YLR 2002 Judgments

2002 Y L R 3944

[N.‑F. W.F. Bar Council (Disciplinary Committee)]

Before Justice Muhammad Qaim Jan Khan, Chairman, Muhammad Alam Khan and Syed Rehman Khan, Members

NISARUL HAQ, ADVOCATE‑‑‑Appellant

Versus

N.‑W.F.P., BAR COUNCIL (DISCIPLINARY COMMITTEE) and another‑‑‑Respondents

Appeal No.T‑31 of 2001, decided on 27th April, 2002.

Legal Practitioners and Bar Councils Act (XXXV of 1973)‑‑‑

‑‑‑‑Ss.13, 41 & 51‑‑‑Professional mis­conduct ‑‑‑Complaint against Advocate was that he, while serving as a teacher had performed apprenticeship and remained attached to legal profession and by so doing he had violated provisions of Legal Practitioners and Bar Councils Act, 1973 and Rules framed thereunder and had committed professional misconduct‑‑‑Disciplinary Committee initiated proceedings against Advocate who submitted written statement refuting allegations contained in complaint against him‑‑‑Advocate in his application raised preliminary objection that Bar Council had no inherent jurisdiction to probe into allegations of complainant‑‑‑Disciplinary Committee after hearing the parties and considering data available on record, overruled that objection and proceeded with trial of case‑‑‑Allegations levelled against Advocate in complaint merited deep probe by Bar Council as Advocate was duly enrolled with Bar Council which was the Institution to which Advocate owed his existence‑‑­Averments were such which had attracted provisions of Legal Practitioners and Bar Councils Act, 1973 and Rules framed thereunder‑‑‑Under S.41 of Legal Practitioners and Bar Councils Act, 1973, it was not only professional misconduct of Advocate, but also his other conduct which could be looked into by the Bar Council‑‑‑Bar Council, in circumstances, had plenary jurisdiction to entertain complaint against Advocate‑‑‑Order passed by members of Disciplinary Committee of Bar Council whereby objection of Advocate was overruled, was perfectly sound, legal and in consonance with established principles of justice which called no interference.

Qamar Zaman Shinwari v. Nadir Shah Gillani, Advocate, Kohat 1996 MLD 513 and Muhammad Khan v. Anwar Baig, Advocate, Swat 2001 MLD 906 ref.

Wali Khan Afridi for Appellant.

Muhammad Rafiq for Respondent.

Akhtar Naveed, Dy. A.‑G. for the Government of N.‑W.F.P.

Date of hearing: 27th April, 2002.

2002 Y L R 2406

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD RAMZAN and another‑‑‑Petitioners

Versus

ABDULLAH and 2 others‑‑‑Respondents

R.O.R. No.391 of 2001, decided on 31st October, 2001.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S. 164‑‑‑Revision petition‑‑‑Preliminary hearing ‑‑‑Adjournment‑‑‑Sufficient reason‑‑­Request for adjournment by clerk of counsel for petitioners by making application .showing the counsel to be unwell‑‑‑Validity‑‑‑Merits of case had to be judged on the basis of record, which Tehsildar had produced in Court‑‑‑Mere verbal contention by Clerk that his counsel was unwell was not sufficient to adjourn case‑‑Petitioners had due notice of the date of hearing through their counsel‑‑‑No reasonable ground was made out to further adjourn the case.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑-

‑‑‑‑Ss. 32 & 34‑‑‑Land in illegal occupation of petitioners‑‑‑Auction of such land‑‑­Contention of petitioners‑bras that neither arty notice of auction was given to them nor proper advertisement was made; and that they were prepared to offer Rs.18, 000 as against the highest bid of Rs.11,500‑‑‑Validity‑‑­Large number of properties including disputed land had been duly advertised in a national Daily‑‑‑Advertisement indicated place of auction, particulars of property with Khasra numbers to be auctioned and revenue e5!ate concerned‑‑‑Auction had been conducted at appointed place on the date indicated in advertisement‑‑‑No notice was required to be issued to petitioner personally as such purpose had been served by advertisement in national Daily‑‑‑Bid sheet showed that auction had been contested between three persons offering different bids ranging from Rs. 6,100 to Rs.11,500‑‑­Subsequent offer above the highest bid duly contested on spot was of no avail to petitioners, which appeared to be an attempt to thwart auction 'Proceedings aimed at prolonging their ,illegal possession over disputed land‑‑‑No ground was made out for interference with auction proceedings of disputed land in favour of highest bidder‑‑­Board of Revenue dismissed revision petition in circumstances.

Nemo for Petitioners.

Ch. Muhammad Akram for Respondent.

2002 Y L R 2408

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

Mst. KARAM BIBI alias KARMON‑‑‑Petitioner

Versus

MUSHTAQ AHMAD and another ‑‑‑Respondents

R.O.R. No.26 of 2000, decided on 12th July, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30(2)‑‑‑Illegal occupants sought cancellation of allotment and conveyance deed in favour of respondents‑‑‑ Validity‑‑­Record showed that respondents had been allotted Ihata in question after payment of full price‑‑‑No allegation that respondent had obtained such allotment due to fraud, ineligibility or concealment of facts‑‑‑Mere illegal possession of Ihata by petitioners could not be made the basis for assailing allotment in favour of respondents under the Act‑‑‑No case having been made out for invoking provision of S.30(2) of the Act, Board of Revenue dismissed the petition and withdrew show‑cause notice issued to respondents under S. 30('2) of the Act.

Nemo for Petitioner.

Muhammad Yousaf for Respondents.

2002 Y L R 2409

[Board or Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD RAUF‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER WITH THE POWERS OF COLLECTOR, BAHAWALPUR and 6 others‑‑‑Respondents

Suo Motu R.O.R. No.1689 of 2001, decided on 28th November, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10(4) & 30‑‑‑Temporary Cultivation Lease Scheme‑‑‑Grant of proprietary rights‑‑­Petitioners claiming to be allottees of land in question prayed for grant of proprietary rights‑‑‑Validity‑‑‑Documents produced by petitioners did not find any corroboration from record‑‑‑Colony Clerk stated that documents annexed with petitions were forged and certified copies of those documents had not been issued by Copying Branch of Deputy Commissioner's ice; and that no such allotment had been made in favour of petitioners by Competent Authority‑‑­Petitioners could not produce any copy of original bid sheet or even a copy of order under S.10(4) of the Act, under which land in question had been formally given to them‑‑­No copy of extract from Daily Diary Register of relevant estate regarding delivery of possession to petitioners under District Collector's order of allotment had been produced‑‑‑Revenue Pativari's record of entries of Girdawari could be relied upon for purpose of possession, but same did not show possession of petitioners over land in question‑‑‑Not understandable as to how Canal Pativari had entered possession of petitioners in his Girdawari without a valid order of allotment, which should have been made the basis for inclusion of their names in the list of persons eligible for irrigation of their land through canal water‑‑‑Such arrangement smacked of complicity of Canal Department with petitioners‑‑‑No ground made out for grant of proprietary rights to petitioners at such stage‑‑‑Board of Revenue rejected petitions being not maintainable.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑---

‑‑‑‑S. 42‑‑‑Khasra Girdawari‑‑‑Proof of possession‑‑‑Revenue Patwari's record of entries of Girdawari could be relied upon for purposes of possession.

Sarfraz Ali Khan for Petitioners.

2002 Y L R 2412

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD ARSHAD and 10 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

R. O. R. No. 1121 of 2001, decided on 16th May, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑-

‑‑‑Ss. 19(A), 30 & Second Sched.‑‑­Allotment of land under Bara Reclamation Scheme ‑‑‑Conferment of proprietary rights‑‑­Allottee after fulfilling terms and conditions of such scheme applied for conferment of proprietary rights on 24‑3‑1960‑‑‑Such allotment after death of allottee was transferred in favour of his legal heirs (petitioners) on 27‑7‑1980‑‑‑Execution of conveyance deed was allowed on 23‑2‑1983, but same was later on not issued on the ground that land fell within prohibited limits of Town Committee created in 1979‑‑­Validitl‑‑Bara Reclamation Scheme was promulgated on 12‑12‑1945 envisaging conferment of proprietary rights over half of reclaimed land allotted under such Scheme‑‑­Period of eight years had been given for bringing barren land under plough‑‑‑.No concept of prohibited limits existed in original Scheme ‑‑‑Allottee had applied for conferment of proprietary rights in 1960 after fulfilling conditions under Scheme, thus, he or his legal heirs could not be held responsible or made to .suffer for lethargy of District Collector‑‑‑Had the case been processed with reasonable speed, same would have been completed long before establishment of Town Committee bringing such land under prohibited zone‑‑‑Petitioners were not at fault‑‑‑Board of Revenue directed the District Collector to process the case for conferment of proprietary rights on petitioners in accordance with law.

Ch. Sardar Ali for Petitioners.

2002 Y L R 2414

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

FATEH MUHAMMAD and 24 others‑‑‑Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), BHAKKAR and another‑‑‑Respondents

R.O.A. No.41 of 2001, decided on 6th December, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 19 & 30‑‑‑‑Transfer of tenancy rights was sought after grant of proprietary rights and payment. of Government dues ‑‑‑Evecutive District Officer refused to grant permission on the ground that such case had been initiated to evade Government Revenues leviable on conveyance deed/mutation of transfer of proprietary rights/registration fee etc.‑‑‑Validity‑‑‑No provision existed in the Act to exclude such case from purview of consideration under S.19 of the Act‑‑­Rejection of such prayer on the ground of loss to Government would render ineffective the provision of S.19 of the Act ‑‑‑ Law‑makers under the Act never intended to defer transfer of tenancy, rights. from original tenant to another person till completion of all terms and conditions of the Scheme by original tenant‑‑‑Transfer of tenancy rights as envisaged under S.19 of the Act was different from sale after obtaining full proprietary rights in a tenancy‑‑‑Government dues on transfer at the time of issuance of conveyance deed would have to be paid by purchaser‑‑­Requiring tenants or their legal heirs to first acquire proprietary rights, get conveyance deed executed and then transfer tenancy rights through a registered deed would defeat the object for which S.19 of the Act was provided‑‑‑Tenant might seek transfer of related at any time after declaration of eligibility for conferment of proprietary rights wit/ tout even payment of any cost of land or at any stage thereafter as he came to acquire ct right and vested interest in tenancy at time tie was declared eligible for conferment of proprietary rights from a particular date‑‑­Board of Revenue accepted appeal, set aside impugned order and remanded case to Executive District Officer (Revenue) to pass an order in accordance with law after affording an opportunity to parties to present their view‑point.

PLD 1969 W.P. (Rev.) 1 ref.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 19 & First Sched.‑‑‑‑Transfer of tenancy rights‑‑‑Invoking jurisdiction of competent forum by a tenant‑‑‑Prerequisites‑‑‑Tenant holding State land under different schemes, whether would fall within the ambit of S.19 of the Act‑‑‑Tenants holding land under Temporary Lease Scheme not containing provision for conferment of proprietary rights or tenant holding a scheduled tenancy or a lease holder of State land for a poultry farm, fish farm. nursery etc. would not fall within the ambit of .S.19 of the Act as no vested interest or right could be said to have created in such tenants/lease holders warranting transfer of tenancy rights onward to another person‑‑‑Cases of' cultivating State land leased out for specific purpose to a Department of Federal or Provincial Government or a Company were riot covered as tenants of State land‑‑‑Cases of tenants under Scheme containing an inbuilt concept of conferment of proprietary rights to the extent provided in the Scheme could be covered subject to continuance of tenancies as per terms and conditions governing them‑‑­Such aright was enforceable in temporary lease schemes or in scheme providing alternate land only after a statement of conditions covering the case of a tenant eligible for conferment of proprietary rights had been issued and tenant had been declared eligible to conferment of proprietary rights thereunder.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 19‑‑‑Transfer of tenancy located within prohibited limits‑‑‑Scope and exception‑‑­Tenancies within prohibited limits could trot be transferred under S.19 of the Act, except in cases of old Schemes contemplating provision of proprietary rights, where municipal limits existing at that time were not an obstacle in the way of conferment of proprietary rights on original tenants.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑-

‑‑‑‑Ss. 19 & 30‑‑‑‑Transfer of tenancy rights ‑‑­Concernment of proprietary rights ‑‑‑Scope‑‑­All Government grants are required to take effect according to their tenor in statement of conditions governing them‑‑‑Right not available to original tenant cannot he transferred under S.19 of the Act‑‑‑Right of tenant other than that enforceable tinder law in accordance with statement of conditions cannot be pressed into service ‑‑‑Right, or tested interest in terms of S.19 of the Act is created in a tenant on examination of his eligibility for conferment of proprietary rights in his favour, although actual conferment of proprietary rights may take place at a much later stage depending upon the provisions incorporated in statement of conditions of the Scheme.

(e) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 19‑‑‑‑Transfer of tenancy rights‑‑­Exercise of such powers by Commissioner, now Executive District Officer (Revenue)‑‑­Scope‑‑‑Such transfer without previous consent in writing of Commissioner now Executive District Officer (Revenue) or by such officer empowered by written order, would be void‑‑‑Such power must be exercised by officer concerned or his delegatee strictly in accordance with spirit of law in view of its exclusivity to the exclusion of others with the main object of providing relief to tenants by a simplified procedure not involving payment of any charge on transfer of tenancy rights sought by tenants rather than adding ‑ to their agonies by refusal of their petitions.

(f) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 19‑‑‑‑Purpose of S.19, Colonization of Government Lands (Punjab) Act, 1912‑‑­Liability of purchaser/transferee of tenancy rights to abide by all terms and conditions of tenancy exhaustively stated.

(g) Administration of justice‑‑‑

‑‑‑‑Duty of revenue hierarchy to provide speedy relief to citizens, when they approach various forums for redressal of their grievances instead of letting the disputes linger on from one forum to the other.

Sarfraz Ali Khan for Appellants.

2002 Y L R 2420

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

FAZAL DIN through

Legal Heirs‑‑‑Petitioner

Versus

ZULFIQAR ALI and another through Legal Heirs‑‑‑Respondents

R.O.R. No.826 of 1987, decided on 3rd May, 2001.

Colonization of Government Lands (Punjab)­ Act (V of 1912)‑‑‑

‑‑S. 19‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.164‑‑‑Transfer of allotment obtained through fraud and forgery‑‑‑Lot in question was allotted in 1950 to predecessor of petitioners (allottee)‑‑‑Predecessor of respondents by manipulating entries of Revenue Record got the lot in question transferred to his name‑‑‑Application for conducting an inquiry and correction of such entries was dismissed by District Collector‑‑­Commissioner dismissed appeal filed by allottee‑‑‑Validity‑‑‑Fraud had been committed by interpolating/over-writings to entaries of Revenue Record to grab land‑‑­Lover Courts had acted mechanically without replying their mind to facts and substances of case‑‑‑Commissioner had not discussed manipulation in the allotment order visible on its face ‑‑‑Over writings and interpolations in record had been made with different ink‑‑‑District Collector had not discussed. in his order report made by Revenue Staff endorsed by Assistant Commissioner‑‑‑District Collector had failed to discuss application made to him by one of the respondents regarding fraud and manipulation of record by other respondent This brother)‑‑‑Documents placed on record by petitioners and available in Colony Office clearly showed that the lot in question had been attempted to be converted in the name of predecessor of respondents through fraud and forgery‑‑­ Original allotment of lot in question had been made by District Collector in favour 4 predecessor of petitioners in 1950, which merited to be restored in his name is genuine allottee thereof‑‑‑Board of Revenue accepted revision petition, set aside impugned orders while declaring subsequent orders passed on the basis of fraud to be without any legal footing and set aside same.

Ch. Mushtaq Masood for Petitioner.

Raja Yasir Akhtar on behalf of Raja Mehmood Akhtar for Respondents.

Date of hearing: 20th December, 2000.

2002 Y L R 2426

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD SHAFIQUE‑‑‑Petitioner

Versus

RASHID SULTAN‑‑‑Respondent

R.O.R. No.21 of 2000, decided on 12th July, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑S. 10‑‑‑Tenancy under Horse Breeding Scheme‑‑‑ Original allottee died‑‑‑District Remount Officer recommended petitioner (son o/ deceased) for grant of such tenancy, but District Collector allotted the tenancy to respondent (other son of the deceased allottee)‑‑‑Petitioner filed an appeal before Commissioner‑‑‑Validity‑‑‑Bound animal was with respondent as notice had been issued to him by District Remount Officer for production of mare‑‑‑Affidavits of respectables of locality produced by respondent showed that petitioner had attacked his father and caused him injuries, but after Medico‑Legal Report, no criminal case was registered due to interference of notables of the area: and that respondent had remained associated with his father and petitioner was not maintaining bound animal due to strained relations with his father‑‑­Such facts showed that petitioner had never been associated by his father with bound animals in his lifetime thereafter‑‑­Respondent had been appointed as "Sarbarah " on the request of allottee‑­Petitioner had not produced affidavits in rebuttal of respondent's claim, thus, he had failed to substantiate his claim‑‑‑Both Courts below had passed concurrent orders in favour of respondent for having remained associated with his father in lifetime and had sufficient experience in maintenance of Horse Breeding Tenency‑‑‑No injustice had been done to petitioner calling Interference with orders passed by Courts below‑‑‑Board of Revenue dismissed revision petition being devoid of force.

PLD 1975 Lah. 2385 (sic); 1991 C L C 1499: 1991 CLC 1660: 1997 PCr.LJ 79 and 2001 CLC 781 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑-

‑‑‑‑S. 161‑‑‑Civil Procedure Code (V of 1908), O, III, R. I ‑‑‑Appeal before Commissioner‑‑‑Appellant made application seeking adjournment due to death of relative of his counsel‑‑‑ Commissioner dismissed the appeal without giving opportunity to appellant's counsel and without mentioning request of adjournment in impugned order‑‑­Validity‑‑‑Presence of appellant had been recorded in first page of impugned order‑‑­Commissioner had recorded in his order that appellant was present in person and he had been heard‑‑‑Such contention had, thus, no force.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 10‑‑‑Horse breeding grant‑‑­Recommendation of District Remount Officer‑‑‑Validity‑‑‑Deputy Commissioner/ District Collector was not bound to accept such recommendation and could come to a contrary conclusion after duly considering such recommendations.

PLD 1961 Rev. 29; PLD 1959 Rev. 150; PLD 1959 Rev. 159; PLD 1959 Rev. 142; PLD 1972 Rev. 58; PLD 1976 SC 435; PLD 1989 Rev. 3 and 1990 SCMR 1139 ref.

Ch. Rehmat Ali for Petitioner.

Syed Muhammad Anis Sadiq and Ch. Hassan Ali Khan for Respondent.

2002 Y L R 2577

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

HAQ NAWAZ and others‑‑‑Petitioners

Versus

MUHAMMAD ASHRAF and others‑‑‑Respondents

R.O.R. No. 2358 and R.O A. No.202 of 1999, decided on 18th July, 2001.

(a) Colonization of Government Lands' (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 10, 30 & First Sched.‑‑‑Bara Reclamation Scheme, 1945‑‑‑Government share of land under Bara Reclamation Scheme‑‑‑Such land was leased out to petitioners under Temporary Cultivation Lease Scheme‑‑‑Petitioners after issuance of Notification, dated 19‑3‑1995 claimed grant of proprietary rights on account of being in continuous cultivation possession since before Kharif, 1993‑‑‑Validity‑‑‑Record showed that land falling to Government share had not been excluded from ambit of Bara Reclamation Scheme, 1945‑‑‑Government showed of Bara land as per Policy Letter, dated 13‑8‑1964 could be leased out on Year to Year basis on tender system till same was required for permanent disposal‑‑‑Government share of land under Bara Scheme was necessarily cultivated, when division of land between original allottee and Government took place‑‑‑Petitioners had thus not put in any extra effort in bringing same under plough‑‑­Petitioners' case being hit by Conditions Nos.2(a) and 2(b) of Notification, dated 19‑3‑1995, was dismissed‑‑‑Board of Revenue observed .that District Collector might consider case of petitioner for grant of alternate land, if they were otherwise eligible.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S. 30‑‑‑Government of Punjab, Colony Department Notification No.354‑91/1066­CLII, dated 17‑5‑1992‑‑‑Bara Reclamation Scheme, 1945‑‑‑Respondents after having acquired proprietary rights in respect of half portion of reclaimed land surrendered Government share (Wanda Sarkar)‑‑‑Such surrendered land later on was leased out to petitioners under Temporary 'Cultivation Lease Scheme‑‑‑Respondents as original allottee of such land applied for purchase of its proprietary rights on the basis of Notification, dated 17‑5‑1992, but District Collector rejected their application‑‑‑"Commissioner accepted respondents' appeal‑‑‑Validity‑‑‑Policy Letter, dated 17‑5‑1992 clearly envisaged that sale of Government share of Bara Scheme (Wanda Sarkar) by private treaty could be allowed to original allottee, if he continued to hold his portion of land after acquiring proprietary rights and Government shares (Wanda Sarkar) was still with him‑‑‑Respondents had sold through registered sale deed a portion of land for which proprietary rights had been granted to them‑‑‑Case of respondents both on account of having sold portion of their share in Bara land and as also having failed to continue to hold Government share with them, was not covered under Policy Instructions, dated 17‑5‑1992‑‑­Commissioner while passing impugned order had not considered respondents' case in the light of such instructions‑‑‑Board of Revenue set aside impugned order in circumstances.

Khan Khizer Abbas Khan for Petitioners (in R.O.R. No.2358 of 1999).

Syed Mukhtar Abbas for Appellant (in R.O.A. No.202 of 1999).

Muhammad Abdul Majeed for Respondent No. 1.

Malik Ghulam Siddique Awan for Respondents.

2002 Y L R 2581

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

ATA MUHAMMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Review Petition No. 194 of 2001, decided on 18th July, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.30‑‑‑Grant of proprietary rights under temporary cultivation lease scheme‑‑­Possession of one of the brothers of tenant was treated as possession of all the three brothers in terms of the observations of Supreme Court‑‑‑Application by one of them for grant of proprietary rights in time was sufficient for consideration of the case of all the three brothers for conferment of proprietary rights as other condition of being in cultivating possession was fulfilled by another brother of them‑‑‑Scheme for which petitioners applied was notified on 3‑9‑1979 which was more favourable to them as same was to cost them less‑‑‑Since all the three brothers had fulfilled the terms and conditions of Scheme, on liberal interpretation of the law laid down by Supreme Court, all of them were found eligible for grant of proprietary rights in equal shares under such Scheme.

Ali Muhammad for Petitioner.

2002 Y L R 2584

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD ALI ‑‑‑Petitioner

Versus

ADDITIONAL COMMISSIONER (REVENUE), FAISALABAD and another‑‑‑Respondents

R.O.R. No.803 of 2001, decided on 27th October, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

---‑Ss.32 & 34‑‑‑Illegal possession over State laid‑‑‑Collector ordered ejectment of petitioner being an encroacher—­Commissioner dismissed appeal filed by petitioner‑‑‑Contention of petitioner was that he had constructed house over the land in dispute and wets living there since long, thus, was eligible for grant of proprietary rights under Board of Revenue, Punjab Policy Letters of 1988 and 1993‑‑‑Validiy‑‑­Contention of petitioner was repelled‑‑­Perusal of record showed that petitioner had illegally encroached upon State land, which had been allotted to Education Department for establishment of a School‑‑‑Petitioner could not produce airy order of allotment in his favour issued by Competent Authority‑‑­Status of petitioner was that of an encroacher, who could not be allowed to retain land in question‑‑‑Collector had correctly ordered ejectment of petitioner and no injustice had been done to him‑‑‑Board of Revenue dismissed revision petition in circumstances.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.32 & 34‑‑‑Illegal encroachment upon State land‑‑‑Duty of Revenue Officials stated.

It is the duty of Patwari and Girdawar to keep a vigilant eye on encroachments over State property as also that of Revenue Officer Halqa to promptly initiate action against illegal encroachers on State property. Encroachment of State property has begun to assume alarming proportions with the passage of time as the temptations for encroachments have increased with the rising costs of property and because encroachers find that prompt action by State functionaries would not be taken. With the passage of time, the encroachers tend to add on to construction over property and develop association with it hindering removal of encroachments and resulting in protracted litigation perpetuating the encroachments further. It is the bound duty of Patwaris, Girdawars and also that of Halqa Revenue Officers to guard against encroachments of State property both urban and rural, and initiate action promptly against illegal encroachers to bring some semblance of discipline in the sphere. These Revenue officials are liable to be proceeded against under the rules for their failure to initiate prompt action against illegal encroachers. If an encroachment persists over a long period of time, complicity of all these Revenue functionaries cannot be excluded.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.30 & 32‑‑‑Long‑standing illegal possession over State land‑‑‑Conferment of proprietary rights on such occupant under Board of Revenue, Punjab Policy Letters of 1988 and 1993‑‑‑Factors to be considered by Revenue Officers stated.

Revenue Officers have to weigh the merits of the case of an encroacher over a piece of land taking its location into view against the requirement of that piece of land for a public purpose or further development needs of the locality. There has to be a trade off between utilization of a piece of land for a public purpose or a private purpose first before the case of an illegal occupant can be considered for conferment of proprietary rights under Board of Revenue, Punjab Policy Letters of 1988 and 1993. It is only when a decision is taken in this regard by weighing the pros and cons of the two purposes that the case of an encroacher can be examined and processed under above Policy Letters.

Ch. Muhammad Arif Sarwar Petitioner.

Abid Maqbool for Respondents.

2002 Y L R 2587

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

THE STATE‑‑‑Applicant

Versus

GHULAM MUHAMMAD and 6 others‑‑‑Respondents

R.O.R. No.2365 of 2000, decided on 21st February, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.24 & 30(2)‑‑‑General Colony Conditions, 1938, Cl. 9‑‑‑Complaint before Board of Revenue for cancellation of sale deed of allotted land on the ground that allottees had not installed industry during, past 15 years since allotment ‑‑‑Validity‑‑­Complainant had not contested installation of factory at site now‑‑‑General misconception was that no action could be taken by District Collector in cases, where a conveyance deed had been executed on the ground that same fell in purview of Board of Revenue‑‑‑Parameters of action under S.30(2) of the Act had been defined‑‑‑No case of fraud, conceal­ment of fact or ineligibility was made out against the allottees‑‑‑Case was based on violation of terms and conditions of grant of lease, for which‑District Collector was competent to proceed against allottees under Cl. 9 of General Colony Conditions, 1938‑‑‑Board of Revenue disposed of reference in such terms and withdrew notices issued to allottees under S.30(2) of the Act with observations that District Collector might proceed against allottees or their legal heirs in accordance with law.

Ahmad Nadeem Malik for the Vendees Nos. 1 to 4.

Ch. Shamim Ahmad for the Vendees Nos.5, 6 and 7.

2002 Y L R 2589

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

ZAKRIA KHAN‑‑‑Petitioner

Versus

COMMISSIONER, SARGODHA DIVISION, SARGODHA and another‑‑‑Respondents

R.O.R. No.2578 of 2000, decided on 19th September, 2001.

Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.24‑‑‑Resumption of land being located in prohibited zone‑‑‑Question, whether such land was located within of outside prescribed limits‑‑‑Determination‑‑‑Measurement of distance strictly in accordance with prescribed conditions would not be of any avail, in cases where alleged location of land in question from the outer periphery of Municipal limits, in relation to laid down distance was marginal‑‑‑Use of modern in computing distance of land located within prescribed limits would only help to save hastle and time of both the affected parties and Revenue Field Staff‑‑­Measurement of distance by meter of Jeep not being described was unsafe to rely on‑‑‑District Collector might rely on survey maps maintained in his office indicating location of land in question from the outer limits of Municipality with distances of all squares/field numbers intervening the land and Municipal limits to cross check the reports of Field Staff existence or otherwise of land within or outside the prescribed limits by distance of diagonal connection the closet points of Municipal limits and such land‑‑‑Such exercise having not been done, Board of Revenue remanded case to District Officer (Revenue) to review the same in accordance with such parameters and instructions already prescribed after hearing the parties and examining Revenue Record leaving it to him to resume land, if it was called for.

Syed Muhammad Anis Sadiq for Petitioner.

2002 Y L R 2591

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

AHMAD SAEE‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

R.O.R. No.1205 of 2000, decided on 6th July, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.10 & 30‑‑‑Temporary Cultivation Lease Scheme‑‑‑Sub‑tenant's right to a tenancy under such Scheme and grant of proprietary rights‑‑‑Scope‑‑‑Status of sub‑tenant as compared to original tenant and status of illegal occupant, exhaustively discussed.

A sub‑tenant can be considered for allotment of land, when it is proved that he was not engaged by tenants as from the date of cultivation that would be relevant to determine the eligibility of a tenant in case he was not there. Any possession of sub‑tenant from a date subsequent to the date of eligibility laid down in a scheme would not entitle him to consideration. Similarly, the possession of an allotted piece of land by a person claiming to be a sub‑tenant over and above the head of original tenant does not confer the status of sub‑tenant on him. An illegal occupant can in no case substitute a sub‑tenant. The general principle for allotment of land to a sub‑tenant where provided is that the entitlement of original tenant should first be fulfilled and if any land in original tenancy is left out after satisfying the claim of tenant in terms of the scheme so noticed, may be considered for allotment where provided. In any case, sub‑tenant's right to a tenancy cannot override that of original tenant as his status as such is subservient to him.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.24, 30, 32 & 34‑‑‑Resumption of State land from illegal occupant‑‑‑Petitioner's contention was that he being sub‑tenant under original tenant was entitled to grant of proprietary rights as he had developed land and was ready to deposit Government dues; and that he had been condemned unheard as he was not issued notice under S.24 of the Act‑‑‑Validity‑‑‑Nothing on record was available to show that petitioner had been a sub‑tenant under the original allottee‑‑­Perusal of Khasra Girdawari indicated the petitioner to be an illegal, occupant ‑‑‑Board of Revenue thus, did not consider necessary to examine; whether sub‑tenant was eligible for grant of proprietary .rights under the Scheme on which he had based his claim to the exclusion of original allottee‑‑‑Revision petition was dismissed in circumstances.

Rai Munir Ahmad Khan Petitioner.

2002 Y L R 2592

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

ALI HAIDER and 4 others‑‑‑Petitioners

Versus

GHULAM QASIM and 5 others‑‑‑Respondents

R.O.R. No.453 of 2001, decided on 28th November, 2001.

West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss. 163 & 164‑‑‑Dismissal of review petition by Commissioner on the ground that he was not competent to review order of his predecessor without prior permission of Board of Revenue‑‑‑Validity‑‑‑Rejection of review petition on short ground that Officer whose order sought to be reviewed had been transferred, was not in accordance with law‑‑‑While disposing of review petition, Commissioner should have applied his mind to the facts of case, and if he was of the opinion that same was a fit case to seek review, a reference should have been made to Board of Revenue to accord permission to review‑‑‑Board of Revenue accepted revision petition, set aside impugned order and remanded case to Executive District Officer (Revenue) for decision of review petition afresh on merits.

Mian Jamil Akhtar and Miss Saadia Khalid for Petitioners.

2002 Y L R 2594

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD AFZAL and 2 others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

R.O.R. No. 123 of 1996 and Review Petition No.71 of 2000 in R.O.R. No.254 of 1996, decided on 12th July, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 19 & 30‑‑‑Allotment of land under temporary lease scheme in prohibited area‑‑‑Grant of proprietary rights to lessee or extension of such lease or transfer of such lease in favour of legal heirs of lessee‑‑­Scope‑‑‑No right or title in continuance of such lease available to lessee as such leases are purely temporary and land involved is given for a limited period on year to year or on two years' basis‑‑‑No right is created in favour of legal heirs of lessee in respect of land under such Scheme‑‑‑No concept of grant of proprietary rights to lessees under such Scheme‑‑‑Legal heirs can claim rights on inheritance of the property, for which original lessee could have had a right to grant of proprietary rights‑‑‑Land under such Scheme after death of original lessee is liable to be resumed and its lease is not liable to be extended beyond the period for which same was granted‑‑‑Assistant Commissioner cannot transfer such lease in favour of legal, heirs of original lessee in exercise of his powers under S.19 of the Act and the instructions issued by Board of Revenue.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.10(2)‑‑‑Allotment of land under temporary lease scheme‑‑‑Death of original lessee during subsistence of period of lease‑‑­Possession of an individual coming to cultivate such land after death of original lessee‑‑‑Validity‑‑‑Possession of such an individual would not be legal even for the left over period of lease in absence of an, order of transfer of possession, under S.10(2) of the Act.

Awan Muhammad Hanif for Petitioners (in R.O.R. No.423 of 1996).

G.H. Khan for Petitioner (in Review Petition No.71 of 2000).

2002 Y L R 2596

[Board of Revenue Punjab]

Before Aitzaz‑ur‑Rashid Khan, Member (Colonies)

MUHAMMAD HANIF and 2 others‑‑‑Petitioners

Versus

COLONY ASSISTANT/COLLECTOR, SARGODHA and 2 others‑‑‑Respondents

R.O.R. No. 1824 of 2000, decided on 9th March, 2001.

(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.10, 19, 24 & 30‑‑‑Allotment of land under Temporary Cultivation Lease Scheme‑‑­Such land after death of original lessee remained in possession of his legal heirs (petitioners) up to expiry of lease period without formal transfer of lease in their names‑‑‑Collector rejected request of legal heirs for extension of lease and ordered inclusion of land in schedule of auction‑‑­Commissioner dismissed appeal filed by petitioners‑‑‑Validity‑‑‑Prayer made by legal heirs for conferment of proprietary rights under Notification of Board of Revenue dated 20‑4‑1983 did not provide for any relief to them‑‑‑Land continued to read as Banjar Qadeem in the Revenue Record‑‑‑Cultivation of land to a required extent was a condition precedent to consideration of request for grant of proprietary rights in the Schemes introduced in 1983 and 1995‑‑‑No case had been made out for consideration of request of legal heirs for conferment of proprietary rights or continuance of lease, as neither they nor original lessee had brought land under plough from Kharif 1984 to 1996, when possession thereof was taken from them formally on resumption in favour, of the State‑‑‑Mere continuance to hold land despite rejection of plea of legal, heirs for transfer of tenancy in their names did not provide any strength to their case‑‑‑Land had to be validly held by a tenant for consideration of his case for conferment of proprietary rights under a Scheme‑‑‑Non‑cultivation of land to required extent was not a rectifiable breach available to lessee for an indefinite period of time‑‑‑If legal heirs after publication of scheme envisaging conferment of proprietary rights had applied to Competent Authority seeking extension in time to bring land under plough to require extent or inability to make payment towards conferment of proprietary rights in the light of terms and conditions provided under the Scheme expressing genuine difficulties, their request could have been considered by Collector‑‑‑If Collector on consideration of relevant facts came to conclusion that their case merited consideration, then he was competent to allow extension for a reasonable time‑‑‑In absence of such request having been made by legal heirs or having been dealt with by Collector, plea of such breach being rectifiable could not remain available to them without any limitation in time‑‑‑No ground for interference with Commissioner's order was made out‑‑‑Board of Revenue dismissed revision petition in circumstances.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.10 & 19‑‑‑Conferment of proprietary rights under a Scheme‑‑‑Entitlement‑‑‑Land has to be validly held by a tenant for consideration of his case for conferment of proprietary rights under a scheme‑‑‑Mere continuance to hold land despite rejection of plea for transfer of tenancy in the names of legal heirs of lessee would not have any force.

Mian Mahmood Ali for Petitioners.

2002 Y L R 2615

[Board of Revenue Sindh]

Before Muhammad Qasim Lashari, Member (Judicial)

MUHAMMAD RAMZAN and another‑‑‑Appellants

Versus

MUHAMMAD SOOMAR and another‑‑‑Respondents

Appeal No. S.R.O.A‑203 of 1999, decided on 7th September, 2002.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑Ss.161 & 162‑‑‑Civil Procedure Code (V of 1908), O. XLI, R.3‑‑‑Appeal‑‑­Maintainability‑‑‑Neither copy of impugned order was attached with memo. of appeal nor ‑mentioned therein even its date ‑‑‑Validity‑‑­No question of limitation would arise in such case‑‑‑Such appeal was not maintainable‑‑­Additional Commissioner should have returned or dismissed appeal for want of copy of impugned order as stipulated in O.XLI, R. 3, C. P. C.

(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑S.15‑‑‑Standing Orders of Revenue Department (Sindh), Part I, Section B, S. O. No.10, paras. Nos. 2 & 3‑‑‑Tear Off Form ‑‑‑Connotation‑‑‑Such Form is issued in the form prescribed by Government of Sindh under an Administrative Letter No. 4437/F/50, dated 6‑1-1951‑‑‑Such form is neither a "transfer order" nor a "title deed", but an intimation from Barrage Mukhtiar to Taluka Mukhtiarkar about removal of restriction after grant is fully paid‑‑‑Mere issuance of such form would not confer any proprietary rights upon tenant, unless, he, as laid down in S.15 of the Act, fulfills other conditions set forth in statement of conditions of sale issued by District Officer Revenue (defunct Collector) and such other conditions mentioned in the Act.

(c) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss. 11 & 15‑‑‑Government Grants Act (XV of 1895), S.3‑‑‑Standing Orders of Revenue Department (Sindh), Part‑I, Section B, S. O. No.10, paras. Nos. 2 & 3‑‑‑West Pakistan Land Revenue Rules, 1968, R. 72 (as amended by Notification No. 1‑46‑78‑Rev-1(ii)1687, dated 29‑9‑1981, published in Sindh Government Gazette, Part IV‑A, dated 18‑2‑19821‑‑‑Grant of proprietary rights by sale‑‑‑Pre‑requisites‑‑‑Both Ss. 11 & 15 of Colonization of Government Lands (Punjab) Act, 1912 were applicable to the grant‑‑‑By reason of S.3 of Government Grants Act, 1895 as incorporated by reference in S.11 of Colonization of Government Lands (Punjab) Act, 1912, terms and conditions of grant itself preeminently would prevail, so as to give them an overriding effect‑‑‑Where all the terms and conditions of sale were not fulfilled and agreement/conveyance deed conferring full ownership rights on grantee was nor executed, mere full payment of price of land and issuance of Tear Off Form or entry in mutation register (Village Form VII‑B) would not confer upon grantee the proprietary rights.

PLD 1987 SC 123 fol.

(d) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.11 & 15‑‑‑Government Grants Act (XV of 1895), S.3‑‑‑Conferment of proprietary rights by sale‑‑‑Essentials‑‑‑Payment of full amount of purchase money with interest due thereon alone would not be sufficient to oust a purchaser from sphere of "tenant", unless the fulfilled all conditions set forth in statement of conditions of sale either issued by District Officer Revenue (defunct Collector) or contained in Colonization of Government Lands (Punjab) Act, 1912 or in any notification or circular concerning the subject‑matter issued under Colonization of Government Lands (Punjab) Act‑‑‑Section 3 of Government Grants Act, 1895, provided that all such provisions, restrictions, conditions and limitations ever contained in any such grant or transfer would be valid and take effect according to their tenor, notwithstanding any rule of law, statement or enactment of Legislature to the contrary.

PLD 1967 Lah. 52 rel.

(e) Colonization of Government Lands (Sindh) Act (V of 1912)‑‑‑

‑‑‑‑S.10(4)‑‑‑Status of tenant, attainment of‑‑­Grant in favour of appellants seemed to be duplicate, as such they never remained in possession of land ‑‑‑Validity‑‑‑Allottee or purchaser of State land would attain status of tenant, only after he had been in possession of land by an order or with the permission of District Officer Revenue (defunct Collector)‑‑­ Appellants would not be deemed tenants of such land and would have no right or title on land as envisaged in S.10(4) of the Act.

1992 MLD 37 and 1998 SCMR 468 rel.

(f) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.42‑‑‑Entries in mutation register and other Revenue Record‑‑‑Evidentiary value‑‑­Mutation entries are fiscal in nature meant only for correcting entries in Revenue Record to facilitate recovery of land revenue‑‑‑Such entries do not conclusively establish ownership in favour of person in whose name such entries are made, but provide merely a rebuttable material and are not in the nature of the title deed, but only having evidentiary value in support of title.

1993 SCMR 618; PLD 1993 SC (AJ&K) 24; 1992 SCMR 1832 and 1986 SCMR 598 rel.

(g) Colonization of Government Lands (Sindh) Act (V of 1912)‑‑‑

‑‑‑‑Ss.11, 15 & 30 [as omitted by Sindh Repealing and Amending Act (XVII of 1975)]‑‑‑Government Grants Act (XV of 1895), S.3‑‑‑Acquisition of proprietary right through sale of land‑‑‑Power of District Officer Revenue (defunct Collector) to cancel sale and resume land‑‑‑Scope‑‑‑Such purchaser would still remain subject to statement of conditions as provided in S.3 of Government Grants Act, 1895‑‑‑District Officer Revenue, in case of breach of any of conditions of grant itself, could cancel sale and resume land even after conferment of proprietary right‑‑‑Where terms and conditions of grant were not fulfilled, there would be no legal bar or any embargo to cancel or modify a grant.

PLD 1987 SC 123 rel.

(h) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.3‑‑‑Duty of Court‑‑‑Not to proceed with appeal or revision petition etc., if made beyond prescribed period of limitation‑‑­Section 3 of Limitation Act, 1908 was designed to discourage pursuit of claims, which had become stale by efflux of time.

(i) Limitation Act (IX of 1908)‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Limitation could not be impliedly condoned.

(j) West Pakistan Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959‑‑‑

‑‑‑‑R.3(2)(3)‑‑‑Reader/Registrar of Board of Revenue, duty of‑‑‑Appeal accompanied with list of documents‑‑‑Document mentioned in such list not attached with appeal‑‑­Endorsement of Reader/Registrar of Board of Revenue to the effect, "Checked. Complete in all respects, May be registered "‑‑‑Validity‑‑­Such endorsement was incorrect‑‑­Reader/Registrar by accepting appeal without such documents had acted in oblivion of R.3(2)(3) of West Pakistan Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959‑‑‑Reader/Registrar at the time of receiving appeals/revisions/review petitions must check the documents with due diligence, care and caution and not accept incomplete documents‑‑‑Board of Revenue warned the Reader/Registrar concerned to be careful in future.

(k) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑

‑‑‑‑Ss.11 & 15‑‑‑Government Grants Act (XV of 1895), S.3‑‑‑Standing Orders of Revenue Department (Sindh), Part I, Section B, S. O. No.10, paras. Nos. 2 & 3‑‑‑West Pakistan (Southern Zone) Survey and Rectangulation Rules, 1960, R.14‑‑‑West Pakistan Survey and Rectangulation of Lands Ordinance (XXXIV of 1959) [as applicable to Khairpur and Hyderabad Divisions vide Notification No.58/60‑157‑P‑III issued by West Pakistan Board of Revenue], Ss. 2, 3 & 7‑‑‑Sindh Survey Manual (Revised), S.9‑‑­West Pakistan Land Revenue Act (XVII of 1967), Ss. 34 & 184(2) (4)‑‑‑West Pakistan Land Revenue Rules, 1968, Rr. 12 & 72‑‑­Duplicate grant‑‑‑Deh in question was surveyed in year 1956‑57 and assigned Chaukri (square)/Field Survey numbers as envisaged in S.9 of Sindh Survey Manual (Revised)‑‑‑Rectangulation of Deh in question was completed in year 1963 assigning block survey numbers in place of Chaukri/Field survey numbers, resultantly map of block survey of Deh was issued and old map of Chaukri/Field survey was cancelled‑‑‑Land granted in year 1958‑59 to respondent was subsequently assigned block numbers and revised sanction was issued in year 1984‑‑­Respondent/grantee was issued Tear Off Form after grant was made fully paid and entry in his favour was made in Village Form-­VII prescribed under R.72 of Sindh Land Revenue Rules, 1968‑‑‑Allotment of land to appellants out of such old cancelled map of Chaukri/Field survey number as duplicate grant‑‑‑Validity‑‑‑Perusal of cancelled maps of previous Chaukri/Field survey number and existing map of block survey numbers of Deh in question showed that Chaukri/Field survey numbers, allotted to appellants were overlapping block survey numbers earlier allotted to respondent‑‑‑Such action on the part of granting authority was illegal for the reason that Chaukri/Field survey map being cancelled was not in existence at relevant time‑‑‑No revised sanction had been issued to convert land granted to appellants from old Chaukri/Field survey numbers to new block survey numbers‑‑‑Issuance of Tear Off Forms in cancelled Chaukri/Field survey numbers was also illegal and such Tear Off Forms were without any legal sanctity‑‑‑Board of Revenue accepted appeal and directed that land granted to respondent in year 1958 shall continue to remain intact and shall not be disturbed as he had paid full price of land; fulfilled conditions of sale; got revised sanction issued converting land to block numbers; got Tear Off Form issued in his name; and got land mutated in V.F.VII‑B in his name and thereby ceased to be tenant of Government within the meaning of S.15 of the Act, 1912 and his grant would be deemed to be transfer of land within meaning of S.11 of the Act, 1912 read with Government Grants Act, 1895‑‑‑Board of Revenue directed District Officer (Revenue) to issue revised sanction in respect of land granted to appellants in year 1968 converting‑same from Chaukri/Field survey numbers into block numbers; then determine as to which Chaukri/Field survey numbers out of grant of appellants were overlapping the block survey numbers earlier granted to respondent and then exclude that much area out of grant of appellants, which was overlapping the block numbers earlier/first granted to respondent and beyond any shadow of doubt was a duplicate grant, and shall then issue fresh/revised Tear Off Forms accordingly for further necessary action as per law‑‑‑No order as to costs under 5..14 of West Pakistan Land Revenue Act, 1967 read with R.12 of West Pakistan Land Revenue Rules, 1968.

Bhimraj R. Mulani for Appellants.

Ghulam Hyder G. Khoja for Respondents.

Dates of hearing: 22nd, July and 7th September, 2002.

2002 Y L R 2706

[Custodian Evacuee Property Lahore]

Before Ch. Ijaz Ahmed, Custodian, Evacuee Property

ROSHAN DIN‑‑‑Petitioner

Versus

ALLAH DIYA‑‑‑Respondent

Reference No. 3 of 1984, decided on 16th November, 2001.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑Art. 49‑‑‑Entry in public record‑‑‑Births and Deaths Register, entries of‑‑‑Value‑‑‑Such register is a public document and the entries in the register are prima facie evidence of what has been stated in them‑‑‑Certified copy of Death Certificate is admissible in evidence by virtue of Art. 49 of Qanun‑e‑Shahadat, 1984‑‑‑Presumption of genuineness is attached to the entry of death of a person recorded in Death Register.

Bhag Bhari v. Akbar Khan 1987 CLC 1543; Rangappa Niyakn's case AIR 1925 Mad. 1005; Allianz Und Stuttgarter Life Insurance Bank Ltd.'s case AIR 1938 Cal. 541; Bharat Basi's case AIR 1941 All. 385; Manicka Mudaliar's case AIR 1942 Mad. 129 and Harpal Singh's case AIR 1981 SC 361 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XIII, R.4‑‑‑Document admitted in evidence without any objection‑‑‑Raising objection to such document at appellate stage‑‑‑Validity‑‑‑Objection cannot be raised to such document at appellate stage.

Khan Bahadar's case 1992 SCMR 1362 ref.

(c) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑

‑‑‑‑Ss.18 & 41‑‑‑Transfer of Property Act (IV of 1882), S. 41‑‑‑Evacuee Property Declaration‑‑‑Plea of bona fide purchaser from ostensible owner‑‑‑Disputed property was riot declared under the law as evacuee property till the target date i.e. 1‑1‑1957, by Competent Authority‑‑‑Respondent had purchased the property from ostensible owner having no right, title or interest in the property‑‑‑Petitioner assailed allotment of the suit property as evacuee property and the matter was decided by the Authorities in favour of the petitioner in exercise of jurisdiction under S.41 of the Pakistan (Administration of Evacuee Property) Act, 1957‑‑‑Respondentlvendees claimed protection of S.41 of the Transfer of Property Act, 1882‑‑‑Validity‑‑‑Where the property was not declared as evacuee property till the target date, the plea of bona fide purchaser was not available to the respondent‑‑‑Vendor in the present case had no right, title or interest in the property and no protection could be given to him under S.41 of the Transfer of Property Act, 1882‑‑‑Order passed by the Authorities in favour of the petitioner was maintained by High Court.

Quetta Hindu Panchayat v. Dilshad Akhtar and others 1993 SCMR 21; Muhammad Yamin's case 1976 SCMR 489; Bashir Ahmad's case 1983 SCMR 1199; Manzoor Ahmad's case 1984 SCMR 1027 and Ijaz Ahmad Khan's case 1987 SCMR 192 ref.

Shahzad Shaukat for Petitioner.

M. Anwar Sipra for Respondents Nos. 3 and 4.

Ch. Nisar Ahmad Kalu for Respondent No.2.

2002 Y L R 3172

[Customs, Central Excise and Sales Tax Appellate Tribunal]

Before S.M. Kazimi, Member (Technical) and Mian Abdul Qayyum, Member (Judicial)

Messrs DUTY FREE SHOPS (PVT) LTD., SAMBRIAL DRY PORT, SIALKOT‑‑‑Appellant

Versus

COLLECTOR OF CUSTOMS AND CENTRAL EXCISE, GUJRANWALA and another‑‑‑Respondents

Appeal No.883/LB of 2001, decided on 28th November, 2001.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.32(2)(3), 97, 104, 156(1), cls. (13), (14), (59) & (62)‑‑‑Passenger (Non‑Tourist) Baggage Rules, 1996, Rr. 2, 3 & 8 (1)‑‑­Transfer of Residence (Baggage Import) Rules, 1983, R.3(c)‑‑‑Customs General Order No. 3 of 1982 dated 4‑4‑1982‑‑‑Sale of goods to passengers from the warehouse of the appellant‑‑‑Charge of customs duty alongwith penal action on the ground that appellant evaded such duty in connivance with the Custom Staff‑‑‑Appellant contended that goods were sold to the passengers keeping in view the legal requirements and that the show‑cause notice if any could only be issued to the passengers who had purchased the goods and who were liable to pay the custom duty and that S.32 of the Customs Act, 1969 specifically stated that in case of non‑payment or short payment of custom duty, the person liable to pay any amount on that account had ,o be served with a notice and since there was no untrue document or statement by the appellant and also because there was no collusion with any person, section (2) of S.32 of the Customs Act, 1969 was not attracted‑‑‑Validity‑‑‑Provision of S.32 of the Customs Act, 1969 showed that it was primarily the responsibility of the Customs Staff to assess the customs duty and charge the same and not that of the appellant‑‑­Omission of the Customs Officers could not be a ground for holding the appellant responsible for the lapse of the Customs Staff‑‑­Neither any collusion between the Customs Staff and the appellant had been established in the order nor evidence of charging any Customs Officer for punishment under cl. (14) or (81) or (82) of S.156 (1) of the Customs Act, 1969, had been indicated in the order to show such an allegation of collusion‑‑‑Appellant admittedly having not purchased any goods could not be expected to make payment of customs duty and charges leviable on goods sold to the passengers‑‑‑Appellants were also not the agents of the passengers under Ss.207 & 209 of the Customs Act, 1969‑‑­Responsibility to make payment of leviable duty and taxes rested with the passengers making purchases of goods from the appellant‑-‑Show‑cause notice issued to the appellant requiring it to pay the evaded amount of customs duty was without jurisdiction and order arising out of such show‑cause notice was a nullity in the eye of law and the same was set aside by the Tribunal and appeal was accepted.

Kh. Adnan Ahmad for Appellant.

Nemo by Respondents.

2002 Y L R 3498

[Customs, Central Excise and Sales Tax Appellate Tribunal]

Before Justice (Retd.) Abdul Majeed Tiwana, Chairman/Member (Judicial) and Sarfraz Ahmed Khan, Member (Technical)

7‑UP BOTTLING COMPANY (PVT.) LTD., GULBERG, LAHORE‑‑‑Appellant

Versus

ADDITIONAL COLLECTOR, (ADJUDICATION), CENTRAL EXCISE, LAHORE and another‑‑‑Respondents

Appeal No.617/LB/19. decided on 11th February. 2002.

Central Excises Act (I of 1944)‑‑‑

‑‑‑‑Ss.3(1)(4)& 3‑D‑‑‑Production Capacity (Aerated Water) Rules, 1990, R. 7, proviso‑‑­S.R.O. 507)(I)/90 dated 7‑6‑1990‑‑‑S.R.O. 701 (I)/91 dated 16‑6‑1991‑‑‑Duties specified in the First Sched. to be levied‑‑‑Collection of excise duty etc.‑‑‑Payment of excise duty on the basis of production capacity under proviso to R‑7 of the Production Capacity (Aerated Water), Rules, 1990‑‑‑Such proviso was declared ultra vires by the High Court and the same was upheld by the Supreme Court of Pakistan‑‑‑Determination of refund of Central Excise Duty paid in excess in terms of such proviso which was adjusted against current account of the assessee appellant—­Subsequently such duty was demanded on the ground that such refund was not permissible after the coming into operation of S.3‑D of the Central Excises Act. 1944 since the incidence of duty had been passed on to the consumers‑‑‑Validity‑‑‑Provision of S.3‑D of the Central Excises Act, 1944 provided that passing of incidence of duty to the consumers was with reference to that duty alone which had been collected due to misapprehension of any provision of the Central Excises Act, 1944 or due to any other reason but that duty was otherwise not actually payable or was paid in excess to what was actually payable‑‑‑When the appellant collected and paid central excise duty in the light of the proviso to R.7 of the excise duty on Production Capacity (Aerated Water) Rules, 1990, that was done in the light of the legal position operative at that point of time‑‑‑Neither there was any misapprehension of any provision of the Central Excises Act, 1944 nor any other reason existed for the action and it would be incorrect to presume that ditty was actually not payable at that point of time‑‑‑Appellant collected and paid the duty in compliance with the proviso to R.7 of the Production Capacity (Aerated Water) Rules. 1990‑-‑Levy and collection of central excise duty: either on actual production/clearance: basis (in terms of subsection. (1) of S.3) or on the basis of production capacity of the plant machinery installed by the producer manufacturer (in term of subsection (4) of S.3) which refers to the alternate modes of collection and payment of central excise duty without changing its nature as a levy‑‑‑Central excise duty being an indirect tax always passed on to the final consumer and it was a futile attempt to enter into any controversy, argumentation or disputation on this account‑‑‑Collection and payment of central excise duty was the requirement of the said legal provision at that point of time before declaring same ultra vires by the High Court‑‑‑Criteria of the incidence of duty having been passed on to the consumers would ,apply only to that duty which was collected due to misapprehension of any provision of the Central Excises Act, 1944 or otherwise (due to any other reason) but that dun, was not payable or it was paid in excess than actually payable‑‑‑Such was abundantly clear from the explicit provisions of S.3‑D(1) of the Central Excises Act. 1944 that the central excise duty in question collected by the appellants and paid to the Government exchequer did not fall in the category of the central excise duty having been collected due to misapprehension of a provision of the Central Excises Act. 1944 otherwise and the same was actually n due/not payable‑‑‑Criteria of the incidence the duty having been passed on to the consumers did not apply in the present cm and the appellants case fell out of scope S.30‑D of the Central Excises Act. 1944---Finding of the Adjudicating Officer and it, of Collector (Appeals) ordering the appellant to pay the amount already received by the as refund/adjustment by pressing into service the provisions of S. 3‑D of the Central Excises Act. 1944 w.e.f 1993 onwards were incorrect as a result of misreading/misinterpretation the provisions of S.3‑D of the Central Excises Act. 1944‑‑‑Orders were set aside and appeal was accepted by the Tribunal.

1996 SCMR 700 ref.

Ali Sibtain Fazli and Nasar Ahmad for Appellant.

Amer Ahmed, D.R. and Mian Qamar-ud‑Din Ahmad. Advocate for Respondents.

2002 Y L R 656

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, J

KAMRAN SHAHZAD and another-----Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 159-I of 2001, decided on 16th January, 2002.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)------

----S.10(3)----Appreciation of evidence Case mainly rested on statement complainant/victim girl who was a star witness in case and her mother who claims to be eye-witness of occurrence, but their statements did not inspire confident required for maintaining conviction in offence of such heinous nature---One of glaring contradictions as reflected in statement of mother of alleged victim wad about Shalwar of victim girl---Alleged victim had made no mention of the same in F.I.R. which was recorded wits considerable delay nor in her statement before Trial Court, but her mother mentioned that on seeing witnesses, accused lifted up their Shalwars and also Shalwar of victim girl and fled away---Such factum was so pertinent that victim could herself have never forgotten to mention---Shalwar victim was never recovered---Mother of victim girl as prosecution witness had been cross-examined and confronted with statements wherein more than half a do discrepancies had been highlighted ­view of those obvious contradictions discrepancies it would not be safe to maintain conviction and sentence of accused on such a serious charge---State Counsel was also unable to defend judgment of Trial Court---Lady doctor who examined victim found no marks of violence present anywhere on the body of victim--­Lady Doctor also found that hymen of victim was torn and healed----Lady Doctor in cross-examination had stated that examinee/victim was a habitual lady whereas at the time of medical examination victim was not married---Prosecution having failed to prove case against accused, conviction and sentences recorded against accused by Trial Court were set aside and they were acquitted of charge.

Dr. Muhammad Aslam Khaki for Appellants.

Nadeem Mukhtar Chaudhry for the State.

Dates of hearing: 15th and 16th January, 2002.

2002 Y L R 2060

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J., Dr. Fida Muhammad Khan and Khan Riaz‑ud‑Din Ahmad, JJ

MUHAMMAD ZUBAIR and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.7/L linked with No.25/L and Criminal Suo Motu No. 1/L of 2001 decided on 6th June, 2002.

(a) Offence of Zina (Enforcement Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10(2)‑‑‑Penal Code (XLV of 1860) Ss.302/34 & 338‑A‑‑‑Appreciation evidence‑‑‑Principle‑‑‑Unexplained delay disclosure of the incident by the witness ca: grave and serious doubt over his testimony.

Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Khan v. Moula, Bakhsh and others 1998 SCMR 570 ref.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10(2)‑‑‑Penal Code (XLV of 1860) Ss.302/34 & 338‑A‑‑‑Appreciation evidence‑‑‑Statement of the star witness of the crime under S.161, Cr. P. C. was record. after 4/5 months of the incident of the commission of Zina while such statements of other material prosecution witnesses were recorded after an unexplained delay of 20 to 40 days of the respective incidents allegedly seen by them‑‑‑Said witnesses had been procured after the death of the deceased lady to connect the accused with the various incidents of the crime committed on different times at different places—Medical evidence was in conflict with the time of occurrence and the cause of death of the deceased‑‑‑Prosecution evidence was inconsistent, vague and bristling with such infirmities which could not be reconciled on any other hypothesis except the innocence of accused‑‑‑Accused were acquitted by extending them benefit of doubt.

Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Khan v. Moula Bakhsh and others 1998 SCMR 570 ref.

Taj Muhammad Khan, Javed Bashir, and Muhammad Sharif Janjua for Appellants.

Nadeem Mukhtar Chaudhary for the State.

Date of hearing: 18th March, 2002.

2002 Y L R 2813

[Federal Shariat Court]

Before Fazal Elahi Khan, C. J., Dr. Fida Muhammad Khan and Khan Riaz‑ud‑Din Ahmed, JJ

MUSLIM KHAN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.4/P, Jail Criminal Appeal No.12/P and Criminal Revision No. 1/P of 2000, decided on 24th May, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(6)/34‑‑‑Appreciation of evidence‑‑­Complainant's statement being straightforward and honest inspired confidence which was duly corroborated by the retracted judicial confession of the accused‑‑‑Confessional statements of both the accused although retracted held the field being voluntary and true and could be made basis for their conviction‑‑‑Incriminating recoveries effected from the accused had provided important links in the chain of circumstances to connect them with the crime‑‑­Crime empty recovered from the place of occurrence was proved to have been fired from the licensed pistol recovered from the accused‑‑‑Medical evidence had further corroborated the confessional statement made by accused‑‑‑Despite the absence of ocular testimony the circumstantial evidence had proved the prosecution case through the links so well‑knit with each other that no room for any doubt against the culpability of the accused was left to exist on record to give them its benefit‑‑‑Complainant was not shown to have any enmity with the accused who, as per record, was the benefactor of one accused by keeping him as a dependable driver coming from his area, while other accused was not even earlier known to him‑‑‑Bald assertion of the defence was worthless‑‑‑Conviction of accused was upheld in circumstances:

Mst. Naz Bibi v. Mst. Roz Khatoon PLD 1987 Quetta 1; Muhammad Naseer v. The State PLD 1988 FSC 58; Wazir Khan v. The State 1989 SCMR 446; State v. Mihun alias Gul Hassan PLD 1964 SC 813; Jaffar. Ali v. The State 1998 SCMR 2669 and Al‑Majallah, Ss. 1740, 1741 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302(b)/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)‑‑‑Sentence, enhancement of‑‑­Accused in order to fulfil his design of committing Harraba in the house of the complainant armed himself with a pistol, took into confidence his co‑accused, reached the spot and then in furtherance of their common intention he fired twice on the head of the servant of the complainant who died at the spot‑‑‑Sentence of imprisonment for life awarded to accused was enhanced to death in circumstances.

Waris Khan v The State 2001 SCMR 387 ref.

(c) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence ‑‑‑Principles‑‑­Court should have a dynamic and not a static approach while appraising evidence and should record the conviction on having been satisfied about the commission of the offence by the accused despite some technical lapses on the part of the Investigating Agency or the prosecution, provided the same had not caused any, prejudice to the accused‑‑‑People were losing faith in the criminal judicial system because the criminals in most of the criminal cases get away without being punished on technicalities.

Jaffar Ali v. The State 1998 SCMR 2669 ref.

(d) Criminal trial‑‑‑

‑‑‑‑Intention‑‑‑Intention can very well be gathered from the visible acts committed by the accused and the surrounding circumstances in which the alleged offence was committed.

Mazammal Khan, Nazir Ahmad Bhutta and Kh. Muhammad Khan for Appellants.

Muhammad Sharif Janjua for the State.

Date of hearing: 24th May, 2001.

2002 Y L R 2843

[Federal Shariat Court]

Before Fazal Elahi Khan, C.J., Dr. Fida Muhammad Khan and Khan Riaz‑ud‑Din Ahmed, JJ

UMAR ZAMEEN and 3 others‑ Appellants

Versus

FAZAL REHMAN and another‑‑‑Respondents

Criminal Appeal No.54/P and Criminal Reference No.1/P of 2001, decided on 3rd July, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.396‑‑‑Appreciation of evidence‑‑­Confession ‑‑‑Inculpatory confession of an accused can lawfully and validly be used not only against its maker, but also against other accused persons.

Javed Masih and others v The State 1992 PCr.LJ 1304 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.396‑‑‑Appreciation of evidence‑‑­Confession ‑‑‑Where the Court believes a confession, judicial or extra judicial, retracted or un-retracted, to be voluntary and true, it can convict the accused on its solo basis.

Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.396‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)‑‑‑Appreciation of evidence‑­Retracted confessions of accused being inculpatory and voluntary were sufficient to warrant their conviction without an, corroboration, but still the same had receive sufficient corroboration from medical evidence‑‑‑Consistent and cogent prosecution evidence evaluated to be worth reliance did not allow the bald statements of the accuse to carry any weight‑‑‑Accused had conjointly committed the callous and gruesome murder of an innocent person only to deprived him of the cash collected by him and they deserve no leniency‑‑‑Conviction and sentence of accused were upheld in circumstances.

Bahadur Khan v. The State PLD 1995 SC 336; Atlas Khan v. The State 1995 PCr.LJ 1996; Javed Masih and others v. The State 1992 PCr.LJ 1304; Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944; Wazir Khan v. The State 1989 SCMR 446; The State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Jaffar Ali v. The State, 1998 SCMR 2669 ref.

(d) Penal Code (XL V of 1860)‑‑‑

‑‑‑‑S.396‑‑‑Appreciation of evidence----Circumstantial evidence‑‑‑Death sentence---Circumstantial evidence connecting the accused with the offence punishable with death beyond any reasonable doubt can form the basis for capital punishment.

Jaffar Ali v. The State 1998 SCMR 2669 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.396‑‑‑Appreciation of evidence‑‑­Evidence consisting of the retracted confessions made by co‑accused involving the accused in the case was not materially corroborated by any reliable evidence and, therefore, it was not sufficient to prove the case against them‑‑‑Participation of accused in the commission of the crime being doubtful, they were acquitted on benefit of doubt accordingly.

Gul Samber Khan and others v. The State 1997 PCr. LJ 1261 and Muhammad Khalil alias Katch v. The State 1997 PCr.LJ 1639 ref.

(f) Criminal trial‑‑‑

‑‑‑Confession‑‑‑Confession of co‑accused‑‑­Evidentiary value‑‑‑Confession made by co­accused cannot be used as a substantive piece of evidence to make it a basis of conviction of other accused, but it can be used as a corroborative piece of evidence if other substantive evidence is available on record.

Gul Samber Khan and others v. The State 1997 PCr.LJ 1261 and Muhammad Khalil alias Katch v. The State 1997 PCr.LJ 1639 ref.

Attaullah Khan and Fazal Elahi Khan for Appellants.

Kh. Muhammad Khan for the Complainant.

Malik Ahmad Jan, Deputy Advocate-­General N.‑W.F.P. for the State.

Date of hearing: 28th March, 2002.

2002 Y L R 2949

[Federal Shariat Court]

Before Sardar Muhammad Dogar and Khan Riaz‑ud‑Din Ahmed, JJ

SHAHID MAQSOOD SIDDIQUI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 12‑L of 2000, decided on 5th June, 2000.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑

‑‑‑‑S.10(3)‑‑‑Appreciation of evidence‑‑­Father had been allegedly committing "Zina­bil‑Jabr" with his daughter‑‑‑Narration of the occurrence rendered by the victim girl being consistent and cogent inspired confidence which was corroborated by her real sister‑‑­Both the said girls had no ill‑will or enmity against their father to implicate him falsely in the case and their testimony had received necessary corroboration from the observations made by the Lady Doctor in her statement‑‑­Penetration alone was sufficient for proving commission of Zina which had been categorically established by the victim through the disclosures made by her‑‑­Negative report about the vaginal swabs of the victim given by the Chemical Examiner could not negate the ocular account of the victim and the observations of the Lady Doctor‑‑‑Accused had neither sworn by Almighty Allah nor made a statement on oath to get him exonerated of such a heinous charge which an innocent person when charged with a false accusation in normal course of events would do and such fact had reflected adversely on his conduct‑‑‑Defence version had no substance to cast any doubt on the prosecution version which stood proved through cogent, reliable and trustworthy evidence‑‑‑Conviction and sentence of accused were upheld in circumstances.

Ghulam Muhammad v. The State PLD 1984 SC 72 and Muhammad Akram v. The State PLD 1992 SC 376 distinguished.

Muhammad Akram v. The State PLD 1989 SC 742 and Farrukh Ikram v. The State PLD 1987 SC 5 ref.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.10‑‑‑Appreciation of evidence‑‑‑Solitary statement of the prosecutrix/victim, if intrinsically rings true, can safely be relied upon and made a basis for conviction of the accused.

Muhammad Akram v. The State PLD 1989 SC 742 and Farrukh Ikram v. The State PLD 1987 SC 5 ref.

Syed Muhammad Kalim Ahmad Khurshid for Appellant.

Javed Iqbal Shiekh for the Complainant.

Abdul Rashid Monun for the State.

Date of hearing: 5th June, 2000.

2002 Y L R 2960

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, Ch. Ejaz Yousaf and Khan Riaz‑ud‑Din Ahmed, JJ

MUHAMMAD HANIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No. 2111 and Criminal Reference No. 13/I of 1999, decided on 15th May, 2000.

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

‑‑‑‑Ss.9 & 14‑‑‑Penal Code (XLV of 1860), S.382‑‑‑Appreciation of evidence‑‑‑Testimony furnished by the two eye‑witnesses did not disclose the factum of actually taking away the property from the "Hirz " of the complainant and it had only disclosed about the catching hold of the accused when he was driving away the stolen motorcycle and subsequent thereto the recovery of the pistol from him‑‑‑Essential ingredient of actual removal of the property which was sine qua non for making the accused liable for Hudood punishment, thus, was lacking‑‑‑Besides, the other mandatory requirement of subjecting the said two witnesses to Tazkia‑al‑Shahood was not complied with‑‑‑Evidence brought on record, therefore, was not sufficient to convict the accused for the offence of commission of theft liable to Hadd‑‑‑Consistent and corroborated prosecution evidence was available on record to establish that the accused had committed the theft of the motorcycle after arming himself with a pistol which was recovered from his possession at the time of his arrest‑‑‑Conviction of accused under S. 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was consequently set aside and instead he was convicted under S. 14 of the said Ordinance read with S. 382, P. P. C. and sentenced to undergo two years' rigorous imprisonment with a fine of Rs.5, 000 as he was a previous non‑convict and the only bread earner of the family.

Muhammad Aslam Uns for Appellant.

Qari Abdul Rasheed for the State.

Date of hearing: 15th May, 2000.

2002 Y L R 3064

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J. and Dr. Fida Muhammad Khan, J

FARMAN ALI and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 148‑I of 2000 linked with Jail Criminal Appeal No.27/I of 2001, heard on 19th February, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss.5 & 10(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/318/406/109‑‑‑Allegation of Zina which led to pregnancy of the female and birth of a child‑‑‑Murder of the newly‑born child‑‑‑Appreciation of evidence‑‑‑No legal evidence was on record to prove the offence of Zina against the male accused‑‑‑Male accused were convicted by Trial Court relying on application of female accused filed before police in which she had alleged that male accused who were residing in her neighbourhood had committed sexual intercourse with her‑‑‑Trial Court also relied upon medical evidence to the effect that male accused were capable of committing sexual intercourse‑‑‑Such two facts on which Trial Court had relied, by themselves were of no help to advance prosecution case in proof of offence which required strong independent evidence free of any reasonable doubt‑‑­Female herself being an accused in the case, her statement could not have been relied upon and read as evidence against her male co-­accused‑‑‑In absence of any other evidence to prove that male accused had committed offence of Zina, said two facts were mere surmises and conjectures and could be used only as corroborative piece of evidence‑‑­Female accused though in her application made before police had categorically stated that she was forcibly subjected to sexual intercourse by accused who were her neighbourers but her silence till such time that her pregnancy became known to family, had been wrongly considered as circumstantial evidence corroborating contents of her application holding her a consenting party of offence of Zina‑‑‑No allegation was on record against female accused to the effect that she was of easy virtue or that she had developed illicit relations with male accused‑‑‑Statement of female accused under S. 342, Cr. P. C. that she had been subjected to sexual intercourse by force, having not been given due consideration in appraisal of evidence, her conviction under S.10(2), of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was, not sustainable‑‑‑No direct evidence was available against female accused with regard to charge of the murder of newly‑born child under S.302(b), P.P.C.‑‑‑Prosecution case entirely rested on assumption and inference drawn from fact that infant was in her custody before his death‑‑‑Reliance was also placed on medical evidence that death of the infant was by strangulation, but such inference could not be drawn and conviction could not be based thereon‑‑‑Infant might have been strangulated, but possibility could not be ruled out that some other member of the family might have committed offence in absence of female accused‑‑‑Conviction, on such circumstantial evidence alone, thus could not be sustained‑‑‑Conviction and sentences recorded against all the accused persons by Trial Court, were set aside and they were acquitted of charges against them.

Malik Rab Nawaz Noon and Muhammad Yousaf Zia for Appellants.

Muhammad Sharif Janjua for the

Date of hearing: 19th February, 2001.

2002 Y L R 3070(2)

[Federal Shariat Court]

Before Ali Muhammad Baloch and Khan Riaz‑ud‑Din Ahmed, JJ

ANTHENEO DAVID‑‑‑Appellant

Versus

THE STATE ‑‑‑Respondent

Jail Criminal Appeal No.40‑Q of 2000, decided on 4th January, 2001.

Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑

‑‑‑‑Art.3‑‑‑Appreciation of evidence‑‑­Recovery of 131 capsules containing one kilo and 80 grams of heroin from the abdomen of accused had been proved through independent and uninterested witnesses who though being State employees had no ill‑will or previous enmity with the accused who was not even earlier known to them‑‑Material recovered from the accused was testified to be heroin by the Chemical Examiner‑‑‑Prosecution evidence being consistent and truthful inspired confidence‑‑‑Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979, being distinct and independent of each other carried separate sentences and conviction of accused jointly under Arts.3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 by the Trial Court was erroneous and against the spirit of law‑‑‑Since the heroin powder was attempted to be transported out of the country by the accused by hiding the same inside his body, his conviction under Art. 3 of the Prohibition Order, 1979, was upheld‑‑Sentence of imprisonment for life with fine of Rs. 50,000 awarded to accused being commensurate with the gravity of the offence was also maintained‑‑­Appeal was dismissed accordingly.

Datto Shubani Bashar v. The State Criminal Appeal No.37‑Q of 2000 and Jambay Amenual Beeto v. The State Criminal Appeal No. 38-Q of 2000 ref.

Ch. Ghulam Ahmad for Appellant.

Qari Abdul Rashid for the State.

Dated of hearing: 4th January, 2001.

