents and that appellant had taken ' lie shop on monthly rent of Rs. 90/- and after the death of the father of the respondents/landlords the rate of rent, was enhanced to Rs. 3007- P.M. which the appellant was paying regularly. In the month of July 1993 appellant was asked to enhance the monthly rent amount which he refused and in the month of August 1993 when the appellant vent to pay rent, the ;pondents refused to accept, the rent and Told to deposit the same in Court. That appellant being ignorant of the legal process, directly filed Misc. Rent Ca.ie No 787/93 on 30.9.1993. in the Court of learned 1st Rent Controller Karachi, seeking permission for deposit of rent in Court which was deposited in the Court of the Rent Controller. Whereas Farman Elahi appellant has taken shop No. 2-A from Muhammad Latif who was previous tenant of shop No. 2-A on pugree out of which an amount was paid to ihe late f';t er of the respondents for the change of rent receipt. That The appellant had taken the shop No. 2-A on a monthly rent of Rs. 8 enhanced to Rs. 2007- which the appellant was paying regularly. That in lilt.- month 'if. July ! 993 when the appellant paid the rent to the respondent lit- was u>keii to enhance the monthly rent amount which he refused and in thtmonth of August 1993 wl^n rhe appellant went to pay the rent, the i thjioii'k in lelused to accept iiie rent and fold to deposit the same in Court. That appellant being ignorant oi the legal process, directly filed Misc. Case No. 7SN/93 on 30.9.93 in r !u> Con it of learned Rent Controller Karachi. seeking permission for deposit of rent in Court ', lie learned Rent Con! Roller was pleased to allow the application, thereafter the appellant deposited five months rent in advance from August 1993 to December 1993 and the appellant continued to deposit the rent in the Misc. Rent Case No. 788/93 in the Court of Rent Controller. That both the appellants are not wilful defaulters in the payment of rent and the order of the Rent. Controller is liable to be set aside. Learned counsel for the appellants cited the following case law : 1. Sitaldas and 2 others vs. Haji Muhammad Saffar (PLD 1984 Kar. 87). 2. Khawaja Qasimuddin us. Iftikhar Bano (1984 MLD 1213). 3. Usman Ghani vs. Muhammad Rafiq (NLR 1989 AC 54). 4. Mashaikuddin through his legal heirs vs. Syed All Hyder (1989 MLD 539). Mr. Khalid Javed, learned counsel for the respondents contended that appellants/tenants are wilful defaulters in payment of rent and order of the learned Rent Controller is proper, legal and does not call for any interference. Learned counsel cited the following case law : (1) Feroze Ahmad vs. Mst. Zehra Khatoon (1992 CLC 73,5). (2) Messrs Bamboat & Co. vs. Messrs G.B. Construction Co (1995 MLD 816). (3) Haji Kassam through Legal Heirs vs. Syed Rahirn Shah (1997 MLD 3240). (4) Fazal Elahi vs. Gul Khan Ahmed Qureshi (1997 SCMR 945). It would be pertinent to refer the evidence recorded by the learned Controller for just and equitable decision of both these appeals. After the affidavit-in-evidence was filed on behalf of the parties, Sultan Ahmed in cross examination conducted by the learned counsel for the respondents/landlords stated as under : "I have no receipt of amount of pugri paid by me to said tenant Baqar. I have no knowledge whether the said tenant Baqar had obtained any receipt from Muhammad Ali Abidi regarding the payment if make for change of receipt. I do not have any receipt if issued by Muhammad Ali Abidi regarding any pugri or change of receipt. It is correct to suggest that I have not paid any amount of pugri to late. Muhammad Ali Abidi. It is also correct to suggest that I have not paid any amount to Muhammad Ali Abidi for change of receipt in respect of demised shop. It is correct to suggest, that Muhammad Ali Abidi has died. After the death of Muhammad Ali Abidi I started making payment of monthly rent to his son namely Syed Kazim Raza Abidi ................................................................ "It is correct to suggest that after the payment of rent in the month of July, 1993 to Kazim Raza I have not sent any rent through money order to said Kazim Raza. Voluntarily says that I have tried to make payment to rent to Kazim Raza who has refused to accept the rent and stated that if you-are in hurry you may deposit the same in court. It is correct to suggest that I have not sent any notice to Kazim Raza stating that he has refused to accept the rent. It is correct to suggest that I have not sent any notice to any of the applicants to the effect that I have started depositing rent in court. It is correct to suggest that after July 1993 neither I have offered rent to the applicants nor they have refused to accept." Whereas appellant Farman Elahi