2002 Y L R 3077

[Federal Shariat Court]

Before Ch. Ejaz Yousaf and Khan Riaz‑ud‑Din Ahmed, JJ

MUHAMMAD ARIF‑‑‑Appellant

Versus

THE STATE ‑‑‑Respondent

Criminal Appeal No.29‑I of 2001, decided on 25th September, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑Ss.10(3) & 10(2)‑‑‑Appreciation of evidence‑‑‑Coherent and consistent version given by the prosecutrix before the Trial Court was truthful, confidence ­inspiring and worth reliance which was even corroborated by the medical evidence‑‑Convictions of accused were consequently maintained‑‑‑Parties had compromised the matter and although the case was non‑compoundable and the compromise deed placed on record by the prosecutrix/victim was legally not a relevant document, yet the‑ fact remained that the accused was repentant and through the efforts of the elders of the family had successfully prevailed upon the complainant party and had been forgiven by the victim in the name of Almighty Allah, which was a mitigating circumstance in his favour­‑‑Sentence of accused on each count was substantially reduced accordingly.

Mst. Sughran and others v. The State Criminal Appeals Nos. 189/I, 193/I and 206/I of 1999 ref.

Sardar Asmat Ullah Khan for Appellant.

Muhammad Sharif Janjua for the State.

Dated of hearing: 25th September, 2002.

2002 Y L R 3140

[Federal Shariat Court]

Before Khan Riaz‑ud‑Din Ahmed, J

BEHRAM and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.131‑Q of 2000, decided on 12th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 392 & 382‑‑‑Appreciation of evidence‑‑‑Accused were nominated in the F.I.R. with a role of having robbed the complainant of a sum of Rs.1,000 on knife point‑‑‑Complainant and other prosecution witnesses were uninterested and independent witnesses having no ill‑will or previous enmity against the accused and they had corroborated each other‑‑‑Although one accused was allegedly armed with a knife, yet no injury was proved to have been caused by him to the complainant either prior to the commission of theft or while carrying away the property obtained by theft‑‑‑Conviction of accused under S. 392, P. P. C. was altered to S.382, P. P. C. in circumstances and their sentence was reduced to the imprisonment already undergone by them which was more than one year.

Rahim Bakhsh and others v. The State PLD 1998 Kar. 118 ref.

Miss Ghazala Sheerin for Appellant.

Qari Abdul Rashid for the State.

Dates of hearing: 10th, 11th and 12th January, 2000.

2002 Y L R 3430

[Federal Shariat Court]

Before Khan Riaz‑ud‑Din Ahmed, J

BASHIR AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 11/1 of 2000, decided on 13th March, 2001.

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

‑‑‑‑Ss. 14 & 24‑‑‑Constitution of Pakistan (1973). Art. 203‑DD‑‑‑Revision petition‑‑­Jurisdiction of Courts, below challenged‑‑­Charge having been framed under S. 9 read with S.14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was exclusively triable by Sessions Court in view of the provisions of S.24 of the said Ordinance and the trial conducted by the Magistrate in the case was coram non judice‑‑‑Similarly the accused having been convicted and sentenced to imprisonment exceeding two years, Federal Shariat Court alone was competent to entertain and decide the appeal according to the aforesaid provision of law and not the Sessions Court‑‑­Since neither the Trial Court had the jurisdiction to try the said offence, nor the Sessions Court was competent to entertain and decide the appeal. judgments of both the Courts below were set aside and the case was remanded to the Sessions Judge for fresh trial strictly in accordance with law‑‑‑Revision petition was accepted accordingly.

State v. Sher Abbas Khan 1990 PCr.LJ 1702 ref.

Syed Zulfiqar Abbas Naqvi for Petitioner.

Qari Abdul Rashid for the State.

Date of hearing: 13th March, 2001.

2002 Y L R 3904

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD ASLAM ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.34‑L of 1995, decided on 11th February, 1998.

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

‑‑‑‑S.410‑‑‑Penal Code (XLV of 1860), Ss.392/394‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑‑Appeal‑‑‑Failure of accused to attend Court on date of hearing of appeal­--Even if accused failed to attend or did, not appear for any reason on the date fixed for hearing of his appeal, Court could decide appeal after examining merits of the case‑‑­Accused having filed appeal through jail, same was to be decided after hearing counsel appointed at State expense.

Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.392/394‑‑‑Appreciation of evidence‑‑­Convictions of co‑accused were maintained in appeal, but their sentences of imprisonment were reduced‑‑‑Accused had failed to make out any distinction in his case and that of co­-accused and had conceded that evidence on record against him was same as was against co‑accused whose convictions were maintained in appeal‑‑‑Case of accused being not distinguishable from that of his co-­accused his conviction and sentence were also maintained.

Muhammad Gulzar Lashari for Appellant.

C.M. Latif for the State.

Date of hearing: 11th February, 1998.

2002 Y L R 3921

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

MUHAMMAD JAMIL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.266‑L of 2000, decided on 20th February, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.11‑‑‑Appreciation of evidence‑‑­Statements of victim woman and prosecution witness were recorded by Trial Court, but both were not cross‑examined on behalf of accused due to non‑availability of his counsel‑‑‑Case was adjourned for recording further evidence, but both victim and prosecution witness were not bound down for cross‑examination on adjourned date‑‑­Subsequently on application of accused filed under S.540, Cr.P.C. praying for re­-summoning of victim and prosecution witness for cross‑examination, both victim and prosecution witness were summoned for completion of their cross‑examination‑-Prosecution witness appeared and was cross­-examined, but victim woman did not appear despite notices, non‑bailable warrants and warrants‑‑‑Victim woman who failed to appear was reported to have died and her Death Certificate in that regard was produced before Court‑‑‑Due to failure of prosecution to produce victim for her cross­examination, her deposition recorded earlier alongwith prosecution witness, could not be read in evidence as same had become inadmissible‑‑‑Deposition of the victim in circumstances, had to be excluded from consideration‑‑‑Statement made by prosecution witness did not contain any incriminating material to connect accused with offence for which he stood convicted and sentenced‑‑‑Statements made by other prosecution witnesses also did not contain anything conclusively incriminating accused with offence for which he stood convicted and sentenced‑‑‑Accused was acquitted in circum­stances.

PLD 1963 (W. P.) Kar. 63 and Hakeem v. The State and others 1986 PCr.LJ 2047 ref.

Shabbir Ahmad Khan for Appellant.

Muhammad Hanif Khatana, Addl. A.‑G. and Ch. Muhammad Ayub for the State.

Date of hearing: 20th February, 2001.

2002 Y L R 64

[Karachi]

Before Muhammad Afzal Soomro, J

SARWAR KHAN ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1586 of 200 decided on 14th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497 (2)----Penal Code (XLV of 1860), Ss. 302/377/34---Bail, grant of ---Further inquiry---Prosecution witness in cross-examination had admitted that accused had not committed sodomy with deceased and only co-accused had indulged in that act--­ Confessional statement allegedly made by accused seemed to be exculpatory---Act of sodomy had not been mentioned in post-mortem report---Only role attributed to accused was to the extent of facilitating crime and not beyond that which called for further inquiry---Case of grant of bail having been made out, same was granted to accused

Shahid v. The State 1994 SCMR ­393; Qasim v. The State 2001 YLR 214 and ­Mehmood Akhtar and another v. Haji Nazir Ahmed and four others 1995 SCMR 310 ref

Mehmood A. Qureshi for Applicant.

Mazhar Ali B. Chohan for the State.

2002 Y L R 67

[Karachi]

Before Wahid Bux Brohi, J

ISLAMUDDIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 233 of 2002, decided on 28th March, 2002.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Statements of prosecution witnesses though were recorded at a very late stage, but Investigating Officer had clarified that said witnesses had gone out of city due to fear---Effect of delay in recording of evidence of witnesses could not be determined at bail stage---It was premature at bail stage to discard evidence of those witnesses outright, unless they gave some evidence which could create a doubt about identity of accused at trial---Bail plea being premature was refused.

Waris Muhammad v. State 1976 SCMR 182 and Imtiaz Ahmed v. State PLD 1997 SC 545 ref.

Amanullah Khan for Applicant

Jawaid Hyder Kazmi for the Complainant.

Qazi Wali Muhammad for the State Counsel.

2002 Y L R 68

[Karachi]

Before S. A. Sarwana, J

Syed AIJAZ ALI SHAH SHIRAZEE and another ---Applicants

Versus

THE STATE---Respondent

Bail Application No. 757 of 2000, decided on 17th July, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 561-A---Grant of protective bail and exemption from appearance in Court----Accused persons had alleged police wanted to arrest them because S.S.P being hostile towards them wanted to haras and defame them---Two Constitutional petitions were also pending before High Court against the said S. S. P. and other police officials for not registering an F.I.R. again; police officials for murder of their employee­-Counsel for accused had requested the personal attendance of accused person be dispensed with as it was not possible for them to appear before Court for fear of their arrest---Accused having made out a case for grant of relief, their application under S.561-A; Cr. P. C. was allowed---Accused were exempted from personal appearance and protected bail was also granted to them.

Syed Mehmood Alam Rizvi and, S. M. Iqbal for Applicants.

Date of hearing: 17th July, 2000

2002 Y L R 69

[Karachi]

Before Muhammad Ashraf Leghari, J

FARHEEN KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1638 of 2001, decided on 3rd January, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.364-A/34 ---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Bail, grant of---Child aged about two years who was with victim girl at the time of her abduction, was recovered from possession of accused---Inconsistencies and discrepancies in statements recorded under S.164, Cr. P. C. and depositions of prosecution witnesses, could not be deeply evaluated and assessed at bail stage---All witnesses had been examined and case could finally be decided within few days---Accused had not alleged any enmity with prosecution witness---Offence for which accused had been charged, fell within prohibitory clause of S. 497(1), Cr. P. C-- Accused, in circumstances did not deserve concession of bail.

The Vice-President (Administration), National Bank of Pakistan and 2 others v . Bisharat Ali and 2 others PLD 1995 SC 1; Muhammad Jameel and another v. The State 1982 PCr.LJ 1064; Araz Muhammad and 3 others v. The State 1982 PCr.LJ 806; Zahid Hussain v. The State 1983 PCr.LJ 42, Zulfiqar Ali v. The State 1983 PCr.LJ. 42. Rab Nawaz v. The State 1983 PCr.LJ. 320 Nazar Muhammad and others v. The State 1994 PCr.LJ. 2344; PLD 1972 SC 207 Muhammad Sajjad v. The State 1996 MLD 103 and Muhammad Nadeem v The state 1996 MLD 189 ref.

S. Asad Ali Shah for Applicant.

Arshad Lodhi A.A.-G for the State.

Date of hearing :3rd January 2002.

2002 Y L R 71

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

SARFRAZ BUTT---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 15 of 2002, decided on 15th March, 2002.

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

----S. 9(b)---Criminal Procedure Code (V of 1898), 5.561-A---Quashing of proceedings--­Pending proceedings against accused before Trial Court, he moved higher Authorities of police for fresh inquiry in his case as according to him no narcotic substance was recovered from his possession and that he was implicated falsely in the case due to enmity--­Fresh investigation conducted by high-ups of police transpired that the case was falsely cooked up against accused---Case against accused having been proved to be false, same was ordered to be disposed of as `B' Class and case be registered against complainant/police officer and his co­ associates---Proceedings against accused were quashed accordingly.

Ashraf Ali for Applicant.

Habib Ahmed, Asstt. A.-G. for the State.

Date of hearing: 15th March, 2002.

2002 Y L R 76

[Karachi]

Before Wahid Bux Brohi, J

HAFEEZULLAH and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 136 of 2002, decided on 30th April 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/337-H(2)/148/149---Bail, grant of--­Investigating Officers had given conflicting reports about the role of accused in the occurrence and .the story as regards the remaining co-accused had consistently been disbelieved by them---Trial Court on the direct complaint brought by the complainant had issued bailable warrants which amounted to grant of bail to accused in the same offence---Opinion of the Trial Court could not be overlooked as the story as set up in the F.I.R. could not be established during investigation and the complaint case was to take the lead---Accused were admitted to bail in circumstances.

Muhammad Rafiq v. Abdur Rahman 1986 SCMR 1978 ref.

Asif Ali Abdul. Razzak Soomro for Applicants.

Sher Mohammad Shar, Asstt. A.-G. for the State

Date of hearing 30th April, 2002.

2002 Y L R 74

[Karachi]

Before Wahid Bux Brohi, J

GHULAM NABI ---Applicant

Versus

THE STATE and another ---Respondents

Criminal Miscellaneous Application No. 5 of 2002, decided on 29th April, 2002.

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

----S.497 (5)----Penal Code (XLV of 1860), Ss. 302/148/149/114---Cancellation of pre­ arrest bail---Three eye-witnesses had charged the accused with infliction of knife blows on the deceased, but two other eye-witnesses had exonerated the accused from the charge by stating that he was not present at the time of occurrence on the spot---Sessions Court, in circumstances, was directed by High Court without touching the merits of the case to examine in the first instance the complainant and the two eye-witnesses who might be cross-examined and if, as already observed by the Sessions Court, some tangible evidence might come on record against the accused, the applicant might repeat the application for cancellation of bail granted to him---Trial Court was further directed to record the evidence of the material witnesses within a period of three months failing which the applicant would also be at liberty to repeat his application---For the time being the petition for cancellation of bail was dismissed without touching the merits of the case.

Safdar Ali v. Zafar Iqbal 2002 SCMR 1963; 1986 PCr.LJ 1206; PLD 1995 SC 34 and 1997 SCMR 915 ref.

Shah Nawaz Khan Brohi for Applicant.

Abdul Qadir Abro for Respondent.

Date of hearing 29th April, 2002

2002 Y L R 79

[Karachi]

Before Sarmad Jalal Osmany, J

QADIR BUKHSH and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos. 19, 20, 21, 100, 101 and 102 of 1999, decided on 8th May, 1999.

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

----S.497(1), fourth proviso---Mere pendency of cases against the accused is no criterion to, condemn them as being dangerous, hardened or habitual criminals.

Moundar and others v. The Stag PLJ 1989 SC 1; Shamoon Jatoi v. The State 1996 PCr. LJ 783 and Muhammad Rafique v. The State 1997 SCMR 412 ref.

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

----S.497 (1) fourth proviso regarding the behaviour of accused beat. unsatisfactory without the details thereto cannot be relied upon to establish that the, were hardened or dangerous criminals.

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

----S.497---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), S. 17 (3) Penal Code (XLV of 1860). S. 382---Bail---All the three incidents has been committed by three young men whose description mentioned in the F.LRs. were more or less alike and the modus operandi adopted by them in the commission of the crimes in question was the same viz. one of the accused waited outside the shop on his motorcycle whereas the other two accused went inside and committed the dacoity---Accused had been identified in the identification parade as well as in the Court by the prosecution witnesses to be the same persons who had committed the crime Accused, thus, were connected prima facie with the commission of the offence with which they were charged---Said crimes were crimes against society and as the same had been committed in broad daylight in shops crowded with customers, they were acts of terrorism as the accused were armed and had put innocent people in danger of their live. Accused having been, prima facie, involves. In acts of terrorism, fourth proviso of S. 497(1) Cr. P. C. was squarely applicable to their cases---Even otherwise the crimes allegedly committed by accused could squarely fit within the provisions of S.382, P. P. C. entailing a punishment up to ten years' imprisonment---Bail was refused to accused in circumstances.

Khalid Taqi v. The State 1999 PCr.LJ.27f; Amin v. The State 1998 PCr.LJ. 1677; Mounder v. The State PLJ 1989 SC 1; Shamon Jatoi v. The State 1996 PCr.LJ 783; Muhammad Rafiq v. The State 1997 SCMR 412; Muhammad Rafique v. The State 1991 PCr.LJ 857; Junior Reid and others v. R. 1994 SCMR 39; Akhtar Mehmood v. The State 1997 PCr.LJ 2423; Rizvan Hussain v. The State 1999 SCMR 131; Muhammad Shafique v. The State 1998 PCr.LJ 1299; Imtiaz Ahmed v. The State PLD 1997 SC 545 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Faiz Muhammad Qureshi for Applicants.

Anwar Ansari for A.-G. Sindh.

Date of hearing: 1st April, 1999.

2002 Y L R 86

[Karachi]

Before Muhammad Roshan Essani, J

SABIR HUSSAIN ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 870 of 1998, decided on 7th September, 1998.

Criminal Procedure Code (V of 1898)---

----S.497 (2)---Penal Code (XLV of 1860) Ss.302/307/337-A/109/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)---Bail, grant of---Further inquiry ----F.I.R. showed that accused at time of alleged incident was standing in street empty-handed and no overt act whatsoever had been ascribed to him---Statements of prosecution witnesses under Ss.161 & 164 Cr. P. C. also indicated that no role had been ascribed to accused---Hostility was already existing between the parties---Accused was a patient of tuberculosis---Complainant had moved an application before Trial Court wherein he had completely exonerated accused from his culpability in commission of offence ---Co-accused having been granted bail, in the case, bail plea of the accused also merited consideration on rules of consistency--­Case of accused necessitating further inquiry, he was entitled to bail.

Abdul Aziz v. The State 1997 PCr.LJ. 862; Muhammad Haroon v. The State 1994 SCMR 216 and Munir Ahmed v. The State 1997 SCMR 445 ref.

Anwar Hussain for Applicant.

Muhammad Ismail Memon for the State.

2002 Y L R 88

[Karachi]

Before Zahid Kurban Alvi, J

NIZAMUDDIN and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.286 and S.619 Miscellaneous Application No.503 of 2002, decided on 6th June, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/201---Bail---F.I.R. was lodged after an inordinate delay of 4/5 months without any plausible explanation---Incident was unseen--­No recovery was effected from the accused--­Dead body of the deceased was not recovered--Present F.I.R. had been lodged as a counterblast to the F.I.R. lodged by the accused---Case of accused, in view of the above contentions, was doubtful and called for further inquiry---Accused were admitted to bail in circumstances.

Mohammad Ayaz Soomro for Applicants.

Mushtaq Ahmed Kourejo , for the State.

2002 Y L R 89

[Karachi]

Before Zahid Kurban Alvi, J

MUHAMMAD ISMAIL ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-790 of 2002, decided on 26th June, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/337-H(2)/148/149---Bail---Accused was alleged to have instigated others to open fire and also to have fired himself alongwith two co accused at the deceased was difficult to ascertain as to who had fired the fatal shot---Several persons had made statements under S.164, Cr. P. C. to show that the accused was attending a marriage at the time of occurrence, veracity of which was yet to be determined---Involvement of accused in the incident was thus a matter of further inquiry----Bail was allowed to accused accordingly.

Muhammad Ayaz Soomro for Applicant.

Ali Nawaz Gharghro for the Complainant.

Muhammad Bachal Tonyo Addl. A.-G. for the State.

2002 Y L R 91

[Karachi]

Before Sarmad Jalal Osmany, J

LAKHANO and 6 others---Applicants

Versus

THE STATE---Respondent.

Criminal Bail Applications Nos.508 and 517 of 2001, decided on 26th December, 2001.

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

----S.497---Penal Code (XLV of 1860) Ss.302/114/147/149/337-A(i)/337-F (i) & 504---Bail---Was difficult to establish at bail stage as to which of the accused had caused the fatal injury to the deceased---Incident had taken place at the spur of the moment resulting in free fight---Both the parties had received injuries---Accused were not armed with any weapon and used brick bats which were available at the place of occurrence--­Two accused had allegedly only instigated the others and did not actually participate in the crime---Vicarious liability of account to kill the deceased could only be established by the Trial Court---Case against accused being of two versions' also needed further inquiry--­Accused were admitted to bail in circumstances.

Zulfiqar v. the State 2001 YLR 2074; Abdul Ghaffar v. Munir and others 1981 SCMR 504; Muhammad Anwar v. The State 1981 SCMR 850; Muhammad Sadiq v. The State 1996 SCMR 1654; Gul Hassan v. The State 2001 PCr.LJ 1491; Muhammad Aslam v. The State 1997 SCMR 251; The State v. Aziz PLD 1985 Kar. 27; Mumtaz Hassan v. The State 1996 SCMR 1125; Hafiz Abdul Hamid v. The State 1988 PCr.LJ 1783; Nazar Muhammad v. The State PLD 1978 SC 236; Munawar v. The State 1981 SCMR 1092; Muhammad Rashid v. The State 1979 SCMR 92; Imam Bakhsh v. Muhammad Bakhsh 1979 SCMR 197; Ghulam Nabi v. The State 1996 SCMR 1023; Shahzaman v. The State PLD 1994 SC 65; Muhammad Akram v. The State 2001 PCr.LJ 185 and Gulu Khan v. Gul Daraz Khan 1995 SCMR 1765 ref.

Agha Khuda Bux and Muhammad Ishaque Khoso for Applicants.

Syed Madad Ally Shah for the Complainant.

Muhammad Azeem Panwar for the State.

Date of hearing: 22nd November, 2001.

2002 Y L R 95

[Karachi]

Before Zahid Kurban Alvi, J

DOSTAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 911 of 2001, decided on 26th June, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.337-A---Bail---Incident had taken place at night over water dispute in the land in which "Lathies' were used---On account of darkness it was difficult to identify as to who had inflicted which type of injuries on the other--­Nothing could be achieved by keeping the accused behind the bars---Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Seed Ahmed Bijarani for the Complainant.

Mushtaq Ahmed Korejo for the State.

2002 Y L R 237

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD AFZAL BADAMI---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 117 of 2001, decided on 5th September, 2001.

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

----------Ss. 498, 499 & 439---Penal Code (XLV of 1860), Ss. 420/468/471 /34---Prevention of Corruption Act (II of 1947), S.5 (2) Reduction in amount of surety---Accused had been granted bail by the Trial Court -in the sum of Rs.13, 00, 000 and P. R. Bond in the like amount---Four accused were involved in the case and actual beneficiary was absconding---Culpability of accused in the commission of the offence, even if established was statedly to the extent of 1 /4th amount involved in the case---Amount of surety, in circumstances, was reduced from Rs.13, 00, 000 to Rs. 5, 00, 000 and P. R. Bond in the like amount to the satisfaction of the Trial Court.

Shahadat Awan for Applicant.

Khursheed A. Hashmi Dy. A.-G for the State.

2002 Y L R 610

[Karachi]

Before Muhammad Afzal Soomro , J

TALIB alias ATTAULLAH----Applicant

Versus

THE STATE --- Respondent

Criminal Bail Application No.358 of 2001 decided on 6th July, 2001.

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

----S. 497(2)---Penal Code (XLV of 1860) Ss. 324/504/34---Bail, grant of---Name accused though was mentioned in FLR. b he was alleged to be armed with a gun and have fired causing an injury to injured-Actual act of accused had to be examined in the light of damage caused---Injured had sustained one pallet wound and nature of injury was certified as irregular with inverted margin, but he failed to appear in Casualty Department for further investigation or in X-Ray Department for further diagnosis--­Accused having been able to make out a case for bail, he was admitted to same in circumstances.

Mumtaz Hussain and others v. The State 1996 SCMR 1125, Amir Bux v. The State 1983 PCr.LJ 1558; Ghulam Nabi v. The State 1996 SCMR 1023; Muhammad Younus and another v. The State 1994 SCMR 700; Ranjho v. The State 2000 PCr.LJ 674; Mehtar v. The State 2000 PCr.LJ 60 and Meeran Bux v. The State PLD 1989 SC 347 ref.

Asif Ali Abdul Razak Soomro for Applicant.

Muhammad Anwar Durani for the Complainant.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 6th July, 2001.

2002 Y L R 613

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD ZAHIR alias AKHTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 138 of 2002, decided on 5th April, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)---Bail, grant of---Bail was sought on ground that two co-accused had been let off by Police and narcotic was recovered from joint possession of the accused---Accused was facing charge under S.9(c) of Control of Narcotic Substances Act, 1997---Provisions of S.51(1) of Control of Narcotic Substances Act, 1997 having placed bar on grant of bail, application of bail filed by accused was dismissed in view of peculiar facts and circumstances.

Abdul Jabbar and 2 others v. Nazim Khan and another 1993 PCr.LJ 1; Ghulam Rasool and 3 others v. The State 1979 SCMR; 177; Muhammad Jan and 3 others v. The State 1979 SCMR 616 and Muhammad Gul v. The State 2001 SCMR 71 ref.

Mehmood A. Qureshi for Applicant

Shoaib Ashraf, Special Public Prosecutor on behalf of ANF.

Dates of hearing: 18th March and 5th April, 2002.

2002 Y L R 615

[Karachi]

Before Ghulam Nabi Soomro and Ata-ur-Rehman, JJ

SAKHAWAT ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 69 of 2001, decided on 30th January, 2001.

Criminal Procedure Code (V of 1898)---

----Ss., 497, 87 & 88----Penal Code (XLV of 1860), Ss.353/435/436/147/148/149---Bail grant of---Only the name of accused was mentioned in Challan and neither his parentage nor age, occupation or address were shown therein---No evidence relating to recovery or identification was on record--­Mere fact of belated arrest of accused, would not disentitle him to concession of bail--­Nothing was on record to show that proceedings under Ss. 87 & 88, Cr.P.C. were given effect to---Case of accused was at par with that of co-accused who had been granted bail---Bail was granted to accused, in circumstances.

Muhammad Altaf alias Guddu v. State 1997 PCr.LJ 505 ref.

Agha Zafar for Applicant.

Habib Ahmed, A.A.-G. for The State.

2002 Y L R 616

[Karachi]

Before Muhammad Afzal Soomro, J

DEEDAR HUSSAIN ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.899 of 2001, decided on 5th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 448/454/466/468/506/34---Interim bail--­Recalling of---Trial Court while passing order had refused bail to accused and had taken into consideration every aspect of matter in issue---Part assigned to accused had been highlighted in the said order whereby accused was found connected with commission of crime---Facts narrated in F.I.R. and other material, showed that accused was responsible for commission of offence which was punishable up to ten years---Accused, as per F.I.R., trespassed into house of complainant party by show of force and committed burglary for which S.454, P.P.C. had been applied which was punishable up to ten years and same was covered by prohibitory clause of S.497(1), Cr.P.C.--­Accused having not been able to make out a case for confirmation of bail, interim bail earlier granted to him was recalled.

Nisar Ahmed alias Nisar v. The State 1999 PCr.LJ 1066; Karam Illahi v. The State 1995 PCr.LJ 1661; Orangzeb v. The State 2001 PCr.LJ 696; Said Mahmood Mohyadin v. Haji Muhammad and others 2001 PCr.LJ 1734; Muhammad Aslam v. The State 1999 MLD 1833 and Abdul Qayum v. The State 1999 MLD 2026 ref.

Muhammad Ashique Dhamraha for Applicant.

Sher Muhammad Shar, Asstt. A.-G. for the State.

Nadeem Ahmed Tunio for the Complainant.

2002 Y L R 619

[Karachi]

Before Wahid Bux Brohi, J

ALLAH WARAYO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 841 of 2001 decided on 19th April, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.406/409/468/477---Bail, grant of ---Further

inquiry---No recovery of cash in form of currency notes allegedly deposited with accused, had been made from him---Even otherwise such recovery would have been meaningless as number state on the currency notes were not mentioned in Mashirnama--­State Counsel had admitted that case against accused required further inquiry---Absence of number of currency notes and depositing the same by complainant police officer with the official of different Police Station bypassing the Police Officer of the Police Station where he himself was posted and where a strong room was also built; were imminent factors that could not be overlooked---Case of further inquiry having been made out and State Counsel having no objection to grant of bail to accused, bail was granted.

Saeed Ahmed v. State 1995 SCMR 170 ref.

Ali Nawaz Ghanghro for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 19th April, 2002.

2002 Y L R 621

[Karachi]

Before Wahid Bux Brohi, J

GHULAM HUSSAIN ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.211 of 2002, decided on 14th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497 (2)---Penal Code (XLV of 1860) Ss. 420/468/471---Bail, grant of---Further inquiry ---F.I.R. was - filed after about one month of alleged incident and accused was arrested after eight days of filing the F.I.R. ---Offence under S. 420, P. P. C. was bailable while offences under Ss. 468 & 471, P. P. C were punishable with seven years only---Case of accused, in circumstances, did not fall within prohibitory clause of S. 497, Cr. P. C. -­ Offences under Ss. 468 & 471, P. P. C. were non cognizable, but no permission had been sought for challan---Case against accused requiring further inquiry, accused was admitted to bail.

Raja Sikandar Khan Yasir for Applicant.

Masooda Siraj, State Counsel for the State.

Date of hearing 14th March 2002.

2002 Y L R 623

[Karachi]

Before Wahid Bux Brohi, J

GHULAM MEHBOOB and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.270 of 2001 and Miscellaneous Application No.494 of 2002, decided on 20th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/427/436/34---Bail, grant of---Further inquiry ---F.I.R. was delayed by 16 hours, yet nobody had been nominated therein---Delay of 15 days in recording statements under S.161, Cr.P.C. was not satisfactorily explained as the only explanation was that out of fear witnesses had left and turned up after 15 days---Trial Court was to assess if that was a justifiable explanation or not and for the purpose of bail that delay was to be tentatively assessed with attending circumstances---Corroboration of evidence of eye-witnesses was sought through existence of plastic bucket, but Investigating Agency had put up quite inconsistent and conflicting version about that important piece of evidence---Prima facie allegations against accused required further inquiry---Case for bail having been made out, accused were admitted to bail.

Abdullah Khan v. The State 2001 PCr.LJ 1679 and Abdul Khaliq v. State 1996 SCMR 1553 ref.

Aamir Mansoob Qureshi for Applicant No. 1.

M. Ilyas Khan for Applicants Nos.2 and 3.

Shahadat Awan for the Complainant

Ms. Masooda Siraj, State Counsel.

Date of hearing: 20th March, 2002

2002 Y L R 626

[Karachi]

Before Wahid Bux Brohi, J

ALLAH BUX and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 212 of 2002, decided on 15th April, 2002.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302/324/148/149---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Further inquiry ---F.I.R. had been lodged within one hour of occurrence and it had been expressly mentioned therein that assailants were identified in the light of electric bulb, but version of complainant was wholly contradicted by eye-witnesses as regards the number of assailants---Eye-witness stated that complainant had exaggerated the number of assailants---Investigating Agency had cared little to record statement of injured witness while statements of remaining eye-witnesses had been recorded after about 2 months and 21 days and no explanation was on record to justify such delay-----F.I.R showed that accused alongwith others had fired shots but according to belated versions of witnesses, accused was empty-handed---Police had been negligent in collecting valuable evidence--­ Improvements and exaggerations in the case had brought the case of accused within ambit of further enquiry---Accused were granted bail, in circumstances.

Sabzal v. State 2002 PCr.LJ 220 ref.

Ghulam Saghir Baloch for Applicants.

Sher Muhammad Shar, Asstt. A.-G. for the State.

Date of hearing: 15th April, 2002.

2002 Y L R 628

[Karachi]

Before Wahid Bux Brohi, J

ASHIQUE and another---Applicants

Versus

THE STATE---Opponent

Criminal Bail Applications Nos. 169 and 211 of 2002, decided on 12th April, 2002.

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

----S.497---Penal Code (XLV of 1860). Ss. 452/506/34---Offence of Zina (Enforcement of Hudood), Ordinance (VII of 1979), S.10(3)---Bail, grant of---Delay in lodging F.I.R. had been explained---No question of mistaken identity arose in the case as faces of culprits were open and they were identified in the light of electric bulbs---Complainant's version had been fully supported by inmates of the house---Independent witnesses belonging to neighbourhood had also given evidence in support of prosecution---Ocular evidence at bail stage could not be discarded as it would amount to deeper appreciation of evidence---Direct allegation of Zina was made against accused---Contention that two others had been let off, would also not pre-empt trial as evidentiary value of ocular testimonies was yet to be assessed at trial---Question that no marks of violation were found on the body of victim, was meaningless as offence had allegedly been committed on point of gun--­Bail plea on behalf of both accused could not be sustained, in circumstances.

Muhammad Ameen v. State 2001 PCr. LJ 614 and Mehboob Ahmad v. State 1999 SCMR 1102 ref.

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

----S. 497---Bail, grant of ---Principles-- Courts, in bail matters should avoid taking crucial decision merely on basis of conflicting investigation reports.

Muhammaddin v. State 1998 SCMR 1 ref.

Muhammad Sharif H. Qazi for Applicant.

Mushtaque Ahmed Kourejo for the State.

Date of hearing: 12th April, 2002.

2002 Y L R 630

[Karachi]

Before Wahid Bux Brohi, J

AMANULLAH SUBZOI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 114 of 2002, decided on 15th April, 2002.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/504/147/149---Bail, grant of---Name of accused appeared in F.I.R. with specific role assigned to him and gun had been recovered from him---Prosecution witnesses whose statements were promptly recorded under S.161, Cr. P. C had fully supported version of complainant---Occurrence took place in broad daylight and nine fire-arm injuries were found on the person of deceased---Contention that main accused and three others had been let off by police, was repelled as complainant had made application to Trial Court for joining them---Contention of accused that general allegations were made against him, was also answered by medical evidence whereby as many as nine fire-arm injuries caused by firing of accused were found on the body of deceased---Bail plea raised by accused, could not be sustained, in circumstance.

Shafi Muhammad v. The State 2002 PCr.LJ 494; Bashir Ahmed v. The State 1989 PCr.LJ 1783 and Muhammad Akram v. The State 1993 PCr. LJ 329 ref.

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

----S-497---Bail, grant of Principles Courts while considering merits of application for bail should take a decision on basis of material available on record to see if reasonable grounds existed to believe that accused was involved in the crime---Court should avoid taking crucial decision merely on basis of conflicting investigation reports and entering of name of accused in Column No.2 of challan which might be relevant, but not sole criteria for grant of bail.

Muhammad Din v. The State 1998 SCMR 1 ref.

Saeed Ahmed Bijarani for Applicant.

Sher Muhammad Shar, Asstt. A.-G. for the State.

Date of hearing: 15th April, 2002.

2002 Y L R 632

[Karachi]

Before Wahid Bux Brohi, J

SHAH KHALID alias ALTAF---Applicant

Versus

THE STATE---Respondent

Criminal Bail No. 155 and Miscellaneous Application No.312 of 2002, decided on 13th March, 2002.

Criminal Procedure Code (V of 1898)---

---S. 497 (2)---Penal Code (XLV of 1860) S.411---Bail, grant of---Further inquiry--­F.I.R. was delayed for six days and no plausible explanation for such delay was forthcoming---No identification test was held in presence of a Magistrate, but witnesses had identified the accused only in presence of police---Identification test was not held in respect of property recovered---Statements of witnesses were not recorded under S.164, Cr.P.C. ---Name of accused did not appear in lie F.I.R---Case against accused being at the Most, of receiving of stolen property, offence against him would not fall within prohibitory clause of S. 497, Cr: P. C., but would call, for further inquiry---Accused was admitted to bail, in circumstances.

Farman Ali v. State 1997 SCMR 971; Ghulam Rasool v. State 2002 MLD 7 and Muhammad Nadeem Khan v. State 1999 MLD 1013 ref.

Nafees Ahmed for Applicant.

Javed Akhtar for the State.

Date of hearing: 13th March, 2002.

2002 Y L R 633

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD JAMEEL---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 208 and Miscellaneous Application No.365 of 2002, decided on 12th March. 2002.

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

----S.497(2)---Foreigners Act (XXXI of 1946), S.14(2)---Bail, grant of---Further inquiry-­

Complainant and Investigating Officer who prepared Mashirnama, was unable to state as to whom the fake documents were delivered at the time of occurrence ---Mashirnama stated that three persons out of ten were given envelops, but no specific mention was made about their names---Assuming that documents were forged and fake, burden lay on prosecution to establish involvement of accused with commission of forgery---Accused was Pakistani national and there was no direct allegation to the effect that document were secured from his possession-Co-accused having been granted bail accused was entitled to bail on rule of consistency---Case against accused requiring further inquiry, he was granted bail.

Farid Khan v. The State 1993 PCr.LJ 500; Rehan Rashid v. The State 1994 PCr.LJ 1689 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Raja Mir Muhammad Khan for Applicant.

Syed Ziauddin Nasir, Standing Counsel for the State.

Date of hearing: 12th March, 2002.

2002 Y L R 635

[Karachi]

Before Muhammad Ashraf Leghari, J

Syed KHALID HASSAN ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 479 of 2000, decided on 2nd May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420 & 465---Bail, grant of---Complainant had filed affidavit wherein he had exonerated the accused---Police had not collected any further evidence to show that accused had forged documents---Offence against accused under S.420, P. P. C. was bailable and remaining offences against accused were non­ cognizable---In absence of reasonable grounds to believe that accused was guilty of offence with which he was charged, he was admitted to bail.

Mehmood A. Qureshi for Applicant.

Habib Ahmed, A.A.-G. for the State.

2002 Y L R 636

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD SALEEM and others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 462 of 2001, decided on grid April, 2002.

Criminal Procedure Code (V of 1898)---

----Ss.32(1)(a), 347 & 561-A---Sindh Buildings Control Ordinance (V of 1979), Ss. 4, 6 & 19---Quashing of order--­Forwarding the case by Magistrate to Sessions Judge---Magistrate within meaning of S. 347, Cr. P. C. was competent to forward case to Court of Session for assigning case to appropriate Court---High Court disposed of application under S.561-A, Cr. P. C. with direction to Magistrate to forward complaint to Sessions Court which could take further proceedings in accordance with law and determine appropriate competent Court which could determine and decide legal objection.

Jawaid Haider for Applicants.

Fazalur Rehman Awan for the State Counsel.

2002 Y L R 729(2)

[Karachi]

Before Nazim Hussain Siddiqui and Raja Qureshi, JJ

ASADULLAH KHAN ‑‑‑ Appellant

Versus

THE STATE and another ‑‑‑ Respondents

Criminal Miscellaneous Application No. 369 of 1993, decided on 20th April, 1998.

Panel Code (XLV of 1860)‑‑‑

‑‑Ss. 307/452/506‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑Appeal against acquittal‑‑­Appreciation of evidence--‑Alleged incident admittedly had taken place more than four months before the filing of the private complaint the delay itself had not been satisfactorily‑‑‑Accused who was allegedly armed with a revolver had not used it showing his lack of intention to kill the complainant‑‑­Accused had deposed that he had rented a premises to the complainant and got it evicted through the Court‑‑‑Complaint in question had been filed as a counterblast to the said proceedings‑‑‑Evidence of the complainant and his witness did not inspire confidence‑‑­High Court upholding the acquittal order of the accused dismissed the appeal filed by the complainant.

Anwar Hussain for Appellant.

Habib Ahmad, A.A.‑G. for the State.

Nemo for Respondent No. 2.

Date of hearing: 17th April, 1998.

2002 Y L R 731

[Karachi]

Before Amanullah Abbasi, J

AKHTAR ZAI and others ‑‑‑ Applicants

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous Application No.275 of 1999, decided on 15th December, 1999.

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

‑‑‑‑Ss.145, 190(1) & 528‑A (as inserted by Legal Reforms Act (XXIII of 1997)]‑‑­Separation of Judiciary from Executive‑‑­Jurisdiction of Judicial Magistrate and Executive Magistrate‑‑‑Powers were defined for Executive and Judicial Magistrates after separation of Judiciary from Executive in March, 1994‑‑‑Judicial Magistrate was not to perform executive duties‑‑‑Judicial Magistrate having not specially been empowered under S.190(1), Cr.P.C. to deal with case under S.145, Cr. P. C. he could have refer the matter for transfer of case‑‑‑Only Executive Magistrate would have jurisdiction to deal with case under S.145, Cr. P. C.

1988 PCr.LJ 1835 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Change of forum by law‑‑‑Retrospective effect‑‑‑Change of forum by law would always have retrospective effect and procedural change brought by new law was to be treated as retrospective unless by clear words or necessary intendment same was shown to be prospective in effect.

Abdul Latif Ansari for Applicants.

Jawaid Haider Kazmi and Muhammad Hanif Kashmiri for Respondents.

Muhammad Saleh Panhwar for the State.

2002 Y L R 956

[Karachi]

Before Shabbir Ahmed, J

MUHAMMAD AKMAL KHAN‑‑‑Plaintiff

Versus

Miss SUMAIRA KOKAB and others ‑‑‑Defendants

Suit No.524 of 2001, decided on 23rd April, 2002.

Court Fees Act (VII of 1870)‑‑‑

‑‑‑‑S.7(v) & Sched II, Art. 12 (vii)‑‑‑Civil Procedure Code (V of 1908), S. 149-‑‑Suit for partition‑‑‑Court fee‑‑‑Plaintiff who was out of possession of property jointly owned by parties inherited by them through their father, had filed suit for partition of that property‑‑­Suit could be filed with fixed court fee of Rs.15 under Art. 12(vii) of Sched. II of Court Fees Act, 1870 applicable to Province of Sindh which covered the suit where it was not possible to estimate money value of subject­-matter in dispute and which was not otherwise provided for under Court Fees Act, 1870‑‑­Plaintiff could be called upon to pay court‑fee once value of his share was determined on trial or defendant would take plea denying title as well as possession of plaintiff.

Mst. Shah Jehan Begum v. Muhammad Siddique and 5 others PLD 1971 Kar. 920; Saadullah Khan and 6 others v. Mir Puayo Khan and 14 others PLD 1970 Pesh. 150; Ch. Mehmood Ahmad v. Mst. Sarwar Sultana and others 1994 CLC 1664; Sher Bahadur Khan and 3 others v. Anwar Khan and 4 others 1996 CLC 1624 and Diwanchand v. Dhani Ram AIR 1941 Lah. 123 ref.

Ch. A. Rasheed for Plaintiff.

Abbas Ali, A.A.‑G. for Defendants.

Date of hearing: 11th April, 2002.

2002 Y L R 957

[Karachi]

Before Mushir Alam, J

SHAIKH ALI ‑‑‑Appellant

Versus

MUHAMMAD MEHBOOB ALAM‑‑‑Respondent

First Rent Appeal No. 1147 of 2000, decided on 16th March, 2001.

Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑

‑-‑‑Ss.2(f)(j) & 15(2) (ii) (vii)‑‑‑Bona fide personal need of landlord‑‑‑Default in payment of rent‑‑‑Relationship of landlord and tenant, denial of tenant denied relationship of landlord and tenant between the parties‑‑‑Landlord, in proof of his ownership in ‑respect of premises in question, filed allotment order of the premises in his favour, tenancy agreement, proceedings of civil suit filed by tenant and also examined witness‑‑‑Landlord by producing un-rebutted evidence on record had proved that he was owner of premises in question and tenant had been inducted in premises as his tenant‑‑­Once it had come on record that a person had been put in possession by landlord, said person, later on could not alter his character and claim hostile title against person from whom he had received possession of premises‑‑­When a person who was put in possession of premises by landlord, would deny title of landlord, but existence of relationship of landlord and tenant was proved to exist, then that person would forfeit his tenancy‑‑‑Person who was put in possession as tenant had not paid rent as claimed by landlord and issue of personal requirement of landlord in respect of premises in question was not contested by tenant‑‑‑Finding of Rent Controller that relationship of landlord and tenant existed between the parties, could not be upset and no exception could also be taken to finding of default of tenant in payment of rent and personal bona fide need of landlord, in respect of premises in dispute.

Khalid Mehmood and Nadeem Khalid for Appellant.

Munir Ahmed for Respondent.

Date of hearing: 16th March, 2001.

2002 Y L R 960

[Karachi]

Before Anwar Mansoor Khan, J

SUGHRA BIBI‑‑‑Plaintiff

Versus

NATIONAL LOGISTIC CELL and others‑‑‑Defendants

Execution Application No.23 of 2001, decided on 14th May, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.47‑‑‑Execution of decree‑‑‑Jurisdiction of Executing Court‑‑‑Not open to the Executing Court to go behind a decree or re-determine the liabilities of parties‑‑­Executing Court has to execute existing decree‑‑‑if order passing decree was void or without jurisdiction appropriate remedy available to judgment‑debtor was to have judgment modified.

Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22; Mst. Sakina and 3 others v. Messrs National Logistic Cell and 2 others 1995 MLD 633 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ref.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Civil Procedure Code (V of 1908), S.47 & O.XXI, R.10‑‑Fatal accident‑‑‑Suit for compensation, maintainability of‑‑­Execution of decree, application for‑‑‑Suit and application for execution of decree had been challenged by judgment‑debtors on ground that judgment‑debtor (National Logistic Cell) was part of Pakistan Army and the other judgment‑debtor was subject to Army Act, 1952 and in circumstances, decree passed against them was without jurisdiction and they could not be made liable under execution proceedings against them‑‑­Judgment‑debtors could not establish that Civil Court had no jurisdiction to entertain claim under Fatal Accidents Act, 1855 against any Army Organization‑‑‑Even otherwise judgment‑debtors not being part of Pakistan Army, question of applicability of Pakistan Army Act, 1952, could not be taken into account‑‑‑Execution ‑application was allowed with direction to Nazir of Court to proceed to attach articles, and goods which could be mentioned in execution application for purposes of satisfaction of decretal amount.

Rasheed Ahmad v. The State PLD 1972 SC 271; Force Commander, Airport Security Force Karachi and others v. Haji Muhammad Rashid and another 1996 SCMR 1614; Dr. Aon Muhammad Khan v. Lt.‑Gen. (Retd.) Saeed Qadir and others PLD 1987 SC 490; Brigade Commander Headquarters Field Command, NLC, Karachi v. The State 1996 MLD 469; Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632; Sh. Liaqat Hussain and others v. Federation of Pakistan and others PLD 1999 SC 504; Muhammad Mushtaq v. Federation of Pakistan 1994 SCMR 2286; Federation of Pakistan and 2 others v. Khurshid Ahmad and another 1999 SCMR 664; Gul Muhammad Mir Bahar v. National Logistic Cell and 2 others 1999 CLC 2032; Abdul Ghaffar Lakhani v. Federal Government of Pakistan PLD 1986 Kar. 525; Muhammad Nawaz Baloch v. President of Pakistan and 4 others 1999 MLD 359; Brig. (Retd.) F.B. Ali v: The State PLD 1975 SC 506; Zafar ul Ahsan v. Republic of Pakistan PLD 1960 SC 113; Rukhsana Parveen Nazir v. National Logistic Cell through Commander and 2 others 1995 MLD 633; Mai Nooran v. National Logistic Cell, Ministry of Defence, Government of Pakistan through its Commander and 2 others 1995 CLC 1969; Syed Ghaffar Hussain and 3 others v. The Commander Commanding Officer Headquarters, National Logistic Cell, Karachi and 3 others 1994 MLD 2010 ref.

Nasir Maqsood for the Decree-­Holder.

Abdul Rauf for Judgment‑Debtors Nos. 1 and 2.

Date of hearing: 2nd May, 2001.

2002 Y L R 969

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Mushir Alam, J

TAHIR EDIBLE OIL (PVT.) LIMITED‑‑‑Appellant

Versus

PAN CENTUARY EDIBLE OILS SDN BHD and others‑‑‑Respondents

High Court Appeals Nos.28 and 41 of 2001, decided on 28th September, 2001.

Jurisdiction‑‑‑

‑‑‑‑ Duty of Court‑‑‑Rule of propriety‑‑­Applicability ‑‑‑Once challenge to jurisdiction was made then before embarking on merits or taking any decision in the matter, Court as a rule of propriety should first decide question of its jurisdiction‑‑‑Such rule of propriety was fully applicable in all cases where challenge to jurisdiction was posed and in such a situation it was incumbent upon the Court to first advert to question of jurisdiction‑‑‑When Court would come to a conclusion that it had jurisdiction, it could then proceed to pass appropriate order.

Qatar Airways PLC v. ANZ Grindlays Bank 2000 PLC 1455; Mst. Yasmeen Nizhat v. National Bank of Pakistan PLD 1998 SC 391 and Asadullah Rashid v. Muhammad Munir 1998 SCMR 2129 ref.

Rizwan S. Siddiqui and Sohail, Muzaffar for Appellant.

Lari and Co. for Respondents.

Date of hearing: 28th September, 2001.

2002 Y L R 971

[Karachi]

Before S. Ahmed Sarwana and Zia Perwez, JJ

WAHID ALI ARIF CHISHTI‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Constitutional Petition No.342 of 2000, decided on 2ath October, 2000.

Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss.2(s) 156(1)(8), 178 & 185‑A‑‑‑Criminal Procedure Code (V of 1898), Ss.173, 265‑A & 561‑A‑‑‑ ‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Bilateral interim charge‑sheet‑‑‑Validity‑‑‑Petitioner had contended that interim charge‑sheet filed after about four months, had been filed in violation of proviso to S.173(1), Cr.P.C. as maximum period of 17 days had been provided therein for filing report/challan before Magistrate‑‑‑Offence against petitioner fell under provisions of Customs Act, 1969 and alternate remedies by way of an application under S.265‑K, Cr.P.C. before Trial Court and under S.561‑A, Cr.P.C. before High Court were available to the petitioner‑‑‑Petitioner had already moved an application under S. 265‑K, Cr. P. C. which was pending before Trial Court‑‑‑Case not being an exceptional case where High Court should have exercised its extraordinary Constitutional jurisdiction to interfere with ordinary proceedings pending in the Court‑‑­Petitioner must have followed ordinary course as laid down in Criminal Procedure Code, 1898.

Asma Khatoon v. Syed Shabbir Hussain Shah PLD 1996 Kar. 517; Mooso v. The State 1996 PCr.LJ 361; Nagina Silk Mill v. The Income Tax Officer PLD 1963 SC 322; Murree Brewery Co. Ltd. v. Pakistan PLD 1972 SC 79; A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353; Ghulam Muhammad v. Muhammad Khan PLD 1967 SC 317; Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522; Abdul Aleem v. Special Judge (Customs), Lahore 1982 SCMR 73; Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275; Altaf Hussain v. Abdul Samad and 3 others 2000 SCMR 1945; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; Fazal Karim v. State PLD 1976 SC 461; Mahmood Saeed v. Amir Nawaz Khan 1996 SCMR 839 and State v. Asif Ali Zardari 1994 SCMR 798 ref.

Syed Sami Ahmed for Petitioner.

Syed Tariq Ali, Federal Standing Counsel.

Suleman Habibullah, A.A.‑G. the State.

2002 Y L R 975

[Karachi]

Before Ata‑ur‑Rehman and Muhammad Mujeebullah Siddiqui, JJ

Mst. SIKANDAR BEGUM and 2 others‑‑‑Appellants

Versus

Syed SHABAHAT ALI and 2 others‑‑‑Respondents

High Court Appeal No. 91 of 2001, decided on 9th May, 2002.

(a) Pardanashin lady‑‑‑

‑‑‑‑‑Execution of document by a Pardanashin lady‑‑‑Burden of proof‑‑‑Rule of protection‑‑­Cloak of protection has been wrapped around the interest of illiterate and Pardanashin ladies‑‑‑Even if execution of some document is not denied by the illiterate and Pardanashin lady, the burden would still be on the person who wants to rely on the document executed by such lady to establish that she signed the document after having become conversant with the contents of, the document without being subjected to coercion, fraud or misrepresentation.

National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Fida Muhammad v. Pir Muhammad PLD 1985 SC 341 and Jannat Bibi v. Sikandar Ali PLD 1990 SC 642 fol.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑Ss.13 & 16‑‑‑Execution of power of attorney by Pardanashin ladies‑‑‑Burden of proof‑‑‑Rule of protection‑‑-Applicability‑‑­Burden was on the beneficiaries of the power of attorney which they had failed to discharge‑‑‑Consequently Pardanashin ladies were no privity to any contract with the alleged parties and were not bound by any agreement/contract.

National Bank of Pakistan v. Mst. Hajra Bai PLD 1985 Kar. 431; Fida Muhammad v. Pir Muhammad PLD 1985 SC 341 and Jannat Bibi, v. Sikandar Ali PLD 1990 SC 642 fol.

Abdul Aziz Khan for Appellants.

Syed Zaki Muhammad for Respondent No. 1.

Noorullah A. Manji for Respondents Nos. 2 and 3.

Dates of hearing: 6th and 7th March, 2002.

2002 Y L R 989

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

BIJAR KHAN‑‑‑Applicant

Versus

GHOUS MUHAMMAD KHAN‑‑‑Respondent

Revision Application No. 2 of 1987, decided on 31st May, 2002.

(a) Administration of justice‑‑‑

‑‑‑‑Courts are required to apply particular provision of law in the light of facts and circumstances of each case‑‑‑Abstract principles of law are not to be applied by ignoring the facts and circumstances of a case under consideration.

(b) Administration of justice‑‑

‑‑‑‑Court is required to apply the law as prevailing at the time of decision.

(c) Civil Procedure Code (V of 1908)---

‑‑‑‑O.XLI, R.33‑‑Power of Appellate Court‑‑­Appellate Court could allow respondent who had not filed cross‑appeal/objection to assail the findings against him in the interest of justice and to adjudge claims, rights arc liabilities of the parties to the litigation in accordance with equity, justice, good conscience and fair play.

Khairati v. Alimuddin PLD 1973 SC 295; PLJ 1983 SC 1; PLD 1985 Kar. 94; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53; Muhammad Nawaz v. Mst. Ahmed Bibi 1995 SCMR 266; S.M. Yousuf & Bros. v. Mirza Muhammad Mehdi Pooya PLD 1965 SC 15; Anath Nath Biswas v. Dwarka Nath Chakarvarti AIR 1939 PC 86; Province of Punjab through Collector Bhawalpur, District Bahawalpur and others v. Abdul Majeed and others 1997 SCMR 1692; WAPDA v. Khanzada M. Abdul Haq Khatak, PLD 1990 SC 359; Ghulam Hussain v. Faiz PLD 1991 SC 218; Central Government of Pakistan v. Suleman Khan PLD 1992 SC 590; Nazir Ahmed v. Abdul Sattar 1999 SCMR 342 and Province of Punjab v. Col. Abdul Majid 1997 SCMR 692 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Applicant had not been able to establish that any mandatory provision of law was violated by the Trial Courts which required reversal by Appellate Court‑‑‑High Court declined interference in revision.

Riaz Ahmed Shaikh for Applicant.

Saeeduddin Siddiqui for Respondent.

Date of hearing: 20th May, 2002.

2002 Y L R 1269

[Karachi]

Before Syed Deedar Hussain Shah, J

ASADULLAH KHAN‑‑‑Applicant

Versus

ABDUL KARIM ‑‑‑Respondent

Civil Revision Application No. 112 of 1997, decided on 8th December, 1997.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.115‑‑‑Revision‑‑‑Concurrent findings of fact by the Courts below‑‑‑Misreading and non‑reading of evidence‑‑‑Trial Court discussed evidence issue-wise and analysed documents produced before the Court‑‑­Reasons assigned by the Trial Court were sound and balanced which were agitated in appeal before Appellate Court which Court also considered the contention raised by the appellant and dismissed the appeal with comprehensive, sound and cogent reasons‑‑­Findings of the Courts below were not perverse and the Courts below had rightly considered the evidence so adduced by the parties and had rightly dismissed the suit and appeal‑‑‑Effect‑‑‑Both the Courts below had not committed any jurisdictional error and had also not misread the evidence and had also not ignored the material aspect‑‑‑Revision was dismissed in circumstances.

Ashiq Ali and 3 others v. Muhammad Hashim and 8 others 1984 MLD 951; Muhammad Abdul Rehman v. Mst. Noor Jehan Begum 1989 MLD 2002; Zar Wali Shah v. Yousuf Ali Shah and 9 others 1992 SCMR 1778; Saheb Khan through Legal Heirs v. Muhammad Pannah PLD 1994 SC 162; Muslim Commercial ‑Bank Ltd. v. Amir Hussain and another 1996 SCMR 464; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Aziz v. Muhammad Rafiq Qureshi PLD 1994 Kar. 474; Asadullah Khan v. Abdul Karim 1995 CLC 1889; Abdul Hameed v. Suhrab through Legal Heirs PLD 1997 Kar. 589 and Roazi Khan and others v. Nasir and others 1997 SCMR 1849 ref.

Anwar Hussain for Applicant.

Zafar Alam Khan for Respondent.

2002 Y L R 1305

[Karachi]

Before Zahid Kurban Alvi, J

TELECARD LIMITED‑‑‑Plaintiff

Versus

PAKISTAN TELECOMMUNICATION CO LTD. and another‑‑‑Defendants

Suit No.46 of 2000, decided on 3rd July, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Interim injunction, grant of‑‑‑Dispute was with regard to recovery of rebate‑‑‑Liabilities‑‑­Determination‑‑-Plaintiff sought injunction against disconnection of his lines of pay phones till adjustment of rebate and interconnecting his lines of pay phones‑‑­High Court appointed Chartered Accountants to determine the amount of rebate payable by defendants to the plaintiff‑‑‑Chartered Accountants calculated the amount to be payable by the defendants to the plaintiff‑‑­Plaintiff sought restraining of the defendants from disconnecting his telephone lines till the final decision of the case‑‑‑Validity‑‑‑Figures mentioned by the Chartered Accountants required to be worked out as the liabilities had to be settled‑‑‑After submission of the report, issues were framed and based upon the issues the matter was to be resolved‑‑­High Court found it appropriate if evidence was recorded and thereafter the matter was decided‑‑‑Interim injunction was granted in circumstances.

2002 Y L R 1341

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

VTH ADDITIONAL DISTRICT JUDGE and others‑‑‑Respondents

Constitutional Petition. No.377/S of 2001, decided on 17th April, 2002.

(a) Islamic Law‑--

‑‑‑‑ Maintenance of minor children‑‑­Injunction of Islam‑‑‑Duty and obligation of father to maintain his minor children.

(b) Punchayat‑‑‑

‑‑‑‑Decision (Faisala) by Punhchayat Committee‑‑‑Evidentiary value‑‑‑Such decision, though relied upon by a party, could not be considered in absence of examining any witness in that behalf by any of the parties.

(c) West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S. 5 & Sched.‑-‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintenance of minor‑‑‑Petitioner (father of minor respondents) was Aircraft Engineer in PIA and his monthly pay was Rs.37,000‑‑­Fatnily Court fixed monthly maintenance of both the minor sons @ Rs.5, 000 each‑‑­Appellate Court upheld the judgment‑‑­Validity‑‑‑Petitioner after divorcing his first wife (mother of minor respondents) had contracted second marriage and had also children out of said wedlock, whom he was maintaining very well‑‑‑Petitioner though real father of minor respondents had neither paid them any maintenance nor had any knowledge about their health and education‑‑‑Minor respondents had a right to claim their due maintenance looking to the standard of their father‑‑‑No lavish expenditure could be made from maintenance allowance of Rs.10,000 per month by the minors or their mother, which in these days would hardly be sufficient to meet their bare necessities‑‑‑Family Court had considered the evidence on record in its true perspective‑‑‑Appellate Court was justi­fied in not interfering with the same‑‑‑High Court dismissed the Constitutional petition as having no force.

Iftikhar Hussain and another v. Muhammad Aslam and others 1991 MLD 1500; Javaid Akhtar Bhatti v. Deputy Commissioner and others 1991 MLD 1498; Mehboob Ali v. The Director, Kachi Abadi and another 1996 MLD 865 and Danish Hussain v. Additional District Judge‑I, Central Karachi and others 2001 CLC 1214 ref.

Adnan Ahmed for Petitioner.

Mrs. Uzman Khan for Respondents Nos. 3 and 4.

Date of hearing: 15th January, 2002.

2002 Y L R 1381

[Karachi]

Before Mamoon Kazi, C.J. and Mrs. Majida Razvi, J

COMMANDING OFFICER, 71‑SACHAL RANGERS WING, KARACHI and 2 others‑‑‑Appellants

Versus

Mst. RAEESA BEGUM‑‑‑Respondent

High Court Appeal No. 169 and Miscellaneous Application No. 1134 of 1996, decided on 15tb April, 1997.

(a) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Very purpose of Fatal Accidents Act, 1855, is to provide compensation to the family for the loss caused bay death of a person resulting from actionable wrong.

(b) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S. 1‑‑‑Civil Procedure Code (V of 1908), O. VIII, R.10‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑‑Written statement, failure to file‑‑‑Pronouncement of judgment‑‑‑Suit for compensation and damages was filed by the plaintiff‑‑‑Despite specific direction by Single Judge of High Court, the defendants failed to file written statement‑‑‑Single Judge of High Court decreed the suit in favour of the plaintiff‑‑­Validity‑‑‑Defendants failed to file written statement in time and also within further time granted by the Court‑‑‑Defendant, in circumstances, could not be aggrieved by the order passed by the Single Judge of High Court, decreeing the suit ‑‑‑Intra­Court Appeal was dismissed in limine.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Provisions of a statute must always be interpreted and made effective to suppress the mischief and advance the remedy.

(d) Islamic Law‑‑‑

----Damages for injuries‑‑‑Concept of damages for injuries to the person exists under Islamic Law which is known as Diyat.

S. Tariq Ali, Standing Counsel for Appellants.

2002 Y L R 1473

[Karachi]

Before Muhammad Moosa K. Leghari, J

MECMAR MANAGEMENT (PVT.) LIMITED through Chief Executive‑‑‑Plaintiff

Versus

KARACHI PORT TRUST through Chairman and another‑‑‑Defendants

Suit No.388 of 2000, decided on 2nd April, 2002.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Declaration in negative form‑‑­Scope‑‑‑Such declaration is seldom granted and that too in rare and special circumstances.

Abul Rehman Mobeshir's case PLD 1978 Lah. 113 and Messrs Karsaz Construction Company v. Pakistan 1999 CLC 1719 ref.

(b) Administration of justice‑‑‑

‑‑‑‑Where statute provides a mechanism for remedy, resort must be had to that remedy.

Abul A'la Maududi's case PLD 1964 SC 673; Mushtaq Hussain Shah's case PLD 1978 Kar. 612 and Pakistan International Airlines's case PLD 1979 Kar. 640 ref.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Cause of action, absence of‑‑‑No details had been mentioned in the body of the plaint with regard to the specific performance sought to be enforced by the plaintiff‑‑‑Plaintiff had also not provided details of damages in the body of plaint, allegedly suffered by him‑‑­Declarations which were being sought by the plaintiff were in negative form‑‑‑Prayer in the interlocutory application was beyond the prayer mentioned in the suit itself‑‑‑Validity‑­-Declarations sought by the plaintiff could not be granted‑‑‑Plaintiff had no cause of action and the plaint being devoid of cause of action was rejected in circumstances.

Alavi Sons Ltd.'s case PLD 1968 Kar. 222; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1947 Dacca 190; Muhammad Akhtar's case 1981 SCMR 878; Nazeer Ahmed and others v. Ghulam Mehdi and others 1988 SCMR 824 and S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 ref.

Agha Faqir Muhammad for Plaintiff.

Salman Hamid for Defendant No. 1.

Date of hearing: 18th March, 2002.

2002 Y L R 1492

[Karachi]

Before Ghulam Nabi Soomro, J

ZAKIR ALI‑‑‑Applicant

Versus

AQEEL AHMED‑‑Respondent

Transfer Application No.24 of 2002, decided on 24th April, 2002.

Sindh Rented Premises Ordinance (XVII of 1979)‑-‑

‑‑‑‑S. 21(1‑E) [as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Transfer of appeal to another Appellate Authority‑‑‑Transfer application before High Court instead of District Judge‑‑­Maintainability‑‑‑Present appeal pending before Additional District Judge, was referred to him by District Judge of the District‑‑‑Such District Judge was competent to recall such an appeal and either hear same himself or refer the same for disposal to another Additional District Judge‑‑‑High Court dismissed transfer application as not competent with observation that applicant might file similar application before District Judge, who would decide the same within two months.

Sohail Muzaffar for Applicant.

Safdar Hussain Fani for Respondent.

Date of hearing: 22nd April, 2002.

2002 Y L R 1494

[Karachi]

Before Anwar Mansoor Khan, J

M. IFTIKHAR & COMPANY (PVT.) LTD. ‑‑‑Plaintiff

Versus

PAKISTAN STEEL MILLS LTD.‑‑‑Defendant

Suit No. 1717 of 1997, decided on 27th September, 2001.

(a) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14, 17, 30 & 33‑‑‑Limitation Act (IX of 1908), Ss.5, 14(2) & Art. 158‑‑‑Sindh Chief Court Rules (O.S.), Rr.280 & 282(1)-‑­Objections to award, filing of ‑‑‑Limitation‑‑­Non-filing of objections, in time due to non­-supply of copy of award by arbitrator for non‑payment of his fee‑‑‑Award accompanied by application under S. 14(2) of Arbitration Act, 1940 was filed in Court on 23‑12‑1997‑‑‑Notice of award was received, by respondents on 21‑1‑1998‑‑‑Respondents on 27‑1‑1998 filed Vakalatnama of the counsel‑‑Application for certified copy of award was made on 28‑1‑1998, which was received by them on 13‑2‑1998‑‑‑Objections to award were filed on 9‑3‑1998—Contention of respondents was that time spent in obtaining certified copy was liable to be excluded, therefore, time as provided under Art.158 of Limitation Act, 1908, would run from 13‑2‑1998 and not from date of service of notice of filing the award‑‑‑Validity‑‑‑Copy of award was available with respondents as had been stated in affidavit annexed with their application‑‑‑Respondents could have taken certified copy of award, in case same was not available with them‑‑‑Certified copy of award had admittedly been taken‑‑Objections were beyond limitation as notice of filing award had been served on 21‑1‑1998 and time for filing objections to award had expired on 20‑2‑1998‑‑‑Section 5 of Limitation Act, 1908, being not applicable, extension in time could not be granted‑‑Award being validly filed had to be seen on its own merits‑‑‑Court did not accept objections to award as being time‑barred.

Pakistan through General Manager, Pakistan Railways v. Messrs Q.M.R. Expert Consultants PLD 1990 SC 800; Inayatullah Khan v. Obaidullah Khan and others 1999 SCMR 2702; Standard Insurance Company Ltd., Multan v. Fazal Cotton Industry and another 2000 MLD 1564; Burma Oil Mills Ltd., Karachi v. Messrs Colony Textile Mills Ltd. 1980 CLC 512 and Akhtar Trading Co. v. Food Department and others 1991 CLC 258 ref.

(b) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 17, 30 & 33‑‑‑Making award rule of Court‑‑‑Duty of Court to examine award suo motu in absence of any objections ‑‑‑Scope‑‑­Question, whether all objections that may need to be taken up in application under S.33 and all objections as provided in S.30 of the Act would have to be scrutinised‑‑­Validity‑‑‑Section 17 of the Act comes into play after time for making application to set aside award under Ss. 30 & 33 of the Act .is expired or where same has been refused‑‑­Expression "where the Court sees no cause to remit award" as used in S.17 of the Act, gives a wide scope to the Court to look into all the aspects contained in S.30 of the Act and see, if there are grounds for setting aside or modifying the award.

Messrs Awan Industries Ltd. v. The Executive Engineer, Lined Channel Division and another 1992 SCMR 65 and Muhammad Tayab v. Akbar Hussain 1995 SCMR 73 ref.

(c) Arbitration Act (IX of 1940)‑‑‑

‑‑‑‑Ss. 17, 30 & 33‑‑‑Limitation Act (IX of 1908), Art. 158‑‑‑Making award rule of Court‑‑‑Duty of Court to scrutinize award in absence of objections thereto‑-‑Scope‑‑­Objections to award filed under S.33 of the Act being time‑barred were refused by Court‑‑‑Effect‑‑‑Court could itself scrutinize award‑‑-While doing so, Court was not required to act as a Court of appeal and could not substitute its own finding on appreciation of evidence‑‑‑Duty of the Court was to see, in absence of any objections; whether award suffered from any legal defect or infirmity.

Pakistan through General Manager, Pakistan Railways v. Messrs O.M.R. Expert Consultants PLD 1990 SC 800 and Messrs Abdullah Traders v. Trading Corporation of Pakistan Ltd. and 2 others 1999 CLC 2047 ref.

(d) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 17, 30 & 33‑‑‑Limitation Act (IX of 1908), Art. 158‑‑‑Making award rule of Court‑‑‑Court sought assistance of respondent, after dismissing his objections to award made under S.33 of the Act as being time‑barred‑‑‑Such objections filed could not be looked into or argued before Court‑‑Excessive burden had been cast on Court to determine correct facts‑‑‑Court allowed Counsel of respondent to argue matter only to show any mis-conducted proceedings‑‑‑Court did so only for the purpose of determination, whether award could or could not be set aside proceedings or any part thereof had been mis-conducted or not within the scope of S.30 of the Act.

(e) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 17, 30 & 33‑‑‑Limitation Act (IX of 1908), Art. 158‑‑‑Making award rule of Court‑‑‑Powers of Court to examine award on its won in absence of objections‑‑‑Objection to considered by Court for being time‑barred‑‑‑Court could proceed under S.17 of Arbitration Act, 1940 to examine award‑‑‑Both parties duly represented before arbitrator had put up each contract separately and argued the matter‑‑‑Arbitrator in award had given details of each contract separately‑‑‑Award was based on evidence‑‑‑Documents produced were admitted documents‑‑‑All claims of claimants and counter‑claim made by respondents had been stated in award and dealt with by arbitrator‑‑‑Court made award rule of the Court in circumstances.

(f) Arbitration‑‑

‑‑‑‑Contractual obligation‑‑‑Jurisdiction of arbitrator‑‑‑Contractual obligation including the arbitration and jurisdiction would naturally run from each of the specific contracts entered into.

(g) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 30 & 33‑‑‑Grounds for setting aside award‑‑‑Jurisdiction of Court to enter into factual controversy‑‑‑Scope‑‑Objection to award was that various claims filed by claimant before Arbitrator were time-­barred‑‑‑Validity‑‑‑Duty of Court was to see, whether Arbitrator had exceeded his jurisdiction in deciding the matter, which did not fall within the ambit of various claims‑‑­Arbitrator had rejected objection as to limitation after having dealt with matter at some length‑‑‑Court would not enter into factual controversy, which was the domain of Arbitrator.

(h) Words and phrases‑‑‑

‑‑‑‑ "Perverse "‑‑‑Meanings.

Qazi Ghulam Ahmad v. J.F., Elahi, Election Tribunal, Chakwal and others PLD 1962 Lah. 786; Parry's Employee's Union v. Parry & Co., Ltd. and others AIR 1966 Cal. 31; Aiyer's Judicial Dictionary, 11th Edition, page 867; Aiyer's Law Lexicon, 1997 Edition, page 1457; Law Terms and Phrases by Makal, page 686 and Words Phrases by Kakahel 3918 ref.

(i) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.30‑‑‑Grounds for setting aside award‑‑­Arbitrator was not obliged to give findings on each and every issue comprising the reference‑‑‑Insufficiency of evidence or non­consideration of empire evidence by Arbitrator or his failure to consider a particular piece of evidence or the possibility of a different and more plausible view of the matter in dispute could not be a ground for interference with an award under S.30 of the Act.

Messrs Joint Venture KG/Rist v. Federation of Pakistan and 2 others PLD 1996 SC 108; Province of Punjab and others v. Messrs Mian Muhammad Saleem & Co. 1985 SCMR 1215; Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393; Messrs Badruddin H. Mavani v. Government of Pakistan, Ministry of Food and another 1981 CLC 339; Messrs National Construction Co. v. The West Pakistan Water and Power Development Authority PLD 1987 SC 461; Abdur Rahman Munshi and 7 others v. Dr. Abdul Malek and 11 others 1968 SCMR 275; Gulzar Hussain Awan v. Akbar 1984 CLC 3164; Moinuddin Siddique v. Saleem Siddiqui 1984 CLC 2568; Messrs Alpha Insurance Co. Limited v. Messrs Ch. Nizam Din & Sons and another 2001 CLC 289; Messrs Ghee Corporation of Pakistan Ltd. v. Messrs Kouk Oils and Grains (Pvt.) Ltd. 1999 MLD 2617; Turner Morrison Garahams Group of Companies, London v. Rice Export Corporation Pakistan Ltd. PLD 1998 Kar. 79; Zakaullah Khan v. Government of Pakistan PLD 1998 Lah. 132; Messrs Ibad & Co. v. Province of Sindh and 2 others PLD 1980 Kar. 207; The Premier Insurance Co. (Pakistan) Ltd., Karachi v. Ejaz Ahmed Khawaja and 3 others 1981 CLC 311; AJ&K Government v. Ghulam Rasuf Lone 1983 CLC 926; Associated Constructors Ltd. v. Karachi Municipal Corporation 1982 CLC 1984; Messrs Qamar Din Ahmad & Co. v. Pakistan and another PLD 1971 Lah. 380; Baluchistan Province and another v. Malik Haji Gul Hassan PLD 1982 Quetta 52; Faizanul Haq v. Irfanul Haq, etc. 1986 MLD 2750; Province of Baluchistan v. Messrs Tribal Friends Company, Loralai PLD 1986 Quetta 321 and Messrs Hussain Textile Mills Limited, Karachi v. Messrs Dada Sons Limited, Karachi PLD 1973 Kar. 413 ref.

(j) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 13, 8, 20, 23 & 2(a)‑‑‑Jurisdiction of Arbitrator‑‑‑Scope‑‑‑Arbitrator has to act within the jurisdiction, scope of reference and arbitration agreement.

(k) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑S.30‑‑‑Award, setting aside of‑‑‑Grant of interest/general mark‑up and profit from date of award until decree‑‑‑Validity‑‑‑Court disallowed same being in excess of jurisdiction, scope and authority of Arbitrator.

(l) Arbitration Act (X of 1940)‑‑‑

‑‑‑‑Ss. 14(2), 17 & 38‑‑‑Arbitrator's claim as to fee and costs due in respect of arbitration‑‑‑Arbitrator filed award in Court alongwith application under S.14(2) of the Act‑‑‑Court while making award rule of Court allowed such claim of Arbitrator and directed respondents to pay their share of costs stated in award.

Rahim v. Shahban and others AIR 1935 Sindh 200 and Shib Krishna Tarafdar v. Sunil Kumar Tarafdar AIR 1949 Cal. 189 ref.

Bilal A. Khawaja for Plaintiff.

Akhtar Ali Mehmood for Defendant.

Date of hearing: 21st November, 2000.

2002 Y L R 1752

[Karachi]

Before Zahid Kurban Alvi, J

ZOOMA‑UR-REHMAN and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1081 of 2002, decided on 27th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 324/353/385/386/427/506‑B/34‑‑‑ Bail, grant of‑‑‑Further inquiry‑‑‑Offence committed by accused was not covered under 5.386, P.P.C., but was within ambit of S. 385, P. P. C. sentence whereunder was up to 2 years only which was not compoundable‑‑­Section 385, P. P. C. whereunder accused were charged was not compoundable‑‑‑Even no amount had bee shown to have been recovered from the possession of accused‑‑­Case against accused being of further inquiry, concession of bail was given to accused.

Sardar Muhammad and 4 others v. The State 1977 SCMR 326; Rab Nawaz v. The State 1990 SCMR 1085; Muhammad Siddique v. The State 2001 PCr.LJ 729 and Ghulam Murtaza v. The State 2001 PCr.LJ 1691 ref.

Shahadat Awan for Applicants.

Javed Akhtar for the State.

2002 Y L R 1773

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

ABDUL SATTAR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.840 and Miscellaneous Application No. 1806 of 2002; decided on 13th August, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑‑Bail, grant of‑‑­Accused had been instrumental in obtaining the passport of the absconding co‑accused and arranging the air ticket in collusion with another‑‑‑Statement of the prosecution witness prima facie connected the accused with organizing and managing of trafficking/ export of heroin powder through the absconding co‑accused who was the carrier and consequently, a prima facie case of commission of offence under S.9(c), Control of Narcotic Substances Act, 1997 had been made out against the accused‑‑‑Case of accused not calling for further inquiry under S.497(2), Cr.P.C., he was declined bail.

Ghulam Sarwar Chandio for Applicant.

Khursheed A. Hashmi, Dy. A.‑G. for the State.

Date of hearing: 6th August, 2002.

2002 Y L R 1870

[Karachi]

Before S. Ahmed Sarwana and Muhammad Majeebullah Siddiqui, JJ

ABDUL SATTAR DERO‑‑‑Appellant

Versus

THE STATE

Criminal Accountability Appeal No. 14 of 2001, decided on 13th August, 2002.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ While interpreting and applying any provision of law its plain language is to be seen and the purport and intention of Legislature are to be inferred on the basis 6f plain language of the law.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Intention of Legislature can be inferred by comparison of similar or like provisions and if in the same statute Legislature has used expressions different from each other, then the Court can legitimately infer that by using different expressions the intention of Legislature was to enact different and distinct provisions in terms of the language in which they are couched.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ While interpreting any provision of law contained in a statute, the entire statute and the scheme contained therein is to be looked into and no provision of law is to be inter­preted or applied in isolation.

(d) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss.10(a), 16‑A(a) & 18(a)‑‑‑Application submitted by the D.P.G.A. under his own signatures before the Special Judge (Central) being without sanction and authority of law, the order passed by the Special Judge (Central) directing the transfer of the case from his Court to the. Accountability Court was not in accordance with the mandate of law and was illegal, void and inoperative‑‑­Consequently all the proceedings in pursuance of the said transfer order conducted by the Accountability Court were 'coram non judice and without jurisdiction‑‑­Said transfer order was also void and inoperative for the reason that it had been passed without notice to the accused in violation of the basic principle of the administration of justice whereby nobody was to be condemned unheard‑‑‑Additionally, no reference made by NAB had been received by the Accountability Court against the accused in respect of an offence under the NAB Ordinance and still it had taken cognizance of the offence under the NAB Ordinance against the accused in violation of the prohibition contained in S. 18(a) of the NAB Ordinance, 1999‑‑‑Impugned judgment awarding convic­tion and sentence to the accused was conse­quently set aside being without jurisdiction and the case was remanded to the Court of Special Judge (Central) with the direction to frame fresh charge and conduct de novo trial against the accused in accordance with law.

Commissioner of Income‑tax v. Fazlur Rahman PLD 1964 SC 410; The Chief Commissioner, Karachi v., Mrs. Dina Sohrab Katrak PLD 1959 SC 45; Province of East Pakistan v: Nur Ahmad PLD 1964 SC 451; Shaikh Abdur Rehman v. The Collector and Deputy Commissioner PLD 1964 SC 461; University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Zahid Hussain Zaidi v. The Crown PLD 1956 FC 58 ref.

(e) Maxim‑‑‑

---------“Audi alteram partem " (no person shall be condemned unheard) is not confined to only judicial proceedings but extends to all proceedings affecting person or property of a party‑‑‑Mere absence of provision as to notice in the statute cannot override the principle of natural justice which shall be presumed to be embodied in a statute in absence of any provision to the contrary.

Commissioner of Income‑tax v. Fazlur Rahman PLD 1964 SC 410; The Chief Commissioner, Karachi, v. Mrs. Din Sohrab Katrak PLD 1959 SC 45; Province of East Pakistan v. Nur Ahmad PLD 1964 SC 451; Shaikh Abdur Rehman v. The Collector and Deputy Commissioner PLD 1964 SC 461 and University of Dacca v. Zakir Ahmed PLD 1965 SC 90 ref.

(f) Interpretation of statutes‑‑‑

---When provision of law is couched in negative and places embargo on Court from taking, cognizance of any offence, then a strict view is required to be taken, because the absence of condition precedent for taking cognizance of the offence affects the jurisdiction of the Court and any objection to the proceedings and jurisdiction of the Court goes to the very root of the case.

(g) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑Ss.16‑A(a) & 18(a) ‑‑‑ Initiation Of proceeding, in Accountability Court‑‑­Procedure‑ ‑Proceedings before a Court established under the NAB Ordinance can be initiated either by a reference made under S. 18(a) or by transfer of a case under S.16‑A(a) of the said Ordinance‑‑‑In the first eventuality the Accountability Court shall take the cognizance of an offence immediately on receiving the reference but in the second eventuality the Accountability Court shall receive the case but shall not take of cognizance until and unless a reference is also received under S.18(a) of the NAB Ordinance‑Receiving of a case and taking of cognizance are two‑ distinct acts of the Court ‑‑‑Mere receiving of the case in Court does not amount to taking of cognizance of the offence.

(h) Criminal trial‑‑‑

---Appreciation of evidence‑‑‑Evidence recorded by a Court without jurisdiction cannot be considered for the purpose of deciding the merits of the case.

Azizullah K. Shaikh for Appellant

Sarfraz Khan Tanoli, Special Prosecutor and Muhammad Anwar Tariq, D.P.G.A. for the State.

Dates of hearing: 6th, 7th, 11th, 12th and 13th June, 2002.

2002 Y L R 1954

[Karachi]

Before Wahid Bux Brohi, J

Messrs NOVATEX LIMITED‑‑‑Plaintiffs

Versus

Messrs SARDAR MUHAMMAD ASHRAF D. BALOCH, OCTROI CONTRACTOR, K. M . C. ‑‑‑Defendants

Suit No. 281 of 1999, decided on 6th August, 2002.

(a) West Pakistan Municipal Committee Octroi Rules, 1964‑‑‑

‑‑‑‑R. 218‑‑‑Contract Act (IX of 1872), S.72‑‑‑Case of miscalculation or of coercion‑‑‑Payment made under coercion‑‑­Provisions of S.72 of Contract Act, 1872‑‑­Applicability‑‑‑Dispute was with regard to classification of goods for the purpose of octroi‑‑‑Owner of the goods at the time of payment of octroi had no way out but to surrender to the unlawful demand of octroi contractor who was the person in authority‑‑­Initially, wrong classification of goods had given an impression of error but actually in effect and consequences it was manifestly a compulsion attracting the expression 'coercion' appearing in S.72 of Contract Act, 1872‑‑‑Present was not a case of miscalculation or error within the meaning of R.218 of Municipal Committee Octroi Rules, 1964.

(b) West Pakistan Municipal Committee Octroi Rules, 1964‑‑‑

‑‑‑‑R.218‑‑‑Contract Act (IX of 1872), S.72‑‑­Refund of excess payment made because of miscalculation or error ‑‑‑Procedure‑‑­Procedure has been laid down under R.218 of Municipal Committee Octroi Rules, 1964, calling upon aggrieved person to ask for refund of the excess payment of octroi duty within a period of 30 days‑‑‑Such embargo though appears in the form of limitation for instituting departmental proceedings for refund of excess collection, but it does not extinguish a right accruing to a person under substantive law‑‑‑Aggrieved person cannot be deprived of his right. of refund of money if otherwise under the general law, as contained under S.72 of Contract Act, 1872, he is entitled to the same.

Jamea Industries Limited v. K.M.C. PLD 1982 Kar. 870; AIR 1949 Nag. 215; AIR 1941 Mad. 439 and Koh‑e‑Noor Industries Limited v. Government of Pakistan 1994 CLC 994 ref.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.72‑‑‑West Pakistan Municipal Committee Octroi Rules, 1964, Rr. 218 & 226 (d)(iv)‑‑‑Amount paid because of miscalculation or error or under coercion‑‑­ Refund‑‑‑Liability of contractor‑‑‑Dispute was with regard to classification of goods for the purpose of octroi‑‑‑Plaintiffs at the time of payment of octroi had no way out but to surrender to the unlawful demand of octroi contractor who was the person in authority‑‑­ Subsequently on the application of the plaintiffs, the Competent Authority decided the matter and classified the goods differently from the one classified by the contractor‑‑­ Plaintiffs demanded refund of the excess payment made to the contractor due to wrong classification‑‑‑Receipts produced by, the plaintiffs regarding the payment of octroi under wrong classification were admitted by the contractor‑‑‑Plea raised by the contractor was that under the provisions of R.218 of Municipal Committee Octroi Rules, 1964, the refund could only be made within 30 days of the payment and the claim of the plaintiffs war: barred by time‑‑‑Validity—Receipts produced by the plaintiffs‑ were accepted as payment received, therefore, the plaintiffs were entitled to refund of the amount under S.72 of Contract Act, 1872, which was paid under compulsion in excess of legal and accepted rate‑‑Total differential worked out by the plaintiffs was not challenged by the contractor‑‑‑Claim of plaintiffs for refund of amount was just and legal ‑‑‑Octroi contractor was not an agent of Metropolitan Corporation‑but a lessee within the n teaming of Chap. XX of West Pakistan Municipal Committee Octroi Rules, 1964‑‑‑Where the octroi contractor was lessee under R.226(iv)(d) of West Pakistan Municipal Committees Octroi Rules, 1964, he having charged the excess octroi duty was liable to refund the amount to the plaintiffs ‑‑‑Octroi contractor was directed to refund the excess payment to the plaintiffs‑‑‑Suit was decreed accordingly.

Muhammad Sharif for Plaintiffs.

Neel Keshav for Defendants.

2002 Y L R 1969

[Karachi]

Before Abul Inam, J

M. HANNAN and 2 others‑‑‑Plaintiffs

Versus

Dr. ANWARUL HASSAN and another‑‑‑Defendants

Suit No. 821, Civil Miscellaneous Applications Nos.7025 of 1997 and 3940 of 1998, decided on 4th June, 1998.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.29‑‑‑Void agreement‑‑‑Agreement mean­ing of which is not certain, or capable' of being made certain is void under S.29 of Contract Act, 1872.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.10‑‑‑Return of plaint‑‑‑Options available to plaintiff‑‑‑After an order for return of plaint is passed by a Court for presentation of the same before Court of competent jurisdiction more than one options are available to the plaintiff, i.e. namely that plaintiff may file an appeal against the order of return of plaint; plaintiff may present it before a Court of competent jurisdiction; plaintiff may amend the plaint so as to bring it within the jurisdiction of the Court which passed an order for, return of plaint; and plaintiff may file a fresh suit before a Court of competent jurisdiction.

(c) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. VII, R.10‑‑‑Rejection of plaint‑‑‑Filing of new suit on same cause of action‑‑­Validity‑‑‑Such suit to all intents and ‑purposes is to be treated a first suit and not merely a continuation of the earlier one‑‑­Plaintiff cannot be precluded from filing a fresh suit where earlier the plaint with same cause of action has been returned' for presentation to a Court of competent jurisdiction.

Mst. Hawabai and 6 others v. Abdul Shakoor and 8 others PLD 1981 Kar. 277 ref.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss. 12, 42 & 54‑‑‑Civil Procedure Code (V of 1908), O.II, R.2 & O. VII, R. 11‑‑­‑Limitation Act (IX of 1908), Art. 113‑‑‑Plaint, rejection of‑‑‑Relief not claimed in earlier suits‑‑‑Effect‑‑‑Plaintiffs claimed to be owners of suit property on the basis of agreement to sell ‑‑‑Earlier two suits filed were for declaration and permanent injunction but relief of specific performance of agreement to sell was omitted‑‑‑Trial Court returned both the earlier suits to be presented before Court of competent jurisdiction‑‑‑Present suit was filed by the plaintiffs for specific performance of agreement to sell‑‑‑Plea raised by the defendants was that the suit was liable to be rejected as in both the earlier suits relief for specific performance of agreement to sell was omitted by the plaintiffs‑‑‑Validity‑‑‑To discourage splitting up of claim and to avoid multiplicity of suits, the provisions of O.II, R.2 were introduced in the Civil Procedure Code, 1908‑‑‑As the plaintiffs had omitted claim of specific performance in the two earlier suits on the basis of same cause of action, the plaintiffs were debarred from filing the present suit which was barred under Art. 113 of Limitation Act, 1908 and O.II, R.2, C.P.C. ‑‑‑Plaint was rejected in circumstances.

Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others 1996 SCMR 1047 ref.

Muhammad Younus for Appellant.

F.M. Mukkaram, Ali Akbar and Anwar Hussain for Respondents.

2002 Y L R 1984

[Karachi]

Before Mushtaq Ahmad Memon, J

S. ZAHEER HUSSAIN NAQVI‑‑‑Applicant

Versus

Mrs. Sahebzadi AMNA SAEED and others‑‑‑Respondents

Suit No.21 of 1996 and Judicial Miscellaneous No.62 of 1997 , decided on 14th April, 1999.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Scope of proceedings under S.12(2), C.P.C.‑‑‑Whether relief under S.12(2), C. P. C. was available to a party against its own attorney‑‑‑Scope of proceedings under S.12(2), C. P. C. was confined to fraud practised upon Court itself and obtaining an order or decree through misrepresentation—Civil Court was also empowered to recall and set aside an order passed by it without jurisdiction under provisions of S.12(2), C. P. C. ‑‑‑Party alleging fraud and misrepresentation by its own attorney, would not be entitled to relief under S.12(2), C.P.C., but could pursue his remedy independently against said attorney.

Abdul Sattar and others v. Ibrahim and others PLD 1992 Kar. 323 ref.

Imtiaz Ahmed Ansari for Applicant.

Shaikh Muneer‑ur‑Rehman for Respondents Nos. 1 to 4.

2002 Y L R 2073

[Karachi]

Before Anwar Zaheer Jamali, J

MUHAMMAD RAFIQ ALLAH RAKHA‑‑Plaintiff

Versus

GOVERNMENT OF SINDH and others‑‑‑Defendants

Suit No. 1235 of 2001 and Civil Miscellaneous Application No.1733 of 2002, decided on 22nd May, 2002.

(a) Landlord and tenant‑‑‑

‑‑‑‑ Protection of tenancy rights‑‑‑Tenancy rights being valuable legal rights a party could approach Court in appropriate cases for protection of such rights.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 94(e), 151 & O. VII, R. 7‑‑­Administration of justice‑‑‑Jurisdiction of Court‑‑‑Courts were not denuded of their powers to mould and grant such relief to a party as dictates of justice could demand in changed circumstances of case, even if such relief had not been expressly claimed by a party, provided that Court had jurisdiction to grant such relief.

PLD 1988 Kar. 414; PLD 1978 SC 220 and PLD 1989 Kar. 404 ref.

Rasheed A. Razvi for Plaintiff.

Ch. Muhammad Iqbal, A.A.‑G. for Defendant No. 1.

Raja Sikandar for Defendant No.3.

Muhammad Anees for Defendant No.5.

Rasheeduddin for Contemners Nos. 1 to 3.

2002 Y L R 2142

[Karachi]

Before Mamoon Kazi, C. J. and Dr. Ghous Muhammad, J

RIZWAN ALI and others‑‑‑Petitioners

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No. 1208 and Miscellaneous Application No.3179 of 1996, decided on 5th August, 1996.

Educational institution--------

---Admission---Permission to appear in examination---Disaffiliation of affiliated Medical College---Effect---Medical College in which candidates initially got admission, later on was disaffiliated and candidates were admitted in an affiliated College--Disaffiliated Medical College in which candidates initially got admission had taken undertaking from candidates to the effect that a last chance would be given to candidates to appear in first professional M.B.,B.S. Examination---Candidates in their Constitutional petition had challenged said undertaking referring to Regulations of Pakistan Medical and Dental Council whereunder four chances were allowed to candidates to clear first professional M.B.,B.S. Examination--- Validity---Candidates if had any cause of action, same at best "rind be against disaffiliated Medical college where candidates initially took admission, which after disaffiliation had become a non-entity for academic purpose and was not amenable to Constitutional jurisdiction of High Court---No vested right had been created in favour of candidates under Regulations of Pakistan Medical and Dental Council and if any further conditions it-ere imposed on candidates, they had no right to challenge same---Constitution of Pakistan (1973), Art.199.

Haseebur Rehman for Petitioners.

R.H. Farooqui for Respondents Nos.2 and 3.

K.M. Nadeem, A.A.-G.

2002 Y L R 2194

[Karachi]

Before Syed Zawwar Hussain Jafery, J

ABDUL MAROOF KHAN AFRIDI and others‑‑‑Applicants

Versus

ZIA MUHAMMAD KHATRI and others‑‑‑Respondents

Revision Application No.30 of 2000, decided on 21st June, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑S. 24 & O. VII, R.11‑‑‑Transfer of case by superior Court to Court below‑‑‑Rejection of plaint‑‑‑Where case was transferred by superior Court to Court below, transferee Court below was supposed to proceed with the case from stage from where it was transferred‑‑‑Once the High Court had dismissed application filed under O.VII, R.11, C.P.C. Trial/transferee Court would not be competent to re‑hear matter on same ground‑‑‑In so doing trial/transferee Court would nullify order of High Court by exceeding its jurisdiction.

1981 SCMR 878; 1990 SCMR 163; PLD 1975 Lah.1094; 1986 SCMR 907; PLD 1977 Kar.747; PLD 1964 Pesh. 157; PLD 1950 Pesh. 35; Ghulam Ali v. Asmtullah and another 1990 SCMR 1630; Riaz and others v. Razi Muhammad 1982 SCMR 741; Ghulam Rasool v. Mst. Hamida Begum and others PLD 1992 Lah.363; Mian Muhammad Akram and others v. Muhammad Raft 1989 CLC 15; Muhammad Akhtar and others v. Abdul Hadi and others 1981 SCMR 878; Syed Khadim Ali Shah v. S.M. Zia and others PLD 1981 Kar.604; Seved Stars Goods Transport Co. (Registered) v. Administrator, K.M.C. PLD 1976 Kar.21; Nizar Ali v. Noorabad Cooperative Housing Society Ltd. PLD 1987 Kar.676; Abdul Rahim v. KDA 1988 CLC 1207 and Pahloomal Motiram v. Abdul Quddus Behari and others PLD 1.971 Kar. 250 ref.

Shehanshah Hussain for Applicants.

Ashiq Ali Abdullah for Respondent No. 1.

Abdul Majid Wyne for Respondent No. 2.

Date of hearing: 11th June, 2001.

2002 Y L R 2376

[Karachi]

Before Ghulam Rabbani, J

MUHAMMAD AAMIR and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.236, 239 and 251 of 1992, decided on 4th February, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

-----Ss.302/324/34‑‑Appreciation of evidence‑‑­ Sentence, reduction of--‑‑Incident had taken place to a densely populated area at a Marriage cermony‑‑‑Sufficient light was available at the scene of occurrence which was not disputed by the defence‑ ‑‑Evidence of the eve‑witnesses had not suggested any visual obstruction or infirmity disabling them to witness the incident‑ ‑‑Defence had challenged the evidence of the complainant as he had not named one of the accused persons in the F.I.R. but had named him in his evidence: also, he had not named three of the eve‑witnesses in the F. I. R. to be present at the spot at the tithe of occurrence‑‑­Contention was repelled as the defence had not challenged the complainant in his cross-­examination as regards the inclusion of the name of the particular accused in his examination‑in‑chief‑‑‑Complainant had stated in the F.I.R. that the incident had been witnessed by other people as well; contention of the defence as regards the particular eye­witnesses was thus repelled in circumstances‑‑‑Complainant had conscious owned his statement under S.154, Cr. P. C. and had in his evidence, fully supported the same in clear terms in material details‑‑‑All the eve‑witnesses could not be termed as chance witness‑‑‑Ocular evidence had been corroborated by medical evidence and collection of blood samples front place of occurrence‑‑‑Accused had remained in prolonged custody, in death cell, after filing their appeals in expectation of their release/acquittal‑‑‑Extreme penalty of death was not called for in circumstances‑‑­Sentence awarded to the accused were altered from death to life imprisonment.

Muhammad Arshad v. The State PLD 1995 SC 475; Sajjad Hussain v. The State 1997 SCMR 174; Imtiaz Hussain Phulpoto v. Returning Officer 1987 SCMR 468; Iftikhar Ahmed alias Boby and another v. The State 1991 PCr.LJ 488: Daud alias Dadan and another v. The State PLD 1964 Kar. 428; Abdul Hameed v. The State 1985 PCr.LJ 1992 and The State v. Muhammad Sharif and 3 others 1995 SCMR 635 ref.

(b) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑Solitary statement of a witness‑‑‑Conviction ofan accused can be based on evidence of a sole witness provided it is found true, reliable and worthy of credence.

Faizullah v. The State 1995 PCr.LJ 510; Salamat Masih v. The State 1995 PCr.LJ 811; Gulistan and others v. The State 1995 SCMR 1789 and Muhammad Parvaiz v. The State 1993 SCMR 2185 rel.

(c) Penal Code (XLV of 1860)‑‑‑-

‑‑‑‑S.302‑‑‑Sentence, reduction in‑‑‑Offence had taken place in May, 1991 and soon thereafter the accused were arrested‑‑­ Accused were convicted vide judgment dated 17‑10‑1992; since then, for almost 70 years accused had remained in prolonged custody, in death cell, after filing their appeals in expectation of their release/acquittal‑‑­Sentences awarded to the accused were altered f coin death to life imprisonment in circumstances as sufficient to meet the ends of justice.

Fated Muhammad v. Bagoo and others PLD 1960 SC 28; Ghulam Hussain v. Zainullah and another PLD 1961 SC 230 and Muhammad Akbar v. The State PLD 1961 (W.P.) Lah. 348 rel.

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

‑‑‑Ss.377 & 378‑‑‑Conftnnation of new sentence to be signed by two Judges and procedure in case of difference of opinion‑‑No fetters are placed on the third Judge, he may agree with airy of the Judges differing with each other and can also form and express his own opinion and finding the accused guilty may pass a sentence as he thinks proper.

Subedar v. The State AIR 1956 All. 529; AIR 43 Cal. 142 Abdul Raziq v. The State 1964 (W. P.) Pesh. 67; Babu and others v. The State of Uttar Pradesh AIR 1965 SC 1467; Muhammad Sharif v. The State PLD 1971 Lah. 708; Muhammad Nazeer and 4 others v. The State 1983 PCr.LJ 72; Niaz Muhammad v. The State 1996 PCr.LJ 394 and Raza Khan v. The State 1998 PCr. LJ 530 ref.

Abdul Hafeez Lakho, A.Q. Halepota and Iqtadar Ali Hashmi for Appellant.

Habib Ahmed, Asstt. A.‑G., Sindh for the State.

Dates of hearing: 28th, 29th, 30th November; 8th, 12th, 13th, 14th December, 2000. 11th, 12th January, 2001 and 16th October, 2002.

2002 Y L R 2599

[Karachi]

Before Wahid Bux Brohi, J

Messrs PROCON PIPELINES (PVT.) LIMITED‑‑‑Applicant

Versus

ISLAMIC REPUBLIC OF PAKISTAN and others‑‑‑Respondents

Civil Miscellaneous Application No. 1891 in Suit No.938 of 2001, decided on 20th May, 2002.

Civil Procedure Code (V of 1908)---

‑‑‑‑O.XII, R.6‑‑‑Judgment and decree on admission of a party ‑‑‑Applicant/plaintiff had prayed that suit be decreed in view of admission made by defendants in their written statement‑‑‑Amounts worked out in the relevant para. of plaint was much more than worked out by defendants and admitted in their written statement‑‑‑Defendants had whittled down entire claim of the applicant except what they themselves had worked out‑‑‑Essential ingredients for purpose of attracting application of O.XII, R.6, C.P.C. were thus lacking in the case and material items of claim were by and large disputed by defendants‑‑‑Clear and separable amount having not been mentioned in the written statement by defendants, points at controversy were yet to be determined by way of allowing parties to lead evidence on the issues‑‑­Application being premature was dismissed.

Qatar Airways v. Genyis International (Pvt.) Limited 2002 CLC 449 ref.

Badrudduja Khan for Applicant.

Raja Sikandar Khan Yasir for Respondents Nos. 1 and 2.

2002 Y L R 2653

[Karachi]

Before Shabbir Ahmed and Ata‑ur‑Rehman, JJ

SAHIB ALI‑‑‑Plaintiff

Versus

PAKISTAN STEEL MILLS CORPORTATION and 2 others‑‑‑Defendants

Suit No. 1223 of 1989, decided on 16th August, 2002.

(a) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Determination of amount of compensation‑‑‑Defendants neither had denied the fact of accident nor death of deceased, but had denied allegations of rashness and negligence on part of defendant driver‑‑‑Case of defendants was that accident had taken place due to negligence of the deceased‑‑‑Once factum of accident was established, burden to prove absence of negligence was on defendants, but defendant had failed to discharge the same‑‑‑Evidence of eye‑witnesses whose presence at the spot was not questioned and documentary evidence produced by Investigating Officer hat supported the case of plaintiff that deceased died due to rash and negligent driving of the driver‑‑‑Suit was decreed taking into consideration age, earning capacity and life expectation of deceased and determine compensation amount payable to plaints and other dependants of deceased.

Mairajuddin v. K.W. & S.B. 1991 MLD 1726 and K.W. & S.B. v. Mairjuddin 2000 SCMR 275 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 70, 72 & 102‑‑‑Rebuttal of documentary evidence by oral evidence ‑‑‑Validity‑­Documentary evidence could not be rebutted merely by oral assertions.

Mirza Muhammad Qasim Baig v Government of Sindh 2000 YLR 1669 ref.

(c) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑‑S.1‑‑‑Fatal accident‑‑‑Suit for compensation‑‑‑Cause of accident‑‑‑Negligent act of driver‑‑‑Rash and careless driving‑­Determining factors stated.

Mirza Qasim Baig v. Government of Sindh 2000 YLR 1669 ref.

(d) Fatal Accidents Act (XIII of 1855)‑‑‑

‑‑‑S. 1 ‑‑‑Fatal accident‑‑Contributory negligence in case of a child stated.

A distinction must be necessarily drawn between children and adults when the question of contributory negligence arises, for a child cannot be expected to be as careful for his own safety as an adult. Where a child is of such an age as to be unable to fend for himself or to be naturally ignorant of danger, or where in doing an act, which contributed to the accident, he was only following the instincts natural to his age and the circumstances, he is not guilty of contributory negligence. A child should be found guilty of contributory negligence only if it is established as a matter of fact on the evidence on record that he is of such an age and understanding as reasonably to be expected to take precautions for his own safety and the blame for the accident could be necessarily attached to him. In cases of road accident, it must be borne in mind that a child is not possessed of the road sense or the experience of elders. Even if it transpires that he was taught road discipline either at home or at school and that, therefore, if he had bestowed some thought, he would have realized that it was his duty to take reasonable care for his own safety, still a normal child would not be held culpable in view of his propensity to forget altogether what has been taught to him if something else is uppermost in his mind. A normal child is always momentarily forgetful of the perils of crossing and walking on a road, regretfully though, and under such circumstances, if he failed to notice even an oncoming vehicle and got hurt by it, he cannot be held guilty of contributory negligence. In such a case, the question of the duty of the driver of the vehicle must be examined with greatest precision and unless the driver is in a position to show on establishment of primary facts that he was driving the vehicle in such a manner that he could have brought it to standstill in case of emergency and that the accident was inevitable or unavoidable, the inference of his negligence and his alone must be raised almost as a matter of course.

Amul Ramchandra Gandhi v. Abbasbhai Kasambhai Diwan AIR 1979 Guj. 14 ref.

Nasir Maqsood for Plaintiff.

Akhlaq Siddiqui for Defendants.

2002 Y L R 2733

[Karachi]

Before S. Ali Aslam Jafri, J

MUHAMMAD HAYAT‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.316 of 2002, decided on 23rd May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/114/109/324/337‑H(2)‑‑­Protective pre‑arrest bail‑‑‑Accused had suppressed the fact of filing pre‑arrest bail on a previous occasion and its objection on merits by the Sessions Court‑‑‑Such conduct of accused was itself sufficient to decline the exercise of discretion in his favour‑‑‑Accused should have approached the High Court after rejection of his pre‑arrest bail, but he instead applied for protective pre‑arrest bail which was granted for period of ten days by the High Court‑‑‑Accused did not surrender before the Trial Court and had again applied for protective bail, suspension of non‑bailable warrants and the proclamation order issued against him by Trial Court‑‑‑Suppression and concealment of the aforesaid facts by the accused alone had made him disentitled to the exercise of discretion in his favour‑‑‑Petition was rejected accordingly.

Khdim Hussain and 5 others v. Sher Afzal and another 2000 PCr.LJ 974; Suhrab v. The State 2001 PCr.LJ 366 and Karim Bux v. The State 2000 SCMR 1405 ref.

Asif Ali Abdul Razzak Soomro for Applicant.

Sher Muhammad Shar, A.A.‑G. for the State.

Ali Murad Abro for the Complainant.

2002 Y L R 2764

[Karachi]

Before S. Ali Aslam Jafry, J

UMAR DIN LODHI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.214 of 2002 and 554 of 2000, decided on 24th May, 2002.

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

‑‑‑‑S.498‑‑‑Pre‑arrest bail‑‑‑Power of High Court under S. 498, Cr. P. C. are not merely revisional but are concurrent with those of Sessions Court.

The Crown v. Khushi Muhammad PLD 1953 FC 170; Muhammad Abbas v. The Crown PLD 1950 Sindh 80; Ch. Muhammad Samma and another v. The State 1976 SCMR 45 and The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 ref.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 409/420/467/468/471‑A/34 ‑‑‑ Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Pre-­arrest bail‑‑‑Offences pertained to the years 1992 to 1996 and the accused was posted as ADM in the year 1995, hence the whole of the period shown in the F.I.R. could not be put to his account‑‑‑Act of the accused relating to his period of posting was found in the two departmental inquiries conducted against him to be an irregularity in drawing the Government funds in excess to the sanctioned amount and not an embezzlement of the same‑‑‑Investigation was complete and the challan had been submitted in the Court‑‑­Accused who was a retired Government servant was no more required for any further investigation‑‑‑Involvement of huge amount in the case could not be made a ground for refusing the bail‑‑‑Two co‑accused had already been granted bail‑‑‑Accused had pleaded mala fides on the part of the Anti­Corruption Police at the behest of the complainant due to his personal ill‑will‑‑­Record and all documents being in the possession of the prosecution, there was no chance of tampering with the evidence‑‑­Accused had not misused the concession of interim pre‑arrest bail granted to him more than one and a half years back and the same was confirmed in circumstances.

The Crown v. Khushi Muhammad PLD 1953 FC 170; Muhammad Abbas v. The Crown PLD 1950 Sindh 80; Ch. Muhammad Samma and another v. The State 1976 SCMR 45; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Rana Phool Muhammad Khan and others v. The State 1975 SCMR 137; Meeran Bux v. The State and another PLD 1989 SC 347; Bashiruddin and another v. The State 1977 SCMR 40; Mir Akhter Kharr Khatak v. The State PLD 1982 Pesh. 128; Abdul Hay‑uz‑Zafar v. The State NLR 1983 Cr. 189; Ejaz Akhtar v. The State 1978 SCMR 64; 1991 SCMR 599 and PLD 2000 Kar. 6 ref.

Wahid Bux Baloch for Applicant.

Muhammad Bachal Tunio, A.A.‑G. for the State.

2002 Y L R 2854

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD NAEEM AHMAD‑‑‑Appellant

Versus

ASGEERI‑‑-Respondent

Criminal Miscellaneous No.24 of 2002, decided on 13th June, 2002.

(a) Guardians and Wards Act (VIII of 1890)‑‑‑

‑‑‑‑S.25‑‑‑Title of guardian to custody of ward‑‑‑Principles due to which a mother loses her right of Hizanat are that her marrying a person not related to the child within the prohibited degrees e.g. a stranger, but the right revives on the dissolution of the marriage by death or divorce, or if she goes and resides during the subsistence of the marriage at a distance from the place of residence of father of the minor, or if she is leading an immoral life or if she neglects to take proper care of the child.

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

‑‑‑‑S.491‑‑‑Habeas corpus petition‑‑‑Custody of the child‑‑‑Mother of the minor child had contracted a second marriage and she had also gone to live in L with her second husband where the minor had been shifted, whereas father of the minor (petitioner) resided in K‑‑‑Mother of the minor, thus, had lost her right of Hizanant and she was directed to hand over the custody of the minor to his father‑‑‑Entitlement to the custody of the minor on regular basis, however, would depend upon the adjudication by the Guardian Court in accordance with law.

Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR. 1891; Muhammad Khalil‑ur‑Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633 and Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268 rel.

Ali Gohar Masroof for Applicant.

Nasrullah Siddique for Respondent No.2 and Detenue.

Arshad Lodhi, Addl. A.‑G. for the State.

Date of hearing: 13th June, 2002.

2002 Y L R 2956

[Karachi]

Before S. Ali Aslam Jafri, J

MOULA BUX GELO‑‑‑ Appellant

Versus

THE STATE and 4 others‑‑‑ Respondents

Criminal Acquittal Appeal No. 8 of 2002, decided on 18th June, 2002.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑ Art. 203‑DD‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 24 & 17 (3)‑‑‑Appeal‑‑­Competency‑‑‑Appeal against an order of conviction or acquittal relating to offence under S. 17 (3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, can only be preferred before the Federal Shariat Court which has the exclusive jurisdiction in such matters.

Muhammad Hayatullah Khan and others v. Federal Land Commission PLD 1977 Lah. 166; Nazak Mir v. The State 1995 PCr.LJ 724; Mst. Shaheena Iqbal v. Federation of Pakistan PLD 1998 Kar. 266; Muhammad Hussain v. Muhammad Ramzan PLD 1982 FSC 11; Muhammad Riaz Ahmed v. Ajmal Hussain‑and others PLD 1983 SC Shariat Bench 233; The State v. Badlo Gosh alias Galu Fakir and another 1999 PCr.LJ 416; The State v. Pirak 1997 PCr.LJ 1900; The State v. Shahbaz Khan 1998 PCr.LJ 1229; Sultan Ahmad v. Khursheed Begum and 2 others 2001 PCr.LJ 884 and The State v. Abdul Ghafoor Khan Niazi and another 2000 PCr.LJ 7 ref.

(b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss.17(3) & 24‑‑‑Penal Code (XLV of 1860), Ss.314/324/365/148/149‑‑‑Constitution of Pakistan (1973), Art. 203‑DD‑‑‑Appeal against acquittal ‑‑‑Competency‑‑‑F.I.R. in the case was registered under S. 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, charge was also framed under the said section and accused were tried for the said charge‑‑‑Result of the trial could not change the jurisdiction of the Court‑‑‑Appeal against an order of acquittal in the said case falls within the ambit of S. 24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Art 203‑DD of the Constitution and the Federal Shariat Court had jurisdiction to entertain, hear and decide the same‑‑‑Appeal filed before High Court was not maintainable and was accordingly with observations that accused could approach the Court of competent jurisdiction, if so advised, which might consider the point of limitation sympathetically in view of the pendency of appeal before a wrong forum.

Muhammad Hayatullah Khan and others v. Federal Land Commission PLD 1977 Lah. 166; Nazak Mir v. The State 1995 PCr.LJ 724; Mst. Shaheena Iqbal v. Federation of Pakistan PLD 1998 Kar. 266; Muhammad Hussain v. Muhammad Ramzan PLD 1982 FSC 11; Muhammad Riaz Ahmed v. Ajmal Hussain and others PLD 1983 SC Shariat Bench 233; The State v. Badlo Gosh alias Galu Fakir and another 1999 PCr.LJ 416; The State v. Pirak 1997 PCr.LJ 1900; The State v. Shahbaz Khan 1998 PCr.LJ 1229; Sultan Ahmad v. Khursheed Begum and 2 others 2001 PCr.LJ 884 and The State v. Abdul Ghafoor Khan Niazi and another 2000 PCr.LJ 7 ref.

Muhammad Nawaz Chandio for Appellant.

Sher Muhammad Shar, A.A.‑G., Sindh for Respondents.

Abdul Razzaq Soomro and Ali Nawaz Ghanghro: Amicus curiae.

Date of hearing: 15th May, 2002.

2002 Y L R 3070(1)

[Karachi]

Before S.A. Sarwana and Muhammad Mujeebullah Siddiqui, JJ

STATE through Advocate‑General, Sindh, Karachi‑‑‑Appellant

Versus

Syed AYUB HAIDER NAQVI alias CHANDA‑‑‑Respondent

Special Anti‑Terrorism Acquittal Appeal No.114 of 2000, decided on 11th June, 2002.

Panel Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34/109‑‑‑Criminal Procedure Code (V of 1898), S. 417(1)‑‑‑Appeal against acquittal‑‑‑No illegality or infirmity could be pointed out in the impugned Judgment of acquittal passed by Trial Court‑‑­Evidence and material available on record had rightly been appreciated by the Trial Court which required no interference by High Court‑‑‑Appeal against acquittal of accused was dismissed in limine accordingly.

Habib Ahmed, A.A.-G. for the State.

2002 Y L R 3075

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

RANO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.5 of 2002, decided on 29th April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/504/34‑‑‑Bail‑‑‑Sufficient documentary evidence was available on record to show that the injuries on the thigh of the injured witness were self-­suffered‑‑‑Parties admittedly were on inimical terms with each other‑‑‑Two co-­accused had already been released on bail by the Trial Court in view of the conflict between the ocular and medical ­evidence‑‑‑Guilt against accused, thus, needed further probe as envisaged under S. 497 (2), Cr. P. C. and he was admitted to bail accordingly.

Abdullah v. The State 2001 MLD 1554 ref.

S. Mushtaq Hussain Shah for Applicant.

Ali Azhar Tunio, A.A.‑G. for the State.

Saifuddin Shah for the Complainant.

2002 Y L R 3137

[Karachi]

Before S. Ali Aslam Jafri, J

MIR MUHAMMAD ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.97 of 2002, decided on 28th May, 2002.

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

‑‑‑‑Ss.439(5) & 435‑‑‑Suo motu powers of revision‑‑‑Subsection (5) of S.439, Cr.P.C. does not take away the powers of the High Court or the Sessions Court under S.435, Cr. P. C. to initiate suo motu revision in appropriate cases.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.175‑‑‑Criminal Procedure Code (V of 1898), Ss.435, 439, 439‑A & 561‑A‑‑­Quashing of orders‑‑‑Magistrate, soon after framing the charge against the accused on the basis of certain documents placed before him by the accused along with his application under S.249‑A, Cr. P. C. exercised such powers and acquitted the accused on the defence plea without providing any opportunity to the complainant side to prove their case in the first instance through evidence which they proposed to produce during the trial‑‑‑Said order passed by the Magistrate being illegal, no exception could be taken to the view expressed by the Sessions Court in its order regarding the legality and propriety of the said order and remand of the case to another Magistrate for fresh decision‑‑‑Exercise of suo motu powers under Ss.435, 439 & 439‑A, Cr. P. C. by the Sessions Court was neither in excess of authority or jurisdiction nor illegal or even improper‑‑‑No case was made out for exercise of its inherent powers by High Court under S.561‑A, Cr. P.C. ‑‑‑‑Petition was dismissed accordingly.

Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad and Brothers Limited and another 1995 PCr.LJ 1369; Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 MLD 1605 and Muhammad Bashir v. Gazal Hussain and 2 others 2002 PCr.LJ 513 distinguished.

Abdul Qadir Abro for Applicant.

Sher Muhammad Shar, A.A.‑G. for the State.

Date of hearing: 28th May, 2001.

2002 Y L R 3421

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

LIAQAT ALI ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.777 of 2001, decided on 6th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.324/147/148/114 ‑‑‑ Bail‑‑‑Accused according to F.I.R. had caused hatchet blow on the head of the injured witness, which was contradicted by medical report‑‑‑Medical Officer had incorporated six injuries on the person. 7f the victim in his final Medical Certificate whereas in his Medical Certificate issued earlier he had disclosed only one injury‑‑‑Investigating Officer on the other hand had noted three injuries on the victim according to the Mashirnama of injuries‑‑‑Medical Officer had failed to perform his duties diligently and he had deliberately spoiled the prosecution case or tried to shield the accused from the commission of offence‑‑­Accused had succeeded in making out his case one of further inquiry in circumstances and he was admitted to bail accordingly.

S. Mushtaq Hussain Shah for Applicant.

Ali Abbas Maitlo for the Complainant.

Ali Azhar Tunio, A.A.‑G. for the State.

2002 Y L R 3424

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

NAWAL ROY‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 245 of 2002, heard on 26th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Incident admittedly was not witnessed by anybody‑‑‑Prosecution case simply rested on the evidence of last seen which did not place the accused and the deceased in a sufficiently close proximity to the time and space qua the offence of murder‑‑‑Belated disclosure of the fact of last seen evidence was not explained‑‑‑Accused was not named in the F.I.R.‑‑‑Case against accused, in circumstances, had necessitated further inquiry as contemplated under S. 497, Cr. P. C‑‑‑Bail was granted to accused accordingly.

Abdul Saleem v. The State 1998 SCMR 1578 and Muhammad Jamal v. Shaukat Ali and others 1996 SCMR 1685 ref.

Saifuddin Shah for Applicant.

Ali Azher Tunio. A.A.‑G. for the State.

Date of hearing: 26th June 2002.

2002 Y L R 3427

[Karachi]

Before S. Ali Aslam Jafri, J

IMTIAZ ALI‑‑‑Applicant

Versus

MUHARRAM and 2 others‑‑‑Respondents

Criminal Miscellaneous No. 52 of 2002, decided on 10th May, 2002

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

‑--‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Cancellation of bail ‑‑‑Occurrence had taken place in daytime and the identity of accused was not mistaken‑‑Ocular version was corroborated by medical evidence‑‑Fire‑arm injury on the left thigh of the complainant was attributed to accused‑‑‑Accused had led to the recovery of a T. T. Pistol‑‑‑Two empties of T. T Pistol had been recovered from the place of incident‑‑‑View taken by Trial Court that in view of the nature of the injuries the offence did not fall within the prohibitory clause of S.497 (1), Cr.P.C was not based on correct appreciation of the law and the facts as punishment for causing such injuries would be in addition to the punishment under S. 324, P.P.C. which fell within the said prohibition‑‑‑Frequent use of fire‑arm even in disputes of petty nature was most alarming and such trend needed to be curbed‑‑‑Grant of bail to accused by Trial Court had no justification and the same was cancelled accordingly.

Muhammad Afsar v. The State 1994 SCMR 2051 and Saleem Khan v. The State 1999 PCr.Ld 140 distinguished.

Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

Ali Nawaz Ghanghro for Applicant.

Roshan Ali Solangi for Respondents.

Sher Muhammad Shar, Asstt. A.-G for the State.

2002 Y L R 3451

[Karachi]

Before Zahid Kurban Alvi, J

MANZOOR and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.269 of 2002, decided on 6th June, 2002.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/324/114/147/148/149‑‑‑Bail‑‑­Accused who were allegedly armed with hatchets alongwith others who were armed with hatchets and Lathies were stated to have caused injuries to two persons which according to medical report did not fall within the prohibitory clause of S. 497, Cr. P. C as the sentence to be awarded to them would be less than ten years‑‑‑Bail was allowed to accused in circumstances.

Muhammad Ayaz Soomro for Applicant.

Habib Ullah G. Ghouri for the Complainant.

Mushtaq Ahmad Kourejo for the State.

2002 Y L R 3457

[Karachi]

Before Saiyed Saeed Ashhad, C J

Syed ASIF ALI and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1165 of 2000, heard on 12th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860) Ss.302, 365 & 324/34‑‑‑Bail, grant of‑‑Accused were in continuous detention for more than five years and on this ground alone they were entitled to bail ‑‑‑No evidence except the statement of the complainant was available to implicate the accused in the case‑‑‑Evidence of the complainant was not even credible as prosecution had failed to get the accused identified by him in the identification parade which was never held‑‑‑Accused were not, prima facie, connected with the commission of the offence and case against them required further inquiry‑‑‑Question as to whether the accused were dangerous, desperate and hardened criminals would have required consideration only if the prosecution had succeeded in making out a prima facie case against them‑‑‑Bail was allowed to accused in circumstances.

Agha Zafir Ali for Applicants.

Arshad Lodhi, A.A.‑G. for the State.

2002 Y L R 3460

[Karachi]

Before Abdul Ghani Sheikh, J

ABRAR AHMED‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.723 of 1998 decided on 24th August, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.436/427‑‑‑Bail, grant of had already been acquitted in the case‑‑­ Prosecution witnesses who had implicated the accused in their statements recorded under S. 164. Cr. P. C. were not mentioned in the F.I.R.‑‑‑One of the witnesses had not supported the prosecution case at the trial ‑‑‑Abscondence of accused alone in such circumstances was not sufficient to refuse him bail‑‑‑Prosecution had conceded that absolutely no evidence was available against the accused and had no objection if he was allowed bail‑‑‑Accused was admitted to bail in circumstances.

Agha Zafir Ali for Applicant.

Javed Akhtar for the State.

2002 Y L R 3462

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SHAHID ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.94 of 2062, decided on 22nd May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.516‑A‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Custody of case property on Superdari‑‑‑Applicant was stated to be the real owner of the property from whose possession it, was robbed‑‑‑Trial in the case was not likely to commence soon‑‑‑Applicant had undertaken to produce the articles as and when required by the Trial Court‑‑­Prosecution had no objection to the return of the said articles to the applicant‑‑‑Trial Court, in circumstances, was directed to return the robbed property to the applicant on Superdaginama.

Mahmood A. Qureshi for Applicant.

Suleman Habibullah, A.A.‑G. for the State.

2002 Y L R 3463

[Karachi]

Before S. Ali Aslam Jafri, J

ZAMIR HUSSAIN SHAH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.162 of 2002, decided on 10th July, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑---Art.37‑‑‑Penal Code (XLV of 1860), Ss.302/120‑B/109/34 ‑‑‑ Appreciation of evidence‑‑‑Extra judicial confession‑‑‑Extra judicial confession being a weak the of evidence cannot be made basis for conviction in a case of capital charge unless corroborated by so the other tangible piece of evidence.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/120‑B/109/34‑‑Bail‑‑‑Case against accused was based merely on the extra judicial confession of co‑accused made before the CIA Inspector for in the presence of prosecution witnesses‑‑‑No conviction could be based on the extra judicial confession in case of a capital charge unless corroborated by some other tangible piece of evidence which was not available with the prosecution‑‑‑Bail was allowed to accused in circumstances.

Mir Hazar Malik v. The State 1999 SCMR 1377 ref.

Maqbool Ahmed Awan for Applicant.

Abdul Sattar Soomro for the State

2002 Y L R 3591

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD ASLAM‑‑‑Applicant

Versus

THE STATE‑‑‑Complainant

Criminal Bail No.53 of 2002, decided on 2nd April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

-----S.498----Penal Code (XLV of 1860), S.380‑‑­Pre‑arrest bail, grant of‑‑‑Accused alongwith others was posted as Security Guard at the residence of Judge, Accountability Court and on dates when theft in the said residence was committed accused absented himself from duty without any intimation which gave rise to suspicion in the mind of complainant‑‑­ Complainant and police had no enmity with the accused‑‑‑Stolen property was yet to be recovered‑‑‑In case the accused was granted pre‑arrest bail same would not be recovered and normal procedure would be hampered and grant of bail would cause hurdle in achieving cause of administration of justice‑‑­Pre‑arrest bail being a matter of discretion of Court, same was to be exercised fairly and justifiably in exceptional cases where arrest of accused was motivated and harassment was apparent on record‑‑‑Offence against accused though was not covered by prohibitory clause of S.497(1). Cr. P. C. but case against him was of extraordinary nature as he being a guard appointed for protection of properties and lives of the complainant, was directly involved in the case‑‑‑Courts should not be obvious of the situation prevailing in the country where Police functionaries had joined hands with hardened criminals for monetary considerations and guardians and protectors of rights of their masters had turned decoits and thieves ‑‑‑Ordinary mode and procedure of investigation of police, could not tie thwarted by granting pre‑arrest bail in such matters‑‑‑Pre‑arrest bail application was dismissed in circumstances.

Kamran alias Ghulam Rasool alias Kaloo. v. State PLD 1997 Kar. 484; The State v. Aziz alias Abdul Aziz PLD 1985 Kar.27: Meeran Bux v. The State and another PLD 1989 SC 347: Zia ul Hassan v. The State PLD 1984 SC 192; Sarfraz Ahmad and 7 others v. The State 1992 PCr.LJ 2346: Abdul Ghafoor and another v. The State PLD 1988 Kar. 545 and Murad Khan v. Fazl‑e­-Subhan and another PLD 1983 SC 82 ref.

S. Sarfraz Ahmad for Applicant.

Miss Masooda Siraj for the State.

S. Mehmood Alam Rizvi for the Complainant.

Date of hearing: 2nd April, 2002.

2002 Y L R 3595

[Karachi]

Before Zahid Kurban Alvi, J

SHAHBAZ ALI and another‑‑‑Applicants

Versus

THE STATE and another‑‑‑Respondents

Criminal. Revision No.40 of 2001, decided on 6th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.173 & 193‑‑‑Penal Code (XLV of 1860), Ss.302/337‑H(ii)‑‑‑Placing accused in Column No.2 of challan‑‑‑Police after investigation submitted challan in which two co‑accused were kept in Column No.2 of challan, but on application of complainant, Trial Court implicated said two co‑accused and directed initiation of proceedings against them‑‑‑No specific role had been attributed to one of the said two accused except that his name appeared in F.I.R. whereas role assigned to second one was specific‑‑­Implication of first accused in circumstances, was unjustified‑‑‑Trial Court had to exercise due care in connecting the person in crime and there ought to be sufficient material connecting the person in alleged offence‑‑­Provisions of S.173, Cr.P.C. were not available to complainant who, if dissatisfied with decision of Investigating Agency, could file a direct complaint.

Inayatullah and 4 others v. The State 1999 PCr.LJ 731 ref.

Sarfraz Khan Jatoi for Applicants.

Ali Azhar Tunio, Asstt. A.‑G. for the State.

Date of hearing: 6th November, 2001.

2002 Y L R 3655

[Karachi]

Before S.A. Rabbani and Shabbir Ahmed, JJ

Pir MAQSOOD HUSSAIN SARHANDI‑‑‑Applicant

Versus

NATIONAL ACCOUNTABILITY BUREAU and others‑‑‑Respondents

Criminal Miscellaneous No.354 of 2001, decided on 9th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.561‑A‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), Ss.10 & 18‑‑­Reference to Accountability Court‑‑‑Quashing of proceedings‑‑‑Application for‑‑‑Reference showed that principal accused who was Ex­-Minister, in connivance with applicants/co accused had extended undue benefit to a Contractor by awarding him contract for transportation of wheat in violation of law, obtaining an illegal and wrongful gain and causing huge loss to public exchequer‑‑­Proceedings against principal accused were quashed on his application and case of applicants was not different from case of principal accused‑‑‑Contract was awarded against the administrative instructions, violation whereof could be dealt with by way of administrative and departmental action‑‑­Courts of law would not take cognizance of violation of such administrative instructions‑‑­Courts could take cognizance of violation of law and in the present case no law had been violated‑‑‑Prosecution witness whose evidence had been relied upon had stated that neither any loss had been caused to Government nor any undue benefit had been awarded by accused persons to contractor‑‑­No violation of law having been found in the case and no legal liability having been incurred by any of accused/applicants of which Court could take cognizance on reference, proceedings against applicants pending before Accountability Court on reference were quashed.

Abdul Hafeez Pirzada and Muhammad Nawaz Shaikh for Applicant (in Criminal Miscellaneous No.354 of 2001).

Kamal Azfar for Applicant. Criminal Miscellaneous No.443 of 2001).

Ali Ahmed Jenejo and Faisal Khalid for Applicant (in Criminal Miscellaneous No.401 of 2001).

Muhammad Anwar Tariq, Deputy Prosecutor‑General for Respondent (NAB) (in all Cases).

Date of hearing: 2nd May, 2002

2002 Y L R 3661

[Karachi]

Before Muhammad Moosa K. Leghari, J

SAIFULLAH and 3 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.87 and Miscellaneous Application No. 1065 of 2002, decided on 24th July. 2002.

Qanun‑e‑Shahadat (10 of 1984)‑‑‑--

‑‑‑Arts. 132 & 133‑‑‑Cross‑examination‑‑­Right and mode of‑‑Principles‑‑‑Riga of cross‑examination was a most valuable right of a party‑‑‑Statement of a witness under Qanun‑e‑Shahadat, 1984 was not effective and complete unless it had stood test of cross‑examination‑‑‑Right of cross examination was of particular importance for accused in criminal trials involving their life and liberty depending on verbal statements of witnesses deposing against them‑‑‑Court had to keep cross‑examination of a witness within legitimate bounds‑‑‑Court must be careful in discharge of such duty and not to exercise too effective control so as to unduly curtail legitimate cross‑examination‑‑‑Too much interruption in course of cross‑examination of witness by counsel for accused had more often than not, the result of robbing cross­ examination, which must be avoided by the Court‑‑‑Such curtailment of right was bound to prejudice accused resulting in miscarriage of justice.

Mehmood A. Qureshi for Applicants.

Chaudhri Fazul Rehman Awan, State Counsel.

2002 Y L R 3663

[Karachi]

Before Muhammad Afzal Soomro, J

SUKHIO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 742 of 2002, decided on 1st August, 2002.

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

‑‑‑‑S.498‑‑‑Pre‑arrest bail, grant of‑‑‑Criteria for‑‑‑First and foremost thing or condition precedent for grant of pre‑arrest bail was presence of ulterior motive, particularly on part of Police by means of causing unjustified harassment‑‑‑Another criteria for granting anticipatory bail was that if involvement was false and arrest was tainted with mala fides for purpose of humiliation and malicious prosecution.

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

‑‑‑‑S.498‑‑‑Pre‑arrest bail, grant of‑‑‑Object‑‑­Object of pre‑arrest bail was to save innocent persons from unnecessary harassment by arrests in cases initiated by motivated persons‑‑‑Mere mention of a person's name in F.I.R. was not sufficient to reject his prayer of anticipatory bail without consideration of other ingredients required to be taken in view.

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

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Pre‑arrest bail, grant of ‑‑‑Not only conflict had appeared in versions of prosecution witnesses who were examined before Judicial Magistrate under S.164, Cr. P. C., but the same appeared to be an after­ thought‑‑‑Accused in circumstances had made out case for grant of bail.

Ghulam Murtaza Qureshi v. The State 1990 PCr.LJ 323; Sikandar A. Karim v. The State 1995 SCMR 387; Ghulam Rasool v. Khadim Hussain and others 1991 PCr.LJ 241 and The State v. Riaz Ahmed and 3 others 2001 MLD 255 ref.

Mehmood A. Qureshi and Adnan‑ul-­Karim for Applicant.

Fazal‑ur‑Rehman for the State.

Ghulam Qadir Jatoi for the Complainant.

2002 Y L R 3667

[Karachi]

Before Ghulam Nabi Soomro and M. Ashraf Leghari, J

BAZ MUHAMMAD and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.11 and Criminal Revision No.36 of 2001, heard on 22nd January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑One of prosecution witnesses had not supported prosecution case and had stated before Court that he had not witnessed the incident‑‑‑Complainant had himself made the presence of the other eye‑witnesses at the spot as doubtful and had contradicted contents of F.I.R. in his statement before Court and had not supported prosecution case‑‑‑Ocular evidence besides being interested, suffered from material discrepancies and conflicted with medical evidence‑‑‑Ocular evidence needed substantial corroboration which was lacking in the case‑‑‑So many neighbours witnessed the incident, but they were neither examined nor their names were disclosed‑‑­Complainant was not a trustworthy man as he had given bristling version at various stages‑‑‑No other piece of circumstantial evidence was collected by prosecution‑‑­Record had demonstrated that parties were criminal type of persons‑‑‑Prosecution having failed to bring home guilt to accused they were acquitted of the charge.

Sarfraz Khan Tanoli for Appellants.

Muhammad Umer Farooq Khan for the Complainant.

Habib Ahmad, A.A.‑G. for the State.

Date of hearing: 22nd January, 2002.

2002 Y L R 3672

[Karachi]

Before M. Ashraf Leghari, J

SHAFI MUHAMMAD ‑‑‑ Applicant

Versus

THE STATE‑‑‑ Respondent

Criminal Bail Application No. 166 of 2002, decided on 7th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 302/504/34‑‑‑Interim pre‑arrest bail, confirmation of‑‑‑Only allegation against accused was that he brought main accused near venue of occurrence in his car and issued directions to him to complete task assigned to him‑‑‑Police had not made any Mushirnama of wheel marks of car near house of deceased ‑‑‑F.I.R. was delayed by about more than five hours which had left room for deliberations and consultations‑‑­Accused did not enter house of deceased and he was not armed with any weapon‑‑‑No overt act was attributed to accused except that of conspiracy‑‑Vicarious liability of accused would be warranted if allegations against him would positively be proved‑‑‑Possibility of false involvement of accused due to enmity between parties could not be ruled out‑‑‑Bail plea of accused was not opposed by State Counsel‑‑‑Interim pre‑arrest bail granted to accused was confirmed, in circumstances.

Muhammad v. The State 1998 SCMR 454; Faraz Akram v. The State 1999 SCMR 1360: Jamaluddin v. The State 1985 SCMR 1949: Raza Muhammad Sial v. The State 1988 SCMR 1223; Muhammad Arshad v. The State PLD 1996 SC 122 and Muhammad Din v. The Stite 1098 SCMR 1 ref.

Abdul Mujeeb Pirzada alongwith Syed Khalid Shah for Applicant.

Mehmood A. Qureshi for the Complainant.

Fazlur Rehman Awan for the State.

2002 Y L R 3676

[Karachi]

Before Muhammad Roshan Essani and M. Mujeebullah Siddiqui, JJ

SHAHID RASOOL alias SHAHID COMMANDO‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.222 of 2001, decided on 18th April, 2002.

(a) West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S.13‑E‑‑‑Appreciation of evidence---Evidence adduced by prosecution was contradictory, discrepant and inspired no confidence ‑‑‑Mushirnama showed that 10 live bullets were loaded in magazine of rifle recovered from the accused, but in Trial Court 14 live bullets were produced including two bullets of kalashnikov‑‑‑Mushirnama of recovery indicated that rifle recovered was found wrapped in black cloth but in Trial Court white cloth was produced‑‑‑Alleged recovered rifle was not sealed at the spot‑‑­Place of recovery was open and accessible to everyone‑‑‑Prosecution having failed to prove charge against accused beyond any shadow of doubt, his conviction and sentence were set aside.

(b) Criminal trial‑‑‑‑

‑‑‑‑Acquittal‑‑‑Each and every circumstance creating doubt was not necessarily to be mentioned in judgment, even a single circumstance which created doubt in the mind of a reasonable and prudent person was sufficient for acquittal.

Mahmood A. Qureshi for Appellant.

Habib Ahmed, A.A.‑G. for the, State.

Date of hearing: 18th April, 2002.

2002 Y L R 3679

[Karachi]

Before Muhammad Moosa K. Leghari, J

ABDUL KALEEM‑‑‑Applicant

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No. 1059 of 2000, Miscellaneous Applications Nos. 121 and 122 of 2001(H), decided on 16th July, 2002.

(a) Equity‑‑‑

‑‑‑‑ He who seeks equity must come with clean hands.

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

‑‑‑‑S. 561‑A‑‑‑Inherent jurisdiction of High Court under S. 561‑A, Cr. P. C. ‑‑‑Scope‑‑­Jurisdiction under S.561‑A, Cr. P. C. was to be rarely exercised in exceptional cases to do real justice‑‑‑Such inherent jurisdiction of High Court was neither meant for, nor should be exercised, to disturb orders passed by consent of parties.

Mehmood A. Qureshi for Applicant.

Fazal‑ur‑Rehman Awan for the State.

Narain Das C. Motiani for Respondent No. 2.

2002 Y L R 3682(2)

[Karachi]

Before M. Ashraf Leghari, J

MUHAMMAD ASIF‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.395 and Miscellaneous Application No. 750 of 2002, decided on 12th April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.224/225/324/353/427/147/148/149‑‑‑Bail, grant of‑‑‑Record had shown that both the parties opened fire upon each other, but none of them was wounded‑‑‑Empties had not been recovered from the scene of occurrence‑‑­Prior to incident father of accused had written a letter to the Inspector‑General of Police against Police Staff at Police Station concerned which letter had shown that Police had some malice and grudge against the accused and his father‑‑‑Encounter with Police by accused was yet to be established at the time of trial‑‑‑Bail plea of accused was not opposed by State Counsel‑‑‑Accused was admitted to bail.

Muhammad v. the State 1998 SCMR 454; 1989 PCr.LJ 1004 and Rab Nawaz v. The State 1990 SCMR 1085 ref.

Mahmood A Qureshi for Applicant.

Fazlur Rehman for the State.

2002 Y L R 3685

[Karachi]

Before M. Ashraf Leghari, J

Mst. RUBINA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1798 of 2001, decided on 10th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.497(2)‑‑‑Penal Code (XLV of 1860), Ss. 342/354/34‑‑‑Ofence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16‑‑‑Bail, grant of ‑‑‑Further inquiry‑‑­Bail plea of accused was not opposed by State Counsel‑‑‑Several disputed points were involved in the case which needed further probe in the matter‑‑‑Case of accused, in circumstances, was fit for bail on ground of further enquiry‑‑‑Accused was admitted to bail.

Zakir Hussain Khaskheli for Applicant.

Fazlur Rehman Awan for the State.

Date of hearing: 7th January, 2002.

2002 Y L R 3688(1)

[Karachi]

Before Wahid Bux Brohi, J

QAMARUZ ZAMAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.362 of 2002, decided on 13th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 483/506‑‑‑Bail before arrest, grant of‑‑­Prosecution witnesses during investigation had stated that some threats were issued by accused, but again two persons stated that no such incident had taken place‑‑‑Offence did not fall within prohibitory clause, of S.497, Cr. P. C. and accused apprehended his humiliation at the hands of Police, if arrested‑‑‑Case of bail before arrest having been made out, interim bail granted to accused wits confirmed.

Mehmood A. Qureshi for Applicant.

Miss Saify Ali Khan, State Counsel.

2002 Y L R 3773

[Karachi]

Before Saiyed Saeed Ashhad, C.J. and Ghulam Rabbani, J

ARSHAD JAVED‑‑‑Applicant

Versus

Messrs MUSLIM COMMERCIAL BANK‑‑‑Respondent

Special High Court Appeal No.231 of 2001, decided on 29th March, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XXXIX, R. 4‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑High Court appeal against order whereby application for recalling attachment order in respect of property was dismissed‑‑‑Owner of properly in dispute had obtained loans from various financial institutions against properly by mortgaging the same in favour of such financial institutions and after utilizing same had fled outside the country‑‑­Appellant/objector had claimed that he had purchased property in dispute from owner thereof‑‑‑Appellant/objector had failed to bring on record any document which could lead to presumption or inference that he had acquired any right in respect of property in dispute‑‑‑Even if it was admitted that appellant/objector had purchased property in dispute or that some interest therein had been created in his favour, he ought to have known that said properly was burdened and had been mortgaged in favour of financial institutions‑‑‑Order of Single Judge did not suffer from any defect which would require any interference therewith‑‑‑Appeal alongwith application, was dismissed.

Amir Raza Naqvi for Petitioner.

Rizwan Ahmed Siddiqui for Respondent.

Date of hearing: 29th March, 2002.

2002 Y L R 3797

[Karachi]

Before Muhammad Afzal Soomro, J

IQBAL HUSSAIN and others‑‑‑Applicants

Versus

IQBAL MASOOD‑‑‑Respondent

Transfer Application No.8 of 1998, decided on 10th January, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss.16, 19, 20, 24 & O. VII, R.2‑‑‑Suit for recovery of amount‑‑‑Transfer of suit‑‑­Application for‑‑‑Plaintiff being permanent resident of District 'J' filed suit in Court at place 'J' against defendants‑‑‑Defendants were permanently residing and carrying on business and working for gain at place 'K' and movables for which compensation had been claimed by plaintiff were allegedly given to defendants at 'K'‑‑‑Cause of action in circumstances had also accrued to plaintiff at 'K'‑‑‑Suit, therefore, should have been filed at 'K' in the light of provisions of Ss.16 & 20, C. P. C.‑‑‑Section 19, C. P. C. had provided that suit could be filed at the place where cause of action had accrued and at place where defendants resided or were carrying on business or personally worked for gain ‑‑‑Plaintiff could not, legally sue defendants at place 'J' merely because he was permanent resident of that place as neither cause of action had arisen at place. 'J' nor defendants resided or carried on business or personally worked for gain within local limits of that place‑‑‑Transfer application filed by defendants was allowed and suit was ordered to be transferred to Court at place 'K' as prayed for by the defendants.

Abdul Waheed Kanjoo for Applicants.

Respondent in person.

Date of hearing: 22nd October, 2001.

2002 Y L R 3815

[Karachi]

Before Shabbir Ahmed, J

SUNSHINE ENTERPRISES (PVT.) LTD. through Chairman, Nasim Javed, Peshawar Cantt.‑‑‑Plaintiff

Versus

WEST PAKISTAN TANK TERMINAL (PVT.) LTD. through Chairman, Sadruddin Gangji, Karachi and others‑‑‑Defendants

Suit No. 1164 of 1998 and Civil Miscellaneous Application No. 1879 of 2002, decided on 8th April, 2002.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.12‑‑‑Specific performance of contract‑‑­Relief for specific performance of contract was an equitable relief‑‑‑Party seeking such relief had to show his willingness to perform his part of contract‑‑‑Party not ready and willing to perform his part of contract, could not ask for specific performance of contract by other party.

Asghar Farooqui for Plaintiff.

Rizwan Ahmed Siddiqui for the Intervenor.

Muhammad Sadiq and Muhammad Shahid for Defendant No.4.

Date of hearing: 8th April, 2002.

2002 Y L R 3832

[Karachi]

Before Mushir Alam, J

BARKAT ALI and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.71 of 2000, decided on 17th July, 2000.

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

‑‑‑‑Ss. 499, 497(5) & 514‑‑‑Forfeiture of bond‑‑‑Purpose of taking personal bond from accused‑‑‑Purpose of taking bond from accused or bond by one or more sufficient sureties as per S. 499, Cr. P. C. was to ensure that accused person who was being released on bond, would attend at time and place mentioned in bond and would continue to attend unless otherwise directed by Police Officer or Court‑‑‑Mere fact that the counsel appointed by accused for any reason did not appear on the date fixed for trial, was not a course recognized under law warranting forfeiture of bond initiating remand of accused to judicial custody‑‑‑Once an accused was admitted to bail, he could only be re­arrested/remanded to jail, in case he was unable to furnish surety, his bail was, cancelled under S. 497(5), Cr. P. C. or he was convicted after trial ‑‑‑Non‑appearance of counsel would not furnish a just ground to forfeit bond.

(b) Counsel and client‑‑‑

‑‑‑‑ Professional misconduct of counsel‑‑­Where counsel did not attend Court on appointed date, he could be guilty of professional misconduct and liable to be dealt with accordingly under Legal Practitioners and Bar Councils Act, 1973, but accused/ client could ‑ not be made to suffer on such account.

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

‑‑‑‑Ss. 340 & 344‑‑‑Right of accused to be defended by pleader‑‑‑Failure of counsel to appear and defend accused in Court‑‑‑Right of accused to be defended by a pleader was recognized under S.340(1), Cr.P.C.‑‑­Accused who was liable to death sentence as a matter of right was entitled to be defended by a Legal Practitioner even at State expense‑‑‑Where counsel appointed by accused failed to appear and defend the accused, then it was duty of Court to give proper opportunity to accused to engage counsel of his choice‑‑‑If the accused was not in a position to bear expenses, Court was required to engage counsel at State expense‑‑­Where it appeared from the conduct and attitude of an accused that counsel engaged by him had deliberately failed to appear in Court or absence of counsel was calculated move to cause harassment to witnesses or with an aim to prolong trial and defeat cause of justice, such tendency and malpractice could effectively be checked by imposing heavy costs in appropriate cases by liberal use of powers under S. 344, Cr. P. C. ‑‑‑Where the Court was of the opinion that conduct of accused was motivated to prolong trial, then best course was to follow guideline to the effect that if the accused continuously refused to accept offer of legal advice made to him proper procedure was to inform him that if representation arranged by Court was not acceptable to him, he must conduct his case.

Nasir Khan and another v. The State 1991 PCr.LJ 19; Hussain Bakhsh v. State 1971 PCr.LJ 1331; Muhammad Sharif v. State PLD 1973 Lah. 365; Niaz Ahmed v. State 1984 PCr.LJ 1054 and Iftikharuddin v. Crown PLD 1954 Lah. 547 ref.

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

‑‑‑‑Ss. 499 & 514‑‑‑Penal Code (XLV of 1860), Ss. 302/304‑‑‑Forfeiture of bail bond on non‑appearance of counsel‑‑‑Both accused who were on bail appeared on the date fixed but their counsel for some reason failed to appear‑‑‑Trial Court forfeited bail bond and remanded accused to jail custody‑‑‑Accused neither were given reasonable time to engage a new counsel themselves or accept counsel engaged by Court to plead their case nor they were warned that on their failure to appoint a counsel within reasonable time or accept counsel appointed by Court they must conduct their case themselves‑‑‑Such course having not been followed in the case, order forfeiting bail bond and remanding accused to jail custody, was set aside.

Mehmood A. Qureshi and Amir Saleem for Applicants.

Habib Ahmad, A.A.‑G. for the State.

Date of hearing: 17th July, 2000.

2002 Y L R 3946

[Karachi]

Before Zia Perwez, J

Syed ALI IMAM RIZVI and another‑‑‑Appellants

Versus

ALL PAKISTAN TEXTILE MILLS ASSOCIATION and another‑‑‑Respondents

Civil Miscellaneous Appeals Nos. 5954 and 5998 in Suits Nos.1091 and 1097 of 2001, decided on 7th January, 2002.

(a) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.21‑‑‑Specific performance of contract for personal service‑‑‑Master and servant‑‑­Not possible in law to grant a decree to a servant against an unwilling master to the effect that servant was still in his service‑‑­Servant could not be forced upon his master‑‑‑Master was always entitled to say that he was prepared to pay damages for breach of contract of service, but would not accept services of the servant‑‑‑Contract for personal service as would appear from S.21(b) of Specific Relief Act, 1877, could not be specifically enforced‑‑‑Not necessary to invoke S.21(b) of Specific Relief Act, 1877, for such a contract was unenforceable on account of S.21(a) of the said Act wherein it was provided that a contract for non­performance of which compensation in money was adequate relief, could not be specifically enforced‑‑‑Where there was a contract between a master and a servant, master agreeing to pay salary and servant agreeing to render personal service, it was obvious that money compensation was full relief, for all that servant was entitled to under the contract, was his salary‑‑‑Breach of contract could give rise to only two reliefs; damages or specific performance‑‑‑If specific performance was barred the only relief available was damages‑‑‑When a master, in breach of his contract, reused to employ the servant, the only right that would survive to servant was the right to damages and a decree for damages was only decree that could be granted to him.