in his cross-examination conducted by the respondent side has admitted the following : "....After death of Muhammad Ali Abidi the rent was being paid to Syed Kazim Raza Abidi through his representatives against receipt. The receipts were issued every month. I know Syed Kazim Raza Abidi. I have paid rent for the month of July 1993 to Syed Kazim Raza lastly. I produce original receipt No. 212 dated 5th August 1993 issued for the month of July 1993 Exh. 1. Whenever the applicant No. 1 issued receipt I use to sign on counter foil of such receipt to acknowledge having received the receipt. Some time in my absence my brother used to sign. I see photocopies of counter foils of receipt No. 212 dated 5th August 1993, receipt No. 207, dated 5th July 1993 and receipt No. 202 dated 5th June 1993 being annexures A.B. and C. to the ejectment application and I say that said counter foils bear my signatures. I have not sent any rent through money order. I have not paid monthly rent to the applicant after July 1993. I have not issued any notice to the applicant before depositing rent in the Court. Even no notice has been issued to the applicant after depositing of monthly rent in Court I do not. Know whether applicant No. 2 to 4 have appointed applicant No. 1 as their attorney. I do not know anything about the General Power of Attorney filed by the applicant No. 1 in this case. I know that. SyeO Kazim Raza is son of late Muhammad Ali Abidi. Other tenants also used To pay rent, to the applicant No. 1. It is incorrect to suggest that at the time of taking the demised shop on rent late Muhammad Ali Abidi or Syecl Kazini Raza have not taken any amount of Pugri from me. I have no receipt of any amount of pugri. .1 have not offered rent to the applicants even after receipt i,f notice of this case and even after filing of written statement,' I would like to discuss the case law referred by the learned counsel for the appellants. (1) Sitaldas and 2 others vs. Haji Muhammad Saffar (PLD 1984 Karachi 87). In this matter appeal of the landlord was allowed keeping in view the personal requirement of the landlord, whereas in this case ejectment order has been passed merely on account of default in payment of rent. In my humble opinion this authority is not applicable to the facts of the present case. (2) Khawqja Qasitnuddin i>.s. Iftjkhar Benin (1984 MLD 1213). The learned Judge of this Court has held that, tenant was reluctant to pay rent on enhanced rate as demanded by landlord but losing no time in sending same by money order after landlord refused to accept the same. Whereas in this case the tenant has not offered the rent to the landlord through postal money order even the appellants have admitted in the cross-examination referred hereinabove that they did not remit, the rent through money order even they did not issue notice to the landlord about the non-acceptance of rent by them and thereafter without notice to the landlords they deposited the rent in Misc. Rent Case. Under the circumstances in my humble opinion this authority is not helpful to the case of the appellants (3) Usrnan Ghani vs. Muhammad Rafiq (NLR 3989 AC 54), where his lordship Mamoon Kazi. (as he then was) found i.uat rent was first tendered by the respondents by money orders and after the same lias been refused by the appellant, the same was depijsi t •:; Court by the respondents. Whereas in this case it is nowhere ;.he catv of the appellants that they remitted the rent through postal money order nnd on refusal of the landlords they deposited the rent in the Misc. Rent, v : .»:. Whereas in the evidence recorded by the Vat ned Rent Con'roller both the appellants have in unequivocal terms stated that after July 1993 neither they offered rent to the respondents nor they have refused to accept the same. In this state of affairs of the evidence in my humble opinion with due respect, to the authority it is not applicable to the facts of the present case. (4) Mashaikuddiit vs. Syed AH Hydcr (1989 MLD 539). In this authority a learned Judge of this Court has observer! that basic and essential distinction between mere default and deliberate or wilful default should be borne in mind and totality and cumulative effect of all circumstances should be taken into account and not any particular feature of case in isolation. I am afraid this authority in any case is not helpful and applicable to the facts of the present, case in as much as the appellants have admitted in the evidence before the Rent Controller that neither they remitted rent through money order to the respondents nor any notice was served on them to show that they have refused to accept the rent. The clear admission of the appellants before the Rent Controller that neither they remitted