M. Daryab Yousuf Qureshi v. Chairman, WAPDA PLD 1983 FSC 17; Commissioner of Income‑tax, Peshawar Zone, Peshawar v. Messrs Siemen A.‑G. 1991 PTD 488; Commissioner of Income Tax, Peshawar v. Mesrs Siemen A.‑G. PLD 1991 SC 368; Shahid Mehmood v. Karachi Electric Supply Corporation 1997 CLC 1936; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Co. Ltd. PLD 1991 SC 14; Sui Southern Gas Company Ltd. v. Engineer Naraindas and others 2001 PLC (C.S.) 743; Muhammad Ramzan Qureshi v. Federal Government and others PLD 1986 FSC 200; Province of West Pakistan through Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan 1971 SCMR 569; Shahzada Muhammad Umar Beg v. Sultan Mehmood Khan and another PLD 1970 SC 139; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. 1995 SCMR 453; Mst. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; United Bank Ltd. and others v. Ahsan Akhtar and others 1998 SCMR 68; Messrs Telephone Industries of Pakistan v. Sindh Labour Appellate Tribunal 1998 PLC (C.S.) 221; Anwar Hussain v. Agricultural Development Bank of Pakistan end others PLD 1984 SC 194; Pakistan International Airlines Corporation and 5 others v. Muhammad Izharul Ahsan Qureshi PLD 1979 Kar. 640; Agricultural Development Bank of Pakistan and 3 others v. Anwar Hussain Jatoi PLD 1982 Kar. 313; Mothey Krishna Rao v. Granmdhi Anjaneyulu and others AIR 1954 Mad. 113; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 PSC 1508; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Kala Shah Kaku, District Sheikhupura and 2 others v. Mushtaq Ahmad 1997 MLD 798; Federation of Pakistan v. Ali Ahmad Qureshi 2000 CLC 1557; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; The State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12; Imtiaz Hussain v. Government of Pakistan through Secretary, Ministry of Work, Estate, Islamabad and 2 others 1992 CLC 1122; Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others 1995 SCMR 1593; Union of India v. Ramchandra AIR 1981 SC 101 and Chairman, Regional Transport Authority. Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14 ref.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Interlocutory relief, grant of‑‑‑Extent‑‑‑Principle‑‑‑Court while granting interlocutory relief would maintain situation as was prevailing at the time of institution of proceedings and would not create a new situation.

Kh. Shamsul Islam for Appellants (in both the Suits).

Faisal Arab for Respondent (in Suit No. 1091 of 2001).

Shahid Anwar Bajwa for Respondent (in Suit No. 1097 of 2001).

Dates of hearing: 27th and 29th November, 2001.

2002 Y L R 4002

[Karachi]

Before Shabbir Ahmed, J

RAFIQ RAHIM‑‑‑Plaintiff

Versus

Mrs. SHAHIDA and others‑‑‑Defendants

Civil Suit No.962, Civil Miscellaneous Applications Nos. 5013, 5024 of 2000 and 4501 of 2001, decided on 14th November, 2001.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XL, R.I‑‑‑Appointment of receiver‑‑­Object and purpose of‑‑‑Object and purpose of appointment of receiver was preservation of subject‑matter of litigation pending a judicial determination of rights of parties thereto‑‑‑Since receiver would disturb person in possession, appointment of receiver was well‑recognized as one of the most harsh remedies that law had provided‑‑‑Jurisdiction, in circumstances, must exercised in extreme cases, if found just and convenient.

Ali Muhammad v. Sadruddin PLD 1959 (W.P.) Kar. 452; Muhammad Jameel v. Muhammad Iqbal PLD 1977 Kar. 351; Abdul Razaq v. Zehra Begum 1983 CLC 1658; Muniruddin v. Sirajuddin Paracha 1999 CLC 247; Inshallah v. Izzat Khan 1987 MLD 2566; Azhar Wali v. Bell Helli Copter Textraninc 1987 MLD 1336 and Abdul Hai Arzi v. Mst. Haseen Khan 1987 CLC 1765 ref.

(b) Benami transaction‑‑‑

‑‑‑‑ Criteria for determination of question whether a transaction was Benami or not‑‑­Person' claiming Benami transaction had prove that he had paid consideration; title documents were in his possession and he had to prove possession of property and for Benami transaction‑‑‑Whether a transaction was Benami or not, facts to taken into consideration were the source consideration; from whose custody original title deed and other documents in evidence; who was in property and motive for Benami transaction.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Naeemur Rehman for Plaintiff.

Rizwan Ahmad Siddiqui for Defendants.

Date of hearing: 14th November, 2001.

2002 Y L R 1

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL AZIZ---Appellant

versus

KHALID FAROOQ and 4 others--­ Respondents

Criminal Appeal No. 437 of 1997, heard on 25th October, 2001.

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

----S. 417---Penal Code (XLV of 1860), S. 324/34---Appeal against acquittal--­Judgment of acquittal could only be reversed and set aside if the same was the result of absolute misreading and non-reading of the evidence---Mere fact that some other inference could be drawn, on the basis of evidence brought on record, was not a ground to interfere with the judgment of acquittal.

Muhammad Siddique v. The State 1993 PCr.LJ 75; Zaheer Din v. The State 1993 SCMR 1628 and Muhammad Ashraf alias Chaudhry v. The State 1994 SCMR 667 ref.

Malik Muhammad Akram Awan for Appellant.

Syed Ihtasham Qadir for Respondents.

A. H. Masood for the State.

Date of hearing: 25th October, 2001.

2002 Y L R 3

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABDUL RAZZAQ ABID---Petitioner

versus

SPECIAL JUDGE (CENTRAL), F.I.A., LAHORE and another---Respondents

Criminal Revision No. 724 of 2001, decide:. on 24th October, 2001.

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

----Arts. 132 & 133---Criminal Procedure Code (V of 1898), S. 439---Emigration Ordinance (XVIII of 1979), Ss. 17/22/24-----Further cross-examination---Application filed by the accused for further cross-examination of prosecution witness having been dismissed by the Trial Court, the accused had challenged dismissal order in revision before High Court---Prosecution witness who was examined in the Court was cross-examined by the counsel for the accused and was subsequently cross-examined by the counsel for the co-accused---Validity---Law had not provided opportunity to the accused to further cross-examine a witness---Trial Court, in circumstances, had rightly dismissed application of the accused for further cross-examination of the witness---In absence of any illegality or improbability in orders passed by the Trial Court, same could not be interfered with in revision.

AIR 1924 Pat. 402; AIR 1937 All. 171; AIR 1923 PC 95 and Roshan Ali v. `;'ate 1988 PCr.LJ 1964 ref.

Malik- Abdul Sattar Chughtai for Petitioner.

2002 Y L R 6

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

ILTAF HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos. 1074 and 1089 and Criminal Revision No.497 of 1998, heard on 7th November, 2001.

Penal Code (XLV of 1860)---.

----Ss. 302, 392 & 34---Appreciation of evidence---None of the accused was nominated in complaint, but their features had been described and on the basis of described features they had been arrested--­Only evidence collected by the prosecution regarding the involvement of the accused, rested upon evidence of recovery of weapons as well as currency notes and of. identification test---Evidence of recovery of currency notes, fell to the ground as memos. of recoveries stood falsified by the Investigating Officer himself while recording his statement as prosecution witness---Evidence of recovery of weapons of offence was of no avail as the weapons had not been found wedded with the empties recovered from the spot---Evidence of identification of the accused was also of no avail to the prosecution as none of the witnesses disclosed the role of each accused on the basis of which he identified the said accused---Evidence of identification parade, would not come to the rescue of prosecution, in circumstances---Nothing was on record to show as to how the police came to know about the occurrence at odd hours of the night when as per complainant none was sent to inform the police---Presence of S.H.O. at place of occurrence remained shrouded in mystery and identification of the accused was doubtful---Prosecution having failed to bring home the guilt of the accused beyond reasonable doubt, conviction and sentence awarded to the accused were set aside and they were acquitted of the charges and were ordered to be released forthwith.

Ghulam Rasool v. The State 1988 SCMR 557; Khadim Hussain v. The State 1985 SCMR 721 and Muhammad Yaqoob v. The State NLR 1999 Cr. LJ 375 ref.

Ihtisham Qadir Shah for Appellant (in Criminal Appeal No. 1089 of 1998).

Sardar Muhammad Latif Khan Khosa for Appellant (in Criminal Appeal No. 1074 of 1998).

Sh. Naveed Shaharyar for Petitioner (in Criminal Revision No.497 of 1998).

Mrs. Iram Sajjad Gul for the State.

Date of hearing: 7th November, 2001.

2002 Y L R 12

[Lahore]

Before Khalil-ur-Rehman Ramday, J

ARSHAD ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 504/B of 2001, decided on 19th November, 2001.

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

----S. 497---Surrunder of Illicit Arms Act (XXI of 1991), Ss. 4 & 7---Bail, grant of--­Allegation against the accused was that he was found in possession of .30 bore pistol and 2 live bullets and had no licence authorizing him to possess the said weapon---Person could be said to have committed an offence under Surrender of Illicit Arms Act, 1991, if he was in possession of an unlicensed weapon and had not surrendered the same within the time prescribed by the Federal Government through a notification issued by it, but the prosecution could not place on record the required notification---F. I. R. had not made it clear that the accused was in possession of the illicit weapon prior to any target date and that he had not allegedly surrendered the weapon before the said date---Surrender of Illicit Arms Act, 1991 could not be used to arrest anybody only on the accusation of being possessed of fire-arm weapons without a proper licence ---Such an act was an offence not punishable under the said Act, but was punishable under West Pakistan Arms Ordinance, 1965---Reasonable grounds thus existed to believe that the accused was not guilty of the offence he was charged with--­Accused was directed to be released on bail, in circumstances.

Rai Bashir Ahmed for Petitioner.

Muhammad Shan Gul for the A.-G. Punjab (On call).

Adnan Shuja Butt for the State.

2002 Y L R 13

[Lahore]

Before Mian Nazir Akhrar, J

SHAHID IQBAL---Petitioner

versus

RIAZ AHMAD and 5 others---Respondents

Criminal Miscellaneous No. 5232/B(C) of 2001, decided on 15th November, 2001.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss.324, 109, 148 & 149--­Cancellation of pre-arrest bail---Sufficient evidence was available on record to connect the accused for the commission of offence--­Complainant who was the injured prosecution witness had clearly stated that accused fired with his 8 MM rifle and as a result he received injury on the fingers of his left hand--­Alleged or apparent conflict between the oral and the medical evidence per se would not make the prosecution case to be doubtful at bail stage---Prosecution case was supported not only by the statement of the complainant, but also by the statement of the prosecution witness who was also injured during the occurrence---Abundant material was available on record which prima facie had connected the accused .with commission of the offence--­Accused was member of an unlawful assembly and had prima facie acted -in furtherance of its common object---No valid ground was available to allow pre-arrest bail to the accused---Order granting pre-arrest bail passed by the Court below being clearly arbitrary and against. the principles laid down by the superior Courts for grant of pre­arrest bail, was cancelled by the High Court.

Murad Khan v. Fazal-e-Subhan PLD 1983 SC 82; Nasir Javed v. Syed Kazim Ali and 3 others 1999 PCr.LJ 200; Muhammad Sajjad v. The State 1999 PCr.LJ 872; Government of Sindh v. Raees Farooq 1994 SCMR 1283; Mazhar Mehmood v. Basit and another 1997 SCMR 915; Haji Maa Din and another v. The State and another 1998 SCMR 1528; Hidayat Ullah Khan v. The Crown PLD 1949 Lah. 21; Ali Muhammad v. Yamin and another 1981 SCMR 1139; Zia-ul-Hassan v. The State PLD 1984 SC 192; Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621 and Arbab Ali v. Khamiso and another 1985 SCMR 195 ref.

Mansoor-ul-Islam Khan Joya for Petitioner.

Mian Muhammad Yasin Khan Wattoo and Mian Subah Sadiq Kalasson for Respondent No. 1.

2002 Y L R 16

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

ZAHID HUSSAIN alias Mithu---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 225 and Murder Reference No.82 of 1997, heard on 12th November, 2001.

Penal Code (XLV of 1860)---.

-Ss. 302/ 337/ 337DI 449/ 34--­preciation of evidence---Conviction and sentences passed by the Trial Court against the accused had been challenged on the round firstly that occurrence had not taken place in the manner as described in the F.I.R.---Contention of the accused was that entire occurrence had taken place at one and the same time and not at two different occasions at different times; that occurrence was not premeditated but was on the spur of the moment and that the accused alone participated in the occurrence and his co­accused had been falsely implicated being his brother---All the contentions of the accused stood falsified by the evidence on record--­Complainant had stated that initial occurrence took place when the deceased objected shooting of the bird by the accused and of scaling over the roof of his house for capturing the shot bird which resulted into exchange of hot words between them and second occurrence took place after fifteen minutes when accused and co-accused arrived at the spot armed with Chhuris and inflicted a fatal injury on the person of the deceased and also injured the prosecution witnesses--­Dimension of the injuries on the persons of the deceased and the injured prosecution witnesses being different, it stood conclusively proved that injuries had not been caused by one weapon and by one accused, but by two different weapons of the same type and by two different persons---Both the accused and his co-accused thus were proved to have participated in the occurrence---Injured prosecution witnesses and the deceased were unarmed as neither the accused nor the co accused had received even a scratch on their person---In absence of any evidence in that respect plea of self-defence taken by the accused, was devoid of any force---Injuries on the person of the deceased and the injured prosecution witnesses stood corroborated not only by medical evidence but also by evidence of recovery of Chhuris---Plea of the accused that at the time of the occurrence he was minor of 13 years of age, was devoid of any force as no proof regarding his minority had been produced on record whereas the School Leaving Certificate of the accused had proved that at the time of occurrence he was more than 21 years of age---Judgment of the Trial Court convicting and sentencing the accused, being in accordance with law and not suffering from any illegality, could not be interfered with.

Muhammad Aslam Khan Buttar for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 12th November, 2001.

2002 Y L R 23

[Lahore]

Before Khalil-ur-Rehman Ramday, J

MUHAMMAD HAYAT---Petitioner

versus

SUPERINTENDENT, CENTRAL JAIL FAISALABAD and 2 others---Respondent

Writ Petition No. 10799 of 2001, decided o; 3rd October, 2001.

Offence of Zina (Enforcement of Hudood -Ordinance (VII of 1979) ---.

---Ss. 6 & 10(2)---Constitution of Pakistan 1973), Arts. 45 & 199---Contitutional petition---Remission in sentence, grant of-- Remission claimed by the accused was declined by the Jail Authorities on the ground that since the accused was suffering punishment for committing "rape ", remission granted by the President of Pakistan under Art.45 of Constitution of Pakistan (1973) was not available to him---Validity---Sections 375 & 376, P. P. C. dealing with rape having been repealed and substituted by the provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the offence of "rape" as existed prior to the enforcement of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 had become the offence of "Zina-bil­-Jabr" as defined in S.6 of said' Ordinance--­"Zina" simpliciter punishable under S.10(2) of the Ordinance which was not the same thing as "rape "---Accused having been found guilty was convicted for the commission of the offence of Zina and was punished under S.10(2) of the Ordinance and his case was not hit by the exceptions created in the Order of the President of Pakistan---Jail authorities were directed to extend the remission­ to the accused in circumstance.

Aftab Ahmed Bajwa for Petitioner.

Muhammad Shan Gul for A.-G., Punjab with Mahr Muhammad Ashraf, Assistant Superintendent Jail, Central Jail, Faisalabad.

2002 Y L R 25

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD AKRAM---Appellant

versus

THE STATE ---Respondent

Criminal Appeal No. 179 and Murder Reference No. 181 of 1997, heard on 13th November, 2001.

Penal Code (XLV of 1860)---

----Ss. 302 & 308---Appreciation of evidence --­F.I.R. was lodged with great promptitude--- Dagger with which the accused was alleged to have delivered two blows on the person of the deceased had been recovered at the instance of the accused---Statements of the prosecution witnesses had sufficiently proved factum of infliction of injuries by the accused on the person of the deceased---Trial Court though had discarded the motive part of evidence, but fact of killing by the accused had been proved beyond any shadow of doubt---Accused at the time of occurrence having been proved to be below eighteen years, death sentence awarded to him was set aside and instead he was convicted and sentenced under S. 308, P. P. C. with imprisonment for fourteen years as Ta'azir and also liable to pay Diyat---Death sentence awarded to the accused was not confirmed in circumstances.

Nazir Ahmed Ghazi for Appellant.

Sadaqat Mahmood Butt for the State.

Abdul Wahid Ch. for the Complainant.

Date of hearing: 13th November, 2001.

2002 Y L R 32

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

MUHAMMAD ABDULLAH---Appellant

Versus

MUHAMMAD BASHIR and another--­Respondents

Criminal Appeal No. 25 of 1996, heard on 30th October, 2001.

Penal Code (XLV of 1860)---

----S.302---Criminal Procedure Code (V of 1898), 'S.417---Appeal against acquittal--­Complainant as well as his brother were accompanying the deceased at the time of occurrence---Medico-legal Certificate had shown that injured who later on died was brought to the hospital by prosecution witness---Promptness of the F.LR. had ruled out any possibility of false implication of the accused---Oral statement of the complainant who was an eye-witness coupled with prosecution witness stood corroborated from the medical evidence---Medical evidence supported the ocular account regarding the time of occurrence, but findings of the Trial Court 6n that score were not fortified by record as same were not based on correct appreciation of evidence on record---Evidence of recovery of empty had connected the accused with the commission of the offence--­Mere delay in forwarding the packet containing empty was immaterial and of no consequence---Trial Court was not justified in disbelieving such evidence---Mere fact that both the prosecution witnesses were real brothers of the deceased, was no ground to discard their testimony as they were the material witnesses having no previous enmity with the accused to implicate him in the case falsely---Did not stand to reason as to why, the real brothers should leave the real murderer of their deceased brother and involve some other person falsely---Prosecution having succeeded in establishing its case against the accused beyond any shadow of doubt, appeal­ against acquittal of the accused was accepted and judgment of the Trial Court was set aside and the accused was convicted and sentenced accordingly.

S.M. Masood for Appellant.

Saleem Khan Chichi for Respondent No.1.

Abdul Khaliq Khan for the State.

Date of hearing: 30th October 2001.

2002 Y L R 36

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Khawaja MUHAMMAD RAFIQUE and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6315/B of 2001 decided on 13th Novembers 2001.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of, 1860), Ss. 380, 419, 420, 468 & 471---Confirmation of bail before arrest---Involvement of both the accused, prima facie, seemed to be with mala fide intention and with ulterior mauve---No role prima facie could be ascribed to the accused for deceiving the complainant as they were not alleged to have received a single penny from the complainant---Accused neither were owners of the plots in dispute nor were party in the earlier agreement between the complainant and other person---High Court being custodian of the rights of the people and the bail before arrest was meant to protect the innocent citizens refusal of bail before arrest would definitely cause irreparable loss and injury to the honour and reputation of the accused which would not be restored even if the accused were acquitted later on from the charge---Court had to keep in mind the consequences of refusal of bail before arrest which was meant to protect the innocent citizens and could not decide against them merely on the grounds urged by the complainant---Ad interim bail before arrest already granted to the accused was confirmed, in circumstances.

M.S. Shad for Petitioners.

Muhammad Arif Bhinder for the Complainant.

Muhammad Arshad Qureshi for the State.

2002 Y L R 39

[Lahore]

Before Tassaduq Hussain Jilani and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD RIAZ---Appellant

Versus

THE STATE ---Respondent

Criminal Appeal No. 227 and Murder Reference No.75 of 1997, heard on 26th November, 2001.

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

----Ss. 302(a) & 302(b) --- Appreciation of evidence---Case was that of single accused who committed the murder of the deceased in broad daylight within the view of complainant and other prosecution witnesses---F. I. R. was registered without unnecessary delay wherein all required details of the occurrence had been given---Complainant was father of deceased whereas other prosecution witness was the resident of the area where occurrence had taken place and he was absolutely an independent witness---Both the said witnesses successfully stood the test of cross-examination and during cross-examination not a single question regarding enmity was put to them nor was any circumstance placed on the record to show that said witnesses had any motive to falsely implicate the accused in the case---Accused had failed to build up the case of self-defence and such defence plea taken up by him seemed to be a later innovation---Case being 'of single accused, the father of the accused had nominated the accused in the F.I.R. as real culprit and the substitution in such-like cases was a very rare phenomenon--­Ocular account narrated by the eye-witnesses stood corroborated by the recovery of blood­stained Chhuri at the instance of the accused and same had found ample support from the medico-legal reports---Time of occurrence, location of injuries and weapon used, as narrated by the eye-witnesses stood established---Ocular account of occurrence given by said eye-witnesses could not be discarded---No strong evidence though was on the record in support of motive part of the case, but that defect in the prosecution case was not sufficient to award lesser sentence to the accused---Contention that unprove, motive would be a mitigating circumstance in favour of the accused, had no force --- Trial Court had convicted the accused under S.302(a), P.P.C., whereas nothing was on record to show that the ingredients of 5.304, P.P.C. had been complied with---In the absence of the same, conviction of the accused under S.302(a), P. P. C. was not sustainable---Conviction of the accused was altered and he stood convicted under S. 302 (b), P. P. C. and was sentenced to death as ordered by the Trial Court.

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

----S.302---Motive where the eye-witnesses' account was worthy of credence, unimpeachable, confidence-inspiring, the weakness of motive or its absence or if alleged motive had not been proved, would not constitute mitigating circumstance.

Waris Khan v. The State 2001 SCMR 387 ref.

Syed Ehsan Qadir Shah with M.A. Zafar for Appellant.

Muhammad Jahangir Aslam for the State.

Date of hearing: 26th November, 2001.

2002 Y L R 43

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD ANWAR ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, OKARA and 2 others---Respondents

Writ Petition No. 11723 of 2001, heard on 23rd November, 2001.

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

----Ss. 249-A, 417(2) (a) & 439 ---Penal Code (XLV of 1860), Ss. 423 & 406---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Contention was that order of acquittal passed by the Trial Court under S. 249-A, Cr. P. C. was appealable under S. 417(2) (a), Cr. P. C. and no revision lay against order of acquittal--- Validity--­Complainant having chosen to prefer revision instead of appeal before the Sessions Judy which was not maintainable, order Additional Sessions Judge was not sustainable under the law being coram non judice.

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

----S. 249-A ---Penal Code (XLV of 1860) Ss. 423/406---Constitution of Pakistan (1973) Art.199---Constitutional petition - Acquittal under S. 249-A, Cr. P. C. ---Trial Court ordered acquittal before recording of evidence giving reasons of delay of 1-1/2 years in reporting of F.I.R. and dispute between the parties was of civil nature---Validity---Questions were to be determined after recording of evidence as the charge was already framed without any objection/ challenge by the accused---Trial Court proceeded in hasty manner to acquit the accused under S.249-A, Cr. P. C. without application of judicial mind to the circumstances of the case---Trial could not be allowed to be terminated at its inception--­Order of Trial Court was set aside being illegal and the case was remanded by the High Court to the original Court with directions to proceed with the trial in accordance with law.

Badar ud Din v. Mahr Ahmad Raza, Additional Session Judge and others PLD 1993 SC 399 ref.

Hussain v. Mst. Asiat and another 1992 MLD 1989 and Mushtaq Hussain Shamsi v. State and others 1985 PCr.LJ 535 rel.

Bashir Abbas Khan for Petitioner.

Nasim Sabir Ch., Addl.A.-G. for Respondent No. 1

Rao Naeem Hasham for Respondent No.2.

Date of hearing: 23rd November, 2001.

2002 Y L R 46

[Lahore]

Before Tassaduq Hussain Jilani and Mian Muhammad Najam-uz-Zaman, JJ

GUL KAMAND KHAN and 3 others---Petitioners

Versus

THE STATE---Respondent, Criminal Miscellaneous No. 1 in Criminal Appeal No. 1502 of 2001, decided on 5th December, 2001.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss. 302(b) & 324/34---Application for suspension of sentence---Convicts were sentenced to 10 years' R.I. under S.324/34, P. P. C. alongwith co-accused who was sentenced to death under S.302(b), P. P. C.--­Ineffective firing was attributed to the accused ---Two other co-accused with similar role were also acquitted by the Trial Court--­Only distinguishing feature against the accused was that he led to the recovery of weapons---Application under S.426, Cr.P.C. of the accused was allowed and his sentence was suspended till the final disposal of the appeal.

M.A. Zafar for Petitioners.

Sh. Muhammad Sharif for the State.

2002 Y L R 47

[Lahore]

Before Khawaja Muhammad Sharif, J

IFTIKHAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 239 of 2000, heard on 21st November, 2001.

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

----Ss. 334, 324 & 337-F---Appreciation of evidence---Delay in lodging the F.I.R. would not help the accused in any way---Delay itself in reporting the matter to police was not fatal in the presence of ocular account of high quality---No background of previous enmity existed between the complainant and the accused---Eye-witnesses were not interested witnesses---Ocular testimony had come from unimpeachable source and was credible--­Medical evidence had corroborated ocular evidence---Convictions and sentences of accused were upheld in circumstances.

(b) Criminal trial-----

----Witness---Interested witness---Interested witness is one who is not only related to the deceased or the injured, but is also inimical towards the accused.

Rana Mashhood Ahmad Khan for Appellant.

Wali Muhammad Khan for the Complainant.

Sh. Latif for the State.

Date of hearing: 21st November, 2001.

2002 Y LR 50

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Naeemullah Khan Sherwani, JJ

Agha FARAKH SULTAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 749 Criminal Revision and Murder Reference No.304 of 1995, heard on 7th November; 2001.

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

----S. 302/34---Appreciation of evidence--­Accused had allegedly held the deceased in his clasp when his co-accused had inflicted Chhuri blows on the person of the deceased--­Such role of accused was unnatural, otherwise he in such process would have been the first person to have received the injuries--­Possibility of false implication of accused in the case being real brother of co-accused could not be ruled out---Accused was extended the benefit of doubt and acquitted in circumstances.

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

----S.302/34---Appreciation of evidence--­Principle---When two views are available on record, then the view in favour of the accused should be taken into consideration by the Court.

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

----Ss.302/34 & 314(2)---Compromise by one of the heirs of the deceased---Effect---One of the legal heirs viz. wife of the deceased had entered into compromise, compounded the offence and forgiven the accused in the name of Almighty Allah without any compensation and the case of accused, therefore, was not one of death sentence---Conviction of accused was maintained but his sentence of death was converted into sentence of imprisonment for life in circumstances.

1997 SCMR 1307 and Dil Bagh Hussain v. The State 2001 SCMR 232 ref.

Iftikhar Ahmad Mian for Appellants.

Muhammad Hanif Khatana, Addl. A-G. with Abdur Rauf Farooqi for the State.

Awan Muhammad Hanif Khan for the Complainant.

Date of hearing: 7th November, 2001.

2002 Y L R 56

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD NAWAZ and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 322 and Murder Reference No.177 of 1996, heard on 4th December, 2001.

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

----S.302/34---Criminal Procedure Code (V of 1898), S. 367---Judgment, validity of--­Essential---Aspects which must be brought into focus in a judgment---Principles---Trial Court had not examined and scrutinized the entire evidence brought on record and had not given any reasons in support of the conclusion arrived at and for convicting the accused---Judgment must have contained reasons in its support and should have been passed with conscious application of judicial mind and not in a slipshod manner---In murder reference, no doubt, whole evidence was to be scrutinized, but the accused in appeal had a right to criticize the judgment as the provisions of S. 367, Cr.P.C. were mandatory in every case irrespective of its nature---Impugned judgment was set aside in circumstances and the case was remanded to the Trial Court for re-writing the judgment on the existing evidence in the light of the mandatory provisions of S. 367, Cr. P. C. after hearing both the parties in accordance with law.

Zafar Iqbal and others v. The State Criminal Appeal No.295 of 1996; Sahib Khan v. The State 1997 SCMR 871 and Shahid and other v. The State 1996 SCMR 1369 ref.

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

----S.367---Judgment---Provisions of S. 367, Cr. P. C. are mandatory in every case irrespective of its nature---Judgment must contain reasons in its support and must be passed by conscious application of judicial mind and it shall not be written in a slipshod manner.

Khawaja Sultan Ahmad for Appellants.

S.M. Latif Khan Khosa for the ­Complainant.

S.D. Qureshi for the State.

Date of hearing: 4th December 2001.

2002 Y L R 59

[Lahore]

Before Zafar Pasha Chaudhry, J

HAJI MUHAMMAD ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1055 of 2000, heard on 26th November, 2001.

Penal Code (XLV of 1860)---

----S. 302(c)---Sentence ---Gravity and intensity of the provocation and its suddenness were the relevant factors to be taken into account in a case of "Ghairat" while passing sentence on the accused---Trial Court had awarded ten years' R.I. to the accused under S.302(c), P.P.C.---High Court, however, after weighing and assessing the relevant factors in the case reduced the sentence of accused to five years' R.I. to meet the ends of justice---Victim being not Masoom-ud-Dam, no compensation under S. 544-A, Cr. P. C. could be granted to his legal heirs---Benefit of S. 382-B, Cr. P. C. was also extended to the accused in circumstances.

Ali Muhammad v. Ali Muhammad and others 1996 S.C.J 342, Munawar alias Shabboo v. The State 1999 MLD 76 and Qutab-ud-Din v. The State 1999 YLR 1395 ref.

Hafiz Khalil Ahmad for Appellant.

Muhammad Siddique for the State.

Date of hearing: 26th November, 2001.

2002 Y L R 61

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD YAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 86-J and Criminal Revision No.230 of 2001, heard on 20th December, 2001.

Penal Code (XLV of 1860)---

----S. 302----Appreciation of evidence--­Motive of occurrence was disbelieved by the Trial Court as the prosecution had failed to produce any independent person in that regard---Major contradiction was found in the statement made by the complainant in the F.I.R. and in his supplementary statement with regard to injuries allegedly caused b' the accused on the person of the deceased --­Due to such contradiction and improvement made by the complainant in his ocular statement, it had been proved that the complainant was not present at the spot---Had he been present at the spot he would not have changed his version---Prosecution witness was the daughter of the complainant and real sister of the deceased---Said prosecution witness attributed an injury to the acquitted co-accused while said accused was not named in the F.I.R. and she had attributed both the injuries on the person of the deceased to the accused---No crime empty was recovered from the spot ---Both the eye-witnesses who were closely related to the deceased were not proved to be present at the spot and in fact it was an unwitnessed occurrence---No case for conviction had been made out and in view of so many doubts and dents in the prosecution case---Benefit of doubt was extended to the accused and conviction and sentence awarded to him by the Trial Court were set aside and he was ordered to be released forthwith.

Iram Sajjad Gul for Appellant (at State expenses).

Tahir Ejaz Sheikh for the State.

Mian Sultan Tanvir Ahmad for the Complainant.

Date of hearing: 20th December, 2001.

2002 Y L R 122

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

UMAR DRAZ and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 957 and Murder Reference No.455-T of 2000, heard on 26th November, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)----

----Ss.10(4) & 11-- Appreciation of evidence--­Delay of one day in lodging the FI.R. was not properly explained---No mention was made of broken bangles of the victim girl in the F.I.R.----Both the prosecution witnesses who were uncles of the victim girl, did not see any of the accused committing sexual intercourse with the victim and conduct of said witnesses was unnatural because they did not try to apprehend the accused though none of the accused was armed with any fire-arm--­Not even a single scratch was found on any part of the body of the victim---Victim girl had alleged that she had shown clothes stained with semen to the lady doctor who medically examined her and she also had alleged that her shirt was torn during the scuffle, but neither the torn shirt nor the Shalwar allegedly stained with semen was taken into possession by the police---Evidence on record had, proved that the complainant party was family of criminals and according to finding of the Range Crime Police the alleged victim was a girl of ill-repute and offered herself for Zina after accepting money---Investigating Officer had admitted that investigation of the case was also conducted by Range Crimes Police by order of the D. L -G. and after approving the investigation, the D.L-G. had directed to omit S. 10(4), Offence, of Zina (Enforcement of Hudood) Ordinance, 1979 and that the victim girl should also be challaned in the case---No corroboration was available to the statements made by the victim girl---Court, in case of capital punishment, had to see as to whether any corroboration was available or not and that all the chains were to be linked in such a manner that the Court could reach to the only conclusion that it was/were the persons charged who were the actual culprits, but all that was missing in the case---Doubts and dents existing in the prosecution story, benefit should have been extended to the accused---Prosecution having failed to prove its case against the accused beyond any shadow of doubt, conviction and sentence recorded against the accused by the Trial Court were set aside and they were ordered to be released forthwith.

Mian Aftab Farrukh with Syed Imdad Hussain Hamdani for Appellants.

Kh. Muhammad Iqbal Butt for the State.

Date of hearing: 26th November, 2001.

2002 Y L R 126

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

ZAFAR IQBAL and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1324 of 1999 and Murder Reference No. 44-T of 2000, heard on 19th November, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/392/34--Appreciation of evidence-­ Accused were not named in the FI.R. and it was an unwitnessed occurrence---Case was based on circumstantial evidence and even the dead body of the deceased was not recovered on the pointation of the accused---Contradictions were apparent between extra judicial confession and the medical evidence--­Conduct of the witnesses of extra judicial confession was unnatural because they did neither apprehend the accused nor produced them before the police---Statements of the witnesses with regard to confession of the accused were recorded by fine police seven/eight days after alleged confession of the accused---Extra judicial confession which otherwise being in conflict with the medical evidence, was inadmissible in evidence and could not be believed---Witness who did not see the deceased in the company of the accused before occurrence, could not be termed as "Wajtaker"---Recoveries were of no significance as no report of the Fire-arms Expert was on record----Prosecution had failed to prove its case against the accused and the accused had been able to create dents and doubts in the prosecution story---Benefit of doubt had to be extended to the accused, in circumstances---Conviction and sentences recorded against the accused by the Trial Court were set aside and the accused were ordered to be released forthwith.

S.M. Latif Khan Khosa and M.A. Zafar for Appellants.

Kh. Muhammad Iqbal Butt for the State.

Date of hearing: 19th November, 2001.

2002 Y L R 130

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YAQOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 696 of 2000, heard on 20th December, 2001.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence--­Complainant was the husband of the deceased---One of the prosecution witnesses who was real brother of the deceased seemed to be a chance witness being not resident of the place of occurrence and no reasons for his presence in the house of his sister had been given by him---Other witness was also brother of the deceased---Another witness who was alleged to have been making repair in the house of the complainant and was mentioned as an eye-witness, was not produced by the prosecution---Motive as furnished by the complainant was not corroborated by the prosecution witnesses---Motive thus could not be believed---No overt act whatsoever was attributed to the accused except to raise the Lalkara and he was not even alleged to be armed---Accused being real brother of the main accused, possibility of his false implication could not be ruled out--­Conviction and sentence awarded to the accused by the Trial Court were set aside extending him benefit of doubt.

Ch. Tariq Mehmood for Appellant.

Ch. Muhammad Ayub for the State.

Date of hearing: 20th December, 2001.

2002 Y L R 133

[Lahore]

Before. Khawaja Muhammad Sharif, J

AMANAT ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 990 of 2000, heard on 30th November 2001.

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

----S. 302---Appreciation of evidence Sentence---Accused had already remained for 29 months in the judicial lock-up during the trial---Accused had committed the murder both the deceased under grave and sudden provocation after having seen them in compromising position which plea of the accused was further supported by the postmortem report of the Chemical Examine regarding the swabs being stained wit semen---Period of 29 months in which the accused remained in jail, was treated to b sufficient sentence to meet the ends of justice.

1992 SCMR 2047 ref

Mazhar Iqbal Sidhu for Appellant.

Abdullah Baig for the State.

Date of hearing: 30th November, 2001.

2002 Y L R 136

[Lahore]

Before Khawaja Muhammad Sharif, J

AZAM WATTO and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7475 of 2001, decided on 21st December, 2001.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.364-A---Pre-arrest bail---Considerations for grant of bail before arrest and after arrest were totally different---Victim, a minor girl got an employment with the co-accused through the accused and the girl had not been recovered---Bail application was dismissed by the Trial Court and for four months the accused did not apply for bail before any Court---Offence against the accused fell within the prohibitory clause under S. 497, Cr. P. C. and it was not known as to whether the victim girl was still alive or not--­Application for grant of bail was dismissed.

Ch. Sajad Tabbasum for Petitioners.

Imtiaz Ahmad Chaudhry for the State.

2002 Y L R 137

[Lahore]

Before Sheikh Abdur Razzaq and Muhammad Akhtar Shabbir JJ

MUHAMMAD SHAFIQUE and 3 others---Petitioners

Versus

THE STATE---Respondents

Criminal Miscellaneous No. 1222/B of 2000/BWP, decided on 22nd May, 2001.

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

----S.497---Penal Code (XLV of 1860), Ss. 3021 109/148/149---Bail, grant of---Three persons had lost their lives in the occurrence­--Accused alongwith co-accused had been assigned a specific role in the commission of offence and the accused could not establish their plea of alibi---Even otherwise the plea of alibi was the weakest type of plea and could not be given any weight unless the same stood proved from cogent, convincing and plausible evidence which was lacking in the case---Bail application was dismissed, in circumstances.

(b) Criminal trial---

----Plea of alibi---Plea of alibi is the weakest type of plea and cannot be given any weight unless same stood proved from very cogent, convincing and plausible evidence.

Malik Saeed Ijaz and Sadiq Mahmood for Petitioners.

Sardar Ahmad Khan for the Complainant.

M. A, Farazi for the State.

2002 Y L R 139

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. KALSOOM BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2425/B and Criminal Miscellaneous Application No. 1 of 2001, decided on 1st November, 2001.

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

----S. 497---Offence of Zina (Enforcement of Hadood) Ordinance (VII of 1979), Ss. 10(2) (3) & 11---Bail, grant of---During investigation, the petitioner fully supported the version of the F.I.R. and implicated the accused who were named in the F.I.R., but incharge of the police station turned the status of the petitioner girl from victim to the accused---State Counsel as well as the police official, could not. show any material on the basis of which the status of the petitioner was reduced from the victim/witness to that of an accused ---F.I. R. was recorded after a delay of two months and the petitioner/victim had supported the version of the F.LR.--­Allegation against the petitioner/ victim that she had committed "Zina-bil-Raza " prima facie, was not borne out from the record--­ Petitioner being a woman and her case also being covered by the first proviso to S. 497, Cr. P. C., she was entitled to grant of bail.

Mian Mushtaq Ahmad Dareka for Petitioner.

Ch. Muhammad Akram for the State

2002 Y L R 140

[Lahore]

Before Khawaja Muhammad Sharif, J

AZIZ-UR-REHMAN and another---for Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 428 of 2000, heard on 29th November, 2001.

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

----S. 302/34---Qanun-e-Shahadat (10 of 1984) Art 121---Appreciation of evidence--­Occurrence had taken place in broad daylight and the matter was reported to the police promptly---Names of the accused, the weapons they were carrying and the role they had played in the occurrence, were fully described in promptly lodged . F.I.R. --­Complainant, who was real brother of the deceased, though was not resident of place of occurrence, but he had fully explained his presence in the house of his deceased brother at the time of occurrence---Other prosecution, witness was neither related to the complainant party, nor was inimical towards the accuse', and had no reasons to falsely implicate the accused---Doctor who conducted post-mortem of the deceased had mentioned injuries on the body of the deceased having been caused with fire-arm, blunt and sharp-edged weapon and said injuries were stated to have been caused by the accused on the person of the deceased, before the police and also before the Trial Court by the complainant and the prosecution witness---Defence version was not put by the accused in their statement under S. 342, Cr. P. C. ---When a specific plea was taken by an accused and he wanted to bring his case in one of the exceptions under S. 302(c), P. P. C. then onus would be on the said accused to prove his plea as required by Art. 121 of Qanun-e-Shahadat, 1984---Mere disbelieving the recoveries by the Trial Court from the accused, would not advance the case of the accused any further because recoveries were corroborative piece of evidence and if otherwise the case was fully proved through ocular account and the medical evidence, the recoveries lose significance---Prosecution had been successful in proving its case against the accused up to the hilt and despite lengthy cross-examination on the prosecution witnesses, the defence remained unable to shake their testimony---Conviction and sentence recorded against the accused by the Trial Court, were maintained.

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

----S.302(c)---Qanun-e-Shahadat (10 of 1984), Art. 121---Exceptions under S. 302, P. P. C---Burden to prove---When a specific plea was taken by the accused and he wanted to bring his case in one of the exceptions under S. 302(c), P.P.C, the onus would lie on, such accused to prove his plea as required under Art. 121 of Qanun-e-Shahadat, 1984.

M. A. Zafar and Syed Iqbal Hussain Gillani for Appellant.

Sultan Haider for the Complainant.

Nemo for the State.

Date of hearing: 29th November, 2001.

2002 Y L R 143

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUHAMMAD RAMZAN and 9 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2953-B of 2001, decided on 28th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/337-A(i)/337-F(i) /452/144/149--­Bail, grant of---Accused who had launched a pre planned and pre-concerted attack on the complainant side, had caused as many as 30 injuries on their person---Accused who had agitated counter-version and had claimed that their side had also suffered the injuries during the occurrence, had failed to prove their claims as -.none from their side had suffered injuries and no private complaint was ever filed by them against the complainants--­Crime having been committed by the accused after elaborate planning, bail could not be allowed to them.

Malik Muhammad Imtiaz Mahal for Petitioners.

Rashid Murtaza Qureshi for the Complainant

Nazir Ahmad for the State.

2002 Y L R 145

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Mst. SAIMA ASHRAF---Petitioner

Versus

S.H.O. and another---Respondents

Constitutional Petition No. 15993 of 2001, decided on 9th October, 2001.

Constitution of Pakistan (1973)---

--- Art.199---Ofenee of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11-­Quashing of F.LR.---Petitioner had sought quashing of F.I.R. contending that she was the sui juris and had contracted marriage with her free-will and consent and had not committed any offence ---Petitioner had also attached with her petition the Nikah Nama in proof of her claim---High Court could not assume the role of Investigating Officer--­Prayer of the petitioner for quashing of F.I.R. was declined by the High Court with direction to Investigating Officer to record the statement of the petitioner and her witnesses if produced before him and also receive the documentary evidence and conclude the investigation after joining both the parties without any undue harassment to any of the party within- specified time---Dispute regarding the age of the petitioner also could be settled after obtaining necessary medical evidence if so needed.

Malik Muhammad Imtiaz Mahal Petitioner.

Ch. Muhammad Jehangir Wahla A.A.-G. for the State.

2002 Y L R 146

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Naeemullah Khan Sherwani, JJ

MUHAMMAD ASLAM and 2 others--- Appellants

Versus

THE STATE --- Respondent

Criminal Appeal No. 167, Criminal Revision No. 120 and Murder Reference No. 106 of 1996, heard on 3rd, December, 2001.

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

----Ss.302/34 & 392/34--- Appreciation of evidence --- Ocular account of occurrence was not corroborated by medical evidence --­Story given in the FI.R. that one accused was pressing the neck of the deceased and the other accused was firing at the deceased could not exclude the possibility of the co­-accused being injured due to firing--­Presence of eye-witnesses on the spot at the time of incident was doubtful and their conduct at that time was unnatural ---F.I.R. seemed to have been \recorded after due deliberation and consultation after getting the post-mortem report--- Recovery of the crime empty from the spot was an overdoing on the part of the Investigating Officer under the influence of the two D. S. Ps.. who were real brothers of the deceased and said recover was falsified by the inquest report which. Was also in violation of the provisions of S.103. Cr. P. C. ---Defence had created dents in the prosecution case, the benefit of which under the law had to go to the accused--- Accused were acquitted on benefit of doubt, in circumstances.

Sadiq v. The State PLD 1967 356 ref.

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

----Ss.302/34 & 392/34 --- Appreciation of evidence --- Principle --- Falsities appearing in the statements of accused persons do not bar the allowance to them of an advantage which the law permits on the basis of facts that are found on a consideration of all the evidence and circumstances that can accepted in the case.

Sadiq v. The State PLD 1967 SC 356 ref.

Kh. Mukhtar Ahmad Butt (at State expenses) for Appellant.

Mrs. Najma Perveen for the State

Ch. Irshad Ullah Chattha for 4:. Complainant.

Date of hearing: 3rd December of 2001.

2002 Y L R 151

[Lahore]

Before Bashir A.Mujahid and Mrs. Nasira Iqbal, JJ

ZULIFQAR alias ZULFI alias JAMSHED alias SAIN --- Appellant

Versus

THE STATE --- Respondent

Criminal Appeal No. 757 of 1996 and Murder Reference No.35 of 1997, heard or 3rd December, 2001.

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

----S.302--- Appreciation of evidence--Registration of the case by the Police Officer- after arriving on his own at the place of occurrence on having received the information about the incident, did not suffer from any illegality or material irregularity--­Accused was nominated in the promptly recorded F.I.R. and there was no reason for his false implication or substitution by getting off the real culprit --- Relationship of the eye­witnesses with the deceased and the complainant was no ground to disbelieve their testimony when they were not interested and inimical towards the accused---Ocular account of occurrence was corroborated by medical evidence --- Conviction of accused was maintained in circumstances---What transpired between the deceased and the accused immediately before the occurrence was not known---Accused had fired only one shot and did not repeat the same---Pistol recovered from the accused was not found in working condition as per report of the Forensic Science Laboratory---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Mrs. Erum Sajjad GUL (at State expenses) for Appellant.

Shaukat Ali Khawaja for the State.

Date of hearing: 3rd December, 2001.

2002 YLR 155

[Lahore]

Before Khawaja Muhammad and M. Naeemullah Khan Sherwani, JJ

ARSHAD alias SHADU and another ---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 518 Murder reference No.261-T of 2000, heard on 5th December 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(4)---Anti-Terrorism Act (XXVII of 1997), S. 7---Appreciation of evidence­ Matter had been reported to the police by the father of the victim girl within one hour of the occurrence giving names of the accused am mentioning the act committed by them-­Victim, a minor girl of 11 /12 years of age had categorically stated in the Court that both the accused had committed Zina-bil-Jabr with her---Statement of the girl was corroborate by the complainant, her father and medical evidence including the Chemical Examiner' Report according to which the vaginal swab of the girl were found stained with semen-­Conviction and sentences of death awarded to accused were confirmed in circumstances.

Abid Saqi for Appellant.

Sadaqat Mehmood Butt for the State.

Date of hearing 5th December 2001.

2002 Y L R 159

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD AKBAR JALAL-UD-DIN and others ---Appellants

Versus

THE STATE ---Respondent

Criminal Appeal No. 62 and Murder Reference No.88 of 1995, heard on 27th November, 2001.

Penal Code (XLV of 1866)---

----Ss. 302/148/149-­Appriciation of evidence---Accused had been nominated the promptly lodged F.I. R. with specific roles attributed to them---Occurrence had taken place in daylight and the accused being known to the prosecution witnesses, their mistaken identity was not possible Complainant had provided the minute details in the FLR. attributing specific injuries to the accused received by both the deceased and his mere relationship with one of the deceased was no ground to discard his testimony--- Other eye-witness, who was entire independent and impartial had sufficient explained his presence on the spot at the tire of incident---Medical evidence had further corroborated the ocular testimony Conviction of accused was upheld circumstances and the sentence of death one accused was confirmed, there being no mitigating circumstance in his favour---Other accused being 75 years old and co-accused with similar role had been sentenced to lesser punishment---Sentence of death of the said accused was, therefore, reduced to imprisonment for life to ensure safe administration of justice.

Muhammad Inayat Ullah Cheema for Appellants.

Mian Muzaffar Hussain for the Complainant.

Sheikh Afzaal Hussain for A.-G. for the State.

Dates of hearing: 26th and 27th November, 2001.

2002 Y L R 166

[Lahore]

Before Chaudhary Ijaz Ahmad, J

KHADIM HUSSAIN ---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION, PEOPLE'S COLONY GUJRANWALA and 4 others---Respondents

Writ Petition No. 18893 of 2001, decided on 6th December, 2001.

Emigration Ordinance (XVIII of 1979)----

----S.17/22---Constitution of Pakistan (1973), Art.199---Constitutional petition Maintainability---Complainant in his F.I.R had alleged that the petitioner and respondent had received money from him for sending him abroad and that the petitioner had paid amount to the complainant on the pressure of the F.I.A. Authority and the petitioner was quite innocent and had nothing to do with the transaction between the complainant and the respondent and that the matter was pending adjudication before the Anti-Corruption Court against the petitioner---Petitioner had alleged that the police was harassing him and prayed that Authorities be directed not to harass him in any manner---Validity---Case involved disputed question of fact and the High Court had no jurisdiction to resolve such question in Constitutional jurisdiction---Petitioner had failed to bring on record any document to show that he and respondent were not party to the fraud committed with the complainant---Constitutional jurisdiction was discretionary in character and since the petitioner and respondent had defrauded the innocent peoples- like the complainant, to discretion could not be exercised in favour of the petitioner as he who seeks equity must come to the Court with clean hands Constitutional petition was dismissed in circumstances.

Nawabzada Syed Raunaq Ali’s case PLD 1983 SC. 236; Rana Muhammad Arshad's case 1998 SCMR 1462 and G.M Malik's case 1993 CLC 178 ref.

Malik Muhammad Imtiaz Mahl for Petitioner.

Sher Zaman Khan, Deputy Attorney General and Malik Akhtar Hussain Addl A.-G. for Respondents.

2002 Y L R 168

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASLAM and others- Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1995-B and Criminal Miscellaneous No. 1 of 2001, decided on 10th October, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302/148/149, 337-F (i) & 337-L (ii)--­Bail, grant of---Accused did not cause injury either to the deceased or any prosecution witness---No empty had been recovered from the place of occurrence and no recovery of gun had been effected from the accused--- Co ­accused had been shown to be armed with hatchet and caused injury to the prosecution witness who was brother of the deceased--­F.I.R. had nowhere mentioned that co ­accused had used his hatchet from the blunt side---Even if the allegation was admitted to be correct then a person, who had a hatchet in his hand and used its blunt side could by no stretch of imagination be said to have. come with intention to cause murder of a person---No recovery had been effected from the co-accused as well---Injury allegedly caused by the co-accused had been declared to be "Shujjah-i-Khaftfah " after the medical examination---Both the accused were declared innocent during investigation and a discharge report was also prepared in that respect, but the Magistrate did not agree with the said report---Bail could not be withheld as punishment and if the case of the accused fell within the purview of further inquiry, then the bail should not be withheld, even if the trial was in progress-- Allegations against the accused needing further probe and inquiry they were granted bail.

Muhammad Ismail v. Muhammad Rafique and others PLD 1989 SC 585 ref.

Malik Muntazir Mahdi and Gohar Piracha for Petitioner.

Ahmad Shah Khaga for the Complainant.

Manzoor Ahmad Bhatti for the State.

2002 Y L R 170

[Lahore]

Before Muhammad Farrukh Mahmud, J

Rai GHULAM ABBAS ---Petitioner

Versus

S. H. O.---Respondent

Criminal Miscellaneous No. 945-H of 2001, decided on 18th October, 2001.

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

----Ss. 491 & 497---Penal Code (XLV of 1860), Ss. 354/506/34---Hebeas corpus petition---Bailiff reported that detenu was nominated in the case registered against him fog the offence under Ss. 354, 50 & 34, P. P.C. ---Petitioner had alleged that the detenu was detained at the police station for the last 10/11 days---Age of the detenu was about 13 years---High Court converted hebeas corpus petition into bail application---Offence under S. 354, P. P. C. was bailable while S. 506 P.P.C did not attract the prohibitory clause of S. 497 Cr.P.C.—Accused admittedly being of tender age about 13 years, his case was covered proviso (1) to S. 497, Cr P. C. as well as the provisions of Juvenile Justice Sys, Ordinance, 2000---Accused was admitter' bail in circumstances.

Muhammad Khalid Farooq for Petitioner.

Sana Ullah Bailiff in person.

Respondent in person.

2002 Y L R 171

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. MANZOORAN BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 339 of 2001, heard on 11th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 16--­Grant of bail by imposing condition---Trial Court granted bail to the accused by imposing condition to the effect that surety should be within prohibitory degree­ Validity ---No. such condition could be imposed while deciding bail application-­Such condition was clearly against the dictum laid down by the Supreme Court in case of Afshan Bibi v. The State (1998 SCMR 6).

Mst. Afshan Bibi v. The State 1998 SCMR 6 ref.

Arshad Ali Chohan for Petitioner.

Muhammad Sarwar Bhatti A.A.-G for the State.

Date of hearing : 11th October 2001.

2002 Y L R 172

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASGHAR---Petitioner

Versus

S.H.O. and others --- Respondent

Criminal Miscellaneous No.2384/B and Criminal Appeal No.913/H of 2001, decided on 10th October, 2001.

Criminal Procedure Code (V of 1898)—­

----Ss. 491 & 497---Penal Code (XLV of 1860), Ss. 354/452/506(ii)/148/149---Habea. corpus petition---Conversion into bail application---Bailiff reported that a case under Ss.354/452/506(ii)/148/149, P.P.C. had been registered against the detenu and their arrest had also been shown in the case diary as well as in the daily diary ---Detenus who were present in person before the Court had perused the report of the Bailiff and the contents of the F.I.R. registered against them---None of the alleged injured prosecution witnesses were got medically examined---All the offences mentioned in the F.LR. did not attract the prohibitory clause of S. 497, Cr. P. C. ---Background of hostility existed between the detenus and the police --­High Court converted habeas corpus petition into bail application and admitted the detenus to bail.

Malik Naseer Ahmad Taheen for Petitioners.

2002 Y L R 173

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD IMRAN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 2268-B and 2001, decided on 10th October, 2001.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement ­of Hudood) Ordinance (VII of 1979 Ss. 13/14---Bail, grant of---No warrant of arrest was obtained by the complainant Police Officer and he conducted the raid in violation: of the Fundamental Rights guaranteed by the Constitution---First Information Report ha­d nowhere mentioned that the apprehended lady and the male were committing Zina---No offence prima facie was made out against the accused under Ss. 13/14 of Offence of Zina. (Enforcement of Hudood) Ordinance, 1979 and further probe was needed into the guilt of the accused---Bail was granted to the accused.

Faiz Bakhsh Khan Langah for Petitioner.

Muhammad Tariq Mehmood for the State.

2002 Y L R 174

[Lahore]

Before Raja Muhammad Sabir., J

BABAR SUHAIL BUTT ---Petitioner

Versus

THE STATE --- Respondent

Criminal Miscellaneous No. 6501 /B of 2001 decided on 12th December, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860) Ss.302/109/148/149---Bail, grant of Involvement of the accused in the five murder cases had indicated that he was a desperate and hardened criminal---Accused was specifically named in the FI.R. as the master mind behind the occurrence who has planned the attack whereby son of the complainant was killed---Plea of alibi and other submissions made by the accused regarding his innocence could not be examined at , the bail stage as same needed deeper appreciation of evidence which was yet to be recorded by the Trial Court---Accused hat been placed in the Column No. 3 of the challan alongwith his co-accused---No case for bail, having been made out, bail application was dismissed.

Muhammad Asad Manzoor Butt for Petitioner.

Chaudhary Muhammad Akram for the Complainant.

2002 Y L R 176

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mirza ANWAR BAIG---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7255-B of 2001, decided on 26th December 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.420/467/471---Bail, grant of ---Sufficient evidence had been collected by the prosecution to connect the accused with the commission of the crime---Accused was involved in the case falling within the prohibitory clause of S. 497, Cr. P. C. and had failed to make out a case of further inquiry-- Accused was not entitled to grant of bail o account of serious allegations levelled against him.

Ijaz Ahmad's case 1978 SCMR 64 ref.

Ch. Abdul Rashid for Petitioner

M.A. Zafar for the Complainant.

Malik Muhammad Aslam Khokh., for the State.

2002 Y L R 178

[Lahore]

Before Mian Nazir Akhtar, J

Mst. SHAILA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6351/B of 2001, decided on 29th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/13, 14 & 18---Bail, grant of---Large number of persons, men and women who were residents of different places were found in the house of the accused and some of them were found committing Zina---All such persons stated that they used to come to the Adda of the accused since long for the purpose of Zina---Police recovered three cloth sheets apparently stained with semen from the room where the accused persons were found committing the offence ---All the male and female accused did not give consent for their medical examination so that corroborative evidence could not come on the record against them---Mere fact that the accused was a woman and that in a similar case she was acquitted earlier, was no ground to allow her bail in the case when she was indulging in the dirty business of running a prostitution den---Bail application of the accused was dismissed.

Riaz v. Station House Officer, Police Station Jhang City PLD 1998 Lah. 35 and Muhammad Sajjad and others. v. The State 1996 MLD 103 ref.

Mian Muhammad Arif for Petitioner.

Kazim Iqbal Bhangu for the State.

2002 Y L R 180

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Syed KALB-E-ABBAS ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAHORE and 8 others---Respondents

Criminal Revisions Nos.772 and 775 of 2001, decided on 21st December, 2001.

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

----Ss. 302/201----Criminal Procedure Code (V of 1898), Ss. 204 & 439---Issue of process to accused---Validity---Trial Court had summoned the accused to face the trial without giving any reasons whatsoever and without mentioning sufficient grounds necessitating proceedings against them---Trial Court was bound to pass a speaking order as the issuance of process to face the trial in a murder case would cause harassment and agony to the accused---Opinion had to be formed by the Trial Court itself on the basis of material produced before it on the question whether the allegations made had, prima facie, constituted an offence and furnished sufficient grounds for proceeding against the accused---Trial Court had passed the impugned order in a mechanical manner without considering the evidence on record merely on the basis of the inquiry report submitted by the Magistrate which had definitely prejudiced the case of accused who would suffer irreparable loss and injury to their reputation and service career which could not be allowed---Trial Court had, thus failed to exercise the jurisdiction vested in it by only relying upon the inquiry report--­Impugned order was consequently declared as illegal and was set aside with the direction to Trial Court to pass fresh order after considering whether sufficient evidence was available on the record to summon the accused to face the rigours of a criminal trial.

Ashfaq Ali's case PLD 1979 Kar. 799; Sadho's case 1980 PCr.LJ 441; Rahim Dad's case 1980 PCr.LJ 500; Amir Bakhsh's case 1990 PCr.LJ 1765; Haji 'Muhammad's case PLD 1966 Lah. 344, PLD 1997 SC 275; 1996 MLD 1817; 1986 PCr.LJ 2359; 1994 PSC (Crl.) 468; PLD 1967 SC 317 and 1990 MLD 2073 ref.

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

----S. 204---Issue of process---Court before summoning the accused in a complaint case should not ignore giving weight to the preliminary evidence recorded so that unscrupulous complainant may not involve innocent persons in a criminal litigation thereby forcing them to undergo rigours of criminal trial.

Muhammad Saleem Sahgal for Petitioner.

Ch. Abdul Rashid for Petitioner (in Revision No. 775 of 2001).

Raja Abdur Rehman for Respondent No. 3.

Ch. Muhammad Hanif Khatana, Addl. A.-G. (Punjab).

2002 Y L R 184

[Lahore]

Before Ijaz Ahmad Chaudhary, J

JAVAID IQBAL ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1372, 1370, 1307, 1306 of 2000, heard on 29th November, 2001.

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

----S. 337-A (ii)---Appreciation of evidence--- Sentence---One accused had caused an injury with the "Chhuri " on the left ear .of a prosecution witness while other accused had caused an injury with an iron rod on the head of the same witness---Accused party had also received injuries during the occurrence-Conviction of accused was maintained but their sentence was reduced to the ­imprisonment already undergone by the which was almost two years.

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

----Ss. 302 (b) /34 & 302 (c)/34- Appreciation of evidence---Eye-witnesses has received injuries during the occurrence are: their presence at the spot could not 6 doubted---Statements of eye-witnesses were consistent and had no contradictions on material points---Accused had also bee injured during the incident and they had core forward with a cross-version ---Injuries ­sustained by the accused had been suppressed by the complainant party and the eye witnesses---Conviction of accused under S.302(b)/34, P.P.C. was converted to S.302(c)/34, P. P. C. and sentence of imprisonment for life awarded to each accused was reduced to 14 years' R.I in circumstances.

Muhammad Farooq Qureshi Chishti Raja Aamar Khan and Chaudhary Haider Bakhsh for Appellants.

Chaudhary Nazeer Ahmad for the State.

Dates of hearing: 26th and 27th November 2001.

2002 Y L R 190

[Lahore]

Before Mian Muhammad Jehangir, J

KARAMAT ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6336/B of 2001, decided on 12th December, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 406, 420 & 506---Bail, grant of--­Provisions of S. 406, P. P. C were not applicable to the case and only part first of S.506, P. P. C. for the purpose of punishment was attracted which provided punishment up to two years---Provisions of S. 420, P. P. C , though attracted but offence under said section was bailable ---Case against the accused, in circumstances, did not fall within the prohibitory clause of S. 497, Cr. P. C --­Accused was no more required by the police for any further investigation and was admitted to bail in circumstances.

Ijaz Ahmad Janjua for Petitioner.

Aslam Sumra for the State.

2002 Y L R 191

[Lahore]

Before Mian Muhammad Jehangir and M. A. Shahid Siddiqui, JJ

JAMSHAID HAIDER ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2530/B of 2001, decided on 26th November, 2001.

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

----Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c), 25 & 51---Bail, grant of---Accused was named in the F.I.R. and the offence against the accused fell within the prohibitory clause of S. 497, Cr.P.C.---Report of the Chemical Examiner was not negative---Contention that provisions of 5.103, Cr. P. C. had not been complied with as no person from the locality was associated to witness the recovery proceedings despite recovery was effected from a thickly ­populated area, was repelled because provisions of S.103, Cr. P. C. had been made inapplicable by S.25 of Control of Narcotic Substances Act, 1997 in the cases of narcotics---Case against the accused fell within the prohibitory clause of S. 497, Cr. P. C. and the same was not fit for bail--­Application for bail was dismissed in circumstances.

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

----Ss. 496 & 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51(1)---Bail, grant of---Under provisions of S.51 of Control of Narcotic Substances Act, 1997 though bail would not be granted to an accused charged with an offence under the said Act, but it would not mean that provisions of Ss. 496 & 497, Cr. P. C. had been made inapplicable for the reason that under S. 9(c) of said Act sentence of death was upper limit and that the imprisonment for a term extending to 14 years was a lower limit---Since the lower limit of punishment up to 14 years had been provided and there was a discretion in awarding the punishment, the provisions of S. 51 of the Control of Narcotic Substances Act, 1997 were defective and that the Court were competent to attract the provisions of Ss. 496 & 497, Cr. P. C in dealing with the bail applications.

Malik Ghulam Qasim Rajwana for Petitioner.

Jameel Ahmad Chauhan for the State.

2002 Y L R 193

[Lahore]

Before Asif Saeed Khan Khosa, J

HAQ NAWAZ alias KALI ---Petitioner

Versus

THE STATE and another---Respondent, Criminal Revision No. 379 of 2001, decided on 7th November, 2001.

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

----Ss. 439, 540 & 561-A----Offence of Zina Enforcement of Hudood) Ordinance (VII of 1979), Ss.- 10/16---Stay of proceedings --- First Information Report showed that the alleged enticee/victim was already married to another person before her enticement by the accused ­Accused had claimed that the alleged enticee in fact had contracted Nikah with him and that she had never contracted marriage with the other one---Pending case before the Trial Court the accused filed application for stay proceedings so as to await the decision the Family Court before which he had file suit for restitution of conjugal rights against the alleged enticee which application was dismissed by the Trial Court and the accuse: had filed revision against that order---Allege enticee did not support the case of the accused before the criminal Court and the accused had himself admitted , that alleged enticee had not filed any written statement it the suit for restitution of conjugal right allegedly filed by him in the Family Court and stand taken by the accused with regard to marriage with the enticee had never beer taken by the accused before the Investigating Officer---Filing of the suit for restitution of conjugal rights by the accused before the Family Court, in circumstances, was not such a convincing or compelling circumstance so as to require stay of proceedings before Criminal Court/Trial Court trying the case of the accused.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Shakir Muhammad and another v. The State PLD 1985 SC 357 ref.

Malik Ashiq Muhammad Jamal for Petitioner.

2002 Y L R 196

[Lahore]

Before Mian Muhammad Jehangir, and M.A. Shahid Siddiqui, JJ

MEHMOOD HASSAN and another---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 171 and Murder Reference No.420 of 2000, heard on 21st November, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/324/337-A (ii)/337-F (ii)/34, 309 & 310---Criminal Procedure Code (V of 1898), S. 345(2)---Compromise---Compromise was arrived at between the parties during pendency of the appeal against conviction and sentence awarded to the accused by the Trial Court---Offence against the accused had been compounded by the legal heirs of the deceased without any duress or under any influence and even the injured had waived his right of Qisas---Guardians of the minors produced in Court had recorded their statements on behalf of the minors who were injured in the occurrence to the effect that they had forgiven the ac(used in the name of Allah and that they had no objection if the accused were acquitted of the charges--­Validity---Natural guardians of the minors who were their father and mother, were fully competent to compound the offence on behalf of the minors--Compromise arrived at between the parties was allowed and the accused were acquitted of the charges accordingly.

Faiz Bakhsh Khan for Appellant.

Sardar Mehboob Ahmad for Complainant.

Shaukat Ali Kheral for the State.

Date of hearing: 21st November 2001.

2002 Y L R 200

[Lahore]

Before Mian Muhammad Jehangir, J

MUHAMMAD RAMZAN---Petitioner

Versus

SUPERINTENDENT, NEW CENTRAL JAIL, MULTAN and another ---Respondent

Writ Petition No. 4693 of 2001, decided on 7th December, 2001.

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

----Ss. 6, 7 & 8---Constitution of Pakistan (1973), An. 199---Constitutional petition Permissible remissions grant of accused in his petition had sought direction: against Authorities to include the remission granted from time to time since after the dare of his arrest and to release him if he had already served out his entire sentence-Motive of incident was that some time earlier a quarrel had taken place between brother-in-law of the complainant and the accused on a passage, but a compromise had taken place­ Incident, in circumstances, was confined personal enmity ---Petitioner/accused was allegedly armed with pistol .30 bore while his co-accused were also armed with fire-arms and the incident took place at night time and the accused were identified in the light or electric bulb---Incident which was confined between the two parties and at night time could not have created a sense of fear and insecurity among the people---Alleged incident constituting an offence had no nexus with the object as given in Ss. 6, 7 & 8 of Anti-Terrorism Act, 1997---Mere trial by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 would not be sufficient to deprive the accused from remission granted by the Competent Authorities---Authorities were directed to grant permissible remissions to the accused.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 ref.

Mian Abbas Ahmad for Petitioner.

Muhammad Wajid Bhatti for the State.

2002 Y L R 203

[Lahore]

Before Khalil-ur-Rehman Ramday, Muhammad Asif Jan and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD RIAZ---Petitioner

Versus

Mian KHADIM HUSSAIN, ADDITIONAL SESSIONS JUDGE, MIANWALI and 11 others---Respondents

Writ Petition No. 15349 of 2000, heard on 13th November, 2000.

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

----S.6 & Sched., para. 2(a)(ii) --- Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of case from Sessions Court to Special Court---Reason which had led to the murder of the deceased, a police officer, had no nexus with his official capacity---Case of the murder of the decased, therefore, was not covered by the provisions of the Schedule appended to the Anti­ Terrorism Act, 1997---Constitutional petition was dismissed accordingly.

Mahram Ali's case PLD 1998 SC 1445 and Muhammad Aslam Khan's case Criminal Petition No. 147/L of 1999 ref.

Malik Amin Muhammad Joya for Petitioner.

Muhammad Shan Gul for Respondents Nos. 1 and 2.

Zafar Iqbal Chohan for Respondents Nos. 3 to 11.

Date of hearing: 13th November, 2000.

2002 Y L R 204

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

SHOAIB and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 424, 434 and Criminal Revision No.457 of 1995 and Murder Reference No.61 of 2000, heard on 11th December, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 337-F(vi)---Appreciation of evidence---Ocular account of occurrence was in conflict with medical evidence---Motive for the commission of crime was not proved--­Presence of eye-witnesses on the spot at the relevant time was doubtful---Evidence of eye­witnesses was contradictory and replete with innumerable deliberate and dishonest improvements which could not be explicitly relied upon and the same was rejected as a whole---Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

M.A. Zafar and Miss Surrayya Sultana Butt for Appellants.

Najam-ul-Hassan Gill for the State.

Date of hearing: 11th December, 2001.

2002 Y L R 213

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

SHAFQAT ISHAQ alias SHAUKAT and another---Petitioners

Versus

THE STATE---Respondent

Criminal Appeal No. 147/T of 1999, heard on 8th October, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/34 & 392/34 --- Appreciation-of evidence---Eye-witnesses were entire independent and they could not be treated chance witnesses at a little distance from the residence---Said witnesses had disclosed the description of the accused to the fir informant and they had no reason to make false statement against the accused substitute them with unknown culprits­ Accused had been correctly identified by the witnesses in the identification parade in the jail and also in the Court---Sustaining , injuries by the deceased at the hands accused, no doubt, was not witnessed by any ­person, but there being a little distance between the place of sustaining fire-art,: injury by the deceased while going of motor cycle and the place where the accused were found in possession of the said. motorcycle and gap of short time between the ­two incidents, was a strong circumstance to establish that the accused had fired at the deceased, snatched his motorcycle and while ­running fell on the road from the motorcycle ­Evidence on record and the attending circumstances had sufficiently connected the accused with the commission of offence-­Convictions and sentences of accuser were upheld in circumstances excel reduction in sentence of one accused frog death to imprisonment for life, there being no distinction in the individual role o the two accused in the occurrence.

Aftab Ahmad Gujjar (Defence Counsel) and Raja Muhammad Tariq Khan for Appellants.

Miran Malik for the State.

Date of hearing: 8th October, 2001.

2002 Y L R 220

[Lahore]

Before Iftikhar Hussain Chaudhary, J

MUHAMMAD AKHTAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1032 of 2000, heard on 21st November, 2001.

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

----S. 162---Qanun-e-Shahadat (10 of 1984), Arts. 140 & 151 (3)---Impeaching credit of witness by confronting him with his previous statement---Provisions of 5.162 Cr. P. C. , Art. 140 & Art. 151 (3) of Qanun-e-Shahadat, 1984, have to be read together which show that an accused or the adverse party has an inalienable right to cross-examine the witness (subject to (imitations contained in Chapter X of the Qanun-e-Shahadat) in order to discredit him to show that he was prone to falter, or had propensity to falsehood, was susceptible to prevarication or was an outright liar---Contradicting a witness by his previous inconsistent statement is a usual and often effective mode of discrediting him.

PLD 1964 Pesh. 194 ref.

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

----Ss. 302/34 & 324/34---Criminal Procedure Code (V of 1898), S.162---Qanun­e-Shahadat (10 of 1984), Arts. 140 & 151(3)--­Appreciation of evidence---Not allowing the accused to confront the witness with his previous statement and not bringing on record the contradiction amounted to procedural unfairness in trial warranting quashing of his conviction by Trial Court---Denial by the witness of having made any previous statement or any part of it was no ground for disallowing the cross-examiner to confront him with his previous statement---Defence in such a situation had a right to lead evidence in respect of existence of the previous statement by reading out the entire statement to the witnesses and by summoning or producing as witness the police officer or the person who had scribed the statement---Trial Court had disallowed the defence to confront the prosecution witness with his previous statement which admittedly was on record when the witness denied having made any statement before police---Trial Court in doing so had committed an illegality which was not curable---Defence had a right to take benefit of any material contradiction in the statements made by the prosecution witnesses which could not have been taken away by the Trial Court---Retrial of the case could have been ordered in such circumstances, but that course was avoided as further scrutiny of record had made decision of the appeal on merit quite possible---Eye-witnesses were chance witnesses and they were not present at the scene of crime at the time of occurrence--­Ocular account of the incident was belied by physical evidence---Prosecution version finally brought on record was recorded belatedly---Defence plea that the complainant was summoned from his village and the case was registered after considerable delebration appear to be quite forceful---Prosecution witnesses were unable to identify the assailants who had been implicated at a later stage---Police had in successive investigations found the accused to be innocent and its opinion was neither shown to be coloured in any manner nor challenged by the complainant and as such the same could be considered alongwith other material on record---Accused were acquitted in circumstances.

Sajjad Hussain v. State PLD 1996 Lah. 286; Altaf Hussain and 4 others v. State PLD 2000 Lah. 216; PLD 1964 Pesh. 194; PLD 1971 SC 730; PLD 1973 SC 160; 1989 MLD 298; 1996 SCMR 601; Muzaffar Khan and others v. Emperor AIR 1939 Lah. 268 and Abdul Ghafoor v. Kalicharan AIR 1934 Rang. 273 ref.

Khawaja Sultan Ahmad for Appellants.

Abdul Rashid Monnun for the State.

Date of hearing: 21st November, 2001.

2002 Y L R 228

[Lahore]

Before Abdul Shakoor Paracha, J

ZAFAR ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 902/13 of 2001, decided on 29th November, 2001.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.337-F(iv)1337-D --- Bail --- Accused was nominated in the F.I.R.---Case of accused was distinguishable from that of co-accused already released on bail---Specific role of having inflicted a "Chhuri " blow on the back of the complainant had been attributed to accused---Accused had taken the law in his own hands by causing a sharp-edged weapon injury selecting the vital part of the body of the complainant---Bail was refused to accused in circumstances.

Pervaiz Khan v. The State PLD 1978 Lah. 84; Abdul Ghaffar v. The State PLD 1999 Lahore 277, Dullah Khan v. The State 2001 PCr. LJ 998 and PLD 1998 Lah. 85 ref.

Malik Waheed Anjum for Petitioner.

Raja Saeed Akram, A.A.-G. and Sher Zaman Bhatti for the State.

2002 Y L R 230

[Lahore]

Before Ijaz Ahmad Chaudhary, J

ZAHEERUDDIN BABER alias ZAHOOR­ UD-DIN and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 7512/B of 2001, decided on 8th January, 2002.

Criminal Procedure Code (V of 1898)---

--S. 498---Penal Code (XLV of 1860), c. 406/420/468/471/419---Pre-arrest bail--­Mala fides of the complainant were clear from the bare perusal of the F.LR.---Registration the criminal case appeared to be a counterblast to pressurize the accused to make the payment to the complainant--­-Accused and the complainant were running e business jointly and some dispute of civil nature was pending between them---Criminal proceedings could not be allowed to be used as a lever for settling the civil liability with the other party---Post-dated cheque was promise to make the payment which if n encashed did not constitute any criminal offence and at the most it could be used j the recovery of the amount as a proof prove that some money was due from t issuer of the cheque---Accused had denied u issuance of the cheque and no report had far been lodged with the police to show that the cheques were issued by the accused alleged by the complainant---Mere statement of the complainant was not sufficient deprive the accused of their liberty by sendi, them to jail---Accused at present were r connected with the commission of the crime Nothing was to be recovered from the accused as the cheques were already in possession the complainant---Interim pre-arrest be already granted to accused was confirmed circumstances.

Rana Muhammad Arshad Khan, S Muhammad Badar Alam and Basharat Ali Shah for Petitioners.

Muhammad Afzal Wahala for the Complainant.

Malik Shahid Pervaiz for the State.

2002 Y L R 232

[Lahore]

Before Asif Saeed Khan Khosa, J

ZAFAR IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 38-B of 2002, decided on 4th January, 2002.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.337-A(ii)1337-L(b) --- Bail --- Accused had been nominated as the sole perpetrator of the offences in the promptly lodged F.LR.--­ Specific injuries on various parts of the body of the prosecution witness had been attributed to the accused---Eye-witnesses including the injured victim had fully implicated the accused in the case---Medical evidence had supported the prosecution version---Accused was apparently connected with the motive set up in the FLR.---Reasonable grounds existed to believe the accused being involved in the alleged offences which, no doubt, did not fall within the prohibitory clause of section 497(1 J, Cr. P. C. but bail could not necessarily invariably be granted in all such cases---Bail was declined to accused in circumstances.

Mian Abdul Quddus for Petitioner.

2002 Y L R 234

[Lahore]

Before Mian Nazir Akhtar, J

HABIB-UL-WAHAB-UL-KHAIRI, ADVOCATE---Petitioner

Versus

Prof. Dr. SAAD RANA and another---Respondents

Criminal Revision No. 90 of 1996, decided on 7th January, 2002.

Penal Code (XLV of 1860)---

----Ss. 319, 302 & 300---Criminal Procedure Code (V of 1898), Ss. 238(2) & 439---Qatl-i­-Amd---Accused summoned by Trial Court under S. 319, P. P. C. instead of 302, P. P. C. --­Validity---Sessions Court had merely adverted to the first part of the definition of Qatl-i-Amd embodied in 5.300, P. P. C. and failed to consider its later part relating to the knowledge---Sessions Court ought to have taken into account the element of intention as well as knowledge coupled with the facts on the record and then passed an order to summon the accused either under Ss.302 or 319, P. P. C. ---Court below had acted illegally by considering the case only with reference to the intention of the accused to cause death-,­Impugned order was neither legal nor proper-­After considering the case if the accused had been summoned to face the trial under S. 302, P.P.C. and on proper appraisal of evidence a minor or lesser offence was made out against them, Court could convict them for the same as provided under S. 238(2), Cr. P.C., but if they were summoned for the lesser offence then they could not be convicted for the higher offence---Trial Court, therefore, should have carefully determined the nature of the offence at the time of summoning the accused for trial---Impugned order summoning the accused under S. 319, P. P. C. Vas consequently set aside and the case was remitted to Trial Court for passing a fresh order in the light of the definition of Qatl-i­Amd embodied in S.300, P. P. C and the primary evidence brought on the record--­Revision petition was disposed of accordingly.

Appellant in person.

Sardar Muhammad Aslam for Respondent No. 1.

Nazar M. Tahir for Respondent No.2.

Date of hearing: 5th October, 2001.

2002 Y L R 238 (1)

[Lahore]

Before Ijaz Ahmad Chaudhary, J

ALLAH DITTA KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 in Criminal Appeal No. 2080 of 2001, decided on 14th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 426(1)---Penal Code (XLV of 1860), Ss-468, 471 & 409---Prevention of Corruption Act (11 of 1947), S.5(2)--­Suspension of sentence--Arguments advanced on behalf of the accused touched upon the merits of the case which could not be considered at such stage---Accused had been convicted in four similar cases for the same offence in each case---No ground for suspension of sentence having been made out, the petition was dismissed.

N.A. Butt for Petitioner.

2002 Y L R 246

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Javed Iqbal, JJ

SALAHUDDIN and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1001 of 1996 and Murder Reference No.53 of 1997. heard on 14th January, 2002.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence Accused was nominated in the prom, recorded F.I.R. and was known to prosecution witnesses who had no reason for his false implication or substitution by letting off the real culprit---Presence of injured eye­witnesses at the spot could not be doubted, rather the same had been admitted---Any concession made by the eye-witnesses in cross-examination in favour of accused was of no use to the defence---Previous enmity between the complainant party and the accused was not denied---Ocular testimony was corroborated by medical evidence, motive and recovery of the weapon of offence--­Defence plea taken by accused was an afterthought and not believable---Impugned judgment did not suffer from any illegality or infirmity of reasons---No mitigating circumstance for not awarding major penalty of death was available in favour of accused--­Conviction and sentence of accused were upheld in circumstances.

Raja Muhammad Anwar and Javaid Kasuri for Appellants.

Tasneem Amin for the State.

Date of hearing: 14th January, 2002.

2002 Y L R 252

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD AZAM and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 25, 26, 27, 28 and Murder Reference No.6-T of 1998, heard on 10th January, 2002.

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

----Ss. 302(b)/149, 324/149, 353/149, 427/149 & 148-;-Appreciation of evidence--­F.I.R. was promptly lodged at the police station with the names and particulars of the witnesses--.Statements of eye-witnesses under S.161, Cr. P. C. had been recorded on the same day in which they had nominated all the accused with their roles in the occurrence--­Motive for the incident as alleged by the prosecution had been proved---Presence of injured eye-witnesses on the spot could not be doubted---Even the hostile eye-witness had supported the main prosecution case and despite some concession having been given to the accused his remaining evidence could be relied upon in support of prosecution version--­Mere relationship of some of the witnesses with the deceased or other prosecution witnesses was no ground to discard their testimony---Weapons recovered from the accused had tallied with the crime empties secured from the place of occurrence---Medical evidence had also corroborated the ocular testimony ---Abscondence of some of the accused had further established their involvement in the commission of the offence---Impugned judgment did not suffer from any infirmity of reasons, misreading or non-appreciatiob; of evidence---Convictions and sentences of accused were upheld in circumstances.

Muhammad Ahmad and another v. State 1997 SCMR 89, Naila Tarannum Jamshed v. Haji Muhammad Abbas and 4 others 2000 SCMR 383 and State v. Abdul Ghaffar 1996 SCMR 678 ref.

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

----Ss.302(b)/149, 324/149, 353/149, 427/149 & 148---Appreciation of evidence---Weapons of offence recovered from the possession of accused did not tally with the crime empties collected from the spot---Ocular account of occurrence was not corroborated from any independent source---Case of accused was at par with that of acquitted co-accused who were allegedly present at the spot, but had not actively participated in the commission of murders of the deceased---Accused were acquitted in circumstances.

Ijaz Hussain Batalvi, S.M. Latif Khan Khosa, M.D. Tahir and M. Ehsar: Bhone for Appellants.

Ehsan Qadir Shah, Hasan Qadir Shah and Khalid Hassan for the Complainant

Miss Roshan Aara, A.A.-G. for the State.

Dates of hearing: 7th, 8th, 9th and 10th January, 2002.

2002 Y L R 269

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD AFZAL alias PAPUU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7591 /B of 2001, decided on 7th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.419/420/467/468/471---Pre-arrest bail--­Arrest of the accused was not shown in the present case by the police with mala fici intention and for ulterior motive to re-arres him if he was allowed bail in another cast subsequently registered aginst him---Since the accused was earlier arrested in the case subsequently registered at the same police station in which he had remained on physica remand with the police and the alleges; recovery had already been effected, therefore sending him to jail again would serve no useful purpose for the prosecution, rather it would cause humiliation to him due to the said conduct of the local police---Ad-interim pre-arrest bail already granted to accused was confirmed in circumstances.

Ch. Mahmood Ahmad for Petitioner

Mian Saeed-ud-Din Ahmad for the State.

2002 Y L R 271

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD YAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No, 1959 of 2000 and Criminal Revision No. 129 of 2001, heard on 10th January, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence--Intention of the accused, according to prosecution, was to abduct the deceased gir and not to kill her, and nobody caused an, injury to any of the inmates of the house who could be obstacle in their way ---Prosecution story was unnatural and was negated by the recoveries of crime empties from the spot, report of the Fire-arm Expert and medical evidence---Occurrence had not taken place as alleged by the prosecution---Nine accused had already been acquitted by the Trial Court on the same evidence---Report of the Chemical Examiner regarding the vaginal swabs of the deceased having been stained with semen which had been suppressed by the prosecution, had made the stand of the accused taken by him in his statement recorded under S.342, Cr.P.C. quite plausible and convincing one---Prosecution case was replete with doubts - Accused were acquitted on benefit of doubt accordingly.

Malik Saeed Hassan for Appellant.

Atta-ul-Muhsin Luck for the Complainant.

Abdullah Baig for the State.

Date of hearing: 10th January, 2002.

2002 Y L R 275

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD TUFAIL and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 397 and Criminal Revision No. 184 of 2000, heard on 20th November, 2001.

Penal Code (XLV of 1860)---

----S. 302 (b)/34---Appreciation of evidence--­ Murder of the deceased had taken place in day light ---FLR. had been lodged without any unnecessary delay---Presence of one eye-witness on the spot at the time of occurrence was natural who had depicted true picture of the occurrence explaining the circumstances in which the accused had killed the deceased--Ocular testimony was corroborated by medical evidence - Motive for the murder had been proved on the record---Defence plea taken by accused was a later innovation and repellent to common sense---Conviction and sentence of accused were upheld in circumstances.

M.A. Zafar assisted by Syed Nazar Abbas for Appellants.

Mian Muhammad Sikandar Hayat and Arif Ali Hazoor for the State.

Date of hearing 20th November, 2001.

2002 Y L R 280

[Lahore]

Before Khawaja Muhammad Sharif, J

IMRAN ALAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6091-B of 2001, decided on 20th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 42014681471 --- Bail --- Accused was not named in the F.I.R.---Recovery had already been effected---Offence with which the accused was charged did not fall within the prohibitory clause of S.497 (1), Cr.P.C., where grant of bail was a rule and its refusal an exception---Alleged offence had not been committed against society, but it was against a Sugar Mill---Accused was admitted to bail in circumstances.

PLD 1997 SC 545 and Tariq Rashid v. The State PLD 1995 SC 34 ref.

Khalid Pervaiz Warraich for Petitioner.

Mrs. Fouzia Sultana for the State.

Akhtar Ali Qureshi for the Complainant.

2002 Y L R 281

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD JAMIL and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1808 and Criminal Revision No.920 of 2000, heard on 11th January, 2002.

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

----Ss. 364/149-- Appreciation of evidence--­Eye-witnesses were independent and had no background of previous enmity with the accused---Ocular testimony had connected the accused with the crime---Accused were, however, not involved in any other case--­Conviction of ' accused was maintained, but their sentence of imprisonment for life was reduced to ten years' R.I. in circumstances.

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

----Ss.364/149---Appreciation of evidence--­Accused had been declared innocent in police investigation and the S.N.O. was never declared hostile in this regaid by the prosecution---Police opinion although was. not binding on the Court, yet some times it could become relevant in the peculiar circumstances of the case---Charge under S. 302, P. P. C. was even not proved against the accused---tccused were extended benefit of doubt and acquitted in circumstances.

Talib Haider Rizvi and Hafiz Khalil Ahmad for Appellants.

M. Afzal Lone for the Complainant.

S.D. Qureshi for the State.

Date of hearing: 11th January, 2002.

2002 Y L R 284

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh kahmud, JJ

WAZIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 844 of 2001, heard on 23rd January, 2002.

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

---S.9(b)---Constitution of Pakistan (1973), Arts. 37 & 10---Accused not represented by a Counsel in Trial Court---Case remanded--­,Record did not suggest that the accused was ever afforded any opportunity by Trial Court to engage a counsel to represent him--­,Delivery of expeditious justice, no doubt, rccording to Art. 37 of the Constitution was one of the Constitutional responsibilities of ite State of which the Judiciary was an ,rgan, but at the same time a right to consult ind be defended by a Legal Practitioner of one's choice was a Fundamental Right ,tshrined in Art. 10 of the Constitution -Fulfilment of responsibility qua expeditious delivery of justice surely could not be achieved at the cost and altar of a Fundamental Right guaranteed by the Constitution---Trial of accused, thus, stood vitiated by the violation of his said Fundamental Right---Conviction and sentence of accused were consequently set aside and the case was remanded to the Sessions Court jot retrial. after affording him a reasonable opportunity to engage the services of a counsel to represent him.

Muhammad Aslam Soomra for appellant.

Ch. Muhammad Ibrahim Farooq for the State.

Date of hearing; 23rd January, 2002.

2002 Y L R 286

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

KAMRAN alias KAMI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 847, 108-J and Murder Reference No. 291-T of 1999, heard on 15th January, 2002.

Penal Code (XLV of 1860)--

--Ss. 302/149, 324/149, 148, 337-C & 337-D---Appreciation of evidence--- Occurrence had taken place at night--Accused were not known to the raiding party nor anyone of them was identified by any member of the raiding party---None of the accused had been specifically nominated for firing at the deceased or at the injured nroseeution witness---No identification parade was held in the case---Identification of accused had remained unsubstantiated during the trial---Prosecution witnesses who had inplicated the accused in , the crime had not nominated them in their earlier statements recorded by the Investigating Officer and had not disclosed their source of information and as to how they had identified the accused­ accused were acquitted on benefit of doubt in circumstances.

Rana Muhammad Anwar Khan for Appellants.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 15th January, 2002.

2002 Y L R 291

[Lahore]

Before Zafar Pasha Chaudhary, J

MURTAZA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.579, Criminal Revision Nos.546 and 327 of 1999, heard on 20th November, 2001.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence--­Eye-witnesses had made consistent statements which were supported by medical evidence--­ Ocular testimony against the main accused was further supported by the recovery of "Chhurri" which was blood-stained and his involvement in the case was established --- Co accused, brother of the main accused, had to direct motive to eliminate the deceased--Main accused alone could not murder the deceased by cutting his throat with the "Chhurri " without the help of co-accused who had held the deceased in his grip at the time of occurrence---Allegation against co-accused was, thus, proved by the motive as well as by the circumstances of the case---Conviction and sentence of the two accused were upheld in circumstances---Ocular evidence against the third accused however was not corroborated by any independent evident and possibility of his false implication orgy account of his being the brother of the said two accused could not be ruled out ---Said accused was consequently acquitted on benef of doubt in view of the principle of safe administration of justice and the rule of caution.

Aslam Riaz for Appellants.

N. A. Butt for the Complainant.

Ch. Muhammad Nazir for the State.

Date of hearing: 20th October, 2001.

2002 Y L R 295

[Lahore]

Before M. Naeemullah Khan Sherwani, J

GHULAM AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.5462-B of 200 decided on 24th October, 2001.

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

-----S.498---Penal Code (XLV of 1860), Ss.379/440/148/149---Interim anticipatory bail, confirmation of---Allegations against the accused were that he alongwith others armed with Sotas and fire-arms had caused demarcation of a room, veranda and houndary wall constructed by the complainant---No eye-witness or the complainant during the course of investigation had ever stated that the accused were carrying spades, Ganties or such-like rnplements used for breaking the property­tllegations against the accused were absurd. ridiculous and fantastic as a brick made room, veranda or boundary wall could not have been demolished by Sotas---Investigating Officer had recommended discharge of the case---Accused also being an old person his zrrest for investigation , purpose was not vital---Interim anticipatory bail granted to the accused was.confirmed.

Nayyar Riaz (petitioner) in person.

Ch. Imtiaz Ahmad for the State.

Ghulam Akbar Khan Sial for the Complainant. .

2002 Y L R 297

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

Haji AMEER BUX KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 329 of 2001, decided on 30th January, 2002.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 421---Penal Code (XLV of 1860), Ss. 302/460/34---Appeal against acquittal---Occurrence had taken place during night time and the accused was not nominated in the F.I.R.---Prosecution had produced various pieces of evidence to prove the guilt of the accused, but after an exhaustive and detailed analysis of the evidence available on the record the Trial Court had found each and every piece of evidence relied upon by the prosecution to be unreliable for recording conviction of the accused---Trial Court in the final analysis had concluded that the prosecution had remained unable to prove its case against the accused beyond reasonable doubt and acquitted the accused extending them ,benefit of doubt---Complainant had failed to point out any misreading or non­reading of the relevant record on the part of the Trial Court---Reasons advanced by the Trial Court for recording the acquittal of the accused were neither arbitrary nor perverse and were such that any reasonable person could have arrived at the same conclusion upon a fair assessment of the evidence available on record---Acquittal of the accused recorded by the Trial Court being not open to any legitimate exception, appeal against acquittal was dismissed.

Sardar Manzoor Ahmad Khan for Petitioner.

2002 Y L R 298

[Lahore]

Before Muhammad Farrukh Mahmud, J

ALLAH DIWAYA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 58 of 1989, heard on 24th January, 2002.

Prevention of Corruption Act (II of 1947)---

---S. 5(2)---Penal Code aEV of 1860), S.161--­Appreciation of evidence---Raiding party had neither heard the conversation between the accused and the complainant nor had seen the passing of money to the accused---Oral and documentary evidence produced on record had shown that some background of enmity existed between the accused and the prosecution witness---Contradiction was found in the statements of the prosecution witnesses---Prosecution having failed to prove its case against the accused beyond doubt, conviction and sentence awarded to him by the Trial Court were set aside extending him the benefit of doubt.

Muhammad Ashraf v. The State 1996 SCMR 181 and Rasheed Ahmad v. The State 2001 SCMR 41 ref.

Sardar Muhammad Latif Khan Khosa and Nishat Ahmad Siddiqui for Appellant.

Abdul Hameed Khokhar for the State.

Date of hearing: 24th January, 2002.

2002 Y L R 300

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD MANSHA-------Petition

Versus

THE STATE---------Respondent

Criminal Miscellaneous No.66/CS of 2002 decided on 16th January 2002.

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

----Ss.497(S) & 498---Penal Code (XLV of 1860), S. 406/34---Pre-arrest bail, grant of- Validity---Bail was granted to the accuser after providing full opportunity of hearing to the parties and after considering all the fact and circumstances of the case ---Complainant seeking cancellation of bail could not point out any concealment of facts on behalf of the accused---Allegation that the accused had misused his bail by threatening the complainant, was only a bald assertion and neither time nor any date had been mentioned nor any witness had been named before whom alleged threat was extended---Effect—Liberty of a citizen could not be curtailed due to not moved for cancellation of bail--­Application for cancellation of bail was dismissed in circumstances.

Maher Masood Sadiq Tulla for Petitioner.

2002 YLR 301

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASHRAF alias BHUTTO --- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No decided on 30th January 2002

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

----S.497---Penal Code (XLV of 1860), Ss.392/411---Bail, grant of---Accused was not named in the FLR. and no identification parade was ever held---Sole incriminating evidence available against the accused n, that he had made extra judicial confession before the complainant after introducing himself to be the accused after about 5 months of the registration of the case again him---No recovery was effected from the accused---No material was available again the accused to implicate him---Whether the accused had made any voluntary confession before the complainant or not, would be determined by the Trial Court after recording evidence---Allegation against the accuse needing further probe and inquiry within the purview of S. 497(2), Cr. P. C. , he was admitted to bail.

Sh. Atif Munir for Petitioner.

Tariq Murtaza Khan Malizai for the State.

2002 Y L R 302

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

ZULFIQAR and another------Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.470, Murder Reference No.11-T and Criminal Revision No.329 of 2001, decided on 17th April, 2002.

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

----Ss. 302/324/337-F(ii)(iii)/353/392/34 Appreciation of evidence---None of accused was named in F.I.R. or in Statement, under S.161, Cr.P.C. immediately made a. occurrence because witnesses did not know accused prior to the day of the occurrence Nothing was in evidence to show as to h the accused 'Z' was linked with occurrence Prosecution case was primarily based identification parade and recovery of blood stained Chappal allegedly of an accused who had an injury on foot---Evidence of recovery of rifle and pistol from accused would be of no avail to corroborate ocular account when no empty could be wedded with those weapons---Credibility of identification parade was not free from doubt; firstly because there was contradiction in statements of prosecution witnesses with regard to date of arrest of accused persons and the impression that accused were arrested and were shown to prosecution witnesses, was further strengthened by statement of prosecution witness; secondly for the reason that notwithstanding arrest of accused immediately after occurrence, identification parade was held sixteen days after arrest, twenty-seven days after occurrence and three days after the application for identification parade was made and thirdly, it was a dark night occurrence---No marks of identification were given in F. I. R. and no specific role was assigned to the accused who were being identified---Report of Forensic Science Expert with regard to empty was negative---Omission to specify as to who fired, in the murder trial, would make culpability doubtful--­Prosecution having failed to prove its case against accused beyond reasonable doubt to sustain conviction on a capital charge, judgment of Trial Court convicting and sentencing accused, was set aside and accused were acquitted of charges against them and were ordered to be released forthwith.

Muhammad Yousuf Zai v. The State PLD 1988 Kar. 539 and Murid Abbas and 2 others v. The State and 2 others 1992 SCMR 338 ref.

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

----Art. 22---Identification parade--­Essentials---Holding of identification parade, though was not a mandatory requirement of law, but in a case which was hinging on circumstantial evidence its evidentiary value was crucial---Fact that the witness had correctly identified accused had to be proved beyond reasonable doubts otherwise a; incorrect identification, if credited with truth could send an accused to gallows-­Identification parade, in certain condition: would become necessary where the accuse were not previously known to witnesses and were not named in F.I.R. either---When identification parade was held, it way essential to rule out all chances of false implication---Magistrate had to follow a certain procedure and canons of prudence required that witnesses should also specify role played by accused when they identified them---Identification parade wherein a witness merely pointed out that he was the accused, in absence of other tenable material evidence on record incriminating the accused would loose its evidentiary value.

Ismail and others v. The State 1974 SCMR 175; Farman Ali v. The State 1997 SCMR 971; Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Khadim Hussain v. The State 1985 SCMR 721 and Mehmood Ahmad and 3 others v. The State and others 1995 SCMR 127 ref.

Shaukat Rafique Bajwa, for Appellant.

Mian Sikandar Hayat for the Complainant.

Mrs. Yasmin Sehgal for the State.

Date of hearing: 17th April, 2002.

2002 Y L R 309

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

MUHAMMAD AYUB and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1042 of 1998 an, Murder Reference No.328-T of 1998, hear on 1st April, 2002.

Penal Code (XLV of 1860)---

----Ss. 302/395/396/412/460----Anti-Terrorise Act (XXV of 1997), S. 7---Appreciation c. evidence---Sentence---Only one accused was though nominated in the F.I.R., but description of height, body structure an, estimated age of all the four accused was given as seen by the complainant at the spot armed with their respective weapons ---F.I.R was promptly lodged---Presence of complainant at his victim daughter's house was believable as he stayed for a night on insistence of his daughter and his son-in­-law---Victim women and other two prosecution witnesses had seen accused in the light of electric bulb---Complainant and his victim daughter were educated persons and they had seen accused at spot where they remained for some time and to keep their description/features in mind for long time, was natural, particularly when they caused death of husband of prosecution witness--­Accused had also not muffled their faces at the time of commission of crime---Accused were identified by complainant in identification parade---Role played by accused as given in prosecution version had been fully corroborated by recoveries of weapons of offence and looted ornaments--­Victim who was natural witness and her ,father, stood test of lengthy cross-examination on behalf of accused separately and no material discrepancy had been brought on record to discard their statements--­Prosecution witnesses had no previous enmity !br false implication of accused by letting off real culprits---Ocular account furnished by both eye-witnesses had also been fully corroborated by medical evidence and no contradiction appeared in ocular account and medical evidence---Two empties of pistol .30 bore were taken into possession from spot by Investigating Officer which showed that two shots were fired by accused and one hit the deceased---Defence plea that accused had falsely been implicated, had no force--­Accused on their own had made statements voluntarily, before Magistrate at the time of identification parade and admitted their involvement in offence and that statement was without any duress or coercion---Conviction of accused could not be interfered with--­Fatal injury had not been specifically ,attributed to any of accused and report of Forensic Laboratory after comparison of empties taken into possession from spot with weapons of offence recovered from accused, had not been brought on record---Daggers were not used by accused from right side--­Case, in circumstances, was not of capital punishment---Death sentence awarded to accused by trial Court was altered into imprisonment for life.

S. M. Latif Khan Khosa and Azam Nazeer Tarrar for Appellant.

Mian Muhammad Sikandar Hayat for the Complainant.

Abdur Rasheed Memon for the State

Date of hearing: 1st April 2002.

2002 Y L R 316

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Sair Ali, JJ

REHMAT ALI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.468 and Murder Reference of 1999, heard on 15th May 2002.

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

--Ss. 120-B/302/34/365-A---Appreciation of evidence---None of the accused persons was named nor description of any accused was given in the F.I.R. and it was stated that deceased was killed by some unknown persons---Only the complainant, her daughter (not produced) and the deceased were mentioned in the F.I.R. and neither the accused nor any prosecution witness was mentioned therein---No identification parade as held in the case---Two eye-witnesses appeared before police for the first time with long inordinate delay of three months without any proper or natural explanation of said delay---Prosecution witnesses were residents of other places which were 10/12 miles away from place of occurrence---Place of occurrence was a very busy place situated at Lari Adda and there were many shops near the place of occurrence, but none from those shopkeepers was mentioned in the F.I.R.---Conduct of one of prosecution witnesses was most unnatural who seemed to be a cooked up witness and his presence at the spot was also highly doubtful for which reason he could not be used against the accused---Statement of eye-witnesses appearing for the first time before Investigating Officer after three months of the occurrence could not be relied upon—No ­doubt a young boy had been murdered, but innocent person should be sent to gallows unless prosecution proved its case beyond a shadow of doubt---Alleged extra judicial confession of accused was not truthful as was not made voluntarily and also was ma, after three months---Witnesses of alleged extra judicial confession had made lot of improvements in their statements before Tri Court---Such statements of extra judicial confession could not be believed---Recovery pistol on pointation of accused could not advance prosecution case because no crime empty was recovered from the spot Prosecution having failed to prove its ca against accused, their conviction an sentences were set aside and the were acquitted of the charge.

PLJ 1996 Crl. LJ. 1364; 199 SCMR 188; 1992 SCMR 398; 1979 SCM 214, , 1979 SCMR 1971; 1979 SCMR 85 and 850; NLR 1989 Crl. Cases 292; 19E SCMR 930; 1975 Crl. LJ 1304; PLD 1960 SC 223; PLD 1969 Lah. 114; PLD 1996 SC 305; 1968 SCMR 2669; 1999 SCMR 230' PLD 1965 (W.P) Kar.76; PLD 1960 (W.P Kar.697; PLD 1960 SC 223 and PLD 196 Lah. 49. ref.

(b) Criminal trial---

----Extra judicial confession ---Evidentiary value---Extra judicial confession was a very weak type of evidence.

PLJ 1996 Crl.LJ. 1364; 1996 SCMR 188; 1992 SCMR 398; 1979 SCMR 214 1979 SCMR 1971; 1979 SCMR 850; NLI 1989 Crl. Cases 292, 1984 SCM.R 930; 197 Crl. LJ 1304; PLD 1960 SC 223; PLD 196, Lah. 114; PLD 1996 SC 305; 1968 SCMI 2669; 1999 SCMR 2302; PLD 1965 (W.P Kar.76; PLD 1960 (W.P) Kar.697; PLD 1960 SC 223; PLD 1968 Lah. 49 and Ghulam Muhammad v. The State, PLD 1971 Lah. 850 ref.

Mrs. Tabinda Islam and Ch. Muhammad Anwar Bhindar for Appellants.

Muhammad Yaqoob Sheikh and Khurram Latif Khan for the Complainant.

Malik Muhammad Aslam for the State.

Dates of hearing: 13th, 14th and 15th May, 2002.

2002 Y L R 322

[Lahore]

Before Asif Saeed Khan Khosa, J

Haji MUHAMMAD IRSHAD---Petitioner

Versus

MUHAMMAD SULEMAN, RECOVERY OFFICER/ASSISTANT COLLECTOR 1ST GRADE, RAHIM YAR KHAN and another---Respondents

Criminal Miscellaneous No.351-H of 2000 decided on 11th September, 2000.

Criminal Procedure Code (V of 1898)---

----S.491---West Pakistan Land Revenue Act (XVII) of 1967), S.80---Habeas corpus Petition---Alleged detenu was detained through proceedings taken against him by Tehsildar under West Pakistan Land Revenue Act, 1967 in respect of outstanding amount due from one for whom detenu stood as guarantor---Custody of detenu in that regard could not be termed as illegal or improper or purposes of habeas corpus petition---If petitioner or detenu felt aggrieved of detention order, they could seek their remedies provided in that regard in West Pakistan Land Revenue Act, 1967.

Khaliq Ahmad Chauhan for Petitioner.

Haji Ghulam Mustafa (detenu) in person.

Chaudhry Muhammad Ashraf Mohandra with Salman Manzoor, Manager, Small Business Finance Corporation, Rahim Yar Khan.

2002 Y L R 323

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD IQBAL---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 16188 of 2001, decided tin 8th October, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.11---Constitution of Pakistan (1973). Art. 199---Constitutional petition---Police had alleged that abductee was recovered during police pickets from the person other than the accused---Said other person in his Constitutional petition had produced copy of report issued by other police station wherein it was stated that the man who was accompanying the abductee and fled away, was the petitioner ---Abductee stated that she was abducted by the other person (not the petitioner) who subjected her to rape and made abductee to sign some documents as well---High Court directed the Police Official who was present in Court to record statement of alleged abductee and after making probe, if he would find that commission of some cognizable offence was disclosed, he would register a case and thereafter embark upon investigation so that real culprits were dealt with in accordance with law---Constitutional petition was disposed of accordingly.

Mirza Muhammad Aziz-ur-Rehman for Petitioner.

M. Bilal Khan, Addl. A.G.

Ch. Muhammad Rafique Warraich for Respondents Nos.5 and 6.

Respondents Nos.3, 4 and 7 in person.

2002 Y L R 324

[Lahore]

Before Mian Muhammad Jahangir, J

YASAR ARFAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 390-B of 2002, decided on 9th May, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 13 & 14---Bail, grant of---Further inquiry--­Allegation against accused was that when police parry raided the premises which allegedly was being used for running a brothel house, accused was found in room of the house wearing his clothes and his co­accused girl was found lying naked on bed--­When police raided the house accused and co­accused were not even involved in kissing and embracing or lying in compromising position---Attempt to ,commit Zina was under clouds and prosecution had to prove at trial that accused and his companion had already committed Zina---In order to attract provisions of Ss. 13 & 14 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, there must be a transaction of sale, hire or by a person with intention that such a person could be used for purpose of prostitution or illicit intercourse---Such fact was to be proved by evidence---Mere presence of males and females in the house of a stranger was not sufficient to believe at bail stage that females were sold, hired or brought by some one for illict intercourse---Head of raiding party did not disclose in his complaint that any pair was busy in commission of Zina --- Case against accused being of further inquiry, interim bail after arrest already granted to accused, was confirmed.

Muhammad Saleem and another v. The State 1998 PCr.LJ 2321 ref.

Malik Rab Nawaz Noon for Petitioner.

Syed Sajjad Hussain Shah, A.A.G., assisted by Mukhtar Ahmad Gondal for the State.

Date of hearing 9th May, 2002.

2002 Y L R 326

[Lahore]

Before Mian Nazir Akhtar, J

CHAKRI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.526 of 1998, decided on 11th February, 2002.

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

----S.514---Forfeiture of surety bonds--­Amount of surety bond to be forfeited in case of abscondence of accused ---Principles--­Where a person had stood surety for an accused out of sheer benevolence or due to close relationship and was not shown to have desired any personal benefit or advantage in doing so and further on being given a reasonable opportunity to produce the accused in the Court had made genuine efforts, though not fruitful, then the entire amount of the surety bond should not be forfeited and only a reasonable amount be forfeited keeping in view the facts and attending circumstances of the case including the financial position of the surety.

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

----S. 514---Penal Code (XLV of 1860), Ss.302/148/149---Forfeiture of surety bonds--­Petitioners had stood sureties for the accused in the sum of Rs. 1, 00,000 each but accused had absconded---Trial Court on the failure of the petitioners to produce the accused in the Court forfeited their surety bonds and directed them to pay a sum of Rs. 90, 000 each by means of the impugned order--­Petitioners appeared to have furnished surety bonds for the accused due to mere benevolence and they, were not shown to have derived any personal benefit or advantage by becoming sureties---Record did not show that the petitioners had, in any manner, assisted or prompted the accused to become a .fugitive from law---Claim of the petitioners being poor persons was not substantiated by any cogent material--­Petitioners were shown to be solvent sureties in their surety bonds owning sufficient landed Property---Amount of the penalty imposed on the petitioners by the Trial Court was reduced from Rs. 90, 000 each to Rs. 50,000 each in circumstances.

Sardar Khan v. Crown PLD 1952 Lah. 645; Dildar and another v. The State PLD 1963 SC 47; Zulfiqar and others v. The state 1990 MLD 382(1); Muhammad Shah and another v. The State 1995 Crl.LJ 1254; Muhammad Ashraf and another v. The State and another 1997 SCMR 1387 and Waris Khan and others v. The State 1997 SD 321 ref.

Sh. Naveed Shaharyar for Petitioner.

Khalid Pervaiz for the Complainant.

Date of hearing: 25th October, 2001.

2002 Y L R 329

[Lahore]

Before Iftikhar Hussain Chaudhry and Muhammad Farrukh Mahmud, JJ

DILBEER HUSSAIN and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.60 of 1999, heard on 3rd April, 2002.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10 (4)---Penal Code (XLV of 1860), S.449/34---Appreciation of evidence--­Prosecutrix who was unmarried at the time of occurrence had testified against all the accused and nothing was brought on the record as to why she should involve them falsely in the case---Photographs taken by the accused at the time of occurrence showed that the victim girl was overpowered and she was under great shock---Delay in recording the statement of the prosecutrix under S.161, Cr. P. C. by the police, in circumstances, had lost its significance---Delay in lodging the F.LR. also stood explained, even otherwise parties being not inimical towards each other, such delay had no significant effect on the case---Prosecution version was supported by medical evidence---Defence evidence was not worthy of any credit---Prosecution witnesses had no enmity with the accused so as to involve them falsely in the case of such serious nature---Convictions of the accused were upheld in circumstances ---Prosecutrix was not Masoom-ud-Dam who had entered into marriage soon after registration of the case and the matter was reported to the police after a considerable delay which were mitigating circumstances in favour of accused---Sentence of death awarded to accused by Trial Court under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was reduced to imprisonment for life each accordingly.

Habib Ullah v. The State PLD 1969 SC 127; Ajaib alias Ajab v. The State 1994 SCMR 1479; Sultan Muhammad v. The State 1991 PCr.LJ 56; State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Syed Sohail Ahmed and another v. The State 2001 SCMR 2007 and Maqbool Ahmed and another v. The State 1998 MLD 1580 ref.

Pervez Aftab assisted by Tahir Mehmood for Appellant.

Muhammad Sarwar Bhatti, A.A.-G. assisted by Hassan Raza Rizvi for the State.

Sikandar Javed for the Complainant.

Dates of hearing 1st, 2nd and 3rd April, 2002.

2002 Y L R 335

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. GULZAR BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 347 of 1999, heard on 4th June, 2002.

Penal Code (XLV of 1860)---

-S.302 (b)---Appreciation of evidence--­ Occurrence was an unwitnessed one and the law was set in motion after the discovery of the dead body of the deceased child by his father ---Prosecution case mainly rested on the extra judicial confession allegedly made by accused before the maternal grandfather and the paternal grandfather of the deceased---Said extra judicial confession appeared to be a fabrication and a play of police to justify the arrest of the accused and her family members---Medical evidence was not in line with the confession of accused and did not support the prosecution case--­Recovery of clothes and shoes of the deceased child was also a piece of fabrication and was of no importance having not been effected from a place in exclusive possession of the accused---Police investigation in the case was not only disappointing but digusting as well--­Eight family members of the accused having been tortured by the Investigating Officers, such investigation could not be relied upon-­Trial Court had disbelieved the confession of accused to the extent of two co-accused and acquitted them---No reliable strong independent evidence was available on record against the accused warranting her conviction---Prosecution had also failed to prove the motive for the occurrence, which even otherwise was too weak to be believed--­Prosecution case was full of doubts-­Accused was acquitted in circumstances.

Abdul Aziz Khan Niazi for Appellant.

Muhammad Masood Sadiq for the State.

Date of hearing 4th June, 2002.

2002 Y L R 339

[Lahore]

Before Iftikhar Hussain Chaudhary and Muhammad Farrukh Mahmud, JJ

KHADIM HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 564 and Murder Reference No. 1 of 2001, heard on 26th March, 2002.

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

----S. 302(6)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979, S.12--­Appreciation of evidence -- Eye-witnesses had very logically explained their presence on the spot at the relevant time and had given a very straightforward confidence-inspiring version of the occurrence---Eye-witnesses had no enmity or ill-will with the accused for his false involvement in the case and their statements had no material contradictions---Delay in lodging the F.I.R. was sufficiently explained---Even otherwise no enmity between the accused and the complainant existing--­Delay in reporting the matter to the police did not adversely affect the prosecution--case--­Ocular testimony was fully supported by medical evidence---Deceased was a ten years' old child who had lost his life due to injuries caused by the accused---No mitigating circumstance was available in favour of accused and he deserved no leniency---Sentence of death awarded to accused as Tazir under S. 302 (b), P. P. C. by the Trial court was maintained in circumstances---No evidence had come on record regarding the abduction and commission of sodomy on the deceased by the accused---Conviction and sentence of accused under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 979, were consequently set aside.

Ajaib alias Ajba and others v. The Mate 1994 SCMR 1479 and Nawaz Ali and Bother v. The State 2001 SCMR 726 ref.

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

--S. 302---Motive--Lack of motive altogether or inability of prosecution to prove the same for murder does not affect the imposition of normal penalty of death where the prosecution has otherwise proved its case against the accused beyond reasonable doubt.

Nawaz Ali and another v. The State 2001 SCMR 726 ref.

Syed Israr Hussain Shah Bukhari and Syed Sardar Shah Bukhari for Appellant.

Khan Atta Ullah Khan Tareen for the complainant.

Date of hearing: 26th March, 2002.

2002 Y L R 345

[Lahore]

Before Zafar Pasha Chaudhary and Rustam Ali Malik, JJ

MUHAMMAD ILYAS and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1043, 98-J, 917 and Murder Reference No.24-T of 1998, heard on 11th March, 2002.

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

----Ss. 302/34, 449 & 393---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Complainant having lost his two young brothers in his own house could not be in control of his senses and as such there was no surprise if he did not name the culprits in the F.I.R., although subsequently he informed the police about their names and also named them specifically at the trial---Widow of the deceased who lost her husband during the occurrence could not be conceived to have told a lie in order to save the real culprits and to falsely implicate the accused in the case--­Eye-witnesses were the natural witnesses of the occurrence---Ocular account was corroborated by recovery evidence, medical evidence and the report of Forensic Science Laboratory---Convictions and sentences of accused were upheld in circumstances.

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

----Ss.302/34, 449 & 393---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Manger allegedly recovered at the instance of accused did not appear to have been sent to the Forensic Science Laboratory, nor any report in that respect was available on record---Such recovery evidence, thus, was inconsequential and there was no corroboration of ocular account---Accused was acquitted in circumstances.

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

----Ss. 302/109 &. 393/109---Appreciation of evidence---Prosecution evidence did not inspire confidence and was not corroborated by any other evidence---One prosecution witness was not examined by the prosecution and presumption in law had to go against the prosecution in that respect---No sufficient evidence was available on record to prove the charge of abetment against the accused--­Accused were acquitted in circumstances.

M. Iqbal Bhatti for Appellant.

Malik Muhammad Aslam for the State.

Date of hearing: 11th March, 2002.

2002 Y L R 356

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. KUBRA AZIZ---Petitioner

Versus

S.H.O., POLICE STATION SADDAR, BAHAWALPUR and another---Respondents

Writ Petitioner No. 3548 of 2001/BWP, heard on 26th July, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)----

----S. 11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Two School Leaving Certificates, Medical certificate and the Nikah Nama showed that the accused being aged about 17/18 years was major and sui juris and from her appearance she also appeared to be so and she was competent to marry with any person , without the consent of a Wali--­ Accused had made statements before the Magistrate as well as before the High Court that she was not abducted by any person and that she had contracted marriage with her consent---Registration of the case against the accused was baseless and mala fide and her prosecution had no sanctity in the eye of law in the light of her statement --- Impugned F.I.R. was consequently declared to be mala fide, baseless, vexatious and without lawful authority and the same was quashed accordingly.

Muhammad Iqbal v. The State PLD 1983 FSC 9; Javed Iqbal and others v. The S.H.O. and others 1997 MLD 3219; Mst. Rukhsana v. S.H.O., P.S. Belo, Mirpur Mathelo and others 1999 PCr.LJ 638 and Muhammad Tariq Mehmood and others v. Station House Officer 1997 PCr. LJ 758 ref.

Sardar Mehmood Iqbal Khakwani for Petitioner.

Muhammad Sharif for Respondent.

Date of hearing: 26th July, 2001.

2002 Y L R 359

[Lahore]

Before Sheikh Abdur Razzaq, J

ALLAH DITTA---Petitioner

Versus

ADDITIONAL DIRECTOR, ANTI­ CORRUPTION ESTABLISHMENT, MULTAN REGION MULTAN and another---Respondents

Writ Petition No.259 of 2001/BWP, heard on 26th March, 2001.

Prevention of Corruption Act (11 of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973),Art. 199---Constitutional petition---Quashing of proceedings---Case against the accused had been registered on the basis of a complaint which was inquired into by the Circle Officer who had found the accused innocent---Assistant Director Legal, however, did not agree with that report and recommended the registration of the case against the accused for having accepted a sum of Rs. 16, 000 as illegal gratification in connection with the investigation of a case—Record did not show that the accused was in anyway connected with the investigation of the said case---Despite lapse of six years challan had not been submitted against the accused in the Court on the ground that the accused was not available---Such stand was absurd on the face of it as the accused belonged to law enforcing agency and had been performing his duties during all this period till he retired from his service---Such lethargic attitude on the part of the Department could not be given a judicial sanction for continuing proceedings against the accused who stood involved in the case on the basis of a complaint instituted with a delay of two years of the alleged occurrence-­-Accused had been undergoing the agony of inquiry/investigation for the last more than seven years and challan had not so far been submitted in the Court---Proceedings pending against the accused were quashed in circumstances---Constitutional petition was accepted accordingly.

Muhammad Amjad Khan for Petitioner

Mian Muhammad Bashir, A.A.-G with Bashir Ahmad, Assistant Director Prosecution, Anti-Corruption and Muhammad Javed, Inspector, Anti Corruption.

Date of hearing: 26th March, 2001.

2002 Y L R 361

[Lahore]

Before Asif Saeed Khan Khosa, J

LIAQUAT ALI ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 253 of 2002 decided on 4th April, 2002.

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

----S.514---Forfeiture of surety bond ­Accused for whom petitioner stood surety was admitted to ad interim pre-arrest bail up to a specified date---Record of case being nor available on the said date case was adjourned and on adjourned date accused having absented himself from Court, his ad interim pre-arrest bail was cancelled and bail bond surety was forfeited and penalty of Rs.10,000 was imposed on surety---Surety had contended that he had stood surety up to specified dart and not beyond said date and as accused on specified date had appeared he was under no obligation to produce him on the adjourn date of hearing---Validity---Contention petitioner / surety was repelled, because surety was legally obliged to produce accused before Court on all dates of hearing till decision of the matter and not just on fir date of hearing, unless bond executed by him in that regard would show otherwise --- Bond executed by surety had not been produced before Court to claim such an immunity Accused was subsequently re-arrested w; help of surety and was admitted to bail Trial Court---Even otherwise compromise w arrived at between accused and complain and complainant party stated before Cot that they did not wish to prosecute accused any more------ penalty of Rs.10,000 imposed on surety was oppressive and excessive it, circumstances---Penalty was reduced to Rs. 2,000 accordingly.

Abdul Hameed v. The State 2000 YLR 692 ref.

Abdul Wahid Chaudhry for Petitioner.

Ishfaq Ahmad Chaudhry for the State.

Hafiz Khalil Ahmed for the Complainant.

Date of hearing: 4th April, 2002.

2002 Y L R 363

[Lahore ]

Before Riaz Kayani and Bashir A Mujahid, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No.624 and Murder Reference No. 110 of 1996 decided on 17th May, 2001.

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

-- -Ss.302/452---Appreciation of evidence Sentence, reduction in---Accused nominated with specific role in promptly lodged F.I.R.---Alleged motive of occurrence was proved---No previous enmity was established between parties for fall implication of accused---Prosecution story narrated by complainant had been fully corroborated by the wife of accused and ocular account given by both prosecution witnesses, had been supported by medical evidence and recovery of weapon of offence--­Empties taken into possession from place of occurrence tallied with licensed revolver of accused as per report of Forensic Science Laboratory---Arguments that accused was apprehended by complainant party and was handed over to police did not make much difference cps there was no reason for false implication of accused---Injuries on person of accused were also mentioned by complainant in F.I.R.---Presence and participation of accused in occurrence had not been denied--­Conviction of accused, in circumstances, was just, legal and proper which could not be interfered with---Accused had come to take his wife back with him from house of complainant who was brother of wife of accused, which was legal right of accused--­Accused though had arrived at house of complainant armed with licensed pistol, but maximum intention of accused could be to take his wife by force and he never intended to commit murder of deceased or anyone else--­Complainant, deceased and other inmates had intervened with accused during which accused also received injuries---Accused caused single fire-arm injury at deceased without repeating same which resulted into death of deceased which could not be termed as murder with premeditation---Case, in circumstances, was fit for awarding lesser penalty---Sentence of death awarded to accused by Trial Court was altered into imprisonment for life.

Mian Muzaffar Ahmed for Appellant.

A.H. Masood for the State.

Hafiz Khalil Ahmed for the Complainant.

Date of hearing: 17th May, 2001.

2002 Y L R 368

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUHAMMAD AKRAM alias BAGGA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 486 of 1996 decided on 31st May, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Appreciation of evidence---Sentence reduction in ---Accused was nominated in promptly recorded recorded-F.I.R. ---No previous enmity existed between parties for false implication or substitution of accused­--- Mere relationship of prosecution witnesses with deceased inter se, was no ground to discard their testimony- --Nothing was on record to the effect that prosecution witnesses were inimical towards accused-Ocular account had been corroborated by medical evidence and also recovery ; of alleged weapon of offence---Discrepancies pointed ,out by accused were of minor nature and not fatal to prosecution case-- Prosecution having proved its case against accused beyond any shadow of doubt, conviction recorded by Trial Court against accused, could not be interfered with--­Allegation of general firing was against all accused persons and no individual injury had been attributed to the accused---Case was fit for awarding lesser penalty instead of death sentence---Death sentence of accused was reduced to imprisonment for life.

Syed Muhammad Aslam for Appellant.

Abdur Rasheed Monin for the State.

Date of hearing: 31st May, 2001

2002 Y L R 372

[Lahore]

Before Ijaz Ahmad Chaudhary, J

HAQ NAWAZ---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 122 of 1997, decided on 11th September, 2001.

Criminal Procedure Code (V of 1898)---

----S.417---Penal Code (XLV of 1860), Ss.324/337-F(v)-- Appeal against acquittal—Appellant/complainant was injured in occurrence and accused had been ascribed a specific role that at the time of occurrence he had fired two shots by his rifle 7 mm which hit the complainant---Eye-witnesses who claimed to be present at spot were subjected to lengthy cross-examination but their statements were not shattered---Both witnesses were consistent on role ascribed to the accused---Medical evidence was in line with ocular account and no contradiction appeared therein---Version of accused that they had been involved falsely by complainant in the case on asking of one who belonged to brotherhood of complainant, was not supported by any material evidence on record---Involvement of accused in occurrence was supported by medical evidence and recovery which though had been made in presence of Police witnesses in violation of S.103, Cr. P. C. , yet that fact could not be made basis for disbelieving of recovery evidence which otherwise was sufficient to corroborate ocular account--­Trial Court, in circumstances, had rightly convicted and sentenced accused and Appellate Court was not justified to acquit him---Judgment of Appellate Court to the extent of accused based on conjectures and surmises, was set aside and rest of the conviction and sentence of accused, were maintained ---Co-accused though was shown to be present at spot armed with 7 min rifle, but he had not caused any injury to complainant or witnesses---Participation of co-accused in occurrence had not been proved and it was also doubtful whether he shared common intention with accused at the relevant time or not---Accused fired twice, but co-accused did not fire at the complainant--­ Medical and other evidence on record had not supported prosecution version to the extent of co-accused---Conviction and sentence passed against co-accused by Trial Court were set aside---Judgment of Appellate Court to the extent of acquittal of co-accused was upheld and conviction and sentence passed against him by Trial Court, were set aside---Appeal to extent of co-accused was dismissed.

2000 SCMR 683; 2000 PCr.LJ 1324; 2000 PCr.LJ 1329; 1997 PCr.LJ 1231 and 199.5 SCMR 855 ref.

Muhammad Hanif Niazi for Appellant.

Ch. Muhammad Farooq for Respondents.

Miss Yasmin Sehgal, Asstt. A.-G. and Ashfaq Ahmad Ch. for the State.

Date of hearing: 13th August, 2001.

2002 Y L R 377

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.471 of 2000, heard on it February, 2002.

Penal Code (XLV of 1860)---

--S.302---Appreciation of evidence---Place of occurrence was a thoroughfare which was under common use of residents of locality--­ presence of both prosecution witnesses at spot being residents of village concerned, was very natural---Both witnesses, though were closely related to deceased, but accused during cross-examination had failed to bring on record any evidence to show that any of them had any malice or motive to falsely implicate him in the case---Substitution in a case of single accused, by kith and kin of deceased was a rare phenomena---Statements of both witnesses which had painted a vivid picture of entire occurrence, inspired confidence, rang true and could be relied upon safely for upholding conviction of accused even in absence of any corroborative piece of evidence---Ocular account stood corroborated by medical evidence, recovery of Chhuri at instance of accused and motive for occurrence---No reason existed in circumstances, to doubt credibility of prosecution case against accused---Appeal against judgment of Trial Court, was dismissed, in circumstances.

Ch. Muhammad Ashraf Kamboh Appellant.

Syed Mukhtar Sherazi for the State.

Date of hearing: 1st February 2002.

2002 Y L R 380

[Lahore]

Before Iftikhar Hussain Chaudhry, J

AHMAD HAYAT---Appellant

Versus

MUHAMMAD SHER and others---Respondents

Criminal Appeal No. 168 of 1996, decided on 30th May, 2001.

Criminal Procedure Cole (V of 1898)---

----S.417---Penal Code. (XLV of 1860, Ss.430/148/149---Appeal against acquittal--­Allegations against accused were that they had damaged irrigation channel which was used by complainant party for irrigating their lands---Trial Court acquitted accused disbelieving evidence against them which was full of contradictions---Evidence on record had revealed that embankment of a natural water channel was broken due to rain---No evidence was produced in support of the charge that channel was damaged by accused--­Was also not established on record that Barsati Nallah was used as irrigation channel by complainant party---Conclusion drawn by Trial Court had been found to be correct--­Accused, in circumstances, were rightly acquitted by Trial Court.

M. Farooq Qureshi for Appellant.

Zahid Hussain Khan for Respondent.

2002 Y L R 381

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD YOUNUS and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1579-B of 2001, decided on 23rd July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code. (XLV of 1860), Ss.302/148/149---Bail, grant of---Further inquiry---No evidence was on record to the effect that either of accused persons had fired at deceased---Accused were in jail for last about nine months and trial was not in sight--­Question of guilt of accused requiring further inquiry, they were allowed bail.

Abdul Aziz Khan Niazi for Petitioners.

Date of hearing:23rd July, 2001.

2002 Y L R 382

[Lahore]

Before Ch. Ijaz Ahmad, J

Malik SALAHUDDIN---Petitioner

Versus

STATION HOUSE OFFICER and 2 others---Respondents

Criminal Miscellaneous No. 67-H of 2002, decided on 15th January, 2002.

Criminal Procedure Code (V of 1898)--

----S.491---Habeas corpus petition---Petition under S. 491, Cr. P. C. was not maintainable as the detenu had an alternative remedy before the Higher Authorities under the provisions of Punjab Land Revenue Act, 1967---Even otherwise the petitioner (detenu) had concealed material facts from the Court--­Petitioner had not mentioned in the petition that he had secured loan from the Corporation---High Court, therefore, was no inclined to exercise discretion in favour of the petitioner and it had no jurisdiction to resolve the disputed question of fact in summary proceedings under S.491 Cr.P.C.------ Respondents however were directed in the crest of justice and fairplay to release the detenu after receiving Rs.50,000 from him and after his release he might be allowed to charge his liabilities in easy instalments by respondents in order to save his family from destruction---Petition was disposed of Accordingly.

Masud Akhtar v. The State 1981 PCr.LJ 207 and Ch. Noor Hussain v. The State 1983 PCr.LJ 796 distinguished.

W.P.No.7156 of 2001; Crl. Misc. Vo.711-H of 2001; Muhammad Muzaffar 'Khan's case PLD 1959 SC 9; Nawabzada Raunaq Ali's case PLD 1973 SC 236 and Nisar Muhammad's case PLD 1997 SC 852 ref.

Qazi Imran Zahid for Petitioner.

Ahsan Rasool Chatha for respondents.

2002 Y L R 384

[Lahore]

Before Khawaja Muhammad Sharif, J

NISAR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 261-J of 2001, heard on 24th January, 2002.

Penal Code (XLV of 1860)---

----Ss.302(b) & 458---Appreciation of evidence---Occurrence had taken place in dark hours of the night---No features or description of the accused were given in the F.I.R.---Accused was arrested about 2 years and 8 months after the occurrence---Conduce of the prosecution witnesses was moss unnatural and their presence on the spot a the time of occurrence was doubtful-­Recovery of "Danda" at the instance of accused after about three years was not believable---Identification of accused in identification parade held after 2 years and 9 months of the occurrence was not possible unless the accused had already been shown to the witnesses---No motive for commission of the murder by the accused was brought on record---Accused was acquitted in circumstances.

Abdur Rashid Monin for Appellant at State expenses.

Abdullah Baig for the State.

Date of hearing: 24th January, 2002.

2002 Y L R 387

[Lahore]

Before Ijaz Ahmad Chaudhary, J

SHAMSHAD BIBI---Petitioner

Versus

S.P., OKARA and 2 others---Respondents

Writ Petition No.1367 of 2002, decided on 1st February, 2002.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)----

----S.16---Constitution of Pakistan (1973), Art. 199---Constitutional Jurisdiction of High Court---Scope---Quashing of F.I.R.--­Allegation against petitioner was that she abducted three daughters of the complainant---Petitioner though was married to complainant and out of wedlock said three daughters/alleged abductees were born, but complainant having divorced the petitioner, she was no more wife of complainant at the time of alleged occurrence---Said daughters had contended that complainant/father had contracted second marriage and he was teasing them and that they were not abducted, but had come on their own to the house of their and were living there---Divorce ed which was pronounced by the complainant had been placed on record--­Complainant had wrongly shown petitioner as his wife and had concealed factum of contracting second marriage---Daughters of the complainant had not been abducted by any body and registration of case in that hard by complainant prima facie was with mala fide intention and ulterior motive--Registration of case and - pendency of investigation, in circumstances, seemed to be ,use of process of law---High Court normally would not interfere in Constitutional jurisdiction in cases which were still under investigation, but there was no bar in interfering for quashing the F.I.R., got lodged the mala fide intention and ulterior motive by exercising powers under Art. 199 of constitution of Pakistan (1973)---Case was fit for exercising extraordinary jurisdiction of High Court to save petitioner and her daughters from facing agony of investigation which was initiated- for ulterior. motive—­F.I.R. was ordered to be quashed, in circumstances.

Muhammad Zafar Chaudhry for Petitioner.

Ch. Muhammad Hanif Khatana, Add. A.-G. for Respondents.

2002 Y L R 390

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mrs. ZARA SHAH through his Attorney---Petitioner

Versus

S.H.O., POLICE STATION DEFENCE AREA LAHORE and 2 others---Respondents

Writ Petition No. 20926 of 2001, decided on 25th January, 2002.

Penal Code (XLV of 1860)---

---Ss.420/468/471---Constitution of Pakistan 1973), Art. 199---Constitutional jurisdiction of High Court---Scope---Quashing of F.I.R.--­House owned by petitioner (accused) was in possession of the complainant on rent---complainant had paid rent of the house only or six months and was living therein without payment of rent for the last 12 months--­Petitioner filed ejectment application against complainant and complainant on receiving notice of ejectment application, in retaliation, filed criminal case against petitioner with mala fide intention alleging that lease agreement was a forged document--­-complainant who was in possession of the house, without any reason, despite admitting hat he was tenant under the petitioner, had challenged lease agreement as a forged document---Mala fides of Police Department in registering the case against petitioner could also be gathered as from bare perusal of contents of F.I.R.---Prima facie no case was made out against the petitioner---High court under Art.199 of Constitution of pakistan (1973), could interfere in suitable cases where registration of F.I.R. was made with mala fide intention or with ulterior motive and matter was pending before Court of competent jurisdiction regarding same subject-matter---High Court could quash F.I.R. or stay investigation till finalizing of matter pending before Civil Court/Rent Controller---F.I.R. having. been lodged with mala fide intention and ulterior motive not only on part of complainant, but also on the part of Police Department would be a sheer abuse of process of law and misuse of authority by public functionaries---High Court quashed F.I.R. in circumstance.

Nayyer H. Butt for Petitioner.

Qadir Zaman Shah Taimoori for Respondent No.3.

Muhammad Hanif Khatana, Addl A.-G.

2002 Y L R 393

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Rana MUHAMMAD SALIM ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 900/B of 2002, decided on 20th February, 2002.

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

-----S. 497--Penal Code (XLV of 1860) Ss. 409 / 419 / 420 / 471 / 477-A---Prevention of Corruption Act (11 of 1947), S.5(2)---Bail, grant of--Allegation against accused was that a number of forged refund vouchers had been prepared during period when he was serving as Assistant Commissioner --- Accused admitted that he had signed vouchers amounting to about rupees six crores though he had denied signatures on the bogus vouchers---Accused who was involved in heinous criminal case in which huge loss was caused to Government was not entitled to grant of bail on merits, but Medical Board had found him to be suffering from such serious disease which required constant watch coupled with taking of specific tests of different organs of accused for which facilities were not available in the jail---Detaining of accused in Jail thus would be dangerous to his life and it was in interest of justice that he should be admitted to bail on medical grounds.

Mian Manzoor Ahmad Wattoo v. The State 2000 SCMR 107; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58 and Zakim Khan Masood v. The State 1998 SCMR 1065 ref.

Khalil Ahmad for Petitioner.

Hussain Ahmad Nasir Lodhi, Inspector FIA/CBC, Lahore alongwith Ashfaq Ahmad Chaudhry Advocate for the State.

2002 Y L R 397

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD YOUSAF---Petitioner

Versus

THE STATE and 12 others---Respondents

Writ Petition No. 1935 of 2002, decided on 18th February, 2002.

Criminal Procedure Code (V of 1898)---

---S. 164---Recording of statement--­Statement under S.164, Cr. P. C. could be recorded either at the instance of complainant, witness himself or at the instance of accused or Investigating Officer.

PLD 1989 Kar. 144; 1993 SCMR 550; 1993 SCMR 654; Mst. Mumtaz Akhtar v. Illaqa Magistrate, Chakwal and 2 others 1997 MLD 3021 and Muhammad Ramzan v. The State 1981 PCr.LJ 1324 ref.

Rai Bashir Ahmad for Petitioner.

Ch. Muhammad Nasim Sabir, Addl. A. -G .

2002 Y L R 398

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUMTAZ HUSSAIN ---Petitioner

Versus

MUHAMMAD ASLAM and 3 others---Respondents

Writ Petition No. 1496 of 2002, decided on 20th February, 2002.

Criminal Procedure Code (V of 1898)---

---Ss. 516-A, 517 & 550---Penal Code (XLV of 1860), Ss 406/420 & 119---Constitution of Pakistan (1973), Art. 199- Constitutional petition---Entitlement to Superdari---Tractor in dispute was purchased by petitioner from its owner and the tractor was transferred in his name in registration book --- Respondent got registered criminal case under Ss.406/420/119, P. P. C. in respect of tractor alleging that same was sold to him by the owner thereof after receiving amount and that owner by transferring tractor to the petitioner had committed fraud---Police took into possession the tractor under S.550, Cr. P. C. and petition for Superdari of tractor filed by petitioner was dismissed by Courts below--­According to registration book, petitioner was owner of the tractor and same had been transferred in his name before registration of F.I.R, against him by the respondent under Ss. 406/420/119, P. P. C. ---Respondent had no document in his possession to support his claim that tractor had been sold to him and had made only oral assertion in support of his claim---Petitioner, in circumstances, had good prima facie case in his favour and he was entitled to Superdari of tractor---Orders dismissing Superdari petition of the petitioner by two Courts below passed without taking into consideration material placed on record were set aside by the High Court in its Constitutional jurisdiction with direction to the police to hand over tractor to the petitioner on Superdari after obtaining surety bond from petitioner.

1992 SCMR 1454 and 1998 PCr.LJ 1090 ref.

Mian Muhammad Hanif for Petitioner.

Arif Chaudhry for Respondent No. 1.

2002 Y L R 400

[Lahore]

Before Muhammad Farrukh Mahmud, J

ZULFIQAR---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.24 of 2002, decided on 24th January, 2002.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.380/457---Absence of accused---Imposition of penalty on surety---Reduction in amount of surety bond---Accused had absconded and proceedings under S.514, Cr. P. C were initiated against the surety and Court imposed a penalty of Rs.10, 000 upon him---Accused appeared before Court subsequently and he was granted bail---Petitioner had stood surety for the accused only on humanitarian grounds and had suffered having been sent to civil lock-up---Amount of penalty was reduced from R s.10, 000 to Rs.5, 000, in circumstances.

Mian Fazal Rauf Joiya for Petitioner.

2002 Y L R 401

[Lahore]

Before Ijaz Ahmad Chaudhary, J

AZMAT BIBI and another---Petitioners

Versus

Mst. ASFA RIAZ and 3 others---Respondents

Criminal Miscellaneous No. 219/Q of 2001, decided on 1st February, 2002.

Criminal Procedure Code (V of 1898)---

----S. 403---Constitution of Pakistan (1973). Art: 13---Penal Code (XLV of 1860), Ss.338/109---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10--­Principle of double jeopardy ---Applicability--­Complaint earlier filed was dismissed for non­-prosecution and second complaint with regard to the same offence was dismissed as withdrawn---After dismissal of said two complaints in said circumstances complainant filed third complaint on the same facts and cause maintainability of which was objected to on the ground that dismissal of earlier complaints was a bar for institution of fresh complaint being hit by S.403, Cr. P. C. as it amounted to double jeopardy and that previous dismissals would amount to acquittal of the accused---Validity---Contention was repelled because earlier complaints had not been dismissed on merits after affording opportunity of producing evidence to complainant, but were dismissed on technical grounds---Principle of double jeopardy would only apply if the case or private complaint had been decided on merits and was dismissed or accused were acquitted after affording full opportunity of producing evidence to complainant or State---Bar to further complaint would exist if earlier complaint was dismissed for the reason that sufficient grounds were not available after perusal of preliminary evidence to summon accused and that would also amount to decision on merits---Order of dismissal of complaint for non prosecution or having been withdrawn, would not amount to acquittal of accused.

Mazhar Hussain and others v .The State and others 1993 PCr.LJ 576; Allah Wadhaya v. Wali Muhammad and 3 others 2001 PCr.LJ 914; 1991 PCr.LJ 274; Jabed Ali v Joynal Mridha and 2 others PLD 1968 Dacca 698 and Walayat Bibi v Sardaran and others PLD 1959 (W.P.) Lah. 1018 ref.

Ch. Farooq Haider for Petitioner.

Malik Hamid Jamil Awan for Respondents Nos. 1 and 2.

Ch. Imtiaz Ahmad for the State.

2002 Y L R 404

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD ARIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.450 and Criminal Revision No.366 and Murder Reference No.197 of 1997, heard on 31st January. 2002.

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

----Ss. 302(b)/34 & 337-F(ii)/34--­Appreciation of evidence---Accused had been nominated in the promptly recorded F. I. R. --­Presence of eye-witnesses including the complainant and the injured witness on the spot was established and their statements inspired confidence---Blood-stained daggers used in the commission of the crime had been recovered at the instance of accused---Ocular testimony was corroborated by medical evidence and incriminating recoveries--­Prosecution witnesses had no enmity with the accused to involve them falsely in the case—­Motive alleged by the prosecution had been established---Convictions and sentences of accused were upheld in circumstances.

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

----S.302(b)/34---Criminal Procedure Code (V 1898), 5.439---Sentence, enhancement of--­accused had not caused the fatal blow to the deceased and he had rightly been awarded lesser punishment of imprisonment for life--­No ground was available for enhancement of sentence of accused---Revision petition was dismissed accordingly.

Qamar uz Zaman for Appellant.

Kazim Iqbal Bhangoo for the State.

Muhammad Islam Sheikh for the Complainant.

Date of hearing: 31st January, 2002.

2002 Y L R 410

[Lahore]

Before Khawaja Muhammad Sharif and Muhammad Naeem Ullah Khan Sherwani, JJ

MUHAMMAD SHAKEEL and others--­Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1007 and Murder Reference No.443-T of 1998, heard on 4th February, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(b), 308 & 392---Appreciation of evidence---Complainant being resident of the house was a natural witness of the occurrence and had no reason for false implication of the accused---Accused while armed with fire-arms had committed dacoity in the house of the complainant in furtherance of their common intention and committed the murder---Names of accused with parentage were mentioned in the F.I.R. and the parties being known to each other there was no question of mistaken identity---Ocular evidence was corroborated by medical evidence and recoveries of looted golden ornaments and cash from the accused---Accused, however, were not adult at the time of occurrence---Conviction of accused under S. 302 (b), P. P. C. was consequently altered to S.308, P. P. C. and sentence of death awarded to each of them was reduced to 14 years' R.I. with payment of "Diyat" amount to the legal heirs of the deceased---Conviction and sentence of accused under S. 392, P. P. C. were maintained---Sentences of accused were ordered to run concurrently with benefit of S. 382-B, Cr. P.C—Appeal was disposed of accordingly.

Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.

Shaukat Ali Mahr and Hussain Aziz Bhatti for Appellants.

Ch. Manzoor Hussain Basra for the Complainant.

Muhammad Anwar Tiwana for the State.

Date of hearing: 4th February, 2002.

2002 Y L R 414

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

MISRI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.870 and Murder Reference No.297 of 1996, heard on 4th February, 2002.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 324/34---Appreciation of evidence---Ocular testimony had no independent corroboration---Complainant party had suppressed the material facts from the police as well as from the Court---Defence version was more probable and nearer to the truth than the prosecution version---Old enmity existed between the parties --- F.I.R. had been lodged after, consultation and deliberation---Medical evidence did not fit in the prosecution case with regard to time of occurrence---Injured prosecution witness was got medically examined very late who had even denied to get his injury x-rayed---Motive for the occurrence had not been proved-- Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

1995 SCMR 1345 ref.

S.M. Latif Khan Khosa for Appellant.

Sadaqat Mehmood Butt for the State.

Date of hearing: 4th February. 2002.

2002 Y L R 419

[Lahore]

Before Tassaduq Hussain Jilani, J

TAJAMMAL SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.208 and Civil Miscellaneous No.432/M of 2001, heard on 24th January, 2002.

Penal Code (XLV of 1860)---

----Ss.324, 337-A(ii), 337-A(i), 354 & 452--­Criminal Procedure Code (V of 1898), 5.345---Compromise between the parties--­Complainant and the injured witness had made statements before the Trial Court to the effect that they had compromised with the accused and had no objection if he was acquitted---Both the said prosecution witnesses had admitted their statements while being present in High Court---Prosecution also had no objection to the acquittal of accused---Accused was acquitted in circumstances---Appeal was allowed accordingly.

Mian Fazal Rauf Joiya for Appellant.

Ahsan Raza Hashmi for the State.

Date of hearing: 24th January 2002.

2002 Y L R 420

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

GHULAM SHABBIR and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.386-T of 2000, heard on 25th September, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/324/337-A (ii) /149---Anti ­Terrorism Act (XXVII of 1997), Ss. 6, 7, 9 & 38---Appreciation of evidence---Unlawful assembly---Common intention---Motive behind the occurrence was that the deceased was President of a sectarian group and accused party belonged to a different sect and due to religious differences between the parties occurrence took place and accused party took life of deceased and caused injuries to complainant and their companions--­Occurrence being result of a sectarian hatred, would constitute an act of terrorism---Defence version was not supported by any evidence direct - or circumstantial in rebuttal to prosecution evidence to establish that complainant and deceased were not victims of aggression at the hands of accused party--­Evidence on record had proved that deceased while proceeding in company of complainant was attacked by the accused and co-accused being present there had participated in the attack---All the accused persons would be deemed to have formed an unlawful assembly in furtherance of their common object---Ample evidence was on record to show that accuses, being member of unlawful assembly committed riot which ended in murder of deceased---Accused being member of unlawful assembly would equally be responsible Jot murder of the deceased---Injuries sustained by two of the accused would not ipso facto be an evidence either aggression of complainant party or free fight between the parties--­Accused while armed with deadly weapons, by showing force and violence in furtherance of their common object having committed murder of deceased and caused injuries to witnesses, would be vicariously responsible for murder---No exception could be taken to the finding of guilt of accused except one co­ accused who was an old man of seventy years and admittedly was empty-handed and played no active role in the occurrence and had been declared innocent by the Investigating Officer---Said co-accused was acquitted of the charges and was released and conviction of remaining accused persons was maintained for committing intentional murder of the deceased---Sentence of 10 years' rigorous imprisonment to the accused was converted into life imprisonment by the High Court--­Conviction and sentence under Ss. 324 & 149, P. P. C. being not justified, accused were acquitted for charge under Ss. 324 & 149, P. P. C.

The State v. Bahadur and another 1987 PCr.LJ 1689; Hassan v. The State 1969 SCMR 454 and Sher Khan v. The State 1991 SCMR 241 ref.

Sardar Muhammad Ishaq Khan for Appellant.

Syed Nayyer Hussain Qasuri for the Complainant.

Saeed Akram, A.A.-G. assisted by Raja Muhammad Ayub Khan for the State.

Date of hearing: 25th September, 2001.

2002 Y L R 432

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

GOHAR ALI ---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 40/T, 74/T and 288/T of 2000, heard on 23rd October, 2001

Penal Code (XLV of 1860)---

----Ss. 302/395/398/34---Anti-Terrorism Act (XXVII of 1997). S. 7---Appreciation of evidence---Accused and co-accused were apprehended at the spot by the Police Officer and weapon of offence used by accused in occurrence was taken into possession---Crime empties were also collected from the spot and taken into possession by police---Witnesses who were strangers to the accused, had no reason to make a false statement against accused in case of capital punishment ---Eye­witness account being entirely independent and natural, was further supported by arrest of accused with weapon of offence at the spot---Minor discrepancies and contradictions as pointed out by accused would not be material to disbelieve unimpeachable evidence of eye-witnesses---Circumstances showed that co-accused grappled with the deceased with purpose to snatch bag of money and in consequence to resistance accused while picking up pistol fired at deceased--­Circumstances under which occurrence had taken place would not suggest that same did not take place in the manner as stated--­Evidence on record had shown that story was narrated by eye-witnesses giving detail of occurrence without any addition or omission or improvement---No defect could be found in findings of guilt of accused arrived at by the Trial Court---Accused while committing offence of robbery having committed murder of deceased, he would not deserve any leniency in matter of sentence---Conviction and sentence awarded to accused by Trial Court were maintained ---Co-accused though were party in committing the offence of robbery, but they were empty-handed and there was no evidence to establish their common intention to commit murder of the deceased---Trial Court, in circumstances, had rightly acquitted the co-accused from charge under S. 302, P. P. C.

Syeda B.H. Shah Defence Counsel.

Ch. Aftab Ahmad Gujjar for the State.

Sardar Muhammad Hafeez Khan for the Complainant.