rent through money order nor they served any notice on the respondents/landlord show that they have not refused to accept the rent. I would like to discuss the case law cited by the learned counsel for the respondents. (1) Fcrozc Ahmad vs. Mst. Zehra Khatoun (1992 CLC 735). In this case a learned Judge of this Court has held that once tenant has committed default by not paying or tendering rent within prescribed period, he would be liable to be ejected notwithstanding subsequent payment, of arrears of rent. (2) Messrs Babboat & Co. Vs. Messrs G.B. Construction Co. (1995 MLD 816). where Mukhtar Ahmed Junejo J. (as his lordship then was) has observed that tenant could deposit rent of premises with Rent, Controller in miscellaneous case only when landlord had refused or avoided to accept rent. Before depositing rent with Rent Controller of the area, tenant, should have sent the rent to landlord by postal money order after tendering same personally to landlord. (3) Haji Kassam through Legal Heirs vs. Sycd Rahirn Shall (1997 MLD 3240). In this case, Mr. All Muhammad Baloch a learned Judge of this court has observed that tenant failed to prove by any evidence that landlord had refused to accept rent from him and he also had not examined postman to prove that landlord had not accepted money-order sent by him to landlord as such default in payment of rent by tenant was proved. (4) Fazal Elahi vs. Gul Khan Ahmed Qureshi (1997 SCMR 945). In this case their Lordships of the Supreme Court has held that tenant after receiving notice under S. 18, Sindh Rented Premises Ordinance, 1979, started paying rent to landlord but then suddenly he shifted to depositing rent in Court in miscellaneous rent application in the name of landlord and previous landlady, thus, resorting to causing harassment to landlord and under the circumstances leave to appeal was refused. It would be advantageous to reproduce the provisions of section 10 of Sindh Rented Premises Ordinance 1979 : S. 10 : (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. In the evidence recorded by the learned Rent Controller referred hereinabove it is clear that they have not paid any amount of pugri of late Muhammad Ali Abidi and it is also matter of record that after the death of Muhammad Ali Abidi, they started making of monthly rent to Kazim Raza Abidi one of the respondents who used to issue rent receipts on receipt of amount of the rent. It is also matter of record as per admission of the appellants in their evidence recorded by the learned Rent Controller, in cross examination both of them/appellants have admitted that after the payment of rent in the month of July 1993 to Kazam Raza Abidi they have not. sent any rent through money order to Kazam Raza Abidi. It is also admitted fact that they did not send any notice to Kazim Raza Abidi stating that he has refused to accept the rent and it is also an admitted fact that they did not send any notice to any of the respondents to the effect that they have started depositing rent in Court. It would be advantageous to refer the admission of the appellants in cross examination which is as follows : "It is correct to suggest that after July 1993 neither I have offered rent to the applicants nor they have refused to accept." It is also admitted fact that after the death of Muhammad Ali Abidi rent was paid to Karam Raza Abidi one of the legal heirs of Muhammad Ali Abidi and suddenly thereafter without any notice or tendering rent through money order both the appellants started depositing rent in misc. rent cases. The evidence on behalf of respondents was furnished by Kazim Raza Abidi who himself is respondent and also produced valid power of attorney on behalf of the other respondents. He was cross examined at length but nothing substantial was brought out in favour of the appellants. The case law cited by Mr. Khalid Javed, learned counsel for the respondents is relevant helpful to the present matter which I respectfully follows.The wilful default in payment of rent has substantially been proved through the mouth of the appellants themselves and the wilful default in payment of rent is fully proved and appellants have rightly been held to be the wilful defaulters in payment of rent by the he learned Rent Controller which does not call far any interference by this Court in these appeals. Resultantly appeals are dismissed in limine. However since appellants are carrying on business in the demised premises both of them are granted three months time to vacate the demised premises/shops and hand over peaceful and vacant possession to the respondents. On 2.12.1997 after hearing the parties both the appeals were dismissed in limine by short order above are the reasons. (K.K.F.) Appeals dismissed.