Date of hearing: 23rd October, 2001

2002 Y L R 438

[Lahore]

Before Muhammad Farrukh Mahmud, J

FALAK SHER alias BHOLI---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 124-B of 2002, decided on 7th February, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/148/149---Juvenile Justice System Ordinance (XXII of 2000), S. 10(7)---Bail, grant of---Accused was a juvenile within definition of Juvenile Justice System Ordinance, 2000 and was behind bars for more than a year---Role attributed to the accused was that he caused simple injuries on person of the deceased afer he fell down due to injuries caused by another co-accused--­Right of concession of bail had accrued to the accused after one year of his arrest and if any delay had been caused afterwards in conclusion of trial that could not be attributed to the accused---Bail was granted accused, in circumstances.

Sahibzada Farooq Ali for Petitioner.

Ch. Babar Akram for the Complainant.

Sh. Arshad Ali for the State.

2002 Y L R 440

[Lahore]

Before Muhammad Farrukh Mahmud, J

AHMED ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 143 of 1999, heard on 24th January, 2002.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence--­Nobody had seen the occurrence and case of prosecution was based only on circumstantial evidence--- Complainant had stated only about the discovery of dead body of the deceased while prosecution witnesses had stated that they had not seen the occurrence--­Prosecution witness who was mother of the deceased girl had stated that deceased had been taken by the accused---Said prosecution witness had provided evidence that deceased was last seen in the company of the accused that the accused though was step father of the deceased girl but used to love deceased and also used to provide for her expenses—She did not later a word as to why the accused should take life of the deceased child---None of the witnesses had stated anything relating to the motive---No reason had been advanced by prosecution as to why accused should indulge in commission of such a heinous crime---Medical evidence did not advance case of prosecution against accused at all Doctor did not find any injury on the person of deceased and no injury had been mention on person of deceased in the inquest report Dead body of the deceased having been foil lying in a ditch, possibility that deceased w. was a child of two years stumbled into ditch and received some internal injury causing here death, could not be ruled out---No mark of violence was present on body of deceased. Recovery of "Khurpa " could hardly be termed as an incriminating evidence circumstances in which the same wt recovered---Evidence of last seen was n. supported by any other incriminating evidence---Prosecution having failed to prove its case against accused beyond doubt accused was acquitted of the charges.

Pir Ahmad Shah Khagga Appellant.

Sh. Nasim Rashid for the State.

Date of hearing: 24th January, 2002

2002 Y L R 443

[Lahore]

Before Karamat Nazir Bhandari and Ijaz Ahmad Chaudhary, JJ

ZAHEER AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 486 of 1997, heard on 16th January, 2002.

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3/4---Control of Norcotic Substances Act (XXV of 1997), S.9---Appreciation of evidence---Investigating Officer was fully competent to investigate the case by virtue of the powers conferred upon him under the Control of Narcotic Substances Act, 1997--­No prejudice had been caused to the accused by the investigation---None of the prosecution witnesses had any enmity or grudge against the accused to falsely implicate him in the case---Witnesses were consistent on material points in their statements---Accused who was arrested at the Airport had failed to offer any reasonable explanation for his presence at the Airport and recovery of huge quantity of heroin from him---Prosecution evidence was credible and sufficient to connect the accused with the commission of the crime---Conviction of accused was upheld accordingly---Accused being a carrier and first offender and quantity of heroin recovered from him was less than 10 k.gs., sentence of death or imprisonment for life was not, therefore, warranted under the law and the accused was sentenced to 14 years' R.1. with fine in circumstances.

C.M. Sarwar for Appellant.

Mahmood H. Mirza for the State.

Date of hearing: 16th January, 2002.

2002 Y L R 447

[Lahore]

Before Muhammad Nawaz Abbasi and Mansoor Ahmad, JJ

AMIR HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.230 of 1995 and Murder Reference No.16 of 2000, heard on 19th November, 2001.

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

----S. - 302---Appreciation being run by deceased where occurrence took place, was a part of residential house of the deceased and was linked with the house from inside---Presence of wife of deceased in the shop being natural, was not questionable and he being in shop at the time of occurrence her evidence alone was sufficient to pros charge against the accused even if statement of other prosecution witness who claimed have seen the occurrence while standing some distance from place of occurrence was excluded from consideration---Conflict contradiction with regard to distance fro where shot was fired, would not be sufficient to disbelieve natural eye-witness and suggest substitution or false implication of accused No enmity existed between the parties except. altercation of deceased with accused before occurrence on a petty matter relating to some money---Parties had not brought any evidence to suggest any other motive behind occurrence except altercation of accused wt deceased and shortly after incident altercation accused loosing patience fired deceased---Evidence of wife of deceased, natural witness of occurrence, was fully supported by circumstances under which occurrence took place---Conflict of her statement with medical evidence regarding distance would be of no consequence a except contradiction in question, medical evidence had provided full corroboration statement of wife of deceased—Occurrence was a daylight one which took place in the shop of deceased without any background enmity---Not a remote possibility of false implication and substitution of accused existed---Charge for committing murder deceased, in circumstances, was proved against the accused beyond doubt----occurrence being not premeditated one and accused while under influence of provocation, having fired a single shot at the deceased without repeating same despite having opportunity, it was sufficient mitigating circumstance for lesser punishment--­Conviction of accused was maintained and sentence of death was converted into life imprisonment by the High Court in circumstances.

Malik Rab Nawaz Noon for Appellant.

M. Ayub Kiani for the State.

Date of hearing: 19th November, 2001.

2002 Y L R 453

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

KHALID MEHMOOD----Appellant

Versus

THE STATE ---Respondent

Murder Reference No.210, Criminal Appeal No. 129 and Criminal Revision 1997 heard on 15th November, 2001.

Penal Code (XLV of 1860)----

----S.302---Appreciation of evidence--Sentence---Mitigating circumstance ---Ocular account was furnished by father and maternal uncle of deceased who being inmates of the house, were natural witnesses, were independent and no disqualification could be ­attached to their testimony to exclude them evidence from consideration---Identification a accused was beyond doubt---Plea that there was darkness in the house or that light was not available in the courtyard of the house was not supported by any evidence---No conflict of medical evidence either with ocular account or recovery of weapon of offence was found---Motive set up by prosecution seemed to be farfetched as it was rare that a person on refusal of hand of a girl would be revengeful and would take her life----Was not known that under what circumstances and for what reason accused had fired at the deceased---Since mystery behind occurrence was not brought on record, it would be a strong mitigating circumstance in favour of accused for lesser punishment---Injury, on person of deceased being result of single shot and motive of occurrence being shrouded in mystery, conviction of accused was maintained, but sentence of death awarded to accused by Trial Court was reduced to life imprisonment and amount of compensation to be awarded to legal heirs of deceased was enhanced.

Tariq Azam Chaudhry for Appellant.

Haji Miran Malik for the State.

Ch. Zamarud Hussain for the Complainant.

Date of hearing: 15th November, 2001.

2002 YLR 459

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD ASIF---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 54-J of 1998 and Murder Reference No.305 of 1997, heard on 6th February, 2002.

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

----S. 302---Appreciation of evidence--­Accused was nominated in promptly recorder F.I.R.---Day light occurrence ---Complainant and prosecution witnesses had no animosity to falsely implicate the accused or substitute him, by letting off the real culprits ---Other prosecution witness who had no blood relations with the complainant or deceased was an independent and impartial witness-­Presence of complainant and prosecution witnesses at the spot had been sufficiently explained and established and were truthful and confidence-inspiring---No conflict in medical evidence and ocular account--­Testimony of witnesses had fully been corroborated by medical evidence---Absence or weakness of motive was immaterial as some time people commit murder even without motive---Accused who remained absent for more than two months from the place of occurrence could not furnish any explanation for the said absence---Recovery of weapon of offence in absence of recovery of any empty from- the spot, though could not be considers as corroborative evidence, yet prosecution case otherwise had been proved by ocular account corroborated by the medical evidence---Investigation was conducted impartially and there was no allegation by the accused for dishonest investigation--­Prosecution had proved its case against accused beyond any shadow of doubt and there was no ground to interfere in conviction recorded or sentence awarded to the accused.

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

----S.302---Motive---Absence or weakness of motive was immaterial---Some times people commit murder even without motive.

1999 SCMR 1668 and 2001 SCMR 1334 ref.

M. Sarfraz Khan Gondal for Appellant.

Malik M. Jehangir for the State.

Date of hearing: 6th February, 2002.

2002 Y L R 463

[Lahore]

Before Khawaja Muhammad Sharif, J

ASHFAQ alias BUGGA---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 1057 of 2000, heard on 4th February, 2002.

Penal Code (XLV of 1860)---

----S. 302 (b)---Appreciation of evidence---No direct evidence was available against the accused except the joint extra judicial confession made three and a half years after the occurrence---Prosecution witnesses including the complainant although closely, related to the deceased had not incriminated the accused---Recovery effected on pointation of accused four days prior to getting his physical remand was bogus---Case was replete with doubts benefit of which was to be given to accused not as a matter of grace but as of right---Accused was acquitted in circumstances.

Ch. Sardar Ali for Appellant.

Ch. Muhammad Tufail for the State.

Date of hearing: 4th Feburary, 2002.

2002 Y L R 466

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

ABID HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 602 and Murder Reference No.338-T of 1999, heard on 28th January, 2002.

Penal Code (XLV of 1860)---

----Ss.302/34, 324/34 & 394/34-- Appreciation of evidence---Description of the features of the accused was neither given in the F. I. R. by the complainant, nor the prosecution witnesses had provided the same in their statements recorded under S.161, Cr. P. C. --­Accused were not identified by the eye­witnesses in the identification parade by the roles played by them during the commission of the crime and this defect had gone to the roots of the prosecution case---Prosecution, thus, had failed to connect the accused with the commission of the offence---Accused were acquitted on benefit of doubt in circumstances.

Mauladad v. Emperor AIR 1925 Lah. 426; Ghulam Rasool v. State 1988 SCMR 557 and Mahmood Ahmad v. State 1995 SCMR 127 ref.

Asghar Khan Rokhari for Appellants.

Ch. Fazal Elahi for the Complainant.

Najamul Hassan Gill for the State.

Date of hearing: 28th January, 2002.

2002 Y L R 471

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 710 of 1998, heard on 31st January, 2002.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence--­Presence of eye-witnesses at the scene of occurrence was doubtful---Ocular account of occurrence was not corroborated by any independent source---Prosecution witnesses were closely related to deceased---Accused had been declared innocent in all the investigations conducted by senior police officers---Opinion expressed by the police although was no proof of innocence or guilt of accused, yet the impact of such opinion could not be discarded altogether---No weapon of offence had been recovered from the possession of accused---Benefit of doubt was given to the accused in circumstances and they were acquitted accordingly.

Zulqarnain v. The State PLD 1994 FSC 34; Muhammad Naeem alias Gogi and others v. The State 1990 PCr.LJ 1607; Haji and 4 others v. The State 1972 PCr.LJ 465 and Mardan Ali v. Gulistan 1998 SCMR 889 ref.

S M. Latif Khan Khosa and Khuram Latif Khosa for Appellants.

A.H. Masood for the State.

Date of hearing: 31st January, 2002.

2002 Y L R 476

[Lahore]

Before Bashir A Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD ASLAM alias SHERA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No-286 and Murder Reference No. 98-T of 1999, heard on 30th January, 2002.

Penal Code (XLV of 1860)---

----Ss.302(b)/34 & 393/34---Appreciation of evidence ---F.I.R. had been promptly registered---Complainant had no enmity for false implication of the accused or their substitution by letting off the real culprits--­Eye-witnesses had identified both the accused in the properly held identification parade by their roles played during the occurrence--­Absence or weakness of motive was immaterial---Crime empties sent to the Forensic Science Laboratory much prior to the recovery of fire-arms from the accused had matched with the same---Ocular account of occurrence was corroborated by medical evidence and the evidence of recovery--­Convictions and sentences of accused were affirmed in circumstances.

1995 SCMR 1350; 2000 PCr.LJ 453; 2000 SCMR 1758 and 2001 SCMR 223 ref.

Sultan Ahmad Khawaja for Appellant.

Azam Nazeer Tarar for the Complainant.

Saifullah Khalid for the State.

Date of hearing: 30th January, 2002.

2002 Y L R 482

[Lahore]

Before Khawaja Muhammad Sharif, J

KANDALA and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1481 of 2000, heard on 29th January, .2002.

Penal Code (XLV of 1860)---

----Ss.302(b)/34 & 201/34---Appreciation of evidence---F. I. R. had been lodged after a delay of five days---No independent witness had been produced by the prosecution---Dead body of the deceased was not recovered--­Some bones were got recovered by the accused three months after the occurrence which were not proved on the record to be of the deceased---No report of Fire-arm Expert was brought on record to show matching of any crime empty with any weapon of offence---Deceased was involved in many cases of theft, receiving of stolen property and keeping of illicit arms etc. and possibility of his being done to death by some unknown person in the midnight could not be ruled out where he had gone to commit theft---Accused had got enmity with the complainant party and possibility of their false implication in the case by the prosecution witnesses was also there in the absence of independent corroboration of their statements---Nine co­ accused had already been acquitted on the same evidence by the Trial Court---Accused were extended benefit of doubt and acquitted in circumstances.

Farooq Amjad Meer for Appellants.

Ch. Muhammad Ayub for the State.

Date of hearing: 29th January, 2002.

2002 Y L R 484

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD AFZAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1464 of 2000, heard on 25th January, 2002.

Penal Code (XLV of 1860)---

----SS.302/149---Appreciation of evidence--­F.I.R. had been recorded after due deliberation and consultation and even with the delay of eight hours without any convincing and plausible explanation---Five co-accused who were also armed with fire­arms had been acquitted on the same evidence by the Trial Court although that had fired at the spot---No recovery was effected from the accused during investigation---Accused had fired only one shot---Ocular testimony was in conflict with medical evidence---No independent witness had been examined by the prosecution--­Motive as set up in the F.I.R. was not proved on record---Accused was acquitted on benefit of doubt in circumstances.

Abdur Rashid Monin for Appellant.

Muhammad Aslam Khokhar for the State.

Date of hearing; 25th January, 2002.

2002 Y L R 487

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

Mst. SULTANA BIBI alias RUBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 150/J and Murder Reference No. 195/T of 1998, decided on 10th January, 2002.

Penal Code (XLV of 1860)--

----Ss.302/34 & 201 /34---Appreciation evidence---Dead body of the decease husband of the female accused had been dug out from a room of her house which was under her exclusive possession---Dead body was recovered on the pointation of the said place by both the accused which was cut into several pieces and which reflected upon the brutal mentality of the accused-.-Accused had failed to offer any, explanation with regard to the recovery of the dead body and this circumstance by itself was sufficient to prove their guilt---Letters recovered at the instance of the female accused from her hour had disclosed her illicit connection with he co-accused---Love affair between the two accused and the killing of the deceased ­them was, thus, proved beyond any doubt-­Conviction and sentences of accused including the death sentence were confirmed in circumstances.

Miss Aasma Jahangir and Rab Nawaz Khan Niazi for Appellant.

Sadaqat Mahmood Butt for the State.

Asghar Khan Rakhari for the Complainant.

Date of hearing: 7th January, 2002.

2002 Y L R 494

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ANWAR ---Petitioner

Versus

AMANULLAH and 2 others---Respondents

Criminal Appeal No. 900 of 2001, decided on 16th January, 2002.

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

----S.417---Penal Code (XLV of 1860), Ss.302/324/109/148/149---Appeal against acquittal---Accused No.1 was saddled with responsibility of raising a Lalkara and for having caused a fire-arm injury on forehead of the deceased but medical evidence had squarely contradicted said allegation as injury found by Doctor on the dead body was to be an exit wound---Allegation against accused Vo.2 was that he had fired two shots which hit right forearm of the deceased, but medical evidence did not support ocular account as injuries found by Doctor on forearm of the deceased were merely abrasions which could be result of falling on ground---Allegation of abetment against accused No.3 was also not found to be reliable as statement of prosecution witness in that regard did not inspire confidence---Doctor produced before the Trial Court was an independent witness who had never been declared to be hostile--­Evidence of such independent character which went to benefit of accused, could, not have been ignored or benefit accruing therefrom could not have been refused to accused in absence of anything to suggest that observation recorded and opinions formed by the Doctor were based on motives which were otherwise than bona fide---Contention of complainant/appellant that Doctor's statements ought not to have been believed and relied , upon by Trial Court, was repelled---No serious argument had been advanced by complainant/appellant against acquittal of accused recorded by Trial Court---Appellant had remained unable to point out any particular misreading or non ­reading of relevant record by Trial Court and reasons advanced by Trial Court for recording acquittal of accused being not arbitrary or perverse, judgment of Trial Court whereby accused were acquitted could not be interfered with.

Yaqoob Shah v. The State PLD 1976 SC 53; Saeed Ullah Khan v. The State 1986 SCMR 1027 and Manzoor and others v. The State and others 1992 SCMR 2037 ref.

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

---Ss.417(2-A) & 421- Appeal against acquittal-­-Procedure---Summary dismissal of appeal--­Appellant though by virtue of provisions of S.417(2-A), Cr.P.C. had a right to prefer an appeal before High Court against judgment of acquittal passed by Trial Court, but provisions of S.421, Cr.P.C. which had provided summary dismissal of appeal could not be ignored---Provisions of S.421, Cr.P.C. had amply demonstrated that appellant was not possessed of a right to get his appeal admitted to regular hearing and in an appropriate case High Court possessed of requisite jurisdiction to dismiss appeal summarily even without calling for record of Court below.

Sahibzada Farooq Ali for Appellant.

2002 Y L R 497

[Lahore]

Before, Mian Muhammad Najam-uz-Zaman and M. A. Shahid Saddiqui, JJ

RAFAQAT ALI alias TOTA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1029 of 1996, 48 of 1997 and Murder Reference No.7 of 1997, heard on 31st January, 2002.

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

----Ss.302/324/460/34---Appreciation of evidence---Case was registered initially against two unknown persons who allegedly entered into the house of deceased during dark hours of night and caused injuries to complainant/prosecution witnesses and committed murder of deceased who was husband of the complainant ---Complainant had made improvement and introduced a new story involving all four accused with specific role during the trial---Investigating Officer to whom investigation was entrusted 18 days after occurrence, during trial had never uttered a single word regarding said supplementary statement of complainant--­Investigating Officer who earlier investigated the case had also admitted-that there was no entry about recording of said supplementary statement of complainant by subsequent Investigating Officer---Stand of prosecution that complainant immediately after making first statement had made clarification about involvement of all the four, accused in case through supplementary statement, was incorrect---Even otherwise any further statement recorded during investigation changing entire complexion of prosecution case would neither be equated with first information report nor be read as its part--­Complainant having made statement before Trial Court under some legal advice, it was not safe to rely upon same for convicting accused persons on charge of capital sentence---Other prosecution witness which was nephew of the deceased and was shown to be residing with deceased from his childhood, in fact was resident of different village which was about 4/5 kilometres from place of occurrence where he was living with his family and was running a shop there--­Plea of prosecution that said witness was resident of place of occurrence, was not correct and his presence at the time of occurrence was doubtful--Recovery of crime weapons at the instance of accused in absence of any evidence showing that same were used during occurrence would be of no value--­Involvement of accused persons being result of dishonest investigation, they were entitled to get benefit of doubt---Conviction and sentences recorded against accused by Trial Court were set aside and they were acquitted of the charges.

(b) Criminal trial---

---- Further statement---Any further statement recorded during investigation changing entire complexion of prosecution case, would neither be equated with first information report nor read as its part.

Falak Sher alias Shera v. The State 1995 SCMR 1350 ref.

Anwar-ul-Haq Pannu for Appellant.

Anwar Akhtar for the Complainant.

Abdul Rasheed Monan for the state.

Date of hearing: 31st January, 2002.

2002 Y L R 504

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

IMTIAZ HUSSAIN ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 167-J of 2001, heard on 11th February, 2002.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S.10(3)-- Appreciation of evidence--­Presence of both eye-witnesses at the spot seemed to be natural and both of them successfully stood the test of cross­ examination---Nothing was on record to show that eye-witnesses had any motive to falsely implicate the accused in case of a single accused---Substitution by kith and kin of victim was a rare phenomenon---Medico-legal Reports affirmed the fact that victim girl aged 4/5 years was sexually assaulted and corroborated the ocular account---Statements of both the eye-witnesses inspired confidence, rang true and could be relied upon safely to uphold conviction and sentence of accused--­Delay of nine days in lodging the F.LR., was explained by the complainant showing that accused party was trying for a compromise through respectables of the locality, but complainant did not agree---Where reputation of a young girl or honour of a family was at stake, people usually were reluctant to report matter with the police and delay in lodging F.I.R. in such-like cases was immaterial--­Victim girl was only 4/5 years of age and being a child of tender age was rightly not called as witness as she was not a competent witness---Contention of accused that in absence of statement of victim girl, case of prosecution was doubtful thus had no force--­Evidence on record having proved the prosecution case up to the hilt, accused was rightly convicted and sentenced.

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

----Art. 3---Persons competent to testify--­Only those persons were competent to testify to whom Court would consider that they were competent to understand and give rational answers to questions put to them---Where a person was of tender age or extreme old to understand the proceedings, Court could refuse to call him as witness.

Ch. Imtiaz Ahmad for Appellant.

Naeem Sadiq for the State.

Date of hearing: 11th February, 2002.

2002 Y L R 508

[Lahore]

Before Bashir A Mujahid, J

GHULAM RASOOL---Petitioner

Versus

THE STATE---Responder

Criminal Miscellaneous No.1011-B of 2002 decided on 25th February, 2002.

Criminal Procedure Code (V of 1898)--

----S. 497--Penal Code (XLV of 1860) Ss.302/148/149---Bail, grant of---Accused though was allegedly present at the spot, but neither had caused injuries to the deceased nor to prosecution witnesses---Only role attributed to the accused was that he accompanied the co-accused---Accused was aged more than 65 years and his involvement in commission of crime was matter of further inquiry/probe---Accused was admitted to bail in circumstances.

M.A. Zafar for Petitioner.

Malik Muhammad Aslam for the State.

2002 Y L R 509

[Lahore]

Before Khawaja Muhammad Sharif J

SARFRAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.835-B of 2002, decided on 21st February, 2002.

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

----S.497--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10-- Bail, grant of----No allegation of Zina was levelled against accused who was behind bars for last 16 months and nobody knew how much time would it take in conclusion of the trial---Accused was not responsible for delay in conclusion of trial and by act of his co­accused he could not be burdened with any liability---Every accused was entitled to speedy trial---Accused was admitted to bail in circumstances.

M.A.Zafar for Petitioner.

Muazzam Iqbal Gill for the Complainant.

Abdul Qayyum Anjum for the State.

2002 Y L R 510

[Lahore]

Before Bashir A Mujahid and M.A. Shahid Siddiqui, JJ

TARIQ alias TAHRI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.491 and Murder Reference No.250 of 1997, heard on 13th February, 2002.

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

----S.302---Appreciation of evidence-----Sentence ---F.LR. was promptly recorded- --Accused was nominated in the F.I.R. ­Occurrence had taken place in daylight­ Ocular account furnished by the complainant and another eye-witness was corroborated by medical evidence---No reason was available to the prosecution witnesses for false implication of accused in the case by letting off the real culprit---Conviction of accused was maintained in circumstances-Occurrence having taken place at the spur of the moment over a petty quarrel; as to what had happened between the parties immediately before the incident was not clear and deceased had admittedly slapped the wile of the accused and the possibility could not be ruled out that the accused might have fired at the deceased under provocation and in heat of the moment---No previous enmity existed between the parties---Accused had not repeated fire shot ---Co-accused had been acquitted by disbelieving the same witnesses--­ Death sentence of accused was altered to imprisonment for life in circumstances.

Ch. Shaukat Ali Javaid for Appellant.

Addl. A.-G. for the State.

Date of hearing: 13th February. 2002.

2002 Y L R 513

[Lahore]

Before Muhammad Nawaz Abbasi, J

GHULAM MAQSOOD----Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 39-T of 2000 heard on 24th September, 2001

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

----Ss. 299(b) (e), 324/ 334/ 336/337-A(i)/34---Appreciation of evidence-- Accused convicted for causing permanent destruction of nose, one eye, one ear and disfigurement face of victim---Occurrence took place in and causing of injuries to victim by throwing acid on victim was admitted---Sustaining injuries by victim and permanent loss organs of her body was proved not through statement of victim, other prosecution witness and admission of accused, but also through medical evidence--- Conviction accused would be unexceptionable ----Accused had not challenged his conviction on me but prayed that sentence of imprisonment under Ss. 334 & 336, P. P. C. be discretionary with the Court, be directed to run concurrently instead of consecutively--­exception could be taken to punishment Arsh and Diyat for each injury separately awarded to accused; but separate sentence imprisonment under Ss. 334 & 336, P.P.C for a term of 10 years for each injury sustained in same transaction would need examination---Act of throwing of acid upon victim being a single transaction, sentence of imprisonment separately for each injury sustained by same transactions was not proper---Maintaining sentence of Arsh and Daman under S. 337. R, P. P. C. awarded to accused for individual injury caused to victim by accused, High Court directed that accused instead of undergoing sentence of rigorous imprisonment for 10 years each on six counts would serve sentence of 10 years' rigorous imprisonment only on one count under S. 336, P. P. C.

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

----Ss. 299(b), 334, 336, 337-Q & 337-W—Appreciation of evidence--- `Arsh "--­Meaning---Award of Arsh—Arsh is compensation for offence relating to various kinds of hurt---In some cases it was awarded in addition to sentence. of imprisonment, but in the case under Sir: 334/336, P. P. C. same was mandatory and sentence of imprisonment could be in addition to Arsh-- Arsh, under S.337-Q, P. P. C could be given for an individual organ---Sentence of imprisonment was not substitution of Arsh or mandatory in addition to Arsh to be awarded for damaging each organ as a result of one hurt or component hurt---Victim was to be compensated through Arsh whereas sentence of imprisonment as Tazir was to be awarded for criminal administration of justice---Where compensation as Arsh could be given for each organ separately in terms of S. 337-W, P. P. C Punishment of imprisonment as provided under S. 334 or S. 336, P. P. C. would be for hurt and not for organ and same could be awarded more than once for each organ separately---Three organs in the present case were damaged as a result of one injury in single transaction and accused having been charged as such, could not be punished twice or thrice for same offence.

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

----Ss.324/336/337-A(i)-- Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7-B---Appreciation of evidence---Sentence, awarding of-­Occurrence had taken place in bus in which both victim and accused were travelling-­Accused being annoyed with activities of victim who was his wife, was revengeful against her and without any intention to cause terror and create sense of insecurity/fear to passengers travelling in bus, threw acid on the victim/wife---Case was that of private revenge and mere fact that parties were travelling in public transport, would nor attract S. 6 of Anti-Terrorism Act, 1997--­Sentence of the accused under S. 7-B of Anti­ Terrorism Act, 1997 was set aside while awarded under Ss.324 & 337-A(i), P.P.C was maintained and different sentences under Ss. 324, 336 & 337-A (i), P. P. C. were also maintained to run consecutively.

(d) Word and phrases—

­

-- "Arsh "---Meaning.

Jan Muhammad Asghar to for Appellant.

Raja Saeed Akram for the State.

Date of hearing; 24th September 2001.

2002 Y L R 562

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD IBRAHIM and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.708 of 1999, Murder Reference No. 1337 of 1997 and Criminal Revision No.42 of 1998, heard on 12th February, 2002.

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

----S. 302/34---Appreciation of evidence--­ Presence of eye-witnesses on the spot , who were truthful witnesses and their evidence inspired confidence was established --- Mere relationship of the eye-witnesses with the deceased was no reason to discard their testimony as they had no previous animosity for false implication of accused---Motive, occurrence and place of occurrence were admitted---Ocular account was corroborated by medical evidence and recovery of weapons of offence---Conviction of accused was upheld in circumstances---Since accused had overpowered the deceased and caused his death under "Ghairat" in order to save their family honour, death sentence awarded to them was reduced to imprisonment for life in circumstances.

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

----S.302/34---Appreciation of evidence--­Presence. of accused in odd hours of the night at the scene of occurrence was doubtful--­Possibility was that the complainant had thrown the net wider to implicate the accused falsely being relatives of co-accused Hatchets produced by the accused were not stained with blood---Injuries attributed accused could possibly be caused by the hatchet recovered from co-accused---Accuse were extended the benefit of doubt and acquitted in circumstances.

M. Arif Rana for Appellants.

Ch. Muhammad Hussain Chechari for the Complainant.

Najamul Hassan Gill for the State.

Date of hearing: 12th February, 2002.

2002 Y L R 566

[Lahore]

Before Muhammad Khalid Alvi , J

MUHAMMAD FAROOQ and another---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous. No.398-B of 2002, decided on 26th February, 2002.

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

----S. 497---Penal Code (XLV of 1860), Ss. 458/380/411/170/171---Bail---No evidence was available against the accused except the recovery of Rs.100 from each of them which, prima facie, did not connect them with the commission of the offence at present stage--­Case of accused, in circumstances, required further inquiry and they were admitted to bail accordingly.

Mian Fazal Rauf Jaoyia for Petitioners.

Sh. Gul Muhammad for the State.

2002 Y L R 567

[Lahore]

Before Ijaz Ahmed Chaudhary, J

Messrs CHEAP MEDICAL STORE (PVT.) LIMITED through Chief Executive and 2 others---Petitioners

Versus

STATION HOUSE OFFICER POLICE STATION NEW ANARK and 3 others --- Respondents

Writ Petition No. 4239 of 2002, decided on 14th March, 2002.

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

----S. 156---Investigation into cognizable case---Investigation conducted by incompetent person---Validity---Investigation conducted by an incompetent person will not vitiate the trial---Such investigation is an irregularity which is curable unless some prejudice is shown to have been caused to the accused by it.

Wali Zar v. The State PLD 1960 W.P (Kar.) 204 and State v. Bashir Ahmad PLD 1997 SC 408 ref.

(b) Drugs Act (XXXI of 1976)---

----Ss.23/27---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Quashing of F.I.R.---Accused were charged with heinous offences against whom serious allegations had been levelled and they could not be given the benefit of technicalities--­Accused were found in possession of drugs in violation of Ss. 23 & 27 of the Drugs Act, 1976---Trial Court after recording evidence would see if the accused were connected with the crime or not---Prosecution case was, prima facie, based on sound grounds and it could not be stifled at such stage--­Constitutional petition was dismissed in limine in circumstances.

1994 PCr.LJ P.1065; 1998 PCr.LJ 181; PLD 1991 SC 893; 1985 PCr.LJ 268; PLD 1978 SC 193; 1996 PCr.LJ 1183; 1990 PCr.LJ 1475; Mansab Ali v. Amir and 3 others PLD 1971 SC124; Wali Zar v. The State PLD 1960 W.P. (Kar.) 204 and The State v Bashir Ahmad PLD 1997 SC 408 ref.

Muhammad Aziz Qureshi for Petitioners.

2002 Y L R 572

[Lahore]

Before Bashir A. Mujahid, J

SHAMRAIZE alias SHAMMON---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.182 and Revision No.252 of 2000, heard on 22nd March, 2002.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence--­Accused had been nominated in the F.LR. with specific role of causing injuries to the deceased with his rifle---Motive of previous enmity and pendency of litigation was admitted by the accused party---Occurrence having taken place in daylight, mistaken identity of the assailant was out of question--­Ocular evidence was fully corroborated by the investigation conducted by the senior police officers which was honest and impartial--­Trial Court had not misread or misappreciated the evidence---Conviction and sentence of accused were upheld in circumstances ---Diyat amount illegally imposed on the accused was, however, set aside.

Ch. Inayat Ullah Cheema for Appellant.

Aftab Iqbal Ch. for the Complainant.

A. H. Masood for the State.

Date of hearing: 22nd March, 2002.

2002 Y L R 577

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

SHAH NAWAZ alias SHAHU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 69-J of 1993, heard on 18th March, 2002.

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

----Ss. 302/34, 324/34 & 396---Appreciation of evidence---Sufficient light was available on the scene of occurrence for identification of accused---Prosecution witnesses had identified the accused either in the identification parade or in the Court--­Accused although were not identified in the identification parade by their role, but the prosecution witnesses were not asked by the :Magistrate about their role and without asking such question an uneducated person it us not expected to give the details--­Identification of accused in the Court was also valid and could be relied upon---Apart from identification, prosecution story was also corroborated by the recovery of looted articles from the accused---Crime empties secured from the spot had tallied with the weapons of offence recovered from the accused---Prosecution witnesses had no previous enmity with the accused to implicate them in a false case ---Abscondence of some accused had further supported their involvement in the crime---Convictions and sentences of accused were upheld in circumstances---Death sentence of one accused was, however, reduced to imprisonment for life as he according to the record was less than 18 years of age at the tune of occurrence.

(b) Criminal trial--

----Identification---Identification of accused in Court is also valid and can be relied upon.

M. Iqbal Bhatti, Munir Ahmad Bhatti and M. Afzal for Appellant.

M. Adam Malik for the State.

Date of hearing: 18th March, 2002.

2002 Y L R 585

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

GHULAM HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 415, 244-J and Murder Reference No.256-T of 2000, heard on 26th March, 2002.

Penal Code (XLV of 1860)---

----Ss. 302, 392, 324 & 186---Anti-Terrorism Act (XXVII of 1997), Ss. 7(i) (b) & 7-B---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence ---F.LR. was lodged on the spot after apprehending two accused---Weapons of offence had been recovered from the accused---Crime empties taken into possession from the spot tallied with the weapons of offence---Presence of eye-witnesses on the place of incident was established as they had chased the accused--­Ocular account was corroborated by medical evidence, recovery of crime weapons and looted articles from the accused ---Eye­witnesses had no motive for false implication of accused and their statements inspired confidence---Appreciation of evidence by Trial Court did not suffer from any misreading or non-reading of the same---Convictions and sentences of accused were maintained in circumstances.

Abdul Lateef Ch. for Appellants.

Erum Sajad Gull for the State.

Abdur Rasheed Monan for Appellants on State expenses (in Criminal Appeal No.244-J of 2000.

Date of hearing: 26th March, 2002.

2002 Y L R 589

[Lahore]

Before Bashir A. Mujahid, J

LAAB DIN---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 1374 and Criminal Revision No. 874 of 2000, heard on 22nd March, 2002.

Penal Code (XLV of 1860)---

----Ss. 302/149, 307/149/452/149 & 148---Appreciation of evidence---Specific role had been assigned to accused in the F.I.R.--­Ocular evidence had been furnished by the eye-witnesses who were injured during the occurrence and their presence on the spot could not be doubted---Medical evidence and unexplained abscondence of accused for years together had corroborated the ocular testimony---Old age of accused was no ground to reduce the legal sentence of imprisonment for life awarded to him by Trial Court which was not susceptible to any further reduction under the law---Convictions and sentences of accused were upheld in circumstances.

Dr. Sohail Akhtar for Appellant. (in Criminal Appeal No. 1374 of 2002).

Ijaz Anwar for the Complainant (in Criminal Appeal No. 1374 of 2002).

Ijaz Amin for Petitioner (in Criminal Revision No. 874 of 2000)

Dr. Sohail Akhtar for Respondents (in Criminal Revision No.874 of 2000)

Tasneem Amin for the State (in Criminal Revision No. 874 of 2000)

Date of hearing: 22nd March, 2002.

2002 Y L R 593

[Lahore]

Before Bashir A. Mujahid, J

Mst. SAFIA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals No. 61-J and Criminal Revision No.180 of 2001, heard on 22nd March, 2002.

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

----S. 302(b)---Appreciation of evidence--­Conduct of eye-witnesses at the time of occurrence was unnatural and unbelievable--­Accused was a young lady of 18/19 years of age but she was not apprehended by three eye-witnesses on the spot and she ,fled away after causing Chhuri blows to her husband and after concealing the blood-stained Chhuri near the house of the deceased---Injury received by the accused on her back. during the occurrence was not explained by the prosecution---Plea taken by accused that the complainant had bad eye on her and she was also given a beating by him on making a complaint to the deceased could not be ignored---Motive as alleged by the complainant was not proved---Recovery of weapon of offence was highly doubtful which was in clear violation of S.103, Cr. P. C.--­Complainant and other eye-witnesses were closely related to the deceased and no independent witness from the village was examined by the Investigating Officer--­Benefit of doubt, was extended to accused in circumstances and she was acquitted accordingly.

M. Aslam Malik for Appellant (at State expenses).

Muhammad Inayat Ullah Cheema for the Complainant.

Sohail Ahmad Khan for the State.

Date of hearing: 22nd March, 2002

2002 Y L R 597

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

IMTIAZ AHMAD alias MUMTAZ alias TAZA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.433 of 1997 and Murder Reference No.255 of 1997, heard on 28th March, 2002.

Penal Code (XLV of 1860)----

----S. 302(b)---Appreciation of evidence--­F.I.R. was recorded after due deliberations and consultation---Presence of eye-witnesses at the scene of occurrence was doubtful---. Natural witnesses of the incident were neither produced before the Investigating Officer nor before the Trial Court to prove the charge against the accused---Defence version was convincing and nearer to truth and was even corroborated by the answers given by the complainant during his cross-examination--­Ocular testimony was not corroborated by medical evidence---Recovery of "Toka " having not been effected from a place in exclusive possession of accused, was not believable which appeared to have been' planted---Accused was given benefit of doubt and acquitted in circumstances.

Farooq Amjad Meer for Appellant.

A. H. Masood for the State.

Khadim Hussain Qaisar for the Complainant.

Date of hearing: 28th March, 2002.

2002 Y L R 602

[Lahore]

Before Khawaja Muhammad Sharif J

CHIEF ADMINISTRATOR AUQAF---Petitioner

Versus

Syed ALI HUSSAIN and others---Respondents

Criminal Miscellaneous No. 458-CB of 2002, decided on 29th March, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.420/468/471---Cancellation of bail ---Pre­ arrest bail had been refused to accused by High Court as well as by Supreme Court--­Accused had been playing hide and seek not only with High Court, but also with other Courts and the police and ultimately he had been arrested on the intervention of High Court---Accused had remained absconder for a period of more than one year and was allowed bail only 20/21 days after his arrest by the Trial Court---Senior police officers had found the accused guilty in investigation who had been enjoying the benefit of 15 squares of land for 12 years and was the main beneficiary---Trial Court while granting bail to accused had misread the evidence and passed a contradictory order which was perverse and fanciful---Bail granted to accused was cancelled in circumstances.

PLD 1985 SC 182; 1992 PCr.LJ 409 and 1995 SCMR 1373 distinguished.

Muhammad Iqbal Khichi for Petitioner.

Muhammad Jehangir Wahla, A. A.-G for the State.

Muhammad Ahsan Bhoon for Respondent No. 1.

2002 Y L R 637

[Lahore]

Before Khawaja Muhammad Sharif J

GOHAR ABBAS ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 273 of 2002, decided on 18th April, 2002.

Juvenile Justice System Ordinance (XXII of 2000)----

----Ss. 2(b) (e), 4 & 7--- "Child"--­Determination of age of accused---Accused had claimed that at the time of occurrence his age was 19 year, 5 months and 24 days and if one year was deducted from that period his age would be 18 years, 5 months and 24 days---Police report and report of Medical Board showed that age of accused was about 21 years and below 25 years---Effect---Birth entry in office of Local Union Council on basis of which accused had claimed his age was not reliable as according to Secretary of Union Council same could be forged one---If claim of the accused was taken to be correct that his age was 18 years, 5 months and 24 days at the time of occurrence, even then he would not fall within definition of "Child" as given in S.2(b) of Juvenile Justice System Ordinance, 2000, but would be adult and his trial would be held by Sessions Judge not as a Juvenile Court.

1976 PCr.LJ 1325; Naseer Ahmad v . The State PLD 2000 S.C 813 and Hasan Lafar v. The State 2001 PCr.LJ 1939 ref.

Mian Shahid Iqbal for Petitioner.

Muhammad Jehangir Wahla, A.A.-G. for the State.

Malik Muhammad Afzal for Respondent No. 2.

2002 Y L R 640

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD ASIF alias CHANDI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1593 of 2000, decided on 29th March, 2002.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Trial Court found motive of occurrence to be remote and did not find the same sufficient for commission of murder of deceased by accused---No corroboration was available to the ocular account---Recovery of gun from accused having not been found corroborating the ocular account, same was of no use to prosecution---Only evidence which remained in field against accused was ocular evidence furnished by witnesses who were not only related inter se, but were also closely related with the deceased---Prosecution witnesses were not worthy of credence for conviction of accused in murder case without any independent corroboration because their statements showed that they had some feeling against accused and had some apprehension as sister of accused was abducted by deceased---Chance of false implication of accused, in circumstances could not be ruled out---Trial Court had rightly disbelieved motive part of occurrence as after abduction of sister of accused, both deceased and accused remained in same village and accused had been meeting with witnesses as well as deceased and no objection was ever raised to the conduct of deceased by him nor he ever picked up any quarrel with the deceased---Prosecution witnesses had failed to show their presence at spot at the time of occurrence which had caused serious doubt in prosecution case about their having witnessed the occurrence---Ocular account alone, which was also in contradiction with medical evidence, was not sufficient to uphold conviction of accused recorded by Trial Court---Occurrence took place during a dark night and it was difficult to believe that occurrence was witnessed by prosecution witnesses which has taken place at a distance of 15/20 feet---Time of occurrence was also doubtful---Prosecution having failed to prove guilt of accused beyond reasonable doubt, conviction and sentence awarded by Trial Court against accused were set aside and he was acquitted of charge by extending him benefit of doubt.

Rana Muhammad Azhar Khan for Appellant.

Muhammad Anwar Tiwana for the State.

Date of hearing: 14th March, 2002

2002 Y L R 645

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

DHUMAN KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.407 and Murder Reference No 249-T of 2000, heard on 22nd April, 2002.

Penal Code (XLV of 1860)---

----Ss. 302/324/353 & 97---Appreciation of evidence---Right of defence of property--­Occurrence had taken place when complainant (Officials of Lahore Development Authority) alongwith other officials demolished the house of accused through a bulldozer on the ground that accused was occupying the same illegally---Prosecution had failed to prove or place on record any document to show that accused was ever issued or served with a show-cause notice to vacate the property which according to the Authority was in his- illegal possession--­Accused admittedly was in a settled peaceful possession of the house in question which could not have been demolished unless a notice to show cause as required under Ss. 39 & 40 of the Lahore Development Authority Act, 1975 was issued to him---Accused, .his mother and wife had been beseeching officials of Authority not to demolish house and accused had made requests time and again to see documents of his title, but his request was turned down without giving him adequate and proper opportunity to explain his position--­Manner and the way in which accused had acted, indicated that he did so in exercise of right of defence of property and under provocation---officials of Authority including two deceased and injured had trespassed into property of accused---Accused admittedly had committed murder of two persons and caused injuries to another two---Accused, no doubt had acted in right of defence of his property, but he had exceeded his right---Conviction of accused on two counts for killing two persons and injuring two other officials was maintained, but his sentence of death was reduced to imprisonment for life accordingly.

PLD 1965 Kar. 637; Wayram and 3 others v. The State PLD 1975 Lah. 152: Muhammad Ashraf v. Fazal Ali and others PLJ 1976 SC 190; Zafar Ali v. The State 1990 SCMR 595 and Sardarai and another PLD 1970 SC 212 ref.

Mian Aftab Farrukh and Mian Abdul Qayyum Anjam for Appellant (at State expenses).

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 22nd April, 2002

2002 Y L R 652

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

BASHIR AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 250-J of 2000, heard on 7th March, 2002.

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

----Ss.302/324/34---Appreciation of evidence---Broad daylight occurrence in District Courts compound---Accused and co-accused were specially named in promptly lodged F.I.R. and a definite role was assigned to them--B­oth eye-witnesses had explained their presence at the spot and presence of one of the prosecution witnesses stood corroborated by medical evidence as well as by four fire-arm injuries received by him Both prosecution witnesses were subjected to lengthy cross-examination but their credibility could nest be tarnished and they remained consistent on all material particulars of occurrence and role attributed to accused---Both eye-witnesses were though close related to the deceased, but that by its, would not make them unworthy of credit--­presence of those factors, infirmity, if any, evidence of recovery of pistol, would not fatal for prosecution case---Contention that since complainant and accused had previous enmity, possibility of false implication cot, not be ruled out, was repelled as it was repellant to common sense and against normal human conduct to let off murder, and implicate accused falsely---No serious enmity existed between prosecution witness and accused---Accused remained fugitive from law for about 6 years which abscondence remained unexplained which could be considered to be a corroborative piece of evidence ---Prosecution, in circumstances, had proved its case beyond reasonable doubt sustain conviction of accused on a capital charge.

Muhammad Mansha v. The State 2001 SCMR 199; PLD 1962 Dacca 269; PLD 1969 SC 488; PLD 1960 SC 387 and 1985 SCMR 203 ref.

(b) Criminal trial---

----Appreciation of evidence---Requirement independent corroboration in criminal ca was not an inflexible role---Intrinsic worth testimony of a witness would always weigh with Court while assessing evidence ---Prompt F.I.R., time anti place of occurrence, strong motive, statements during trial being consistent, presence of witnesses being natural and medical evidence endorsing presence of prosecution witness, were factors which would go a long way in establishing credibility of prosecution witnesses.

(c) Criminal trial---

---- Appreciation of evidence---Unexplained abscondence of accused---Unexplained abscondence had always been considered to be a corroborative piece of evidence.

Mst. Roheeda v. Khan Bahadur and -another 1992 SCMR 1036 ref.

Ch. Muhammad Ayyub for Appellant.

S.D. Qureshi for the State.

Date of hearing: 27th March, 2002.

2002 Y L R 660

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MUNIR HUSSAIN and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 19-T, Criminal Revision No.26, Criminal Miscellaneous No.8-Q and Murder Reference No.65-T of 2001, heard on 18th April, 2002.

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

----Ss. 302/324/337-A(i) 337-F(v) & 34-----Anti-Terrorism Act (XXVII of 1997), S.7 Appreciation of evidence---Triple murder Witnesses of recoveries though were closely related to complainant, but accused could not establish that witnesses had any enmity with them or they were inimically disposed towards them---Weapons of offence recovered from the accused were found wedded with empties recovered and positive reports of Forensic Sci­ence Laboratory had supported the prosecution case---Abscondence of three accused named in F.I.R. who allegedly had gone abroad was a factor against those accused especially when their abscondence was properly explained---Eye-witnesses stood test of cross-examination and stood stead fast and unshaken incident a day time occurrence and prosecution, story in absence of any dent, was to be believed and it was established incident had taken place in the fields was not aimed at disrupting civil life--­though was a triple murder, but it arose on account of a dispute over lands and under the provisions of Pakistan Penal Code, 1860 and was not covered under definition of "terrorism" under S.6 of Anti-Terrorism Act, 1997---Accused, circumstances, were acquitted of charge under S.7 of Anti-Terrorism Act, 1997 Trial Court could not have fined the accused as no provision for imposition of fine under those provisions existed any more---Order of Trial Court imposing fine on accused was set aside-Orders of conviction of accused passed by Trial Court under S.302/34 P.P.C were upheld, in circumstances---Inquiry suffered by prosecution witness at the hand of one of the accused persons having been declared by Doctor as Shajjah-i-Khafifah punishable under S.337-A(i), P.P.C., no offence under S. 324 P.P.C was made out against the accused---Said accused was acquitted of charge under S.324, P. P. C. and convicted under S.337-A(i), P.P.C. and sentenced accordingly.

Ehsan Qadir Shah for Appellants.

Malik Rab Nawaz Noon for the Complainant.

M. Akbar Tarar, A.A.-G. and M. Aslam Malik for the State.

Date of hearing: 18th April, 2002.

2002 Y L R 671

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

AROKAS MASIH alias ALLAH DITTA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.245‑J of 2001, heard on 6th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑­Sentence, reduction in‑‑‑Accused had admitted his participation in occurrence in his statement made under S.342, Cr. P. C. before Trial Court‑‑‑Case of prosecution also stood established from statements of eye‑witnesses whose presence in house of deceased at time of occurrence was very natural as those were close relatives of the deceased‑‑‑Accused had failed to shatter credibility of those eye‑witnesses during cross‑examination and nothing was on record to show that any of the eye‑witnesses had a motive to falsely implicate accused in the case‑‑‑Medical evidence and recovery of blood‑stained Chhuri at the instance of accused had supported, prosecution case‑‑­Nature, location and duration of injury as narrated by eye‑witnesses stood affirmed by Medical Reports‑‑‑Statement of both eye­witnesses inspired confidence, rang true and same could be relied upon safely to uphold conviction of accused in circumstances of case‑‑‑Accused had five children, two of them were major whereas three were minors‑‑‑Elder daughter of accused was a married woman and nobody else was to look after younger children of the accused‑‑‑Lenient view about quantum of sentence was called for in circumstances‑‑­Maintaining conviction of accused fourteen years' sentence awarded to accused by Trial Court was reduced to period of ten years' rigorous imprisonment.

Malik Muhammad Azam for Appellant.

Maqbool Ahmad Qureshi for the State.

Date of hearing: 6th February, 2002.

2002 Y L R 675

[Lahore]

Before Ch. Iftikhar Hussain and Muhammad Farrukh Mahmud, JJ

BASHIR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.81 of 2001, heard on 15th April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Appreciation of evidence‑‑­Time and place of occurrence had not been challenged ‑‑‑F.I.R. in which accused was nominated was registered without any delay and prosecution witnesses had no chance to concoct the story‑‑‑Both prosecution witnesses had identified accused during trial‑‑­Prosecution witnesses though were uncle and brother of deceased, but mere relationship would not be enough to disbelieve their statements made on oath when they had categorically stated that they had no enmity with accused prior to the occurrence‑‑‑Both prosecution witnesses had given a straightforward account of occurrence and had corroborated each other on all material parts ‑‑‑Discrepancies pointed out by accused in statements of eye‑witnesses were minor, in nature‑‑‑No previous enmity existed between the accused and prosecution witnesses‑‑­Statements of prosecution witnesses which were worthy of credence, were fully corroborated by reports of Chemical Examiner and Serologist‑‑‑Recovery of rifle allegedly effected from the accused could not be used as corroborative evidence because according to report of Forensic Science Laboratory empties recovered from place of occurrence did not tally with empties fired by rifle allegedly recovered from the accused‑‑­Motive as set up in F.I.R. was mainly against co‑accused who subsequently lost his life during a police encounter‑‑‑Not necessary to set up motive in all murder cases as facts in each case differ from other‑‑Prosecution having proved its case against accused through ocular account and surrounding circumstances, conviction of accused under S. 302 (b), P. P. C. was maintained‑‑‑Dead body of deceased having .not been recovered; Lalkara was attributed to accused, only general allegations were made in F.I.R. against accused and motive as set in F.I.R. having not been proved, sentence of death awarded to accused by Trial Court was reduced to imprisonment for life.

(b) Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302(b)‑‑‑Motive‑‑‑Not necessary to set motive in all murder cases as circumstances of each case stiffer from the other.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 201‑‑‑Appreciation of evidence‑‑‑Accused having been convicted for offence of murder under S. 302(b), P.P.C. could not be convicted for causing disappearance of evidence under S.201, P. P. C. and same was thus set aside.

Muhammad Shafiq and others v. The State 1984 PCr.LJ 2011; Muhammad Bakhsh and 2 others v. The State PLD 1988 Lah. 359 and Nasar Khan v. The State 2000 SCMR 130 ref.

Ch. Muhammad Yaqub Kang for Appellant.

Muhammad Sarwar Bhatti, A.A.‑G assisted by Javed Iqbal for the State.

Date of hearing: 15th April, 2002.

2002 Y L R 679

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Hafiz GHAFOOR AHMAD KHOKHAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4056‑B of 2002, decided on 25th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.186/188/228/353/506(2)‑‑‑Bail before arrest, grant of‑‑‑Object‑‑‑Bail before arrest was meant to protect innocent persons if they succeeded in demonstrating mala fides on part of prosecution or complainant coupled with grounds available under S.497, Cr.P.C. for grant of bail‑‑­Accused in the present case had failed to show any mala fides on part of the complainant who was District and Sessions Judge and accused had shown disrespect to Court by entering the Chamber of complainant and tried to interfere in matter in which he was not even a party and abused and threatened the court‑‑‑Accused in circumstances was not entitled to any extraordinary relief by way of grant of bail before arrest.

Syed Ali Asghar Shah v. The State 1988 PCr.LJ 270 ref.

Ch. Riyasat Ali for Petitioner.

Ch. Wasim Ahmad Chaichee for the State.

2002 Y L R 682

[Lahore]

Before Khawaja Muhammad Sharif, J

HABIB ULLAH‑‑‑Appellant

Versus

THE STATE ‑‑‑ Respondent

Criminal Appeal No.364‑J of 2001, heard on 19th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑­Conflict existed between ocular account and medical evidence‑‑‑Occurrence had taken place in the house of accused‑‑‑F.I.R. which was not promptly recorded showed four witnesses including real sister of deceased, but two important witnesses who had taken the deceased to hospital in injured condition, were given up by prosecution‑‑‑Sister of deceased who was mentioned in F.I.R. as eye‑witness, according to statement of other prosecution witness was called from her house after death of her deceased brother and she did not reach hospital‑‑‑Sister of the deceased had also admitted in her cross‑examination that she was outside the house where occurrence had taken place, she heard fire shots and that she did not see the occurrence with her own eyes‑‑‑Alleged recovery of gun was of no consequence as no crime empty was taken from the spot‑‑­Prosecution having failed to prove its case against accused beyond any shadow of doubt, conviction and sentence awarded to accused by Trial Court were set aside and he was released forthwith.

Ch. Haider Bakhsh and Liaqat Ali Raaj for Appellant.

Miss Nausheen Taskeen for the State.

Date of hearing: 19th June, 2002.

2002 Y L R 685

[Lahore]

Before Khawaja Muhammad Sharif, J

INAYAT ULLAH‑‑‑Appellant

Versus

THE STATE ‑‑‑ Respondent

Criminal Appeal No.51‑J of 2002, heard on 29th May, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/353/148/149‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑Nine accused were named in the F.I.R. and accused who allegedly had caused injuries to complainant was murdered later on during police encounter‑‑‑ Accused was not one of the proclaimed offenders against whom F.I.R. was recorded and for whom raiding party was constituted by police. ‑‑‑Accused was not involved in any case prior to the occurrence‑‑‑Accused did not cause any injury either to deceased or complainant and his role was of ineffective firing‑‑­Abscondence of accused was not of much importance because even innocent accused persons some time abscond to save their lives‑‑‑Possibility of false implication of accused in the case could not be ruled out‑‑‑So many doubts in case having been noticed benefit of doubt had to be granted to accused not as a matter of grace, but as a matter of right‑‑‑Conviction and sentence recorded against accused by Trial Court were set aside and he was ordered to be released forthwith.

Mian Abdul Qayyum Anjum for Appellant (at State expenses).

M. Jehangir Wahla for the State.

Date of hearing: 29th May, 2002.

2002 Y L R 688

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMED FRAZ ‑‑‑ Appellant

Versus

MUHAMMAD NAWAZ‑‑‑Respondent

Criminal Appeal No.806 of 2000, decided on 3rd June, 2002.

(a) Copyright Ordinance (XXXIV of 1962)‑‑‑

‑‑‑‑S.66‑A‑‑‑Penal Code (XLV of 1860), Ss. 417 & 420‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Accused after registration of F.I.R. against him joined investigation and challan was submitted before Trial Court after nine months of registration of F.I.R. and trial continued for about five years after, submission of challan‑‑‑Accused in circumstances suffered agony of protracted trial for five years‑‑‑Books taken into possession did not in any way show that those were published at the instance or advice of accused‑‑‑No evidence of publishing, printing or sale of said printed books were available against accused‑‑­Order of acquittal of accused passed by Trial Court under S. 249‑A, Cr. P. C. did not suffer from any legal infirmity or arbitrariness and was neither fanciful nor artificial so as to render decisions of Trial Court open to any exception‑‑‑Appeal against acquittal being merit-less was dismissed.

PLD 1969 SC 398; 1999 SCMR 1814; 1999 MLD 1645; 2000 PCr.LJ 752; 2000 MLD 605; PLD 1967 Kar. 440; PLD 1993 SC 399; PLD 1994 SC 667; 1995 SCMR 616; PLJ 1995 PSC (Crl) 813; 1995 SCMR 664; PLD. 1997 SC 275; 1985 PCr.LJ 23; 1993 PCr.LJ 2053 and PLD 1995 Lah. 98 ref.

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

‑‑‑‑S.417‑‑Appeal against acquittal‑‑­Appellate Court in appeal against acquittal would be slow in disturbing finding of fact arrived at by a Court who had advantage of seeing witnesses.

Muhammad Akram and others v. The State 1995 SCMR 1359 and Munawar Shah v. Liaqat Hussain and others 2002 SCMR 713 ref.

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

‑‑‑‑S.249‑A‑‑‑Acquittal of accused‑‑‑Power of Magistrate‑‑‑Trial Magistrate under S. 249‑A, Cr.P.C. was given powers of acquitting an accused at any stage of the case, if after hearing prosecution and accused and for reasons to be recorded, he considered that charge against accused was groundless and no probability of conviction of accused existed‑‑‑Use of words "at any stage", indicated intention of Legislature that acquittal order could be passed even before recording of evidence, if facts of case were such that Court was satisfied that no useful purpose would be served by prosecuting the accused in the matter.

Mrs. Shaheen Kiran for Appellant.

Mian Muhammad Danishmund for Respondent No. 1.

M. Jehangir Wahla, A.A.‑G. for the State.

Date of hearing: 31st May, 2002.

2002 Y L R 692

[Lahore]

Before Muhammad Farrukh Mahmud, J

BAGH ALI and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2885‑B of 2001, decided on 14th February, 2002.

Criminal Procedure Code (V of 1898) ‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860) Ss. 337‑A(i), 337‑F(i) (iii) (iv) (v), 337‑L(ii), 367, 148 & 149‑‑‑Bail, grant of‑‑‑Matter was reported to police after a delay of more than three days‑‑‑All offences except offence under S.367, P. P. C. did not attract prohibitory clause of S. 497, Cr. P. C. ‑‑‑All accused persons though were shown to be armed with pistol and guns, but complainant did not receive any fire‑arm injury on his person‑‑­Injuries on person of complainant except one injury, were either on his elbow or on legs and said one injury which was on left ear, was declared to be "Shujja‑e‑Khafifah "‑‑­Question as to whether any offence under S. 397, P. P. C. in circumstances of case was committed or not would be determined by Trial Court after recording evidence‑‑‑Bail could not be withheld as punishment‑‑‑Bail was granted to accused.

Arshad Ali Chohan for Petitioners.

Rashid Naseem Sheikh for the State.

Date of hearing: 14th February, 2002.

2002 Y L R 693

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARSHAD and 3 others‑‑­Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 7412‑B of 2001, decided on 7th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)‑‑‑Bail, grant of‑‑‑No overt act was attributed to the accused persons-‑­Prosecution had no objection to the grant of bail to the accused persons‑‑‑Accused were granted bail in circumstances.

Rana Muhammad Arif for Petitioners.

Muhammad Akmal, A.A.‑G. for the State.

2002 Y L R 694

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD ARSHAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1811‑B of 2002, decided on 3rd May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 13, 14 & 18‑‑‑Bail, grant of‑‑‑Allegation against the accused was that of hiring the woman co-­accused for purpose of Zina on payment of Rs.1,000‑‑‑Prosecution had no evidence that the accused had actually hired the woman co­-accused for illicit purpose‑‑‑Case of the accused called for further inquiry inasmuch as the amount of Rs.1, 000 allegedly paid had not been recovered from either of the two women co‑accused‑‑‑Accused granted bail in the circumstances.

Rana Muhammad Arif for Petitioner.

Mian Saeed‑ud‑Din Ahmad for the State.

2002 Y L R 695

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD MANSHA and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2506‑B of 2002, decided on 15th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/148/149‑‑‑Bail, grant of‑‑‑Accused had been attributed a fire‑arm injury on the abdomen of a prosecution witness‑‑‑Medical evidence did not support allegations against the accused inasmuch as the fire‑arm wound attributed to the accused had been described as an exit wound in the medico‑legal certificate‑‑‑Some of the Investigating Officers had found the accused innocent‑‑‑Challan in the case having already been submitted, case of the accused called for further inquiry‑‑­Accused was granted bail in circumstances.

Rana Muhammad Arif for Petitioners.

Abaid Ullah Malik for the State.

2002 Y L R 696

[Lahore]

Before Tassaduq Hussain Jilani, J

LIAQAT ALI and another‑y‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2416‑B of 2002, decided on 24th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of‑‑‑No overt act in causing any injury to the deceased had been attributed to the accused‑‑Accused had been found innocent in three investigations‑‑‑Case of the accused calling for further inquiry, he was granted bail.

Ch. Anwar‑ul‑Haq Pannu for Petitioners.

Asghar Ali for the Complainant.

Mirza Abdullah Baig for the State.

2002 Y L R 697

[Lahore]

Before Zafar Pasha Chaudhry, J

MUHAMMAD SHAFI‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT & SESSIONS JUDGE, CHINIOT and 3 others‑‑‑Respondents

Writ Petition No.13513 of 2001, decided on 1st November, 2001.

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

‑‑‑‑S. 145‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Dispute over immovable property‑‑‑While proceeding under S.145, Cr. P. C. it has to be inquired into by the Magistrate as to whether the possession with the party was for more than two months next before the initiation of the proceedings‑‑‑Mere holding by the Magistrate that one of the parties was in possession was not sufficient‑‑‑Constitutional petition was disposed of accordingly.

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

‑‑‑‑S. 145‑‑‑Provisions of S.145, Cr. P. C., nature of‑‑‑Civil Court seized of the matter, proceedings before the Magistrate under S.145, Cr. P. C. could not be held abated‑‑­Decision by the Civil Court was binding on the parties and that had precedence over any order passed under S.145, Cr. P. C. ‑‑‑Any order passed under S.145, Cr. P. C. was always tentative in nature and the same could not conclusively determine the question of ownership or possession‑‑‑If the Civil Court passed any order as regards title or possession over the disputed land then the same had to prevail and will hold the field.

Zahid Hussain Khan for Petitioner.

Masood Mirza and M. Bilal Khan, Addl. A.‑G. for Respondents.

Date of hearing: 1st November, 2001.

2002 Y L R 698

[Lahore]

Before Tassaduq Hussain Jilani, J

SABIR HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2859-B of 2001, decided on 27th February, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had not been named in the F.I.R.---No motive had been alleged by the Wajtakkar witnesses who allegedly saw the accused and another running away at the time of occurrence---No recovery had been effected from the accused who had been behind the bars for more than a year and the trial had not yet commenced--­Case of the accused calling for further inquiry, he was granted bail.

Mian Arshad Latif for Petitioner.

Ibrahim Farooq for the State.

2002 Y L R 699

[Lahore]

Before Asif Saeed Khan Khosa, J

MUNIR AHMAD BRATTI ‑‑‑ Petitioner

Versus

THE STATE and 3 others‑‑‑ Respondents

Writ Petition No. 13019 of 2002, decided on 9th August, 2002.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑Ss. 516‑A & 550‑‑‑Penal Code (XLV of 1860), Ss.420/167/468/471‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Custody of motor car on Superdari‑‑-Motor car in question was not a subject‑matter of any criminal case registered anywhere‑‑‑Police had no occasion to suspect commission of any crime in respect of the said car‑‑‑Taking over of the said vehicle under S.550, Cr.P.C. prima facie appeared to be doubtful‑‑‑Ownership of the motor car had been solely claimed by the petitioner whose status in an F.I.R.; subsequently registered in respect of the said car, was merely that of a witness and not of an accused person‑‑­Petitioner had claimed his title to the car on the basis of an open transfer letter and a certificate of verification issued by the Forensic Science Laboratory‑‑‑Magistrate had no occasion to dismiss petitioner's application as regards Superdari of the car‑‑­Constitutional petition was allowed in circumstances and car was handed over to petitioner on Superdari.

Rana Muhammad Arif for Petitioner.

Ishfaque Ahmad Chaudhary for the State.

2002 Y L R 701

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD JAMIL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.2665‑B, 2666‑B and 2667‑B of 2002, decided on 3rd February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/109/148/149‑‑‑Bail‑‑‑Recovery of 143 crime empties from the spot showed the large number of the accused and the use of different fire‑arms‑‑‑F.I.R. showed that four accused persons seeking bail were variously armed but none had caused any injury to the deceased as the fatal shot had been attributed to another accused who had not applied for bail before the Court‑‑‑Since no empty of .7 MM rile had been recovered from the spot, accused allegedly carrying .7 MM rifles were admitted to bail as their case called for further inquiry­‑‑Bail application to the extent of the other two accused allegedly armed with a .12 bore gun and rifle .8 MM was rejected as they were prima facie connected with the occurrence since crime empties of .12 bore gun and of rifle .8 M. M were recovered from the spot.

1991 SCMR 1630 and 1998 SCMR 454 ref.

Ijaz Feroze for Petitioner.

Zaka‑ur‑Rehman Awan for the Complainant.

Miss Nausheen Taskeen for the State.

2002 Y L R 702

[Lahore]

Before Asif Saeed Khan Khosa, J

IMDAD HUSSAIN SHAH‑‑‑Petitioner

Versus

THE S.S.P. SARGODHA and 5 others‑‑‑Respondents

Writ Petition No. 7627 of 2002, decided on 8th May, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Habeas corpus petition‑‑­Recovery and release of the detenus ‑‑‑Report submitted by the bailiff had shown that the detention/arrest of the detenus had not been recorded in any of the registers kept at the concerned police station‑‑‑Delinquent police officers had maintained that a relative of the said detenus was required by the local police in connection with number of criminal cases and the local police had nothing against the said detenus‑‑‑High Court deprecated the practice of depriving persons of their liberty and constitutionally guaranteed fundamental rights in the garb of an effort to apprehend some accused person‑‑‑Constitutional petition was allowed and the detenus were set at liberty with direction to the concerned S. S. P to take appropriate departmental/criminal proceedings against the concerned police officers and submit report to the Registrar within a specified time.

Akhtar Masood Khan for Petitioner.

Malik Muhammad Imtiaz Mahal for Respondent No.2.

Respondent No.3 in person.

2002 Y L R 703

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD YAR ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1091 of 2001, heard on 25th July, 2002.

Penal Code (XLV of 1860) ‑‑‑

‑‑‑‑Ss. 302/379/411/34‑‑‑Appreciation of evidence‑‑‑Motive had not supported the prosecution case against the accused in any manner‑‑‑Medical evidence had indicated that the deceased was fired at with a rifle and both the injuries had appeared to have been caused with the same weapon‑‑‑Only lower part of the leg of the deceased had been injured and none of his vital organs had been damaged‑‑­Had the complainant and the witness been present with the deceased when he, was injured they must have promptly removed him to the hospital and he might not have possibly died‑‑‑Fact that the deceased was kept lying at the spot for a considerable tine after the incident had indicated that the complainant and the witnesses were not present on the spot when the shooting started‑‑‑ Prosecution had tried to cover up delay in reporting the matter to the police and also in taking the deceased to the hospital‑‑‑Witnesses were chance witnesses and had not given any plausible explanation for their presence at the spot‑‑­Accused was not shown to have any common interest with the co‑accused who had motive to commit the offence‑‑‑Involvement of the accused in the commission of offence was not above board‑‑Accused, in circumstances was given benefit of doubt arising out of suspect prosecution case and was acquitted.

M.A Zafar for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 25th July, 2002.

2002 Y L R 706

[Lahore]

Before Mian Nazir Akhtar and Mian Muhammad Najam‑uz‑Zaman, JJ

Major (Retd.) MUSHTAQ AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.503‑B of 2002, decided on 1st April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497, first proviso‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9‑‑‑Bail, grant of‑‑‑‑Grant of bail on medical ground‑‑‑Medical report showed that under-trial accused was suffering from lumbosaeral spine degenerative disease, apart from a number of other ailments for which accused could not be properly treated in jail and that his condition was deteriorating‑‑‑Accumulative effect of various ailments was that accused had become weak and infirm person‑‑‑Case of accused being covered by first proviso to S.497, Cr.P.C. he was allowed bail, in circumstances.

Mir Aftab v. The State 19,79 SCMR 320; Sadiq Ali Shah v. Sardar Khalid Umar and others 1982 SCMR 975; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58 and Mawasi Khan v. The State 1969 SCMR 289 ref.

Ashtar Ausaf Ali for Petitioner

Ahmer Bilal Sufi, Deputy Prosecutor General, NAB and Javed Shaukat Malik, Special Prosecutor General, NAB for the State.

2002 Y L R 709

[Lahore]

Before M. Naeemullah Khan Sherwani, J

SAFDAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6766‑B of 2000, decided on 15th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.218/420/468/471‑‑‑Pre‑arrest bail, grant of‑‑‑Accused feeling apprehension of immediate arrest at the hands of Police, had approached High Court for grant of bail before arrest without moving Court of the first instance‑‑‑Accused contended that since case stood registered against him at the instance of D.S.P., it had become virtually impossible for him to approach Sessions Judge for obtaining bail before arrest and he had moved directly the High Court‑‑‑Plea of accused was that trumped up charge had been brought against him to involve him maliciously in false case and that in case he was arrested he would be exposed to hatred, contempt and ridicule in society‑‑­Accused was admitted to protective bail, in circumstances.

Ch. Anwar‑ul‑Haq Pannu for Petitioner.

Naseem Sabir Chaudhry, Additional A.‑G. assisted by Rizvan Shahid for the State (on Court's call).

2002 Y L R 710

[Lahore]

Before M. A. Shahid Siddiqui, J

MUHAMMAD ANWAR BAJWA and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail Application No. 1878‑B of 2002, decided on 3rd April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 380/457‑‑‑Interim bail, confirmation of‑‑­Accused was real brother of complainant and there was a serious dispute between parties relating to ancestral property and civil and criminal cases were pending between them‑‑‑False implication, of accused, in circumstances, could not be ruled out‑‑‑Interim bail granted earlier, was confirmed.

Aftab Mustafa for Petitioners.

Asif Jalil for the State.

2002 Y L R 711

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD HAYAT‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.885 of 2001, decided on 29th March, 2002.

Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑Ss.2(b(e), 4 & 7‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Child‑‑‑Determination of age of accused‑‑‑Sessions Judge declared accused to be child and ordered that his trial be conducted under Juvenile Justice System Ordinance, 2000‑‑‑Birth Certificate showed that accused at time of commission of crime was 18 years and 3 months old‑‑­Identity card issued to accused before occurrence and electoral roll also showed that accused was more than 18 years of age at the time of occurrence‑‑‑Medical Report obtained by accused showed his age to be between 17/18 years‑‑‑X‑Ray Report and ossification test would not establish age with certainty and possibility of difference of one, year on either side would remain‑‑­Medical report was only an opinion and could not be an exact and conclusive proof as against. proof brought on record by complainant through entry in Birth Register and copy of Identity Card issued in favour of accused‑‑‑Accused, in circumstances, was not "child" under Juvenile Justice System Ordinance, 2000‑‑‑Trial Judge was directed by High Court to proceed with trial under ordinary law.

Muhammad Aslam and another v. Mst. Sardar Begum alias Noor Nishan 1989 SCMR 704; PLD 2000 SC 813; Hasan Zafar v. The State 2001 PLJ Cr. C. Lahore 1129; Naseer Ahmad v. The State PLD 2000 SC 813 and Bunnay Khan v. The State 1975 PCr.LJ 453 ref.

Ch. Mumtaz Ahmad for Petitioner.

Muhammad Yasin Farrukh Kamboh and Ch. Abdur Razzaq Kamboh for Respondents.

M. Aslam Malik for the State.

2002 Y L R 713

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. MAQSOODAN BIBI‑‑‑Appellant

Versus

AMAR JAVED and others‑‑‑Respondent

Criminal Appeal No. 1288 of 2000, heard on 10th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 309/310/324/334/452/148/149‑‑­Criminal Procedure Code (V of 1898)‑‑­Ss.417 & 345‑‑‑Appeal against acquittal‑‑­Compromise with accused party‑‑‑Judicial record‑‑‑Presumption of correctness ‑‑‑Effect‑‑­Record had shown that appellants complainant had sworn an affidavit before Judicial Magistrate wherein she had categorically maintained that on account of intervention of respectables of the area appellant had effected a compromise with accused party whom she had forgiven in the name of Allah Almighty‑‑‑Appellant had also sworn another affidavit before Trial Court wherein she had maintained that she already entered into a compromise with accused persons and that she had no objection to their admission to bail as well as acquittal‑‑‑Order passed by Judge Special Court had clearly stated that appellant was present in person before Court and she had confirmed factum of compromise before Court‑‑‑Presumption of correctness was attached to judicial record and that presumption remained un-rebutted‑‑‑Once a compromise had been effected in a criminal case and same had been acted upon then such a compromise could not be allowed by Court to be resiled from‑‑‑Acquittal order recorded by Trial Court on basis of compromise could not be interfered with in appeal by High Court.

Kumarasami Chetty v. Kuppusami Chetty and others AIR 1919 Mad. 879; Ram Richpal v. Mata Din and another AIR 1925 Lah. 159; Thangtoo Barai and another v. Emperor AIR 1930 All. 409; Mt. Rambai v. Mt. Chandra Kumari Devi AIR 1940 Nag. 181; Godfrey Meeus v. Simon Dular AIR 1950 Nag. 191; Prithvi Bhagat and another v. Birju Sada AIR 1962 Pat. 316; Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another 1995 MLD 563; Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 2 others 1998 SCMR 466 and Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107 ref.

Shahid Hussain Kadri for Appellant.

Ch. Shahid Tabassam for Respondents Nos. 1 to 7.

Ishfaq Ahmad Chaudhry for the State.

Date of hearing: 10th April, 2002.

2002 Y L R 715

[Lahore]

Before Khawaja Muhammad Sharif, J

RAQAB ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.233 of 2001, heard on 9th April, 2002.

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑S.10(3)‑‑‑Appreciation of evidence‑‑‑Mere relationship of a witness with victim was not a criteria to disbelieve his evidence unless he was found inimical towards the accused.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑S.10(3)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(ii)‑‑‑Appreciation of evidence‑‑­Prosecution witnesses though were closely related to victim girl, but mere relationship was not criteria to disbelieve evidence of witnesses unless they were inimical towards accused‑‑‑No previous background of enmity between parties existed and there was not a single suggestion on record showing any feeling of hostility between the parties‑‑‑Accused having been apprehended at the spot, there was no question of false implication‑‑‑Report of Doctor who conducted medical examination of accused showed that accused was potent and was able to commit sexual intercourse‑‑­Contention that accused was not adult and he should have been tried under Juvenile System of Justice Ordinance, 2000, was repelled because accused had failed to produce any School Leaving Certificate or Birth Certificate in proof of his claim and had also failed to file any application for ossification test or medical test as required‑‑‑Accused had been proved to have committed act of Zina‑Bil‑Jabr with an innocent minor girl of 5 years age‑‑­Prosecution having proved its case against accused beyond any shadow of doubt, there was no mitigating circumstance in favour of accused‑‑‑Conviction and sentence recorded against accused by Trial Court were upheld.

Sarwar v. The State PLD 1984 FSC 20 ref.

Naveed Inayat Malik And Ghulam Hassan Khan for Appellant.

Mrs. Siddiqa Altaf Khan for the State.

Date of hearing: 9th April, 2002.

2002 Y L R 719

[Lahore]

Before Khawaja Muhammad Sharif, J

GHULAM MUSTAFA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2713‑B of 2002, decided on 6th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Complainant earlier mentioned six accused persons in F.I.R. who killed his daughter, but in supplementary statement made on same day stated that in fact only the petitioner had committed murder‑‑‑No reliance could be placed on such a person who stated that what he had mentioned in F.I.R. was not correct‑‑­Case being of two versions required further inquiry into guilt of accused brining the same within ambit of S. 497(2), Cr.P.C‑‑‑Bail was granted to accused.

Rana Amjad Ali Shaheen for Petitioner.

Kh. Shaukat Ali for the State.

2002 Y L R 720

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

BASAAM LAEEQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.734, 784, 693 and Murder Reference No.330/T of 1999, heard on 11th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/308/392/449/34‑‑‑Appreciation of evidence‑‑‑Case of prosecution was based an circumstantial evidence‑‑­Prosecution witness who was witness of "Wajtakar" had stated that he alongwith other prosecution witness had seen both accused in car just outside house of complainant on day of occurrence at relevant time‑‑‑Said prosecution witness was friend of complainant and had come to see complainant for some business purpose‑‑­Presence of prosecution witness at spot which had sufficiently been explained, was believable‑‑‑Evidence of "last seen" of deceased in company of accused given by prosecution witnesses who were natural and truthful witness, was confidence‑inspiring‑­Friendship of accused persons with deceased who were of same age group and resident of same locality, had not been denied‑‑‑Presence of accused with deceased at house of complainant, was neither unnatural nor unusual‑‑‑Accused were known to prosecution witnesses being friends of deceased‑‑‑ Complainant and prosecution witnesses had no enmity with accused for their false implication by letting off the real culprits‑‑‑Witnesses stood test of lengthy cross‑examination, but nothing had, been brought on record to discard their testimony‑‑‑Different pleas raised by accused to prove their innocence were not substantiated by them by producing convincing evidence‑‑‑Evidence of "Wajtakar" narrated by prosecution witness and of `last seen' of deceased in company of accused, had been supported by recovery of stolen articles and recovery of pistol‑‑‑Empty recovered .front the spot wedded with pistol recovered from accused and was further corroborated by medical evidence‑‑‑Both accused, in circumstances, had been proved to be real culprits beyond any shadow of doubt and no link was found missing in the chain of prosecution evidence connecting them with commission of crime‑‑‑Conviction recorded against accused by Trial Court, could not be interfered with‑‑‑Was not clear as to who out of two accused had caused fatal injury and in what manner occurrence had taken place‑‑‑Fire shot was not repeated by accused‑‑‑Accused being in their prime youth, maintaining their conviction, sentence of one of accused was altered from death to imprisonment for life and lesser sentence awarded to co‑accused was maintained and plea of complainant for enhancement of sentence was rejected.

2001 SCMR 536 ref.

Sultan Ahmad Khawaja for Appellant.

Nazir Ahmad Ghazi for the Complainant.

Miss Roshan Ara, A.A.‑G. and Ch: Imtiaz Ahmed for the State.

Date of hearing: 11th April, 2002.

2002 Y L R 727

[Lahore]

Before Khawaja Muhammad Sharif, J

HAMAYUN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1193‑B of 2002, decided on 1st March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑­Accused had been found innocent in three successive investigations and his name had been placed in Column No. 2 of report under S.173, Cr. P. C. ‑‑‑No recovery was effected from the accused‑‑‑According to police investigation, accused was present at his house about fifteen minutes before occurrence‑‑‑Case of accused prima facie being of further inquiry within meaning of S. 497(2), Cr. P. C. he was admitted to bail.

1970 SCMR 299 and NLR Cr. C. 704 ref.

Iftikhar Ahmad Malik with Mian Abdul Munim for Petitioner.

Rana Munir Ahmad Khan for the Complainant.

Masood Sadiq Mirza for the State.

2002 Y L R 729(1)

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD IMRAN ASHRAF‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5392‑B of 2000, decided on 22nd January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 498 & 497(2)‑‑‑Penal Code (XLV of 1860), Ss.379/427‑‑‑Interim bail, confirmation of‑‑‑Further inquiry‑‑‑Accused had leased out the factory and at the relevant time when alleged theft of natural gas occurred, factory in question was not with the accused‑‑‑Case against accused being open to further enquiry and confirmation of bail having not been contested by the State, interim bail already granted to accused was confirmed.

Ch. Anwar‑ul‑Haq Pannu Advocate for Petitioner.

M. Aslam Khokhar for the State.

2002 Y L R 733

[Lahore]

Before Zafar Pasha Chaudhary, J

INAYAT MASIH‑‑‑Petitioner

Versus

MAGISTRATE FIRST CLASS GUJRANWALA and others‑‑‑Respondents

Writ Petition No. 16011 of 2001, decided on 10th January, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑­Custody of minor girl‑‑‑Minor was a girl of 16 years of age and she did not intend to join her father, rather she was staying in Darul Aman apparently at the behest of someone who was not entitled to have her custody‑‑­Petitioner being the father and natural guardian of the girl had the right of her custody under the law up to the age of 18 years and the same could not be denied to him‑‑‑If, however, the minor girl was refusing to join her father, then she could be forcibly handed over to him‑‑‑Police official present in the Court was consequently directed to arrest the said girl and hand over to her father‑--Constitutional petition was disposed of accordingly.

Pervaiz Aslam Chaudhry for Petitioner.

Muhammad Aun with Alishiba (Ghulam Fatima) alleged detenue in person.

M. Bilal Khan, Addl. A.‑G.

2002 Y L R 734

[Lahore]

Before Bashir A. Mujahid, J

BABAR MASIH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6432‑B of 2001, decided on 28th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.363/364‑‑‑Bail‑‑-Accused after investigation had been declared innocent by the police in the case‑‑‑Complainant, mother of the abducted child, herself had also exonerated the accused from the commission of the offence‑‑‑Case of the accused thus was of further inquiry‑‑‑Accused was admitted to bail accordingly.

Pervaiz Aslam Chaudhry for Petitioner.

2002 Y L R 735

[Lahore]

Before Muhammad Nawaz Abbasi and Mansoor Ahmad, JJ

RASAB KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 201‑T and Criminal evasion No.93 of 1999, heard on 26th December, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss.377 & 302 (b)‑‑‑Appreciation of evidence‑‑‑Witnesses of extra judicial confession made by accused were neither elated to the complainant nor they had any malice or grudge against the accused and heir evidence was entirely independent and confidence‑inspiring which could safely be relied upon to sustain conviction‑‑‑Evidence of extra judicial confession was also corroborated by medical evidence‑‑‑Accused after having fulfilled his unnatural lust by committing sodomy with two innocent minor boys had killed them brutally‑‑‑No mitigating circumstance was available in favour of the accused‑‑‑Convictions and sentences of accused were upheld in circumstances.

Sheikh Zamir Hussain for Appellant.

Miran Malik for the State.

Malik Ghulam Shabbir for the Complainant.

Date of hearing: 26th December, 2001.

2002 Y L R 740

[Lahore]

Before Muhammad Nawaz Abbasi and Mansoor Ahmad, JJ

NISAR AHMAD and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 185, 186 and Murder Reference No.358 of 1998, heard on 29th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b), 324, 337‑A(iii) & 337‑A(i)‑‑­Appreciation of evidence‑‑‑Eye‑witnesses in the case were entirely independent and truthful‑‑‑Complainant no doubt was real brother of the deceased but he had no enmity or grudge to make a false statement and such relationship was not enough to doubt his testimony‑‑‑Prosecution witnesses had no special interest with the complainant party and were completely disinterested‑‑­Occurrence had taken place in broad day­light and the delay of 4/5 hours in lodging the F,LR. in the given situation was natural‑‑­Misdescription of seat of injury in the given circumstances was possible and it was not a valid ground for disbelieving an independent and a natural witness who had also sustained injury in the occurrence‑‑‑Ocular account of occurrence was corroborated by medical evidence‑‑‑Accused had killed the deceased out of "Ghairat" on the damage caused to their family honour which being a mitigating circumstance in their favour, their sentence of death was, converted to imprisonment for life under S.302(b), P.P.C.‑‑‑Convictions and sentences of other accused were however, maintained.

Muhammad Sarwar v. The State 1999 SCMR 2428 ref.

Ch. Afrasiab Khan and Malik Rab Nawaz Noon for Appellants.

Aftab Ahmad Gujjar for the State.

Qazi Muhammad Ameen for the Complainant.

Date of hearing: 29th November, 2001.

2002 Y L R 748

[Lahore]

Before Karamat Nazir Bhandari and Ijaz Ahmad Chaudhary, JJ

SHARIF KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 19‑J of 1998, heard on the February, 2002.

Control of Narcotic Substances Ordinance (VI of 1995)‑‑‑

-‑‑S.9(c)‑‑‑Appreciation of evidence‑‑Prosecution witnesses had made consistent statements about the time and place of occurrence, recovery of the articles and the tanner in which the same had been effected‑‑‑No material discrepancies or contradictions were found in the said statements‑‑‑Apprehension of the accused on the spot was proved on record which was even admitted by him and he had failed to explain his presence there at the relevant time‑‑‑Huge quantity of "Charas" weighing 4378 K.gs. had been recovered from the truck being driven by the accused‑‑‑None of the prosecution witnesses was either previously known to the accused or had any enmity or grudge to falsely implicate him in the case‑‑­Recovery had been effected in the presence of the Magistrate‑‑‑No prejudice had been caused to the accused by the investigation conducted in the case by a Sub‑Inspector‑‑­Conviction of accused was consequently maintained‑‑‑Accused, however, was a carrier and a first offender and was not previously involved in such type of criminal cases‑‑­Sentence of death awarded to accused by Trial Court was harsh and the same was converted into imprisonment for life with reduction in fine in circumstances.

Malik Saeed Hassan for Appellant.

S.D. Qureshi for the State.

Date of hearing: 6th February, 2002.

2002 Y L R 753

[Lahore]

Before Muhammad Nawaz Abbasi and Mansoor Ahmad, JJ

SAJAWAL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.59, 203, 55 and Criminal Revision No.36 of 1995, heard on 27th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Benefit of doubt‑‑‑No direct evidence was available in the case and the prosecution case rested only on circumstantial evidence‑‑­Silence of the witness of last seen evidence till the recovery of the dead body of the deceased had made his statement highly doubtful‑‑­Extra‑judicial confession made jointly by the accused with other accused before the witnesses was of no evidentiary value‑‑‑Even otherwise extra judicial confession of accused recorded during his detention by the police was not free from doubt‑‑‑Motive part of the prosecution story given in the F.I.R. having not been supported by the complainant at the trial was excluded from consideration'‑‑‑Dead body was not recovered at the instance of accused, nor it was found lying in the land owned or possessed by him‑‑‑Recovery of blood‑stained hatchet and other incriminating articles were of no use to the prosecution in the absence of any other direct or circumstantial evidence against the accused‑‑-Accused was acquitted on benefit of doubt in circumstances.

Sardar Muhammad Ishaq Khan for Appellant.

Ch. Muhammad Iqbal for the Complainant.

Haji Miran Malik for the State.

Date of hearing: 27th November, 2001.

2002 Y L R 760

[Lahore]

Before Zafar Pasha Chaudhary and Mian Muhammad Jehangir, JJ

GHULAM YASIN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 812 of 1996, Revision No.206 and Murder Reference No. 61 of 1997, decided on 6th February, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Identity of accused was not open to any suspicion as the occurrence had taken place in brought day­light‑‑‑Murder had been reported to the police with details without any loss of time‑‑‑Eye­witnesses had made consistent and confidence‑inspiring statements which were fully supported by medical evidence‑‑‑Motive as set up by the prosecution was quite convincing and appeared to be probable‑‑­Accused had acted in a cruel manner by firing shots after shots on his own first paternal cousin after chasing him without showing any mercy or sympathy‑‑‑So‑called heir who was not even on speaking terms with the deceased could not be vested with a right of compounding the offence which had not been exercised or opted by his predecessor‑‑‑Power to grant permission to compound the offence had to be exercised by the Court judiciously ensuring complete justice keeping in view the principles of equity and good conscience‑‑­Compromise said to have been entered into was not valid, just or acceptable and the same was rejected‑‑‑Conviction and sentence of death of accused were confirmed in circumstances.

Sh. Muhammad Aslam and another v. Shaukat Ali alias Shaikha and another 1997 SCMR 1307 and Abdul Haque v. The State and another PLD 1996 SC 1 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 309 & 310‑‑‑Criminal Procedure Code (V of 1898), S.345(2)‑‑‑Compromise, acceptance of‑‑‑Principle‑‑‑Compromise should be accepted if it ensures that it will promote harmony and goodwill between the parties and will also be in consonance with the commands given in Holy Qur'an where act of forgiveness and grant of "Aft" have been treated as commendable acts.

Malik Noor Muhammad Awan for Appellant.

Syed Sohail Abbas for the Complainant.

Abdul Rasheed Monan for the State.

Date of hearing: 7th November, 2001.

2002 Y L R 766

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

SAEED AHMAD KHAN‑‑‑Appellant

Versus

S.H.O.POLICE STATION QILLA GUJAR SINGH, LAHORE and 2 others‑‑‑Respondents

Intra‑Court Appeal No.821 in Writ Petition No.20796 of 1997, heard on 30th January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.420/468/471‑‑‑Law Reforms Ordinance (XII of 1972), S.3‑‑‑Intra‑Court Appeal‑‑­F.I.R. did not disclose any defect in the title of the appellant regarding the vehicle in dispute who himself was its purchaser holding an open letter of transfer‑‑‑No allegation existed to the effect that any document had been forged by the appellant or that he had used as genuine any document which he knew or had reason to believe to be a forged document or he was himself the importer of the vehicle‑‑‑No case, therefore, prima facie was made out against the appellant as mentioned in the impugned F. I. R. ‑‑‑Impugned judgment was consequently set aside and the F.I.R. was quashed ‑‑‑Intra‑Court Appeal was accepted accordingly.

Arif Chaudhary for Appellant.

Nisar Ahmed Dhillon for Respondent No.2.

Nemo for the Remaining Respondents.

Date of hearing: 30th January, 2002

2002 Y L R 768

[Lahore]

Before Maulvi Anwarul Haq and Abdul Shakoor Paracha, JJ

TAZEEM AKHTAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.87, Murder Reference No. 113 of 1995 and Criminal Revision No.71 of 1996 heard on 4th December, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑­Medical evidence had strongly belied the prosecution version‑‑‑Eye‑witnesses did not appear to have seen the occurrence who were present in the hospital where the dead body of the deceased was taken and on the arrival of the police and thereafter noting down the number of injuries on the body of the deceased all the three accused had been implicated attributing specific role to each of them ‑‑‑F.I.R. recorded after preliminary investigation was not admissible in evidence‑­Testimony of eye‑witnesses who had been disbelieved by the Trial Court qua the implication of two co‑accused was to be assessed with extra caution against the accused‑‑‑Relationship of the deceased with the eye‑witnesses, no doubt, was no ground to discard their testimony, but both the eye­witnesses in the case were inimical and interested witnesses having the motive to implicate the accused‑‑‑Deceased had lost his life due to single shot, but according to the prosecution all the three persons had resorted to firing and in such a situation it was highly unsafe to convict the accused merely because he was stated to be the main culprit to whom the injury was attributed‑‑‑Recovery of the rifle from the house of the accused was of no help to the prosecution as the same had not been witnessed by any independent witness from the locality and the recovery memo. had been signed by the real brother of the deceased‑‑‑Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

Niaz v. The State PLD 1960 SC 387; Nazir and others v. The State PLD 1962 SC 269; Muhammad Sharif v. Javed alias Jeda Tedi and 5 others PLD 1976 SC 452; Muhammad Sharif v. Zulfiqar and 4 others PLD 1991 SC 1090; Saindad and 2 others v. The State 1972 SCMR 74; Fire‑arm and Forensic/Ballistic by Major Sir Gerald Burrad; Anwar v. The State 1975 PCr.LJ 750; Muhammad Hanif v. The State PLD 1977 Lah. 1253; Muhammad Ali v. The State 1985 SCMR 203; Abdul Rashid and others v. Abdul Ghaffar and others 2001 PCr.LJ 524; Duram Bibi v. Jehanzaib and others PLD 2001 Quetta 103; Tawaib Khan's case PLD 1970 SC 13; PLD 1959 PC 24; Allah Bakhsh and another v. The State PLD 1978 SC 171; Ghulam Abbas and others v. The State 2001 PCr.LJ 1672; Muhammad Luqman v. The State PLD 1970 SC 10; Sikandar v. The State PLD 1963 SC 17; Bashir Ahmad and another v. The State 1974 PCr.LJ 385; Farzand Ali v. The State 2001 PCr.LJ 1601 and Khan Akbar v. Mohib Gul and another 2001 PCr.LJ 1617 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑F.I.R.---­F.I.R. recorded after preliminary investigation is not admissible in evidence and no reliance can be placed on the same.

Anwar v. The State 1975 PCr.LJ 750 and Muhammad Hanif v. The State PLD 1977 Lah 1253 ref.

(c) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Sifting of grain from the chaff‑‑‑Where it is unsafe to sift the grain from the chaff and the testimony of the witness does not inspire‑confidence, recording of conviction would be unsafe by singling out, one of the accused persons as real culprit merely on the ground that he was allegedly attributed the fatal injury.

Abdul Rashid and others v. Abdul Ghaffar and others 2001 P. Cr. LJ 524; Tawaib Khan's case PLD 1970 SC 13 and PLD 1959 PC 24 ref.

Tariq Azam Chaudhry for Appellant.

Raja Muhammad Anwar and Raja Shafqat Khan Abbasi for the Complainant.

Dates of hearing: 29th November and 4th December, 2001.

2002 Y L R 777

[Lahore]

Before Tanvir Bashir Ansari, J

MAQSOOD AHMAD‑‑‑Petitioner

Versus

A. C. and others‑‑‑Respondents

Writ Petitions Nos. 1324‑Q, 1307‑Q, 1325‑Q and 1535‑Q of 2000, decided on 31st January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.420, 467, 468, 471, 409 & 406‑‑­Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petitions‑‑‑Quashing of F.I.Rs.‑‑‑Accused had already been dismissed from service on the ground of misconduct, inefficiency and corruption by the Competent Authority after holding disciplinary proceedings as far back as 12‑6‑1997‑‑­Allegations made against the accused related to the period much after his dismissal and included the forging of the signatures of the complainant even after their retirement‑‑­Contention that investigation into allegation of scheduled offences ought to have been conducted by the Punjab Anti‑Corruption Establishment had no force as such procedure was relevant only in respect of public servants who were in service when the case was lodged against them‑‑‑Investigation in all the cases against the accused had been completed and the Challans had also been submitted in the Court of competent jurisdiction‑‑‑No case was made out for quashing of criminal cases registered against the accused‑‑­Constitutional petitions were dismissed accordingly.

Muhammad Sharif v. S.H.O., P.S. City Hafizabad and another PLD 1997 Lah. 692 and Riaz Ahmad Tahir v. The State and others PLJ 1996 Cr.C. (Lahore) 80 ref.

Shamshair Iqbal Chughtai for Petitioner.

Mian Muhammad Bashir, A.A.‑G. for the State.

2002 Y L R 780

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

MUHAMMAD FAROOQ and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 23, 364, 384 and Murder Reference No.49‑T of 2000, heard on 23rd January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b)/34, 364‑A & 201‑‑‑Anti­-Terrorism Act (XXVII of 1997), S.7‑‑­Criminal Procedure Code (V of 1898), Ss. 164 & 103‑‑‑Appreciation of evidence‑‑­Conduct of the witnesses of extra judicial confession of accused was unnatural and the evidence of such confession was even a weak type of evidence‑‑‑Evidence of last seen being not believable was of no avail to the prosecution‑‑‑Despite admitted availability of many people of the locality no independent witness was associated with the recovery proceedings in clear violation of the mandatory provisions of S.103, Cr. P. C.‑‑­Motive set up by the complainant in his supplementary statement having not been corroborated by any independent source, was not proved and had been introduced by the police in order to fill the lacuna in the prosecution case which even otherwise was full of doubts‑‑‑Benefit of doubt was consequently extended to the accused and they were acquitted accordingly.

Dr. Abdul Basit with Muhammad Hanif Saleem for Appellants.

Aslam Khokhar for the State.

Zafar Iqbal Chauhan for the Complainant.

Date of hearing: 23rd January, 2002.

2002 Y L R 786

[Lahore]

Before Muhammad Farrukh Mahmud, J

IMTIAZ AHMAD and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.366 of 2001, heard on 6th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 460‑‑‑Criminal Procedure Code (V of 1898) Ss. 164 & 103‑‑­Appreciation of evidence‑‑‑No direct evidence was available against the accused ‑‑‑Extra­ judicial confession allegedly made by accused was not only joint but also unconvincing and unnatural‑‑‑Prosecution witnesses of the said confession had .made major improvements during their examination and contradicted each other on material particulars‑‑‑Medical evidence did not support the prosecution version‑‑‑Recoveries effected from the accused did not connect them with the commission of the offence‑‑‑Violation of the provision of S.103, Cr.P.C. making the recoveries was not explained‑‑‑Accused were acquitted in circumstances.

Muhammad Irfan Aryne for Appellants.

Sh. Muhammad Rahim for the State.

Date of hearing: 6th February, 2002.

2002 Y L R 789

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

WASIM MUNIR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.441/T, 439, 476 and Criminal Miscellaneous No.83‑Q of 2000, heard on 4th July, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (b) & 449‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑A‑‑‑Appreciation of evidence‑‑‑Motive of sectarion hatred behind the murder of the deceased was proved ‑‑‑Eye­ witnesses had no grudge and personal malice against the accused for his false implication in the case‑‑‑Accused had been correctly identified in the rightly held identification parade by the witnesses who had also identified him in the Court‑‑‑Registration number of the motorcycle used in the occurrence had been mentioned in the F. I. R. and the same had been recovered at the instance of accused‑‑‑Ocular account of occurrence was strongly corroborated by the medical evidence, identification of accused in Jail and in the Court, disclosure of his name in the extra judicial confession made by his companions, recovery of the motorcycle from him and the crime empties from the spot‑‑­Murder being a sectrian one, the offence fell within the ambit of terrorism--‑No mitigating circumstance was available in favour of accused‑‑‑ Convictions and sentences of accused were upheld in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.201‑‑‑Appreciation of evidence‑‑­Nothing incriminating was available on record against the accused to show that he had destroyed the evidence of murder committed by his co‑accused‑‑‑No evidence was brought on record to suggest that either it was in the knowledge of the accused that the motorcycle recovered from his house had been used in the occurrence or that he being a companion of the main accused had intentionally kept the said motorcycle in his house with a view to destroy the evidence of murder‑‑‑Accused admittedly was living with other family members in the same house and the motorcycle could not be deemed to be in his exclusive possession‑‑‑Disclosure of the main accused that he had kept the motorcycle with the accused was not admissible in evidence to be used as an incriminating material against him to establish the charge under S. 201, P. P. C. ‑‑Accused was acquitted on benefit of doubt in circumstances.

Malik Rab Nawaz Noon for Appellants.

Raja Saeed Akram assisted by M. Ayub Kiani for the State.

Syed Zulfiqar Abbas Naqvi for the Complainant.

Date of hearing: 4th July, 2001.

2002 Y L R 804

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

Maulana NAWAB‑UL‑HASSAN and 7 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.385‑T, 396‑T and Criminal Revision No. 136‑T of 2000, heard on 12th September, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/149, 324/149 & 148‑‑‑Anti­Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑Material facts relating to the time and place of occurrence, use of fire‑arm and the presence of injured eye‑witnesses at the spot were not challenged by the defence‑‑‑Eye‑witnesses had consistently supported the prosecution story given in the F.I.R.‑‑‑Presence of eye­witnesses at the place of occurrence at the relevant time and their sustaining injuries in the occurrence had been established‑‑­Accused being revengeful had the motive for the attack‑‑‑Role played by each accused in the incident had been described by the eye­witnesses in detail who had identified the accused‑‑‑Alleged use of kalashnikov and 7 MM Rifle as weapons of offence in the occurrence by the accused had been supported by the recovery of the crime empties of the fire‑arms from the spot‑‑­Promptness in lodging the F.I.R. with the names of the accused and the role played by each of them had ruled out the possibility of false implication and substitution‑‑‑Evidence produced by the accused in support of defence pleas was not of the standard to disbelieve or dislodge the prosecution evidence from consideration or even to create a dent in the prosecution case to a reasonable extent to extend the benefit of doubt‑‑‑Plea of alibi raised on behalf of the accused and introduction of the counter‑version were without any substance‑‑‑Findings of guilt arrived at by the Trial Court could not be disturbed on the basis of some minor discrepancies and contradictions pointed out on behalf of accused‑‑‑No mitigating circumstance was available in favour of accused‑‑‑Convictions and sentences of accused were upheld in circumstances, except the conviction and sentence under S.7 of the Anti‑Terrorism Act, 1997, which were set aside as the murder was not a sectarian one‑‑‑Sentence of accused under Ss.324/149, P.P.C. was also reduced.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence ‑‑‑Corroboration‑­-‑Corroboration may exist of direct or circumstantial evidence and it need not amount to the corroboration of the statement of a witness in full, rather the corroboration only to the extent of material point is sufficient and the degree of corroboration always rests with the discretion of the Court which may vary in the facts and circumstances of each case.

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

‑‑‑‑S.156‑‑‑‑Criminal trial‑‑-Investigation‑‑­Use of police diaries‑‑‑Police opinion‑‑‑Police opinion can legitimately be used to assist the Court in doing complete justice but cannot be used as evidence to prove a material fact, therefore, it is not proper and legal to use the police diary as evidence to establish the defence plea‑‑‑Accused is not entitled to use Zimnis and police diaries in support of his version and it would be uncalled for to make reference to police diaries in the judgment.

(d) Criminal trial ‑‑‑

‑‑‑‑Plea of alibi‑‑‑Burden of proof ‑‑‑Burden of proving the special plea of alibi must be discharged by the person raising such plea satisfactorily through unimpeachable evidence‑‑‑Unless reasonable possibility of the presence of the accused at a place other than the place of occurrence exists, the plea of alibi would remain unproved‑‑‑Setting up a false plea of alibi does not lead to an inference of guilt, but at the same time it can be a confirmatory circumstance to prove the guilt.

Ch. Zamarrud Hussain –for Appellants.

Raja Saeed Akram Khan, A.A.‑G. for the State.

Sardar Muhammad Ishaq Khan for the Complainant.

Date of hearing: 12th September, 2001.

2002 Y L R 832

[Lahore]

Before Muhammad Nawaz Abbasi and Mansoor Ahmad, JJ

MUHAMMAD YAQOOB and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.355/T of 2000, heard on 10th December, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 324/34 & 337‑A(i)‑‑‑Anti­-Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑Accused being revengeful were motivated to commit the crime‑‑‑No material discrepancy and contradiction fatal to the prosecution case had been brought on record by the defence‑‑­Independent injured eye‑witness had fully supported the prosecution case against the accused and corroborated the complainant on each material point and proved that he and the deceased had sustained injuries at the hands of the accused‑‑‑Notwithstanding the defect in the recovery of the weapons of offence and the delivery of crime empties in the office of forensic science laboratory or the conflict of the ocular account vis‑a‑vis the distance of the deceased from the accused given in the medical evidence, the charge against the accused still stood proved on the basis of ocular testimony alone‑‑‑Accused while acting desperately opened indiscriminate fixing in the "bazar" as a result of which three persons lost their lives and one person received injuries and terror was created in the area‑‑‑Convictions and sentences of accused were .upheld in circumstances‑‑‑Mere act of driving the vehicle by the co‑accused from which the accused had fired on the deceased and escaped from the place of occurrence, however, was not enough to hold that he had also shared common intention to commit the crime ‑‑‑Co‑accused, therefore; was acquitted on benefit of doubt‑‑‑Since it was not known that who was individually responsible for causing specific injury to which deceased as all the three accused had been assigned the collective role of firing, therefore, the police opinion regarding innocence of accused during investigation in such circumstances was not without weight and the possibility of the said accused being innocent could not be ruled out‑‑‑Benefit of doubt on such opinion of police was extended to the said accused and he was also acquitted accordingly.

(b) Criminal trial‑‑‑

‑‑‑‑Appreciation of evidence‑‑‑Corroboration‑‑‑­Purpose of seeking independent corroboration is to exclude any possibility of doubt for safe administration of justice and if the direct evidence is confidence‑inspiring, truthful and independent, the same would alone be sufficient to establish the charge even without any corroboration.

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

‑‑‑S.510‑‑‑Ballistic Expert's Report‑‑­Admissibility‑‑‑Report of the Ballistic Expert of the Forensic Science Laboratory is admissible in evidence in toto and not only the opinion of the Expert in part or with exclusion of its particulars contained in the report without examining the persons who prepared the report.

Aitzaz Ahsan, Ch. Zamurrad Hussain and Ch. Shaukat Warraich for Appellants.

Aftab Ahmad Gujjar for the State.

Ch. Muhammad Iqbal and Muhammad Abid Raja for the Complainant.

Date of hearing: 10th December, 2001.

2002 Y L R 846

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

HAQ NAWAZ‑‑‑Appellant

Versus

MUHAMMAD JAMIL and others‑‑‑Respondents

Criminal Appeal No. 251 of 1997, heard on 12th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Ocular testimony was in clear conflict with medical evidence‑‑‑Accused had been found innocent by the Deputy Superintendent of Police during investigation‑‑‑Gun recovered from the accused was not sent to the Forensic Science Laboratory as no crime empty had been secured from the spot‑‑‑No independent witness had supported the prosecution story‑‑­Appraisal of evidence by the Trial Court did not suffer from any perversity and the same was in accordance with the norms and the standard laid down by the superior Courts‑‑­Appeal against acquittal of accused was dismissed in circumstances.

Rab Nawaz Khan Niazi for Appellant. .

Rai Tariq Saleem for Respondents.

S.D Qureshi for the State.

Date of hearing: 12th March, 2002.

2002 Y L R 848

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD IQBAL ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 748 and Murder Reference No.266 of 1997, heard on 20th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Occurrence had taken place in dark hours of the night‑‑‑Torches in the light of which the accused was seen were not taken into possession by the Investigating Officer who admittedly had not verified the source of light at the place of occurrence‑‑‑Eye‑witness could not possibly see as to who had fired the single shot which had hit the deceased‑‑‑Neither any crime empty was taken into possession from the place of incident, nor any weapon of offence was recovered front the accused ‑‑‑Co-accused had been acquitted by the Trial Court on benefit of doubt‑‑‑Eye‑witnesses being interested and inimical, could not be relied upon in the absence of independent corroboration‑‑‑Medical evidence was not in line with the ocular testimony‑‑‑Motive being a double‑edged weapon could be used for false implication‑‑‑Benefit of doubt was extended to the accused in circumstances and he was acquitted accordingly.

Ch. Muhammad Sharif Sahi for Appellant.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 20th March, 2002.

2002 Y L R 852

[Lahore]

Before Asif Saeed Khan Khosa, J

ALLAH DITTA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6301‑B of 2001, decided on 22nd November, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑-‑Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), Ss. 10/11‑‑­Penal Code (XLV of 1860), S.380‑‑‑Bail‑‑­F.I.R. had been lodged with a delay of 17 days‑‑‑Past and present conduct of the abductee had, prima facie, negated the element of forcible abduction as alleged by the prosecution‑‑‑Applicability of the provisions of S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, to the facts alleged in the case, thus, appeared to be doubtful‑‑‑Section 380, P. P. C. had already been deleted from the F.I.R.‑‑‑No independent evidence was in possession of prosecution regarding commission of Zina or Zina‑bil‑Jabr by the accused with the abductee who was never medically examined to support such allegation‑‑‑Accused had based his defence of valid Nikah with the abductee on a registered Nikah Nama‑‑­Continued physical custody of the accused in Jail was not likely to serve any beneficial purpose when the investigation had already been completed‑‑‑Bail could not be withheld by way of premature punishment‑‑‑Case against accused called for further inquiry into his guilt within the purview of S.497(2), Cr. P. C. ‑‑‑Accused was admitted to bail accordingly.

Riaz Hussain Khan for Petitioner.

Khalid Mehmood Farooqi for the State.

Muhammad Iqbal Cheema for the Complainant.

2002 Y L R 853

[Lahore]

Before Tassaduq Hussain Jillani and Asif Saeed Khan Khosa, JJ

MUHAMMAD AKRAM and 4 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 224‑T and Criminal Revision No. 113 of 1999, heard on 12th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149 & 148‑‑‑Appreciation of evidence‑‑‑Murder of the deceased had remained unwitnessed and no ocular account of the incident was available in the case‑‑­Motive alleged in the F. I. R. was not proved‑‑­Judicial confession made by one accused was not only exculpatory in nature, but the same had contradicted the extra judicial confession made by him‑‑‑Extra judicial confessions of other accused had been retracted by them which having been made before the witnesses related to complainant party, could not be safely relied upon‑‑‑Prosecution had failed to fix the exact time of death of the deceased and a long gap of time between the last sighting of the deceased with the accused and recovery of his dead body could not meet the test and requirement of proximity in such case and, thus, could not satisfactorily be considered as last‑seen evidence‑‑‑Recovery of the rifle from accused and the crime empties on the same day by the Investigating Officer and then sending the same to the Forensic Science Laboratory together had denuded positive report of its evidentiary value‑‑‑Safe custody of the other recovered rifle and the crime empties while being sent to the Forensic Science Laboratory, was not established during the transit‑‑‑Provisions of S.103, Cr.P.C. were flagrantly violated in effecting the recoveries‑‑‑Blood‑stained hatchet was not recovered from the exclusive custody of the, accused‑‑‑Accused were acquitted in circumstances.

Faqir Ullah v. Khalil‑uz‑Zaman and others 1999 SCMR 2203 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149 & 148‑‑‑Appreciation of evidence‑‑‑Extra judicial confession ‑‑‑Extra­judicial confession is a very weak type of evidence and in the absence of any strong and independent corroboration the same cannot ordinarily suffice to record or maintain a conviction on a capital charge.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149 & 148‑‑‑Appreciation of evidence‑‑‑Last‑seen evidence‑‑‑Unless the last sighting of the deceased with art accused person has a close proximity with the death of the deceased so as to rule out any possibility of the deceased‑having come in contact with anybody else during the intervening periods such a last sighting cannot be considered as sufficient proof against such an accused person giving rise to an inference of his guilt.

Raja Muhammad Anwar Mrs. Mehreen Anwar Raja for Appellants.

Mian Abdul Qayyum for the State.

Hussain Aziz Bhatti for the Complainant.

Date of hearing: 12th March, 2002.

2002 Y L R 860

[Lahore]

Before Ijaz Ahmad Chaudhary, J

NAZIK HUSSAIN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3970‑B of 2001 decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.354/506‑‑‑Pre‑arrest bail‑‑‑Ingredients of S. 354, P. P. C. were not fully made out from a bare perusal of the F.I.R.‑‑‑Nothing was to be recovered from the accused‑‑­Previous enmity and litigation between the parties was admitted‑‑‑Case appeared to have been filed by the complainant with mala fide intention for false involvement of accused who was likely to suffer an irreparable loss to his reputation if bail was refused to him and he was ultimately acquitted by the Trial Court from the charges‑‑‑Interim pre‑arrest bail allowed to accused was confirmed in circumstances.

Riaz Hussain Khan for Petitioner.

Malik Muhammad Jamil for the Complainant.

Mian Muhammad Bashir for the State.

2002 Y L R 863

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

YOUSAF alias JARA MASIH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.601, and Murder Reference No.306 of 1997, heard on 19th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Accused were nominated in the promptly recorded F.I.R. with specific role of causing four injuries to the deceased and seven injuries to the prosecution witness‑‑­Presence of eye‑witnesses on the spot was natural and their testimony inspired confidence‑‑‑Ocular account was fully corroborated by medical evidence‑‑­Conviction of accused was upheld in circumstances‑‑‑Fatal injury had not been specifically attributed to any of the accused‑‑‑Motive for the occurrence alleged in the F.I.R. was not proved and the complainant had changed his stance at the trial which could be taken as a mitigating circumstance for awarding lesser sentence‑‑‑Sentence of death of accused was altered to imprisonment for life each in the safer administration of justice‑‑­Appeal was disposed of accordingly.

2001 SCMR 387 and Feroze Khan The State 2002 SCMR 99 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Change of motive by the complainant by jumping from one to another may be taken as a mitigating circumstance for awarding lesser sentence.

Feroze Khan v The State 2002 SCMR 99 ref.

C.M. Sarwar for Appellant.

Abdul Samee Khan for Complainant.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 19th March, 2002.

2002 Y L R 868

[Lahore]

Before Abdul Shakoor Paracha, J

Mst. MANZOOR BEGUM‑‑‑Petitioner

Versus

S.H.O, POLICE STATION CITY, BAHAWALNAGAR and another‑‑‑Respondents

Writ Petition No. 3586 of 2001/BWP, decided on 31st July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.523‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑ Custody of vehicle on Superdari‑‑‑Police had taken the vehicle in question into possession under S.550, Cr. P. C. and the Magistrate had passed an order for handing over the temporary custody of the same on Superdari to the petitioner subject to her furnishing surety bond in the sum of Rs. one million, which she had submitted but even then the vehicle was not handed over to her‑‑‑Nobody except the petitioner was claiming ownership of the vehicle who had produced the registration documents on the basis of which she might be considered its owner and entitled to its possession‑‑‑Entitlement to possession could not be equated with ownership and order of interim nature could be passed in favour of the petitioner and subsequently if the vehicle was found to be relatable to same offence, then the order of grant of Superdari could be reversed‑‑‑Intention of law to hand over the vehicle on Superdari through interim order was to preserve the same and to save it from deterioration,‑‑Petitioner who was claiming to be lawful owner of the vehicle on the basis of having purchased it and transfer of its registration in her name could not be deprived of its custody‑‑‑Respondents were consequently directed to hand over the said vehicle to the petitioner subject to the compliance of the order of the Magistrate‑‑­Constitutional petition was allowed accordingly.

Government of N.‑W.F.P v. Dr. S. Haider Bukhari and others PLD 1991 SC 604; 1997 PLR 537 and C.M. Safdar v. The State 1968 PCr.LJ 936 ref.

Ch. Muhammad Afzal Cheema for Petitioner.

2002 Y L R 870

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD ARSHAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.80‑J and Murder Reference No.2‑T of 2001, heard on 30th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 449‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in broad day light‑‑‑Case was of single accused who had been specifically nominated in the promptly lodged F.I.R. containing all the necessary details of the incident and the role played by him‑‑‑Ocular testimony was consistent and inspired complete confidence which was amply corroborated by medical evidence, motive and evidence of recovery‑‑­Accused had admitted to have caused fatal fire‑arm injuries to all the four deceased in the case, but the stand taken, by him regarding his acting under the impulse of grave and sudden provocation was found to be completely untenable‑‑‑Accused had killed his own mother, sister and two brothers in cold blood and he deserved no less than the death sentence‑‑‑Convictions and sentences of accused were upheld in circumstances.

Miss Nausheen Taskin for Appellant (at State expenses).

Ishfaq Ahmad Chaudhry for the State.

Date of hearing: 30th April, 2002.

2002 Y L R 875

[Lahore]

Before M. Javed Buttar and Muhammad Sair Ali, JJ

MUHAMMAD RASHID and three 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.222‑T of 2000, heard on 20th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss.302(b) & 382‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Chain of all the events leading to the theft and the murder of the deceased were properly linked with each other‑‑‑Recovery of large quantity of ornaments, cash, foreign currency, electronic articles duly identified by the complainant and his family members, had directly connected the accused with the commission of the offences of theft as well as murder of the deceased‑‑‑Prosecution witnesses had no motive for false implication of accused‑‑‑Prosecution evidence was consistent, sound and credit worthy and nothing in favour of accused was gained in cross‑examination‑‑‑Accused had murdered the deceased lady, by use of force, by tying her limbs with rope, gagging her mouth with scotch, tape and strangulating her with a rope‑‑‑Trial of accused by the Anti‑Terrorism Court was not vitiated merely because they were not charged under the provisions of Anti-­Terrorism Act, 1997 or convicted under the same‑‑‑Accused had failed to show that absence of their signatures on their statements recorded under S.342, Cr. P. C. or the absence of certificate of the trial Judge in his own handwriting had caused any prejudice or injustice to them and such omissions, therefore, were not fatal to the prosecution case‑‑‑Convictions of accused were upheld in circumstances‑‑­Prosecution, however, had not pointed out that who amongst the accused had caused the actual killing and sentencing all the accused to death for the Qalt‑e‑Amd of the deceased was unwarranted‑‑‑Sentence of death awarded to all the accused was altered to imprisonment for life accordingly‑‑‑Rest of the sentences, fines and the amount of compensation as recorded by the Trial Court were maintained.

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

‑‑‑‑Preamble‑‑‑Penal Code (XLV of 1860), Ss.302(b) & 382‑‑‑Trial by the Judge, Special Court, Anti‑Terrorism, is not vitiated merely because the accused were not charged or convicted under the provisions of Anti‑Terrorism Act, 1997.

Wahid Bakhsh Rana v. The State 1989 PCr.LJ 1591; Allah Ditta alias Gana v. The State 1997 PCr.LJ 533; Gulan Jehan v. The State 1998 MLD 288; Shaikh Zahid Bashir v. Sarkarand another 1995 P.Cr.LJ 877; Muhammad Khan v. The State 1995 PCr.LJ 1676; Ashraf Mian v. The State 1990 PCr.LJ 1079; Sikandar v. The State 1990 PCr.LJ 396 Liaqat Ali v. The State 2002 PCr.LJ 230 and ref.

Syed Zia Hussain Shah for Appellants.

M. Bilal, Babar Bilal and Raja Ghazanfar Ali Khan for the Complainant.

Mirza Farooq Anwar Asad for the State.

Date of hearing: 20th March, 2002.

2002 Y L R 885

[Lahore]

Before Muhammad Akhtar Shabbir, J

AZIZ‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Writ Petition No.4479 of 2001/BWP, decided on 29th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑­Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑-‑Grant of remissions to the accused‑‑‑Accused had been convicted under S. 302, P. P. C. and sentenced to imprisonment for life for the charge of murder and he according to para. 1 of the Letter dated 11‑8‑2001 of the Government was not granted remission‑‑­Validity‑‑‑Accused was neither charged nor convicted for committing Zina or rape with any woman and had been convicted under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; which envisaged only kidnapping, abducting or inducing a woman to compel her for marriage etc.‑‑­Since the accused had not been punished for committing Zina or rape, the Government letter dated 11‑8‑2001 was not applicable to his case and he was entitled to the remission of one year in his sentence and for other remissions granted from time to time‑‑‑Superintendent of the Jail concerned was consequently directed to award said remission to the accused‑‑­Constitutional petition was accepted to said extent accordingly.

Writ Petition No. 1553 of 2001.

Mahmood Ahmad Bhatti for Petitioner.

2002 Y L R 888

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

MUHAMMAD MALOOK‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.52‑J of 2000 and Murder Reference No. 212‑T of 1998, heard on 27th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/337‑A(i)‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in broad daylight and F.I.R. was lodged promptly‑‑‑Accused was real nephew of deceased and complainant party had no previous enmity for false implication or substitution of accused‑‑‑Mere relationship of witnesses with deceased was no ground to discard their testimony‑‑‑Presence of prosecution witnesses at spot had been established‑‑‑Ocular account had been fully corroborated by medical evidence as well as by recovery of weapons of offence with which empties taken into possession tallied as per report of Forensic Science Laboratory‑‑­Prosecution having established its case against accused beyond any shadow of doubt, conviction and sentence awarded by Trial Court could not be interfered with‑‑‑Accused having killed deceased in a brutal manner, there were no mitigating circumstances for awarding him lesser penalty.

Tehseen Irfan for Appellant.

Sadaqat Mehmood Butt for the State.

Date of hearing: 27th September, 2001.

2002 Y L R 893

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

THE STATE‑‑‑Appellant

Versus

MUHAMMAD YOUNAS and 3 others‑‑‑Respondents

Criminal Appeal No.1144 of 1991, heard on 7th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.417‑‑‑Penal Code (XLV of 1860), Ss. 302/325/452/34‑‑‑Appeal against acquittal‑‑‑Prosecution having failed to prove motive, Trial Court had rightly discarded motive part of evidence‑‑‑Investigating Officer had stated that two of the accused persons were neither present at the spot at the time of occurrence nor they had participated in the occurrence and plea of those two accused with regard to their being innocent was proved by witnesses whose credibility could not be doubted‑‑‑Witnesses were truthful and had no grudge or grouse against complainant side‑‑‑Plea of alibi raised by accused was satisfactory‑‑‑Two fire‑arm injuries on person of deceased were attributed to two accused persons and doctor had stated that all injuries sustained by deceased could be caused by discharge of a single shot‑‑‑Occurrence having taken place during night‑‑ Investigating Officer had admitted in cross-examination that prosecution witnesses did not point out or show him any bulb inside the room‑‑‑Major flaw existed in prosecution case as injured eye‑witness was never produced by prosecution‑‑‑No recovery could be effected by police from the accused‑‑‑Two empties were collected from place of occurrence, whereas prosecution witness had admitted in cross‑examination that only one fire was shot inside the room and gun was not reloaded by accused‑‑‑Defence version appeared to be nearer to truth that complainant party came to take possession of plot forcibly and deceased was fired at by some one—Incident was night time occurrence and identity of assailant was also doubtful‑‑‑No major defect or flaw was discovered in the judgment of Trial Court which could be considered as sufficient ground for conversion of acquittal into conviction.

A.H. Masood for the State.

M.A. Zafar for Respondents.

Date of hearing 7th March, 2002.

2002 Y L R 899

[Lahore]

Before Ijaz Ahmad Chaudhary, J

SAMINA SHAFI‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.7460‑CB of 2002, decided on 14th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(S)‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.8‑‑‑Bail, cancellation of‑‑­Compromise was effected between complainant and accused and complainant had sworn affidavit in favour of accused‑‑­Bail, in circumstances, was granted to accused not only on the basis of said affidavit, but statement of complainant was also recorded which was signed by her‑‑‑Bail was granted to accused on other grounds as well including delay in lodging F.I.R. and pendency of civil litigation between the parties‑‑‑Delay of two years in lodging F I. R. was not explained by complainant‑‑­Accused was not involved in a case falling within prohibitory clause‑‑‑Maximum sentence for which accused could be punished, was not more than 7 years‑‑‑Grant of bail in such‑like cases was a rule and refusal was an exception‑‑‑Bail could not be cancelled merely on the assertion that accused was misusing concession of bail, unless sufficient material/evidence regarding its alleged misuse was available duly supported by documentary evidence‑‑‑No documentary evidence had been produced to show that accused was, really misusing concession of bail after release from jail‑‑‑No damage had been caused to complainant by accused during period of about 1½ years after grant of bail‑‑‑Oral assertions of complainant, were not sufficient to hold that accused was misusing concession of bail‑‑‑Trial was not likely to be concluded in near future and accused could not be sent to jail unless solid reason was provided by complainant‑‑­Petition for cancellation of bail having no merits, was dismissed.

1991 SCMR 1849, 1987 PCr.LJ 1943 and 1976 PCr.LJ 94 ref.

Syed Kazim Bukhari for Petitioner.

M.A. Zafar and M. Pervaiz Iqbal for Respondent No.2.

Ms. Siddiqua Altaf for the State.

2002 Y L R 901

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUHAMMAD ASGHAR ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.850 and Criminal Revision No.507 of 2000, decided on 12th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.311‑‑‑Appreciation of evidence‑‑­Statement of complainant with regard to nature of injury on person of deceased, was fully contradicted by medical evidence‑‑­Patent inconsistency appearing between ocular account and medical evidence had rendered testimony of complainant incredible‑‑‑Date of occurrence was mentioned in Column No.3 of the inquest report but time of occurrence was not mentioned and in Column No.12 of inquest report, name and kind of weapon was not shown‑‑‑Inquest report did not show that crime empty was lying available tit the spot‑‑­Investigating Officer was bound to record all articles/things, which were lying near the dead body‑‑Only one empty was secured by police on the day of occurrence from the spot, whereas it was in evidence that many shots were fired by accused while fleeing away from the spot‑‑‑Complainant had effected deliberate dishonest improvement in his previous statement with which he was confronted by defence counsel‑‑‑Both witnesses whose presence at the spot had not been proved, did not sign inquest report as eye‑witnesses which was a most important document‑‑­Complainant and prosecution witnesses had made serious improvements with regard to motive‑‑‑Wavering motives were not to be believed so lightly‑‑‑No independent, disinterested witness was associated in recovery proceedings to demonstrate that those were not shown' proceedings‑‑‑Evidence regarding recovery of rifle and empties, was disbelieved, F.I.R. was a fabricated piece of document prepared much later after building up story in present form‑‑‑Story of F.I.R. was neither true nor legitimate‑‑‑Name of one prosecution witness did not figure in F.I.R. whereas two other witnesses did not support prosecution version‑‑‑Ocular account was not in consonance with medical evidence‑‑‑Recovery of rifle and empties smacked of padding and was not worthy of credence‑‑­Prosecution having failed to bring home guilt to accused, conviction and sentence passed against accused by Trial Court, were quashed and accused were directed to be released from custody.

M. A. Zafar for Appellant.

A.H. Masood for the State.

Mian Abdul Qaddus for the Complainant.

Date of hearing: 5th April, 2002.

2002 Y L R 907

[Lahore]

Before Bashir A Mujahid, J

REHMAT KHAN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 6033/B of 2001, decided on 28th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Allegation against accused was that four days prior to the alleged occurrence there was some quarrel between complainant and daughter of accused‑‑‑Only statements of daughter of complainant and her husband had been recorded and no other material had been collected to connect accused with murder of the deceased‑‑‑Accused were behind bars 'since their arrest and though challan had been submitted in Court there was no likelihood of early commencement or conclusion of trial‑‑‑Case of accused being of further probe and inquiry, accused were admitted to bail.

A.D. Nasim for Petitioner.

Masood ul Hassan for the State.

2002 Y L R 908

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD UMAR‑‑‑Appellant

Versus

IHSAN alias QADRI and others ‑‑‑Respondents

Criminal Appeal No. 1332 of 2000, heard on 30th November, 2001.

(a) Criminal trial‑‑‑

‑‑‑‑ Interested witness‑‑‑Connotation‑‑‑Such witness should not only be related to complainant or deceased, but should also be inimical towards accused.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.324/337‑D‑‑‑Appreciation of evidence‑­‑Ocular account was fully corroborated by medical evidence‑‑‑Crime weapon recovered from accused was in working condition according to report of Fire‑arm Expert‑‑­Complainant sustained two injuries, if he wanted to falsely implicate another person alongwith accused, then he could do so as there was scope in this regard‑‑‑Complainant (injured prosecution witness) had no previous enmity with accused nor any suggestion to that effect had been made by defence during trial‑‑‑Accused was one and injured prosecution witness was also one, thus, there was no question of substitution or false implication of accused‑‑‑Medical evidence showed that such injuries could be caused by 7 MM rifle, but crime weapon had not been specified in complaint, wherein the word used was‑‑‑No adverse presumption could be drawn against prosecution for giving up an eye‑witness as unnecessary and two other witnesses, as having been won over‑‑­Statements of prosecution witnesses recorded under S. 164, Cr. P. C., exonerating the accused were not part of the judicial record as the same were neither tendered/produced before Trial Court nor Magistrate, who had recorded the same, was produced nor those witnesses were produced by accused as defence witnesses‑‑‑Complainant and other prosecution witnesses being inter se brothers could not be termed as interested witnesses as they were not inimical towards accused‑‑­Trial Court had not given sound reasons to disbelieve the statement of injured witness‑‑‑Reasoning given by Trial Court to acquit the accused was against the record and perverse‑‑‑Prosecution had proved its case against accused beyond any shadow of doubt‑‑‑High Court set aside the order of, acquittal passed by Trial Court sand convicted the accused under Ss.324/337‑D, P.P.C. and sentenced him.

1999 SCMR 40 and 2000 SCMR 1058 ref.

Ch. Muhammad Ishtiaq for Appellant.

Nemo for the State.

Syed Sammar Hussain Shah for Respondent No. 1.

Date of hearing: 30th November, 2001.

2002 Y L R 913

[Lahore]

Before M.A. Shahid Siddiqui, J

TANVEER ASLAM‑‑‑Petitioner

Versus

ADNAN KHAN and another‑‑‑Respondents

Criminal Miscellaneous No. 202‑CB of 2002, decided on 14th March, 2002.

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

‑‑‑‑S.497(S)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/337‑C/337‑F(iv)/337‑L(2) & 34‑‑‑Bail, cancellation of‑‑‑Application for grant of bail before arrest earlier filed by accused was dismissed and accused after his arrest again filed application for grant of after arrest bail before different Court without making any reference to earlier application for bail before arrest and its dismissal‑‑­Complainant objected to filing of second application for grant of after arrest bail, but without making any note in that respect of said application was entrusted to different Court which was allowed by that Court granting bail to accused‑‑‑Disposal of second application by Court despite objection having been raised on behalf of complainant, was improper and opposed to establish judicial norms‑‑‑Failure of counsel for accused to make mention of disposal of earlier application for pre‑arrest bail filed by accused, appeared to be intentional which couldbe described as professional misconduct‑‑‑Conduct of counsel ; as disapproved as in all fairness, it was imperative upon counsel, while making application for bail after arrest, to make a reference of earlier application by giving a separate note on application‑‑‑Since accused had earned concession of bail in a highly improper manner, High Court without touching merits of case, considered it proper to withdraw same in order to discourage those who knowingly violate established judicial norms and gain even petty concessions through deceitful means‑­--Accused whose application for bail was rejected, would he at liberty to stove to Courts below for grant of bail after arrest which would be dealt with in accordance with law.

1999 PCr.LJ 1759; PLD 1986 SC 173 and 1997 SCMR 1336 ref.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.337‑C/337‑F(iv)‑‑‑Bail, grant of was alleged to have given a Chhuri blow in abdomen of victim‑‑‑Initially it was opined that it attracted S. 337‑C, P. P. C but finally it was declared as offence under S.337‑F(iv), P. P. C. which entailed punishment up to five years‑‑‑Co‑accused had been in prison for a sufficient long period and was not required for any useful purpose ‑‑‑Co‑accused was released on bail.

Ch. Naseer Ahmed Bhutta with Masood Gohar Khan for Zeshan Khan Petitioner.

Muhammad Nawaz Sulehria for Tanvir Aslam Complainant.

Maqbool Ahmed Qureshil for the State.

2002 Y L R 916

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

IFTIKHAR alias CHHIKI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.81‑J of 2000, heard on 18th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence---Motive set up by prosecution having not been proved, same was discarded ‑‑‑F.I.R. stated that accused were armed with pistols at the time of occurrence, but during investigation complainant and other eye‑witnesses produced by prosecution had maintained that in fact both accused were armed with rifles during incident‑‑‑Even rifles allegedly recovered from accused during investigation, had not been connected with alleged offence as no crime‑empty was recovered from place of occurrence‑‑‑Question of getting allegedly recovered rifles with any crime‑empty thus did not arise‑‑‑Pairs of shoes belonging to accused allegedly recovered from place of occurrence soon after incident had never been proved through any independent evidence to be those of accused‑‑‑Alleged recovery of rifles from accused and pair of shoes from place of occurrence, did not provide any independent corroboration to ocular account supplied by prosecution‑‑‑Medical evidence did not point out towards guilt of accused‑‑­F.I.R. was lodged by complainant at place of occurrence when police had reached at spot after receiving information about incident from undisclosed source‑‑‑Lodging of F.I.R. at place of occurrence would give rise to an inference that F.I.R. had been registered after deliberation‑‑‑Occurrence had taken place during dead of night and source of light at relevant time had remained far from being established‑‑‑F. I. R. mentioned that an electric bulb was alight at the time of incident, but no such bulb was ever recovered during investigation of the case‑‑‑Wife of deceased had come forward as complainant despite father and one brother of deceased were available at relevant time who had been produced as eye‑witnesses‑‑‑In presence of male kith and kin of deceased it was very rare that a female was allowed by them to become a complainant in murder case especially when explanation in that respect was found feeble‑‑­Occurrence had taken place during middle of night and eye‑witnesses had failed to receive any material corroboration from any independent source‑‑‑Mere Abscondence of accused could not provide sufficient corroboration to already shaken ocular account in the case‑‑‑Reliance on uncorroborated testimony of eye‑witnesses was not safe‑‑‑Conviction and sentences awarded to accused by Trial Court were set aside extending them benefit of doubt and they were acquitted of the charge.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑ Appreciation of evidence‑‑­Medical evidence‑‑‑Medical evidence could not by its nature identify or point out culprit who had caused relevant injuries and due to that it would be called only supportive evidence and not corroboratory piece of evidence.

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

‑‑‑‑S.154‑‑‑Lodging of F.I.R. at place of occurrence generally would give rise to inference that F.I. R. might well had been registered after deliberations.

N.A. Butt for Appellants.

M. Saleem Shad for the State.

Date of hearing: 18th March, 2002.

2002 Y L R 922

[Lahore]

Before Riaz Kayani, J

SHEHZAD alias SHADDA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1002 of 2000, heard on 29th June, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss.10(3)/11‑‑‑Appreciation of evidence‑‑­Delay of three days in lodging F.I.R. was in­consequential, particularly when reason given in F.I.R. by the complainant that due to intervention of notables for hushing up the matter it took some time for his family to decide whether to bring a vagabond to book or to erase wounds and the unkindest cut caused to family‑‑‑Lady Doctor after examining victim girl found three blunt weapon injuries on her person which had shown that violence was committed while dragging her and injuries were manifestation of resistance given by her at time when she was forcibly taken away‑‑‑After lodging of F.I.R. police took victim to lady doctor who examined her and found vide report of Chemical Examiner that sexual act was committed on victim because swabs were stained with semen‑‑‑Victim in clear and specific words had stated that by force she was removed from her house and taken to a nearly house where accused persons alongwith an unknown person had committed Zina‑bil‑Jabr turn by turn‑‑‑Offence had been squarely framed more in cross‑examination of victim girl than in her examination‑in‑chief‑‑­Not a single question was put to victim that she was deposing falsely‑‑‑Alleged dispute or enmity between parties, was just a figment of imagination of accused as they could not prove same with any evidence‑‑‑Repeated allegation of guilt against accused had proved prosecution case regarding his culpability to the hilt‑‑‑Argument that possibility of victim being a consenting party, could not be accepted as victim who was 16/17 years old was forcibly lifted and her injuries had spoken truth for itself and thereafter she was stigmatized for rest of her life for satisfaction of animal lust by accused‑‑‑Infirmities pointed out in statement of complainant, would not at all effect testimony of victim‑‑‑Prosecution having proved its case against accused beyond any shadow of doubt, judgment of Trial Court convicting and sentencing accused, could not be interfered with.

Syed Zahid Hussain Bokhari and A.D. Naseem for Appellant.

Malik Muhammad Aslam for the State.

Date of hearing: 29th June, 2001.

2002 Y L R 926

[Lahore]

Before Mian Muhammad Jehangir, J

MOAZZAM alias MAUJI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.863 of 2000, heard on 25th February, 2002.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑Ss.13 & 13‑A‑‑‑Criminal Procedure Code (V of 1898), S.510‑‑‑Appreciation of evidence‑‑‑Allegation against accused was that mauser .30 bore having 10 bullets and a hand‑grenade, were recovered from him‑‑‑No report of the Expert was produced by prosecution with' regard to .30 bore mauser or about hand‑grenade‑‑‑Though some report allegedly given by the Expert was brought on record but no proof was available to the effect that writer of the report was an Expert in view of provision of S.540, Cr.P.C.‑‑‑In absence of authentic report of Expert it could be said that it was not actually a pistol .30 bore, but was a toy pistol for a child‑‑‑In the absence of recording of statement of Expert, report submitted by the Expert could not be accepted‑‑‑Conviction and sentence recorded against accused could not be sustained and there was need for fresh decision of the case after recording statement of Expert with regard to arms allegedly recovered from the accused‑‑‑Conviction and sentence recorded by Trial Court were set aside and case was remanded with a direction to decide the same afresh after recording statement of Expert.

Gulab v. The State, 1985 PCr.LJ 1617; Muhammad Ali v. Nazra, etc NLR 1985 Criminal 461; Nusrat alias Nusree v. The State PLD 1994 Lah. 93; Messrs National Cotton Ginner and another v. Messrs Granulars (Pvt.) Ltd. PLD 1994 Lah. 97; Qutab‑ud‑Din alias Qutaba and others v. The State 1998 PCr.LJ 204; Muhammad Ramzan alias Jana v. The State 1998 PCr.LJ 210; Sultan and others v The State 1987 SCMR 1177; Nabi Baksh alias Bugga v. The State 2001 MLD 823; Iftikhar Ahmad alias Dani v. The State PLD 1995 Lah. 606; Ashiq Hussain and another v. The State 2001 PCr.LJ 722; Muhammad Siddique v. The State 2001 PCr.LJ 729; Haji Sabir and 9 others v. The State 2001 PCr.LJ 754; Tariq Pervais v. The State 2001 PCr.LJ 767; Muhammad Afzal v. The State 2001 PCr.LJ 72; Abdul Sattar and others v. The State 2002 PCr.LJ 51; Haji Abdul Aziz v. The State 1999 PCr.LJ 356; Muhammad Azam v. The State NLR 1996 Criminal 197; Azhar Iqbal v. The State 1997 MLD 1486; Muhammad Akhtar v. The State 1997 MLD 1491 and Mushtaq Ahmed v. The State NLR 1996 Criminal 560 ref.

Ch. Sadaqat Ali for Appellant.

Muhammad Alam Sabri for the State.

Date of hearing: 25th February, 2002.

2002 Y L R 929

[Lahore]

Before Asif Saeed Khan Khosa, J

ABDUL GHAFOOR‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Writ Petition No. 17329 of 2001, decided on 31st December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S.176(2)‑‑‑Constitution of Pakistan (1973, Art. 199‑‑‑Constitutional petition----Exhumation of dead body for its post­mortem‑‑‑Petitioner who, was father of deceased suspected that her daughter had not died a natural death, but had been murdered‑‑‑District Magistrate concerned after getting matter inquired, ordered exhumation/disinterment of dead body for its post‑mortem examination‑‑‑Area Magistrate who on account of his pre‑occupation with some other official business could not implement order of exhumation, referred the matter to Sessions Judge and Sessions Judge instead of proceeding with execution of earlier order passed by District Magistrate, ordered fresh inquiry to pass a fresh order regarding exhumation or otherwise of dead body‑‑‑Order earlier passed for exhumation of dead body, which had not been called in question by any party before any forum, had attained finality‑‑‑Application filed by petitioner regarding execution and implementation of earlier order passed by District Magistrate could not have been treated by Sessions Judge to be a fresh application for exhumation of dead body so as to take afresh decision regarding exhumation or otherwise‑‑‑Sessions Judge should have got earlier order implemented and executed‑‑­Order regarding holding of fresh inquiry into matter, passed by Sessions Judge was set aside by High Court being without lawful authority and of no legal effect.

Aftab Ahmad Bajwa for Petitioner.

Muhammad Shan Gul for Respondents Nos. 1 to 6.

Ehsan Ullah Lilla for Respondent No. 7.

Date of hearing: 13th December, 2001.

2002 Y L R 931

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUNIR AKHTAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.611‑B of 1997, decided on 1st August, 1997.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1), first proviso‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑‑Bail, grant of‑‑­Age of accused being about 14/15 years at the time of incident, he was allowed bail in circumstances.

1996 PCr. LJ 166 and 1995 PCr. LJ 412 ref.

Akhtar Masood for Petitioner.

Syed Ali Raza for the State.

2002 Y L R 932

[Lahore]

Before Nazir Ahmed Siddique, J

MUHAMMAD NAWAZ and others‑‑­Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1088‑B of 2000/BWP, decided on 27th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 324/337/34‑‑‑Pre‑arrest bail, grant of­---Accused had claimed that in the opinion of doctor who initially examined the injured complainant and his sister, injuries allegedly found on them were self‑inflicted‑‑‑Opinion of doctor with regard to possibility of self-­inflicted injuries with friendly hand was fully negated by a Medical Board‑‑‑In presence of findings by the, Medical Board, opinion of doctor, prima facie, was of little value‑‑‑Was yet to be seen whether said .doctor, while examining injured at initial stage, was competent to make such an observation particularly when those injuries were caused by fire‑arm‑‑‑Accused could not prove that their non‑appearance before Court below was due to illness of one of the accused‑‑‑Such conduct of accused alone was sufficient to decline discretionary relief of anticipatory bail‑‑‑Every case was to be adjudged on its own facts and circumstances‑‑‑Bail was refused.

2000 PCr.LJ 679 and 1999 PCr.LJ 1709 ref.

Ch. Abdul Ghaffar Bhutto for petitioners.

G.N. Gohar for the Complainant.

Mirza Nadeem Asif for the State.

2002 Y L R 933

[Lahore]

Before Mrs. Fakhar‑un‑Nisa Khokhar J

HAZOOR BAKHSH‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Criminal Miscellaneous No.506/M of 2000, decided on 20th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.516‑A & 550‑‑‑Petition for Superdari of vehicle‑‑‑Petitioner, seeking Superdari of truck which was seized by police, had produced papers showing purchase of truck and all relevant papers of registration‑‑­Petitioner should not be deprived from Superdari of truck and truck should not be allowed to be ruined and destroyed while being kept in police premises‑‑‑Illaqa Magistrate could give truck on Superdari on undertaking from the petitioner that he would produce the same when and where required.

Khalid Ashraf Khan for Petitioner.

Muhammad Qasim Khan, A.A.‑G for the State.

Date of hearing: 20th November, 2000.

2002 Y L R 935

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL RAUF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 797 of 1998, decided on 27th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302/34‑‑‑Appreciation of evidence ‑‑‑Co­-accused was acquitted of charge against him and appeal against his acquittal was dismissed by High Court‑‑‑Case of accused was on similar footing as that of co‑accused‑‑­Conviction and sentence recorded against accused by Trial Court, were set aside, following law of consistency.

Imran Aziz Qureshi for Appellant.

Abdul Qayyum Anjam for the State.

Rab Nawaz Niazi for the Complainant.

Date of hearing: 27th February, 2002.

2002 Y L R 937

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SHAHID ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1560 of 2000, decided on 24th December, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.381‑A & 411‑‑‑Appreciation of evidence‑‑‑State Counsel had admitted that no case under S.381‑A, P. P. C. had been made out against the accused‑--Conviction and sentence recorded by Trial Court under S. 381‑A, P. P. C. were set aside‑--Recovery of motor cycle having been admitted by accused, under S. 411, P. P. C. had fully been established‑‑‑Conviction recorded by Trial Court under S.411, P. P. C. was maintained, but accused being behind bars for last one year and four months, such period was considered sufficient to meet ends of justice‑‑­Plea of minority raised by accused was of no help to him, because no application was submitted during trial that his case might be sent to Juvenile Court as he was below 18 years of age at the time of occurrence.

N.A. Butt for Appellant.

Najam‑ul‑Hassan Gill for the State.

Date of hearing: 24th December, 2001.

2002 Y L R 939

[Lahore]

Before Ch. Ijaz Ahmad, J

MUHAMMAD IQBAL‑‑‑Petitioner

Versus

MUHAMMAD IRFAN ELAHI, others‑‑‑Respondents

Criminal Original No.1320 of 2000, decided on 16th April, 2002.

Contempt of Court Act (LXIV of 1976)‑‑‑

‑‑‑‑Ss.3 & 5‑‑‑Contempt of Court‑‑­Jurisdiction of High Court‑‑‑High Court under its Constitutional jurisdiction had directed Deputy Commissioner to pass an appropriate order strictly in accordance with law on application of the petitioner pending before him within one month‑‑‑Deputy Commissioner having failed to pass order according to directions of the High Court, petitioner felt aggrieved and filed criminal original/contempt petition before High Court‑‑‑Validity‑‑‑Deputy Commissioner could not pass order according to direction of High Court as during relevant period offices of Deputy Commissioner were abolished in view of the promulgation of Punjab Local Government Ordinance, 2001‑‑‑High Court had ample jurisdiction to look into subsequent events at time of deciding cases‑‑‑Since office of Deputy Commissioner had been abolished, petition had become infructuous‑‑‑Even other­wise contempt was always between contemner and the Court‑‑‑High Court declined to issue notice to the respondent.

N.A Butt for Petitioner.

Muhammad Hanif Khatana, Add. A.‑G. for the Respondents.

2002 Y L R 940

[Lahore]

Before Iftikhar Hussain Chuadhry and Muhammad Akhtar Shabbir, JJ

SAEED AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.709‑B of 2001, decided on 24th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑‑

--‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.381‑A & 411‑‑‑Bail, grant of‑‑‑Accused, a young person having no criminal history‑‑­Stolen motorcycle was allegedly recovered from house of accused's family‑‑‑Such aspect of matter, prima facie would make out offence under S. 411, P. P. C. against the accused, which did not fall within prohibitory clause of S.497, Cr.P. C. ‑‑‑Accused was admitted to bail.

Syed Tanvir Hussain for Petitioner.

M.A. Farazi for the State.

2002 Y L R 941(1)

[Lahore]

Before Farrukh Lateef, J

MIRZA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1048‑B of 2002, decided on 7th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497(1), proviso‑‑‑Penal Code (XLV of 1860), Ss.337-F(2) & 337‑D‑‑‑Bail, grant of‑‑­Accused had sought bail mainly on the ground of his age, being under 16 years‑‑‑Copy of the Register of Birth Entries had been produced which showed that the accused was of tender years‑‑‑Accused appeared to be hardly 14 years, his case was covered by proviso to subsection (1) of S.497, Cr. P. C he was granted bail.

Mian Fazal Rauf Joya for Petitioner.

Javed Iqbal for the State.

2002 Y L R 942

[Lahore]

Before Muhammad Farrukh Mahmud, J

LIAQAT ALI alias BAGA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondents

Criminal Miscellaneous No.669‑B of 2002, decided on 11th April, 2002.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss 302/452/109/34‑‑‑Bail, grant of‑‑‑Night time occurrence‑‑‑Complainant living at a different place had visited the house of the deceased as per chance on the night of occurrence‑‑‑No incriminating recovery had been elected from the accused‑‑‑Accused had been declared innocent by the police during successive investigations‑‑‑Discharge report had been prepared as regards the accused but the Magistrate did not agree with the same‑‑­Opinion of the police, though not binding on the Court but the same was a relevant factor for the purpose of determination of bail‑‑‑Case of the accused calling for further inquiry, he was granted bail.

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

‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Opinion of Investigating Officer‑‑Value ‑‑‑Nature‑­Opinion of the police may not be binding upon the Courts but at the same time it is very relevant for purposes of determination of bail matters.

Manzoor Hussain v. The State PLD 1972 SC 81 ref.

Altaf Ibrahim Qureshi for Petitioner.

Javed Iqbal for the State.

2002 Y L R 944

[Lahore]

Before Asif Saeed Khan Khosa, J

IKHTIAR ALI and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.333‑B of 2002, decided on 21st February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of‑‑‑Fact that both the accused had not caused any injury to any person during the incident was not disputed‑‑‑One accused stood guard at the place of occurrence and the other held the arms of the deceased to facilitate his co­-accused to inflict hatchet blows on the deceased‑‑‑No recovery whatsoever had been effected from both of the accused‑‑‑Accused who were found innocent by two of the three Investigating Officers had been recommended for discharge at one stage‑‑‑Investigation of, the case was complete‑‑‑Case of the two accused called for further inquiry, they were granted bail.

Altaf Ibrahim Qureshi for Petitioners.

Sikandar Javaid for the Complainant.

Arshad Ali for the State.

2002 Y L R 945(1)

[Lahore]

Before Muhammad Farrukh Mahmud, J

Haji AHMAD NAWAZ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3123‑B of 2001, decided on 8th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.489‑B & 489‑C‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Except for the statements of co­-accused before the police no independent incriminating evidence was available against the accused showing that he had been dealing in counterfeit currency or used the same for the purchase of any commodity‑‑‑Statement of co‑accused before the police, prima facie, was not admissible in evidence‑‑‑Case of the accused calling for further inquiry, he was granted bail.

Ch. Pervez Aftab for Petitioner.

Pir Atif Sajjad Qureshi for the State.

2002 Y L R 947

[Lahore]

Before M. Naeemullah Khan Sherwani, J

DILSHAD MASIH and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5263‑B of 2001, decided on 5th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)/337‑A(ii)/337‑L(2)‑‑­Interim anticipatory bail, confirmation of‑-‑­Injuries sustained by accused had been suppressed in F.I.R. which was reported to the police after delay of ten hours‑‑‑Accused had been regularly joining investigation‑‑‑No incriminating articles were recovered from the accused persons and no further offence was to be discovered from them‑‑‑Arrest of accused, in circumstances, was not an absolute need for any cause of prosecution‑‑‑Interim anticipatory bail already allowed to accused, was confirmed, in circumstances.

Muhammad Akram Chaudhary for Petitioner.

Ashfaq Ahmad Ghumman for the State.

2002 Y L R 948

[Lahore]

Before Khalil‑ur‑Rehman Ramday, J

SAJJAD AHMED ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4513/B of 2001, decided on 3rd October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S. 497‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Accused, in initial investigation had been found innocent‑‑­Successor S.H.O. found accused guilty and submitted challan, but S.D.P.O. while verifying said investigation, did not agree with the S.H.O and declared the accused innocent‑‑‑Similar was opinion of Range Crime Branch and the Provincial Crime Branch‑‑‑Accused was granted bail, in circumstances.

Muhammad Irfan Malik for Petitioner.

Mazhar Sajjad Sheikh for the State.

2002 Y L R 949

[Lahore]

Before Muhammad Khalid Alvi, J

ABDUL GHAFFAR alias PHARI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.88‑B of 2002, decided on 31st January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑­Penal Code (XLV of 1860), S.354‑‑‑Bail, grant of‑‑‑Victim was medically examined after six days‑‑‑No injury was found on her person despite alleged beating by the accused with the butt of the pistol and fists‑‑‑Delay in lodging F.I.R. coupled with the fact that police had recommended that an offence under S.354, P. P. C. was made out had made the case of the accused one of further inquiry under S.497(2), Cr. P. C., and he was thus granted bail.

Altaf Ibrahim Qureshi for Petitioner.

Sardar Muhammad Farooq Dogar for the Complainant.

2002 Y L R 950

[Lahore]

Before Asif Saeed Khan Khosa, J

KHAN MUHAMMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3192‑B of 2001, decided on 30th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑­-Bail, grant of delayed by fifteen days, had not disclosed forcible abduction of the alleged abductee‑‑‑Provisions of S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were not made out‑‑‑Role attributed to the accused was secondary in nature in that the alleged abductee had stayed at his house for one night before going away with others‑‑‑Alleged abductee had not been recovered from the accused‑‑‑Investigating Officer had found the accused innocent‑‑­Accused cannot be held hostage for recovery of the abductee from his co‑accused‑‑‑Case of the applicant calling for further inquiry, he was granted bail.

Altaf Ibrahim Qureshi for Petitioner.

Tahir Amjad for the Complainant.

Muhammad Tariq Mehmood Qureshi for the State.

2002 Y L R 951

[Lahore]

Before Muhammad Farrukh Mahmud, J

IJAZ AHMED ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.2 of 2000 and 61 of 1999, heard on 3rd April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.365‑A/34/511/468‑‑‑Appreciation of evidence‑‑‑Sentence, alteration of‑‑‑Accused persons had not challenged their conviction but had prayed for alteration of sentence from Ss. 365‑A/34/511, P. P. C. to Ss. 363/511, P. P. C.‑‑‑Both the accused were apprehended at the spot‑‑‑Complainant having no motive to falsely implicate the accused had stood the test of cross examination; his statement was corroborated by two independent and unbiased witnesses who had given a straight­ forward account‑‑‑‑Prosecution had proved production of a chit containing forged signatures and a, message delivered by the accused to the complainant‑‑‑Allegation that the accused had wanted to abduct a school‑girl for ransom was not borne out by the record as the sole .evidence in that regard was the joint‑confession of the accused before the prosecution witnesses, exact words of which had not been narrated and which was not admissible in evidence‑‑­‑Sentence in the circumstances was altered from Ss. 365‑A/34/511, P. P. C. to Ss.363/511/34, P. P. C. while that under S. 468/34, P. P. C. was maintained‑‑­Sentences of the accused were reduced to the imprisonment already undergone by them.

(b) Confession‑‑‑

‑‑‑‑ Joint confession‑‑‑Joint confession is not admissible in evidence.

Ch. Ihsan Ullah and Altaf Ibrahim Qureshi for Appellant.

Muhammad Sarwar Bhatti, A.A.‑G. assisted by Ibrahim Farooq for the State.

Nemo for the Complainant.

Dates of hearing: 2nd and 3rd April, 2002.

2002 Y L R 954

[Lahore]

Before Tassaduq Hussain Jilani, J

MUZAFAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.36‑B of 2001, decided on 13th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/458‑‑‑Bail, grant of‑‑­Accused, specifically nominated in the F.I.R., had fired a fatal shot at the deceased‑‑- Magistrate had turned down the discharge report qua the accused‑‑‑Accused had pleaded alibi which was supported by several witnesses‑‑‑Accused had been declared innocent by three successive police investigations‑‑‑Case against the accused being of further inquiry, he was granted bail.

Sahibzada Farooq Ali Khan and Altaf Ibrahim Qureshi for Petitioner.

M. Qasim Khan, Asstt.A.‑G. assisted by Muhammad Ibrahim Farooq for the State.

2002 Y L R 1002

[Lahore]

Before Khawaja Muhammad Sharif, J

ALAM SHER KHAN‑‑‑Petitioner

Versus

THE STATE and others‑‑‑Respondents

Criminal Revision No.538 of 2002, heard on 9th July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Age of accused‑‑--Determination of‑‑‑Application by accused for trial of his case under Juvenile Justice System Ordinance, 2000 was accepted on the ‑ground that accused, at the time of occurrence, was less than 18 years of age‑‑‑Complainant produced certificate issued by Headmaster of the Primary School with regard to appearance of accused in Matriculation Examination; Form 'B' issued by Registration Authority; electoral list and report of Forensic Science Laboratory, which proved that accused was above 18 years at the time 'when occurrence took place‑‑‑Authenticity of documents referred to by the complainant having not been challenged, application by accused for trial of case under Juvenile Justice System Ordinance, 2000 was set aside.

2002 SCMR 440; 2002 PCr. R 652; 2002 PCr.LJ 633; PLJ 2002 (Cr.C.) 478 and 2002 PCr. LJ 1939 ref.

Malik Abdul Khaliq for Petitioner.

Waheed‑ud‑Din Virk for the State.

Rab Nawaz Khan Niazi for Respondent No.2.

Date of hearing: 9th July, 2002.

2002 Y L R 1004

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

ATTA MUHAMMAD and 4 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.407 and Murder Reference No.21‑T of 2002, heard on 25th June, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑D/148/149‑­Appreciation of evidence‑‑‑Six persons had been murdered and among them four were real brothers and the one who was injured was also brother of the four deceased‑‑­Incident was a broad daylight occurrence and F.I.R. was promptly lodged wherein names of accused persons, role played by them and weapons used by them were mentioned‑‑‑No conflict existed between ocular account and medical evidence‑‑­Delay in recording statement of one of prosecution witnesses was not fatal to prosecution as said delay was due to serious condition of said witness who was injured in occurrence and was operated‑‑­Star witness in the case had no enmity whatsoever against the accused‑‑‑Crime empties recovered from spot matched with weapons recovered from accused‑‑‑Accused having failed to produce cogent evidence to prove their plea of alibi, same was discarded‑‑‑Motive furnished by prosecution had corroborated ocular account‑‑­Prosecution, in circumstances, had proved its case through promptly lodged F.I.R., ocular account, duly corroborated by medical evidence, positive report of Forensic Science Laboratory with regard to matching of crime empties with weapons recovered from all accused persons‑‑­Prosecution, thus had proved its case against all accused, except one whose presence at the spot was doubtful‑‑­Conviction and sentence awarded to that accused by Trial Court were set aside and he was acquitted of charge against him while conviction and sentence of all other accused were maintained.

Falak Sher and another v. The State 1987 PCr.LJ 610; Bashir Ahmad v. Muhammad Azam and another. PLD 1969 SC 469; Arif Nawaz alias Goldy and 2 others v. The State PLD 1983 Lahore 594; Aminullah v. The State PLD 1982 SC 429; Noor Muhammad alias Noora and others v. The State and others 1992 SCMR 2079; Alam Sher and 5 others v. The State 1975 PCr.LJ 1188; Hamid Javed alias Hamidi v. The State 1988 SCMR 39; Sharif and another v. The State 19'73 SCMR 83; Zakir Khan and others v. The State 1995 SCMR 1793 and Muhammad Sarwar v. The State 1999 SCMR 2428 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Court had to see the quality and not the quantity of evidence‑‑‑Even a solitary statement of a witness could be relied upon‑‑‑Conviction in murder case could be based on testimony of a single witness, if Court was satisfied that he was reliable‑‑‑Emphasis should be on quality of evidence and not on its quantity.

Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.

Syed Ehsan Qadir Shah for Appellants.

M.A. Zafar and Malik Muhammad Suleman for the Complainant.

Muhammad Jahangir Wahla, A.A.‑G. with Mirza Abdullah Baig for the State.

Dates of hearing: 24th and 25th June,2002.

2002 Y L R 1013

[Lahore]

Before Khawaja Muhammad Sharif, J

KHAN AMIR KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1109 of 2000, heard on 24th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Two eye‑witnesses who were father and son and also closely related to deceased, had given contradictory statements before Trial Court‑‑‑Three co‑accused including one who was attributed specific injury, were acquitted by Trial Court on the same evidence and no appeal was filed against their acquittal‑‑‑Parties were inimical towards each other‑‑‑Conviction of accused could not be maintained on the same evidence which had been appreciated and used in judgment of acquittal of three co­-accused‑‑‑No independent corroboration was available to the testimonies of interested and inimical eye‑witnesses and there were doubts in the prosecution story‑-‑Accused though remained absconder for five years, but it was not of much importance as in such a case accused who are innocent, also abscond for fear of their arrest and being tortured by police‑‑­Conviction and sentence awarded by Trial Court to accused, were set aside and used was released forthwith.

Ch. Arshad Mehmood for Appellant.

Miss Nausheen Taskeen for the State.

Date of hearing: 24th June, 2002.

2002 Y L R 1016

[Lahore]

Before Rustam Ali Malik, J

BARISH ALI and 2 others‑‑‑Petitioners

Versus

Chaudhry MUSHTAQ AHMAD, ADDITIONAL SESSIONS JUDGE, DEPALPUR, DISTRICT OKARA and 6 others‑‑‑Respondents

Criminal Revision No.147 of 2002, decided on 11th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/310‑‑‑Criminal Procedure Code (V of 1898), S.345(2)‑‑‑Compounding of offence and waiving the right of Qisas‑‑­Concept‑‑‑Compounding of offence at bail stage‑‑‑Effectiveness of such compromise during and after trial‑‑‑Offence though could be compounded by parties with permission of the Court before which any proceeding for such an offence was pending, but concept of waiving right of Qisas or compounding the offence was not restricted only to cases pending before Court‑‑‑Provisions of waiving right of Qisas or compounding of offence could be invoked at any time before execution of sentence and Court was always competent to entertain and give effect to compromise between the parties even after decision of case and would not be functus officio in matters compromise‑‑‑Compromise effected between parties even at bail stage would remain valid, could be acted and could not be revoked by any of parties unilaterally when main case would come up Court for trial‑‑‑only which Court had to do was to satisfy itself whether compromise had been actually effected between parties at bail stage.

Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah 1998 SCMR 466; Baz Muhammad v. The State 2000 PCr.LJ 553; Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah 1995 MLD 563; Rana Awais and others v. S.H.O., Police Station People's Colony, Faisalabad and others 2001 PCr. LJ 241; Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212; Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 S.C 351 and Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121 ref.

Syed Shabbar Raza Rizvi for Petitioners.

Muhammad Hanif Khatana, Addl. A.‑G for the State.

Date of hearing: 4th June, 2002.

2002 Y L R 1020

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ANSAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1864‑B of 2002, decided on 2nd April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/334/34‑‑‑Bail, grant of‑‑‑First post arrest bail of the accused was dismissed on merits by the High Court‑‑‑Latest re­investigation by the police found the accused innocent‑‑‑Accused, as per the F.I.R. had not caused any injury to any of the witnesses, nor any weapon of offence had been recovered from him ‑‑‑Challan of the case having already been submitted, accused was no more required for investigation‑‑‑Case of accused calling for further inquiry, he was granted bail.

A.D. Naseem for Petitioner.

Nadeem Mehmood Mian for the Complainant.

Saif Ullah Khalid for the State.

2002 Y L R 1021(2)

[Lahore]

Before Mian Muhammad Jehangir and M. A. Shahid Siddiqui, JJ

GHULAM YASEEN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.666 and 667 of 2001, heard on 1st January, 2002.

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

‑‑‑‑S.9(b)‑‑‑Criminal Procedure Code (V of 1898), S.397‑‑‑Appreciation of evidence‑‑­Accused had not challenged the validity of the convictions in both the cases against him but prayed only for directions under S.397, Cr. P. C. that the sentences in both the cases should run concurrently, and also for reduction of fine‑‑High Court amended the conviction order to the extent that sentences passed in both cases would run concurrently, sentence of fine was also substantially reduced in each case.

Altaf Ibrahim Qureshi for Appellant.

Muhammad Qasim Khan, Asstt. A.‑G. and Muhammad Shaukat for the State.

Date of hearing: 1st January, 2002.

2002 Y L R 1022

[Lahore]

Before M. A. Shahid Siddiqui, J

MAHMOODUL HASSAN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2671‑B of 2001, decided on 26th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail, grant of‑‑‑No injury to deceased had been attributed to the accused nor had he any motive to participate in the occurrence‑‑‑Prosecution version was found to be false during the investigation‑‑‑Case of the accused calling for further probe, he was granted bail.

Altaf Ibrahim Qureshi for Petitioner.

Sahibzada Mehboob Ali Khan for the Complainant.

Syed Altaf Hussain Shah for the State.

2002 Y L R 1023

[Lahore]

Before Khawaja Muhammad Sharif, J

BARKAT ULLAH KHAN ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 4435‑B of 2002, decided on 15th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 324/34/337‑F(v)‑‑‑Bail, grant of‑‑‑Accused had been attributed 'Lalkara' only and was sent to the judicial lock‑lip and was no more required by the police for further, investigation‑‑‑Accused was accordingly granted bail.

M.A. Zafar for Appellant.

Inayat Ullah Khan Niazi for the Complainant.

Bashir Ahmad Gill for the State.

2002 Y L R 1024

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD RIAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.494‑B of 2002, decided on 6th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18‑‑­Bail, grant of‑‑‑F. I. R. had been lodged with a delay of four days‑‑‑Allegations against the accused pertained to an attempt to commit Zina which attempt had admittedly remained abortive‑‑‑Victim lady indisputably was never subjected to any medical examination‑‑‑Was not clear in the peculiar circumstances of the case as to whether the allegation attracted offence under S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or an offence under S.354, P.P.C.‑‑‑Case of the accused calling for further inquiry, he was granted bail.

Altaf Ibrahim Qureshi for Petitioner.

Mehmood‑ul‑Hassan Qureshi for the State.

2002 Y L R 1025

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

RIZWAN AHMAD alias BILLU and others‑-‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.770 and Murder Reference 309 of 1997, heard on 14th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b), 337‑A(i) & 34‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Accused were nominated in promptly recorded F.I.R. and it was daylight occurrence which was also admitted by accused‑‑‑Altercation had taken place between deceased and accused party two months prior to occurrence, but was compromised through respectables‑‑‑No unpleasant incident took place in two months' period which had shown that no previous grudge existed to take revenge of earlier incident and that the incident had taken place at the spur of the moment and was not pre­planned or premeditated‑‑‑Only accused was found responsible for causing grievous injuries to deceased and he also led to recovery of blood‑stained dagger‑‑‑Case against accused having been fully proved by statements of prosecution witnesses which were corroborated by medical evidence, he had been rightly found guilty under S.302(b), P.P.C.‑‑‑Conviction of accused was maintained, but as no previous enmity or motive was attributed to the accused for causing death of deceased and it was nor an intentional or' premeditated murder, mitigating circumstances existed for awarding lesser penalty to accused‑‑‑Death sentence awarded to accused by Trial Court was converted into imprisonment for life which would meet ends of justice‑‑‑Co‑accused had not been attributed an v injury to deceased, but they had caused simple injury to prosecution witness with sticks‑‑‑Co-­accused, could not be said to be vicariously responsible for causing death of deceased in circumstances‑‑‑Conviction of co‑accused tinder S. 302 (b), P. P. C. was set aside and the v were convicted and sentenced under S.337‑A, P. P. C. accordingly.

1996 SCMR 908 and 1973 SCMR 219 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Opinion of Investigating Officer‑‑­Nature‑‑‑Opinion of Investigating Officer was not binding on Court.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/337‑A (i)‑‑‑Criminal Procedure Code (V of 1898), S. 417‑‑‑Appeal against acquittal‑‑‑Plea of acquitted accused persons from the veil, first day was that they had never participated in the occurrence‑‑­Accused were declared innocent in all investigations and were placed in Column No.2‑‑‑Investigating Officer associated all inhabitants of locality in investigation who supported innocence of accused persons and cogent reasons were given by all Police Officers to declare them innocent‑‑­Investigation was transferred time and again on application of complainant, but accused had earned their acquittal a jeer facing protracted trial‑‑‑Double presumption of innocence a had been attached in favour of accused‑‑‑No perversity of reasons was found in extending benefit of doubt by Trial Court to the accused‑‑‑Appeal against acquittal was dismissed in circumstances.

Ihtisham Qadir Shah for Appellants.

C.M. Lateef Rawn and Jariullah Khan for the Complainant.

Safia Masood for the State.

Date of hearing: 14th March, 2002.

2002 Y L R 1031

[Lahore]

Before Iftikhar Hussain Chaudhry and Tanvir Bashir Ansari, JJ

THE STATE‑‑‑Appellant

Versus

ALLAH WADAYA and others‑‑‑Respondents

Criminal Appeal No.61 of 1987/BWP, decided on 19th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/452/34‑‑‑Criminal Procedure Code (V of 1898) S.417‑‑‑Appeal against acquittal‑‑‑Occurrence having taken place during month of Ramzan at about 1‑30 a.m. in the house of deceased, presence of eye‑witnesses particularly one who resided away from house of deceased, was highly improbable‑‑‑None of the eye‑witnesses received any injury despite alleged indiscriminate firing by accused which would militate against possibility of presence of eye­witnesses at the spot‑‑‑As to why womenfolk who were also inmates were not cited as witnesses was not explained‑‑‑Time of occurrence and lacerated wound with blackened margins in front of right knee of deceased as given by prosecution witness in his report had indicated that deceased was murdered while he was asleep‑‑‑Story that prosecution witnesses and deceased were busy talking at that time, was doubtful in circumstances even in view of medical evidence‑‑‑Version of prosecution witnesses regarding raising of Lalkara by accused, was also improbable as there was no reason for accused to have raised Lalkara in dead of the night‑‑‑Trial Court, in circumstances, was right in disbelieving the ocular account‑‑­Evidence of recoveries was also not confidence‑inspiring‑‑‑Report of Forensic Science Laboratory, showed that crime empties did not match with weapon recovered from accused‑‑‑Possibility could not be ruled out that weapons of offence and crime empties remained in possession of Investigating Agency before they were sent for examination‑‑‑Evidentiary value of report of matching of weapons of offence and crime empties, was not free from doubt, in circumstances‑‑‑Medical evidence itself without further corroboration, could not connect accused with crime‑‑‑Sufficient material was on record to suggest enmity between the parties and that enmity as a motive for occurrence would cut both ways equally‑‑‑Judgment of Trial Court whereby accused were acquitted not suffering from any perversity or illegality, same could not be interfered with by High Court in appeal.

Saif Ullah Khan and 5 others v The State 1986 PCr.LJ 2794 and Masood Ahmad and 3 others v. The State 1995 SCMR 127 ref.

Saleem Nawaz Abbasi, Asstt. A.‑G. and Ghazanfar Ali for the State.

Sardar Ahmed Khan for Respondents.

Date of hearing: 19th February, 2002.

2002 Y L R 1036

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

BASHIR alias BASHIROO and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1146 and 1148 of 1999 Murder Reference No.254‑T of 2000, heard on 8th April, 2002.

Offence of Zina (Enforcement of Hudood Ordinance (VII of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Penal Code (XLV of 1860), Ss. 380/452/34‑‑‑Appreciation of evidence‑‑­Delay of 11 days in reporting matter to police had not been satisfactorily explained‑- Report of Chemical Examiner with regard to swabs taken from vaginas of both ladies being stained with semen, would not render any corroboration to prosecution case, because alleged victim ladies who were married were with their husbands and did not report matter to Police for 11 days‑‑‑No hurdle was way of victim ladies to get themselves medically examined‑‑‑No one was named in F.I.R. and no identification parade was ever held in case‑‑‑Civil litigation was going on between complainant and accused‑‑‑No independent witness had been produced by prosecution‑‑‑Evidence in a case of capital punishment must have come from unimpeachable source and must be confidence‑inspiring, but same was neither confidence‑inspiring nor had come from any independent source‑‑‑Case was full of doubts‑‑‑Prosecution, in circumstances, had failed to prove its case against accused beyond any reasonable doubt‑‑‑Mere fact that report of Chemical Examiner was positive, was no ground to award or maintain conviction on a capital charge when victim was a married lady‑‑‑Conviction and sentence recorded against accused by Trial Court, were set aside and they were acquitted of charge.

Ch. Azmat Khan and Ch. Bashir Ahmad for Appellants.

Ch. Muhammad Nazir for the State.

Date of hearing: 8th April, 2002.

2002 Y L R 1040

[Lahore]

Before Ijaz Ahmad Chaudhry, J

LIAQAT ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2054‑B of 2002, decided on 3rd April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.406/420/468/471‑‑‑Bail before arrest‑‑­Confirmation‑‑‑Principles‑‑‑Some business dispute existed between accused and complainant and they were running business jointly‑‑‑Statement of complainant that accused was an employee and had been serving as Manager in the firm, was incorrect and false‑‑‑Accused had also filed civil and criminal cases against the complainant‑‑­Statement of complainant under S.154, Cr. P. C. was not supported by documents on record‑‑‑Mala, fides on part of complainant could not be ignored‑‑‑Nothing was to be recovered from accused and investigation had already been completed‑‑‑Grant of pre‑arrest bail, no doubt was an extraordinary relief, but it was also an exhaustive remedy as reputation and honour of person was involved‑‑‑Prayer for bail before arrest was liable to be considered with due care and caution and if accused succeeded in making out a case before arrest by showing that his involvement could be due to mala fides and nothing was to be recovered from him, bail before arrest should be granted to accused because, in circumstances, if he was arrested, he would suffer irreparable loss which would never be recoverable even by his acquittal at later stage‑‑‑Accused had succeeded in making out a case for bail before arrest‑‑­Accused being already on interim bail, his bail was confirmed.

Ch. Muhammad Sadaqat Ali for Petitioner.

Mrs. Marina Chaudhary for the State.

Shahid Ikram Siddiqui for the Complainant.

2002 Y L R 1043

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL HAMEED‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 312 of 2002, decided on 15th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 540‑‑‑Summoning material witnesses‑‑‑Investigating after investigating the case, had declared accused as innocent‑‑‑Said Investigating Officers were given up by prosecution having allegedly been won over‑‑‑Application submitted by accused under S.540, Cr.P.C. for summoning those two Investigating Officers as Court‑witnesses, was dismissed by Trial Court ‑‑‑Validity‑‑­Witnesses sought to be summoned were mentioned in calendar of witnesses it was, therefore, duty of Court to bring on record all evidence whether it would go in favour of accused or against them and same was the position in case of complainant party‑‑‑Order dismissing application filed by accused by Trial Court was illegal, unjustified and against record‑‑‑Order of Trial Court was set aside with direction to summon Investigating Officers as Court‑witnesses in case for its just decision.

2002 PCr.LJ 78; 2002 PCr.LJ 614; 2001 PCr.LJ 1046; 2001 SCMR 308; 1993 MLD 1401; 1997 PCr.LJ 1727; 1994 PLR 1004; 1997 MLD 1571 and 1995 SCMR 821 ref.

Ch. Muhammad Rafique Jathol for Petitioner.

Naveed Anwar Naveed for the Complainant.

Muhammad Jehangir Wahla, A.A.‑G. with Ch. Muhammad Azam for the State.

2002 Y L R 1045

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD YAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2771‑B of 2002, decided on 8th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.10 (7‑A)‑‑‑Bail, grant of‑‑­Further inquiry‑‑Cross‑cases filed by parties were pending in Court‑‑‑Accused according to 'Birth Certificate, Matriculation Certificate and report of Board of Doctors was not above 18 years at the time of occurrence‑‑‑Case against accused fell under S. 497(2), Cr. P. C. which required further inquiry into guilt and also fell under S.10(7‑A) of Juvenile Justice System Ordinance, 2000‑‑‑Bail was allowed to the accused, in circumstances.

2002 SCMR 440; 2000 SCMR 79 and 2000 PCr.LJ 634 ref.

Syed Hassan Petitioner.

Ms. Fauzia Sultana for the State.

2002 Y L R 1046

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD RAMZAN KHAN‑‑‑Petitioner

Versus

YOUNAS KHAN and 3 others‑‑‑Respondents

Civil Revision No.271‑D of 1998, heard on 11th December, 2001.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S.12(2)‑‑‑Application for setting aside decree‑‑‑Procedure‑‑‑Converting the application into suit‑‑‑Respondents assailed the decree passed against them in proceedings under S.12(2), C.P.C.‑‑Trial Court allowed the application and set aside the decree passed against the respondents‑‑‑Application under S.12(2), C. P. C. was treated by Trial Court as suit for declaration of title on behalf of the respondents and had passed decree in their favour‑‑‑Appellate Court maintained the judgment passed by Trial Court ‑‑‑Validity‑‑­When decree in favour of petitioner was set aside on the ground of fraud and mis­representation, the suit of the petitioner would be deemed to be pending and should have been proceeded for trial afresh‑‑‑Application of the respondents in the same proceedings, could never be treated as a suit for declaration on their behalf, for title of the property‑‑‑Respondents were obliged to file a fresh suit and the same should have been consolidated alongwith the suit of the petitioners and tried together‑‑‑Procedure adopted by the Trial Court was not permissible under the law‑‑‑Where both the Courts below had committed error of jurisdiction in passing the judgments and decrees and acted with material illegality in proceeding with the case, judgments and decrees were set aside by High Court.

Faqir Muhammad Khan and 18 others v. Ghulam Elahi and others PLD 1993 Pesh. 87 and Noorul Amin and another v. Muhammad Hasim and 27 others 1992 SCMR 1744 ref.

Muhammad Zahid Abbasi for Petitioner.

Ch. Muhammad Ashraf and Ch. Ghulam Sabir Sulehria for Respondents.

Date of hearing: 11th December, 2001.

2002 Y L R 1048

[Lahore]

Before Ijaz Ahmad Chaudhary, J

OWAIS AHMAD‑‑‑Petitioner

Versus

CHIEF ELECTION COMMISSIONER and 23 others‑‑‑ Respondents

Writ Petition No. 15040 of 2001, decided on 5th December, 2001.

(a) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition ‑‑‑Writ of quo warranto‑‑‑Voter, whether an aggrieved person‑‑‑Voter though is an aggrieved person, yet he cannot challenge the election by any other way except by filing a Constitutional petition.

(b) Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Disqualification of candidate‑‑‑Election whether can be assailed by a voter‑‑­Petitioner being voter was aggrieved by the election on the ground that the returned candidate was less than 25 years of age hence disqualified to be an elected member‑‑­Documents attached with the Constitutional petition were sufficient to conclude that the candidate was not qualified to contest the election as he was not 25 years of age‑‑‑Plea raised by the candidate was that the petitioner being not an aggrieved person,' his Constitutional petition was not maintainable‑‑‑Validity‑‑‑Where a person was otherwise not qualified for holding a public office, High Court in Constitutional jurisdiction could interfere even on the application of any person‑‑‑When High Court had come to the definite conclusion that the candidate was usurper of public office, the Court could not lay off its hands from exercising the powers under Art. 199 of the Constitution‑‑‑High Court could interfere Constitutional jurisdiction and set aside election of a person who was not qualified to contest the same ‑‑‑Unqualified person could not be allowed to function as public representative‑‑‑Election being illegal and unlawful, High Court set aside the election result as well as the notification.

Muhammad Ramzan's case PLD 1992 Lah. 322, Utma's case 1983 CLC 2479; Athar Rehman's case PLD 1981 Lah. 48 and Malik Ghulam Abbas's case PLD 1980 Lah. 718. ref.

Muhammad Ahsan Bhoon for Petitioner.

Muhammad Anwar‑ul‑Haq for Respondent No.4.

2002 Y L R 1051

[Lahore]

Before Ch. Ijaz Ahmad, J

GHULAM MUSTAFA JAT and 7 others‑‑‑ Petitioners

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another‑‑‑ Respondents

Writ Petitions Nos.22033, 22037 and 22038 of 2001, decided on 20th December, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3) & 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Leave granting order passed by Supreme Court, effect of‑‑­Federal Public Service Commission reduced the upper age limit or competitive examination from 35 years to 30 years for government servants‑‑‑Certain candidates assailed such act of the Service Commission before High Court in Constitutional petition‑‑­Matter was decided against those candidates by Single Judge as well as by Division Bench of High Court in Intra‑Court Appeal‑‑‑Leave to appeal was granted by Supreme Court to those candidates and on the basis of the order passed by Supreme Court application forms of those candidates were accepted by the Commission‑‑‑Grievance of the petitioners was that the Commission should have accepted their forms also ‑‑‑Validity‑‑­Admission order or leave granting order passed by Supreme Court was not a judgment‑‑‑Where the question of law had already been settled by High Court in Constitutional jurisdiction as well as in Intra-­Court Appeal, the fresh Constitutional petition was not maintainable‑‑‑High Court in the interest of justice and fair play sent the copies of the fresh Constitutional petition to the Chairman of the Commission and directed him to look into the matter personally in parental jurisdiction under hardship regulation‑‑‑Constitutional petition was disposed of accordingly.

Messers Gatron Industries Limited's case 1999 SCMR 1072; Adam Khan Mirza v. Muhammad Sultan PLD 1975 SC 9, Yousaf A. Mitha and 3 others v. Aboo Bakar and 2 others PLD 1980 Kar. 492 and Federation of Pakistan v. Mirza Muhammad Irfan Baig and 4 others 1992 SCMR 2430 ref.

Muhammad Ahmad Qayyum for Petitioners.

Awan Muhammad Hanif for Petitioner (in Writ Petitions Nos.22037 and 22038 of 2001).

2002 Y L R 1053

[Lahore]

Before Ch. Ijaz Ahmad, J

Rao AQIL AHMAD KHAN‑‑‑Petitioner

Versus

Mst. RUQIYA BEGUM and 6 others‑‑‑ Respondents

Regular Second Appeals Nos.47 and 46 of 1994, heard on 27th November, 2001.

(a) West Pakistan Civil Courts Ordinance (II of 1962)---

‑‑‑‑S. 18‑‑‑Appellate Court‑‑‑Jurisdiction‑‑­Valuation for the purposes of Trial Court‑‑‑ Effect‑‑‑Where the valuation so fixed was not altered by the Trial Court, such valuation continues to be valuation for the purposes of Appellate Court also‑‑‑If the valuation is changed by the Trial Court then the valuation so changed is to be treated as valuation for the purposes of appellate forum.

Mumtaz Begum's case PLD 1960 Lah. 1088 and Muqarrab Khan's case 1993 MLD 2105 ref.

(b) Contract ‑‑‑

‑‑‑‑Enforcing of contract‑‑‑Two parts of contract one legal and the other illegal‑‑­Where legal part can be severed from the rest of the contract, such part may be enforced.

Gappoo Singh and another v. Har Charan and another AIR 1935 Oudh 501; Saundatti Yellama Municipality v. Shripadbhat Seshbhat Joshi and others AIR 1933 Bom. 132 and Razia Sultana Bano's case 1993 SCMR 804 ref.

(c) Specific Relief Act (I of 1877) ‑‑‑

‑‑‑‑Ss.12, 15 & 16‑‑‑Specific performance of independent part of agreement to sell‑‑­Agreement had two parts one regarding the portion of the property owned by the executant of the agreement and the other owned by wife of the executant‑‑‑Executant failed to execute the sale‑deed‑‑‑Trial Court partially decreed the suit in favour of the plaintiff to the extent of the portion owned by the executant‑‑‑Appellate Court modified the decree, dismissed the suit and directed the executant to repay the consideration amount received from the plaintiff‑‑‑Validity‑‑‑Trial Court had passed the judgment in accordance with the law and that the Appellate Court had decided the same contrary to law‑‑‑Judgment and decree passed by the Appellate Court were set aside and that of the Trial Court 'restored by the High Court.

M. Majid v, Mrs. Anwara Chowdhury and others PLD 1964 SC 807; Haji Abdul Ghaffar v. Haji Rauf 81991 CLC 734; Din Muhammad v. Bashir Ahmad and 5 others 1979 CLC 734; Ghulam Nabi v. Kishen Chand Shivaldas PLD 1950 Sindh 126; Eskandar Ali v. Mst. Alhamra Begum and others PLD 1969 Dacca. 214; Haji Gul and another v. Mst. Aisha PLD 1973 Kar. 653 and Sh. Allah Ditta v. Mst. Zainab Begum and 4 others 1993 CLC 234 ref.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Findings of fact‑‑‑Interference by High Court‑‑­Principles‑‑‑Where decision on facts is based on no evidence or inadmissible evidence or is perverse causing grave injustice and lower Appellate Court has committed material irregularity, High Court has ample jurisdiction to disturb such findings of fact.

Knawal Nain's case PLD 1983 SC 53 and Shaukat Nawaz's case 1988 SCMR 851 ref.

Hassan Ahmad Khan Kanwar for Appellant.

Shabbir Hussain Dhillon Respondents.

Date of hearing: 27th November, 2001.

2002 Y L R 1059

[Lahore]

Before Maulvi Anwarul Haq, J

Raja MUHAMMAD IQBAL and 39 others‑‑‑Petitioners

Versus

CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD through its Chairman and 2 others‑‑‑Respondents

Writ Petition No. 855 of 1990, heard on 3rd January, 2002.

(a) Review‑‑‑

‑‑‑‑ Right of review is a substantive right.

(b) Capital Development Authority Ordinance (XXII of 1960)‑‑

‑‑‑‑S.36(3)‑‑‑Constitution of Pakistan (1973), Art 199‑‑‑Constitutional petition ‑‑‑Review-‑­Jurisdiction of Commissioner to review order more than once‑‑‑Commissioner, after deciding the earlier review application allowed another review application‑‑­Validity‑‑‑Where Commissioner had passed an order on appeal, there arose right of review to any of the parties or a power vesting in the Commissioner himself to suo motu review the order so passed in appeal‑‑‑Once such power had been exhausted either suo motu or on an application, the order in appeal would become final‑‑‑Second review was not competent and the Commissioner acted without lawful authority in entertaining and allowing the same‑‑‑Order passed by the Commissioner in second review application was without lawful authority and the same" was set aside‑‑‑Constitutional petition was allowed in circumstances.

Zaheer Bashir Ansari for Petitioners.

Malik Muhammad Nawaz Respondents.

Dates of hearing: 20th, 21st December, 2001 and 3rd January, 2002.

2002 Y L R 1061

[Lahore]

Before Mansoor Ahmad, J

Mrs. SHAMIM JAVAID ZAR and 3 others---Petitioners

Versus

Mst. WAZIR BEGUM and 5 others---Respondents

Civil Revision No.58/D of 1997, decided on 28th December, 2001.

(a) Interpretation of document---

---- Statement contained in document--­Interpretation---Document is to be read as a whole to differentiate between general statement and the particular statement contained therein, attempt be made to save document rather than destroy or nullify the same.

Allah Bakhsh and others v. Muhammad Ishaque and others PLD 1984 SC 47; A.R. Khan v. P.N. Boga through Legal Heirs PLD 1987 SC 107 ref.

(b) Contract Act (IX of 1872)---

---S.171---Lien in execution---Scope---Lien in execution is an encumbrance that attaches to the property of judgment-debtor by operation of law.

(c) Contract Act (IX of 1872)---

----S.2(b)---Expression "absolute promise"--­Connotation---Expression "absolute promise" is one which is not inchoate but the completed promise is a completed contract which is capable of implementation and execution.

(d) Words and phrases---

-----"Actionable claim "---Meaning--Actionable claim is one which is constituent fact which leads to the perfection of the right.

(e) Words and Phrases---

----"Completed conveyance"---Meaning--­Completed conveyance is one which permanently and absolutely transfers a title and right in the immovable property.

(f) Specific Relief Act (I of 1877)---

----S.42---Registration Act (XVI of 1908), Ss. 17(1) & 49---Document, interpretation of-­-Unregistered document--- Claiming right on the basis .of such document---Sale-deed in favour of the predecessor-in-interest of the defendants was assailed on the ground that the document in favour of the mother of the plaintiffs was executed by their father prior to the execution of sale-deed-and on the basis of such document the sale deed executed in favour of defendants was illegal and liable to be set aside---Both the Courts below concurrently dismissed the suit as well as the appeal of the plaintiffs---Document subject­matter of the suit was simply an undertaking containing a promise to take certain steps in future for the perfection of right of the mother of the plaintiffs in respect of property mentioned in the undertaking--Neither sale-­deed as stated in the document was registered nor the payment of the money was alleged to have been made to the mother of the plaintiffs---Contention of the plaintiffs was that the property was held in lien by their mother as the same was given in the document---Validity---From the, construction of the document it could not be concluded that it had conveyed the ownership or the title in favour of the mother of the plaintiffs--­Document was merely an undertaking which contained the promise to transfer the property in favour of the mother of the plaintiffs--­Where the promise so mentioned was not acted upon by the executant, the document per se did not convey any right and title in favour of the mother of the plaintiff and the executant was not divested of ownership/title in property---Even if the document was taken as non-testamentary document conveying the right and title then it was compulsorily registrable under S.17(1) of the Registration Act, 1908 and effect of non-registration as described in S.49 of the Registration Act, 1908, was that the document did not operate to create or recover any right in or in respect of immovable property---Document (undertaking) in the present case did not convey any right in favour of the mother of the plaintiffs and the executant was not divested of title and ownership of the property and the sale-deed executed by him in favour of the predecessor-in-interest of the defendants with competence and within his right---Both the Courts below did not commit any material irregularity in construing the documents and High Court declined to interfere with the judgments and decrees passed by the Courts below in circumstances.

Malik Qamar Afzal for Petitioners.

Mujeeb-ur-Rehman for Respondents

Date of hearing 12th December, 2001.

2002 Y L R 1065

[Lahore]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

PUNJAB FLOUR MILLING CORPORATION through Chairman‑‑‑‑Appellant

Versus

N.H.HOLDING LTD. through Director‑‑‑Respondent

Regular First Appeal No.145 of 1991, heard on 24th October, 2001.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.19‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Acknowledgment of liability before expiry of period of limitation‑‑­Recovery suit was dismissed by the Trial Court for being filed after limitation‑‑­Contention of the plaintiff was that the defendant had acknowledged the payment through a letter, thus according to the provisions of S.19 of the Limitation Act, 1908, the suit was filed within limitation‑‑­Validity ‑‑‑Where the debt was acknowledged before the expiry of period of limitation, under the provisions of S.19 of the Limitation Act, 1908, fresh period of limitation would be computed from the time, when such acknowledgment had been made‑‑­Acknowledgment in the present case was made through letter signed by the, defendant, therefore, period of limitation commenced from the date of acknowledgment and thus the suit was not barred by time to the extent of the amount acknowledged through the letter‑‑‑Trial Court having ignored such aspect of the matter and the provisions of law judgment and decree passed by Trial Court were set aside and the case was remanded to Trial Court for decision afresh‑‑‑Appeal was allowed accordingly.

Abdul Rashid Randhawa for Appellant.

Jawad Hassan for Respondent.

Date of hearing: 24th October, 2001.

2002 Y L R 1068

[Lahore]

Before Maulvi Anwarul Haq J

HABIB BANK LIMITED‑‑‑‑‑Appellant

Versus

NASIR SAEED through Muhammad Azam‑‑‑Respondent

First Appeal from Order No. 156 of 1999, heard on 22nd January, 2002.

Cantonments Rent Restriction Act (XI of 1963)‑‑‑

‑‑‑‑Ss.3‑A, 17 & 24‑‑‑Banks (Nationalization) Act (XIX of 1974), Ss. 5 & 6‑‑‑Ejectment application‑‑‑Competency‑‑‑Ejectment application filed by Banking Company against its tenant was dismissed by the Rent Controller holding that since Banking Company was nationalized, premises in question were controlled by Federal Government and that ejectment application filed without the authority of Federal Government was incompetent‑‑­Validity‑‑‑Nationalization of Banking Company would not at all affect its status as body corporate and would continue to exist as legal entity independent of the Federal Government‑‑‑Banking Company being a body corporate was fully' authorised to hold and dispose of property and to deal with the same in the manner prescribed by law‑‑‑Rent Controller in circumstances had committed an error of law while dismissing ejectment application‑‑‑Order of Rent Controller was set aside.

Badruddin H. Mavani v. Messrs Commerce Bank Ltd. PLD 1975 Kar.182; Inayatullah Nerejo v. Pakistan and 7 others 1988 CLC 1446 and Darab Shah B. Dalal v. Muslim Commercial Bank Ltd. PLD 1977 SC 457 ref.

Naseem Mehmood for Appellant.

Nemo for Respondents.

Date of hearing: 22nd January, 2002.

2002 Y L R 1069

[Lahore]

Before Abdul Shakoor Paracha, J

ABDUL AZIZ‑‑‑‑‑Petitioner

Versus

Mst. INAYAT BIBI through Legal Heirs and others‑‑‑Respondents

Civil Revision No. 1476 of 1994 and Civil Miscellaneious No. 1‑C of 1996, heard on 14th January, 2002.

Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss.5 & 29(2)‑‑‑Limitation‑‑‑Where the statute governing the proceedings did not prescribe period of limitation, the proceedings instituted thereunder would be controlled by the Limitation Act, 1908 as a whole‑‑‑Where however, the law under which proceedings had been launched itself prescribed a period of limitation then benefit of S.5 of the Limitation Act, 1908 could not be availed unless the same had been made applicable as per S.29(2) of the Limitation Act, 1908.

Allah Dino and another v. Muhammad Shah and another 2001 SCMR 286 ref.

Allah Wasaya Malik for Petitioner.

Raja Muhammad Arif for Respondents.

Date of hearing: 14th January, 2002.

2002 Y L R 1071

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASLAM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1096 of 1999, heard on 5th April, 2002.

Penal Code (XLV of 1860)‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑­Occurrence had taken place when it was dark‑‑‑Police post was at a distance of 1‑1/2 K.M. from place of occurrence, but nobody went to Police amongst eye‑witnesses to lodge report and F I. R. was recorded at the spot after inquiry‑‑‑Complainant who claimed that after one fire shot he woke up and saw accused running away, did not see any weapon in hands of accused‑‑‑Complainant had not mentioned in F.I.R. that he saw accused firing at deceased, but in cross­-examination he had stated that he saw accused firing from pistol on right side of head of deceased‑‑‑Complainant had also made number of improvements--‑Prosecution witnesses who were nearest relatives of deceased were residents of places which were from 1‑1/2 to 16 miles away from the place of occurrence‑‑‑Presence of said prosecution witnesses at place of occurrence at relevant time, was not acceptable‑‑‑No person from adjacent houses had been cited or produced before Trial Court‑‑‑All prosecution witnesses had made material improvements in their statements in order to strengthen their case against accused to get him convicted‑‑‑Wife of accused who was daughter of complainant had stated in Courts as defence witness that on the night of occurrence accused was with her in his house‑‑‑Motive of occurrence was stated to be that accused had illicit relation with younger sister of his wife‑‑‑Said sister‑in‑law of accused .was never interrogated by police and wife of accused had also not supported said motive of occurrence‑‑‑Prosecution story was not plausible and was full of doubts‑‑‑Prosecution having failed to prove case against accused, conviction and sentence awarded to accused were set aside.

Muhammad Amin Javed for Appellant.

Miss Tasneem Amin for the State

Date of hearing: 5th April, 2002.

2002 Y L R 1075

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MUSTAFA and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.61 of 2002, decided on 17th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.144‑‑‑Penal Code (XLV of 1860), S.188‑‑‑Appreciation of evidence‑‑‑Petitioners had violated S.144, Cr. P. C. which was punishable under S.188, P. P. C. as both were riding a motorcycle which was prohibited on that date‑‑‑Magistrate after recording their statements fined them and appeal against the fine was dismissed by the Additional Sessions Judge‑‑‑Validity‑‑‑No questions having been put to the petitioners before recording 'their confessional statements to the effect that for how many days they remained in police custody and if they made confession same could be used against them and even in this regard no certificate had also been given by the Trial Magistrate‑‑‑Both the orders passed by the Trial Magistrate as well as Additional Sessions Judge were set aside by the High Court.

Nemo for Petitioners.

Abdul Qayyum Anjum for the State.

Date of hearing: 17th May, 2002.

2002 Y L R 1076

[Lahore]

Before Maulvi Anwarul Haq and Parvez Ahmad, JJ

H. MUHAMMAD AKBAR SHAKIR and 2 others‑‑‑Petitioners

Versus

THE STATE THROUGH DISTRICT MAGISTRATE/D.C. and 8 others‑‑‑Respondents

Writ Petition Nd.27634 of 997, heard on 13th May, 2002.

Marriages (Prohibition of Wasteful Expenses) Act (XXI of 1997)‑‑‑

‑‑‑‑Ss.3, 4, 5, 7 & 8‑‑‑Appreciation of evidence‑‑Proceedings against accused were initiated on a. written complaint of S.H.O. of the concerned Police Station‑‑‑No reference was made to any warrant or summons having been issued or to framing of charge or to trial‑‑‑Fine was imposed on accused and its recovery' was not denied‑‑‑Validity‑‑­Conviction and sentence of accused as also recovery of fine from accused was wholly illegal and void for the reasons that no complaint was made in writing by any Ehtesab Committee reporting contravention of provisions of S.3 or 4 of Marriages (Prohibition of Wasteful Expenses) Act, 1997 and no question of any conviction or sentence of accused arose‑‑Conviction and sentence of accused were set aside and he would be entitled to receive back amount recovered from him by way of fine.

M.J.I. Jafree for Petitioners.

Nemo for Respondents.

Date of hearing: 13th May, 2002.

2002 Y L R 1077

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SABTAIN‑‑‑Appellant

Versus

THE STATE‑‑‑ Respondent

Criminal Appeal No.516 of 2000, heard on 5th June, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation‑of evidence‑‑‑Injury ascribed to the accused was sufficient to cause death in the ordinary course of nature‑‑‑Said injury was on the chest of the deceased ‑‑‑F.I.R. in the case was promptly got registered in police station, so there was no question of deliberation and consultation about the lodging of F.I.R.‑‑‑Weapon of offence i.e. dagger had been recovered from the accused ‑‑‑Co‑accused had been rightly acquitted by the Trial Court and against his acquittal criminal appeal had already been dismissed‑‑‑Three injuries were found on the person of the deceased and same had been attributed to the accused‑‑‑Prosecution had proved its case against the accused beyond any shadow of doubt and there was no reason to falsely implicate him‑‑‑Trial Court had already granted lesser sentence to the accused as the motive alleged by the prosecution had not been satisfactorily proved‑‑‑High Court maintained the conviction and sentence passed against the accused and dismissed his appeal accordingly.

M. Aftab Iqbal Chaudhry for Appellant.

Najamul Hassan Gill for the State.

Date of hearing: 5th June, 2002.

2002 Y L R 1080

[Lahore]

Before Karamat Nazir Bhandari and Mrs. Nasira Iqbal, JJ

TEHSIL MUNICIPAL ADMINISTRATION, MANDI BAHAUD‑DIN through Tehsil Municipal Officer‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.4414/BC of 2002, decided on 25th July, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(5)‑‑‑Penal Code (XLV of 1860) Ss. 380/420/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Cancellation of bail‑‑‑Perusal of the impugned order of Special Court showed that the only reason for grant of bail was misread statement of prosecution witness made under S.161, Cr. P. C. ‑‑‑Recovery of the stolen seals/stamps at the behest of the accused had also incriminated him‑-‑Offence alleged was serious as the forged cheque was sought to be encashed, but for the common sense and wisdom of the Bank officials the accused might as well had succeeded in misappropriating the public money‑‑‑Petition for cancellation of bail accepted and bail granted to the accused was cancelled by the High Court.

Mubinuddin Qazi for Petitioners

M. Saleem Shad for the State.

Seerat Hassan Naqvi for Respondent No. 2.

2002 Y L R 1082

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHMMAD NASIR and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.348/B of 2002, decided on 22nd May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/16-‑­Bail, grant of‑‑‑Allegation against accused was that he alongwith co‑accused forcibly abducted sister pf complainant and had committed Zina‑bil‑Jabr with her‑‑‑Matter was reported to police after a delay of more than two months when alleged abductee returned to house of complainant‑‑‑Brother of alleged abductee and other prosecution witness had claimed that they had allegedly seen accused committing Zina with alleged abductee, but they did nor report matter to police at the relevant tune‑‑‑Alleged abductee had been making divergent statements before different Courts and while present in Court had categorically stated that she was wife of accused who was father of their female child‑‑‑Accused was rotting in jail for the last two years while co‑accused against whom no allegation of commission of Zina had been levelled was behind the bars for the last one year‑‑‑Accused were admitted to bail in circumstances.

M.R. Khalid Malik for Petitioners.

Arshad Ali Chohan for the Complainant.

Muhammad Amjad Mumtaz for the State.

2002 Y L R 1084

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

SHADI KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 194 of 1995, heard on 20th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/34, 324/34, 459/34 & 394/34‑‑­Appreciation of evidence‑‑‑Identification of accused in jail being doubtful could not be relied upon‑‑‑Identification of accused in the Court was also of no, consequence as he was known to the witnesses by face before they made statements as admitted by them in their cross‑examination‑‑‑Recovery of Identity Card of the accused from a car parked at a deserted place at a reasonable distance from the place of occurrence was by itself not a proof of his participation in the occurrence‑‑­No incriminating evidence of participation of accused in the crime was available on record‑‑‑Accused was acquitted in circumstances.

Malik Rab Nawaz Noon for Appellant.

Mirza Farooq Anwar for the State.

Date of hearing: 20th September, 2001.

2002 Y L R 1087

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

SHER ZAMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.275‑T of 1999, heard on 24th October, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 324, 337‑F(ii) & 337‑F (iv)‑‑­Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Appreciation of evidence‑‑‑Taking place of the occurrence and sustaining injuries by the witnesses and the, deceased in the house of accused was admitted‑‑‑Deceased and the witnesses had gone to the; house of accused peacefully with empty hands‑‑‑Accused had used the licensed rifle of his father in the occurrence‑‑‑Defence version introduced at the trial was neither pleaded during the investigation nor was established at the trial‑‑‑Accused, according to F.I.R.; while armed with automatic .222 unlicensed rifle had caused injuries to the deceased and the witnesses and, therefore, notwithstanding the subsequent proof of the use of licensed weapon, there would be no defect in the exercise of jurisdiction by the Special Court in the case in which a scheduled offence was committed‑‑‑Even otherwise the Additional Sessions Judge (Trial Judge) was holding the additional charge of Special Court and even if the case against accused was not triable as a scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975, the trial could competently be conducted by the Additional Sessions Judge in exercise of his general jurisdiction as no prejudice was caused to the accused either in procedure or in substantial law‑‑‑Prosecution case itself stated that nothing was abnormal on the day of occurrence and the accused on seeing the deceased and the witnesses in the verandah of his house abruptly opened firing on them‑‑­Such suddenness of the occurrence was not a mitigating circumstance in favour of the accused who without any excuse while acting in a cruel manner killed the two deceased and injured the witnesses‑‑‑Conviction and sentence of death of accused under S.302(b), P. P. C. were. consequently confirmed‑‑­Conviction and sentence of accused under Ss. 324, P. P. C. & 337‑F(ii) (iv), P. P. C. for the same injuries were however not proper and his conviction and sentence under S. 324, P. P. C. were set aside in circumstances whereas the same under S. 337‑F(ii) (iv), P. P. C. were maintained.

(b) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)‑‑‑

‑‑‑‑S.4‑‑‑Jurisdiction of Special Court‑‑­Cognizance of a scheduled offence allegedly committed by a person is taken in the light of the allegations contained in the F.I.R. and not on considerations of ultimate result.

Haq Dad Kiani for Appellant.

Aftab Ahmad Gujjar for the State.

Date of hearing: 24th October, 2001.

2002 Y L R 1096

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Sayeed Akhtar, JJ

MUHAMMAD RAZZIK and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 277/T of 1999, heard on 13th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302(b)/34 & 324/34‑‑‑Appreciation of evidence‑‑‑Accused being co‑villagers of the witnesses were known to them by face as well as by names with their parentage‑‑­Identification of accused, thus, was not open to any doubt‑‑‑Complainant in her statement made shortly after the occurrence in the hospital to the police had named the accused as culprits‑‑Recovery of pistols at the instance of accused being not confidence-­inspiring, positive reports of the Forensic Science Laboratory regarding the snatching of crime empties recovered from the spot with the pistols was of no consequence‑‑‑Medical evidence had established that the deceased and the injured witness had sustained injuries with bullets and the recovery of bullet empties had confirmed that pistol was used in the occurrence‑‑‑Ocular testimony furnished by natural witnesses was independent and inspired confidence which was fully corroborated by medical evidence and the attending circumstances‑‑‑Convictions of accused were upheld in circumstances‑‑‑Was not known as to who had fired at whom and it was difficult to fix the individual responsibility of causing injuries to the deceased and the complainant‑‑‑Sentence of death awarded to accused was, in circumstances, reduced to imprisonment for life each‑‑‑Sentence of 10 years' R.I. awarded to accused under S.324, P. P. C. was also reduced to 7 years' R. I. each and both the sentences were directed to run concurrently with benefit of S. 382‑B, Cr. P. C.

Syed Abid Hussain Shah for Appellant.

Raja Saeed Akram, A.A.‑G. assisted by Sher Zaman for the State.

Date of hearing: 13th September, 2001.

2002 Y L R 1101

[Lahore]

Before Mian Muhammad Jehangir, J

MANZOOR HUSSAIN‑‑‑Petitioner

Versus

THE STATE ‑‑‑Respondent

Criminal Miscellaneous No. 7659‑B of 2001, decided on 7th February, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Criminal breach of trust‑‑­Ingredients‑‑‑Criminal breach of trust is complete when there is dishonest mis­appropriation or conversion of any property to one's own use or dishonest use or disposal of the property in violation of any direction of law on prescribing mode in which such trust is to be discharged.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.409‑‑‑Bail‑‑‑Allegation against accused basically was of misplacement or loss of some files from his custody‑‑‑No dishonesty on the part of accused was established during investigation‑‑‑Positive expectation was that the said files might be traced in near future as the same could possibly be mixed up with other files due to rush of work‑‑‑Accused was a public servant and there was no chance of his abscondence‑‑‑Accused was in Jail and he was no more required for any further investigation‑‑‑Bail was allowed to accused in circumstances.

Muhammad Shaheen Tariq v. The State 1995 PCr.LJ 1717; Muhammad Ali v The State PLD 1996 Lah. 257; Abdul Aziz v The State 1997 MLD 1723; Manzoor Ali v. The State 1998 PCr.LJ 2042; Abid Rashid v. The State 1996 SD 608; Mst: Hifsa Malik v. The State 1995 PCr.LJ 46 and Ghulam Khaliq v. The State 1995 PCr.LJ 1042 ref.

Rafique Ahmad Bajwa and Shaukat Rafique Bajwa assisted by Muhammad Akram Javaid and Sheikh Zulfiqar Ali for Petitioner.

Tasnim Ameen for the State.

2002 Y L R 1104

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD KHALID‑‑‑Petitioner

Versus

ADDITIONAL DIRECTOR, ANTI­-CORRUPTION ESTABLISHMENT, FAISALABAD REGION, FAISALABAD and 4 others‑‑‑Respondents

Writ Petition No. 2772 of 2002, decided on 15th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 409/420/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5‑‑‑Punjab Anti‑Corruption Establishment Rules, 1985, R.6‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F. I. R. ‑‑‑No rule could be pointed out to show that the Additional Director, Anti­ Corruption Establishment was debarred from holding the third inquiry as a result of which the case had been registered against the accused‑‑‑Anti‑Corruption Establishment Rules, 1985, having been framed by the Executive Authorities and not by the Parliament, were not mandatory and were directory in nature‑‑‑Even if any action had been taken in violation of any Rule, it would not be a sufficient ground for quashing of the F.I.R. as serious allegations had been levelled against the accused and a prima facie case was made out against him which required recording of evidence‑‑‑Collection of evidence was the duty of the Investigating Officer and the High Court, while exercising its powers under Art. 199 of the Constitution, could not stay the investigation of the case‑‑Constitutional petition was dismissed in limine in circumstances.

Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1991 Lah. 109 ref.

M. Aftab Iqbal Chaudhary for Petitioner:

2002 Y L R 1105

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD JAVED‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 660 and Criminal Revision No.334 of 1999, heard on 10th January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 319‑‑‑Appreciation of evidence‑‑‑No crime empty having been recovered from the place of occurrence, recovery of pistol from the accused was of no consequence‑‑‑Accused had not committed the murder of the deceased intentionally‑‑‑Death of the deceased had been caused by the reckless firing of the accused in a marriage party‑‑‑Conviction of accused under S.302(b), P.P.C was consequently set aside and instead he was convicted under S.319, P. P. C. the deceased and sentenced to suffer five years' R. I. and to pay Rs.1,50,000 as Diyat to the legal heirs of the deceased or in default thereof to undergo six months' S.I.‑‑‑Appeal was disposed of accordingly.

Munir Ahmad Bhatti alongwith S.D Qureshi for Appellant.

Imtaaz Ahmed Chaudhry for the State

Date of hearing: 10th January, 2002.

2002 Y L R 1108

[Lahore]

Before Asif Saeed Khan Khosa, J

NASREEN BIBI and another‑‑‑Petitioners

Versus

STATION HOUSE OFFICER, POLICE STATION, JHALL CHAKIAN, DISTRICT, SARGODHA and others‑‑‑Respondents

Writ Petition No. 19024 of 2001, decided on 11th December, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑S.11‑‑‑Penal Code (XLV of 1860), S.337­-H(2)‑‑‑Constitution of Pakistan (1973), Art. 199 ‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Quashing of F.I.R.‑‑­Questions whether female accused had been abducted by the male accused, whether female accused was already married to somebody else as alleged in the F.I.R. and whether the facts mentioned in the F.I.R. regarding the occurrence were correct or not, required holding of a factual inquiry which could not be done by the High Court in the summary proceedings under Art.199 of the Constitution‑‑‑Police being under statutory duty to investigate the crime reported to it, High Court would not stifle the same at such a premature stage‑‑‑Constitutional petition, even otherwise, was not maintainable in view of the availability of other statutory remedies to the accused‑‑‑Investigating Officer was bound to conduct the investigation justly, fairly and strictly in accordance with law after recording oral and documentary evidence of both the parties and keeping both the versions before him‑‑‑Constitutional petition was dismissed in circumstances.

Haji Muhammad Sadiq v Ilaqa Magistrate of Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571; Farrukh Salim v. The State PLD 1997 Lah. 385 and Qaiser Mehmood v Muhammad Shafi and another PLD 1998 Lah.72 ref.

Ch. Muhammad Aslam Sandhu for Petitioners.

Malik Muhammad Imtiaz Mahl for the Complainant.

Muhammad Shan Gul for the State.

2002 Y L R 1110

[Lahore]

Before Mian Nazir Akhtar, J

SARFRAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 757/B of 2002, decided on 28th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.457/380/411‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail‑‑‑Recoveries made from the accused had, prima facie, made out an offence under S. 411, P. P. C. ‑‑‑No evidence was available on record to show that the accused had actually entered the house of the complainant and committed theft therein‑‑­Offences under Ss. 411, 380 & 457, P. P. C. did not fall within the prohibition contained in S.497(1), Cr.P.C.‑‑‑Prosecution had not urged that the accused after getting bail would abscond, commit any other offence or tamper with the prosecution evidence‑‑­Accused was admitted to bail in circumstances.

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

Malik Muhammad Imtiaz Mahl for Petitioner.

M. Alam Sabri for the State.

2002 Y L R 1111

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

MUHAMMAD MANIK and 7 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1449 and Criminal Revision No.893 of 2000, heard on 30th January, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Occurrence had taken place during the dark hours of the night in the verandah of the house of the deceased and identification of the assailants in the light of the lantern was doubtful particularly when the said lantern was not taken into possession by the police during investigation‑‑‑Improvement made by the complainant in his supplementary statement assigning main role to the accused was false and the same could not be relied upon‑‑‑Other eye‑witnesses its pursuance of the said improvement by, the complainant had also ascribed the train role to the accused and their evidence too was not trustworthy‑‑­Gun allegedly recovered from the accused having not been sent to the Forensic Science Laboratory for comparison with the crime empties was of no significance and could not be considered as a corroborative piece of evidence‑‑‑Medical evidence had contradicted the ocular account of occurrence‑‑‑Enmity between the parties having, been admitted, false implication of accused in the crime could not be ruled out in the absence of corroboration of the prosecution version‑‑­Entire prosecution case had been disbelieved by the Trial Court qua seven acquitted co‑accused and the same evidence could not be relied upon for convicting the accused on a capital charge‑‑­Accused was acquitted in circumstances.

Falak Sher alias Shera v. The State 1995 SCMR 1350 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence----Supplementary statement of the complainant‑‑‑Any statement of the firs: informant recorded during investigation by the police would neither be equated with first information report nor read as part of it.

Falak Sher alias Shera v The State 1995 SCMR 1350 ref.

Sardar Khurram Lateef Khan Khosa for Appellant.

Allah Bakhsh Gondal for the Complainant.

Saifullah Khalid for the State.

Date of hearing: 30th January, 2002.

2002 Y L R 1116

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed ZAMEER HUSSAIN SHAH‑‑‑Petitioner

Versus

THE SMALL BUSINESS FINANCE CORPORATION through Zonal Manager and 3 others‑‑‑Respondents

Writ Petitions Nos.3234 and 2738 and Criminal Original No.312/W of 2002, decided on 27th February, 2002.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Release of the detenu sought‑‑‑Constitutional petition was not maintainable as the detenu had alternative remedy before the higher Authorities under the Punjab Land Revenue Act, 1967‑‑­Respondents were, however, directed in the interest of justice and fairplay to release the detenu after receiving Rs.50,000 and thereafter to consider his request of discharging his liabilities in easy instalments in the interest of the Corporation and to save his family from destruction and also to give him benefit in accordance with law under the incentive schemes issued by them‑‑­Constitutional petition was disposed of accordingly.

Writ Petition No.7156 of 2001; Criminal Miscellaneous No.711/H of 2001; Muhammad Muzafar Khan's case PLD 1959 SC 9; Qadir and others v The State PLD 1958 (W.P) Pesh. 38 and Nasir Muhammad's case PLD 1997 SC 852 ref.

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

‑‑‑‑S.491‑‑‑Habeas corpus petition ‑‑‑Scope‑‑­Proceedings qua habeas corpus petition are summary in character‑‑‑High Court has no jurisdiction to resolve the disputed questions of facts in habeas corpus petition.

Nasir Muhammad's case PLD 1997 SC 852 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.491‑‑‑Constitutional petition‑‑­Habeas corpus petition‑‑‑Scope‑‑‑High Court has no jurisdiction under Art. 199 of the Constitution and S.491, Cr.P.C. to grant relief to the detenu in respect of the allegations of wrongful detention or any allegation of torture or some other inhuman act committed on his person‑‑‑Detenu can be released by the High Court under the said provisions of law only in case his detention is illegal.

Qadir and others v. The State PLD 1958 (W.P) Pesh. 38 and Nasir Muhammad's Base PLD 1997 SC 852 ref.

Sardar Muhammad Arshad Dogar for Petitioner.

Sardar Tariq Dareshak, Legal Advisor for Respondent.

2002 Y L R 1119

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

ABID MUMTAZ ‑‑‑Appellant

Versus

THE STATE-‑‑Respondent

Criminal Appeal No.615 and Murder Reference No.214 of 1997, heard on 18th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Complainant himself was not sure as to who was the actual murderer, of his son‑‑‑Version of the complainant and the Investigating Officer that supplementary statement of the complainant regarding change of name of accused had been recorded through, an affidavit within fifteen minutes after registration of F.I.R was totally incorrect‑‑­Eye‑witnesses were related to the deceased‑‑­Deceased was not a man of good character and was having many enemies‑‑‑Possibility of the deceased having been murdered by any of his enemies could not b‑ ruled gut‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Munir Ahmad Bhatti for Appellant.

Abdur Rashid Monin for the State.

Date of hearing: 18th February, 2002.

2002 Y L R 1122

[Lahore]

Before Khawaja Muhammad Sharif, J

KHUDA BUKHSH and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.1139 and Criminal Revision No.554 of 2000, heard on is March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S. 311/34‑‑‑Appreciation of evidence‑­First version of the accused was of innocence‑‑‑During investigation 65 person had appeared before the Investigating Office to support the plea of innocence of the accused‑‑‑Nothing incriminating was recovered from the accused‑‑‑Real brother of the deceased had waived his right of Qisas according to whom accused were not the real culprits‑‑‑Unknown accused mentioned in the F.I.R. was a proclaimed offender who, in order to deprive the deceased from huge amount lying in his shirt had taken it away‑‑­Medical evidence did not corroborate other evidence‑‑‑Prosecution witnesses were not only interested but were also inimical towards the accused‑‑‑Prosecution case was replete with doubts‑‑‑Accused were acquitted in circumstances.

Masood Mirza and Bashir Abbas for Appellants.

Muhammad Yaqoob Khan for the State.

Masood Sadiq Mirza for the Complainant.

Date of hearing: 1st March, 2002.

2002 Y L R 1125

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. BALQEES BEGUM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 896, 1066, 552 of 1999 and 1008 of 2001, heard on 5th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 364‑‑‑Appreciation of evidence‑‑‑No eye‑witnesses being available in the case, the murder was a blind one‑‑­Complainant being a police constable, the possibility of his using influence, or requesting the Investigating Officer to implicate the accused falsely in the case could not be ruled out‑‑‑Sentence could not be awarded on a capital charge merely on the basis of a very weak type of evidence of extra judicial confession allegedly made by, the accused‑‑­No independent witness had been produced in the case‑‑‑Presence of eye‑witnesses of abduction at the time of occurrence at 3‑30 a.m. early in the morning even before Fajjar "Azaan" was ruled out of consideration‑‑­Prosecution story was neither plausible nor convincing and was full of doubts, benefit of which was to be given to the accused not as a grace but as a matter of right‑‑ Accused were acquitted in circumstances.

Nadeem Siddiqui and Rana Munir Ahmad Khan for Appellants.

Masood Pervaiz Chaudhry for the State.

Pervaiz Iqbal Cheema for the Complainant.

Date of hearing: 5th March, 2002.

2002 Y L R 1128

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SALEEM ULLAH‑‑­Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 975‑B and 1201‑B of 2002, decided on 20th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), Ss. 302/148/149/109‑‑‑Pre‑arrest bail‑‑­F.I.R. had been promptly lodged with the names of the accused and the specific roles played by them in the occurrence‑‑‑Motive was also attributed to the accused for the commission of the offence‑‑‑Despite the extraordinary concession of protective bail having been allowed to accused for approaching the Sessions Court for bail before arrest within five days, they misused the same and appeared there after 22 days and after getting interim pre‑arrest bail from Sessions Court they did not appear before the said Court when the matter came up for confirmation of bail‑‑‑Such conduct of accused had disentitled them for grant of extraordinary concession of bail before arrest‑‑‑Date and place of the conspiracy had been mentioned in the F.I.R. by the complainant alongwith the witnesses of the conspiracy who were supporting the prosecution case‑‑‑Large number of accused involved in the case was shown by the recovery of 143 crime empties of different fire‑arms from the spot‑‑‑Investigating Officer despite having been given time for half an hour and three opportunities to go through the file and explain the basis and material on which the accused had been declared innocent by him in investigation, was unable to give a satisfactory reply and his conduct was very deplorable‑‑‑Pre‑arrest bail was declined to accused in circumstances.

PLD 1984 SC 192 and PLD 1983 SC 82 ref.

Ch. Muhammad Nawaz Sulehria for Petitioner.

Ijaz Hussain Batalvi for Petitioners (in Criminal Miscelleouneous No.1201‑B of 2002).

Ch. Muhammad Ghani for the State.

Zaka‑ur‑Rehman for the Complainant.

2002 Y L R 1133

[Lahore]

Before Khawaja Muhammad Sharif, J

TAHIR NAWAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 420 and Criminal Revision No.227 of 2001, heard on 7th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑­Eye‑witnesses were not found to be present on the spot at the time of occurrence‑‑‑Ocular testimony and medical evidence were in clear conflict with each other‑‑‑Eye‑witnesses had improved their version before the Trial Court to bring the same in consonance of the post­mortem report‑‑‑Main accused who according to the F.I.R. had caused injury on the head of the deceased had been acquitted‑‑‑No crime empty was recovered from the place of occurrence‑‑‑Deceased was involved in four criminal cases‑‑‑Possibility of the occurrence having taken place in dark hours of the night and thus having not been witnessed by any person, could not be ruled out‑‑‑Conviction on capital charge could not be made merely on the basis of the motive attributed to accused‑‑‑Eye‑witnesses were closely related to the deceased and no independent witness was examined by the prosecution‑‑‑Accused was acquitted on benefit of doubt in circumstances.

PLJ 1982 S.C 488 and 1977 PCr.LJ 932 ref.

Mian Muhammad Shafiq Bhindar for Appellant.

Umar Farooq Khan on behalf of Aftab Iqbal Ch. for the Complainant.

Ashfaq Ahmad Chaudhry for the State.

Date of hearing: 7th March, 2002.

2002 Y L R 1137

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

SAFDAR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 324 and Murder Reference No. 192 of 1996, heard on 4th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence---Complainant was not legally authorized to take the under-trial prisoners to Jail in a private van and his explanation in this regard was far fetched‑‑‑None of the accused present in the said van was produced to support the statement of the complainant‑‑‑Medical evidence was in conflict with the ocular account of occurrence‑‑‑Plea taken by accused in his statement under S.342, Cr. P. C. was more plausible and nearer to truth‑‑‑Two co‑accused had been acquitted by the Trial Court on the same evidence‑‑‑No crime empty having been recovered from the spot, recovery of the rifle at the instance of accused was of no avail to the prosecution‑‑­F.I.R. could not have been recorded within twenty minutes when the police station was at a distance of four miles from the place of occurrence which showed that the same had been recorded after due consultation and deliberation---Accused was acquitted in circumstances.

Muhammad Sharif Cheema for Appellant (at State expenses).

Malik Muhammad Azam for the State.

Date of hearing: 4th March, 2002.

2002 Y L R 1142

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD BOOTA alias BOOTI and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1373 and Murder Reference No.560 of 2000, heard on 28th February, 2002.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss.11, 10(4) & 10(3)‑‑‑Appreciation of evidence‑‑‑Delay of 15/16 days in lodging the F.I.R. had been reasonably explained by the complainant and the same was not fatal to the prosecution case‑‑‑Motive alleged, by the accused for their false implication did not appeal to common sense‑‑‑Negative report of Chemical Examiner was of no use to the accused as the victim lady was a married woman and mother of two children‑‑‑Even without medical report the photographs got recovered by the accused themselves was sufficient proof of committing Zina by the accused with the victim‑‑‑Accused had committed Zina with the victim and also taken the photographs to blackmail her in future which was a highly immoral act‑‑‑Statement of the victim stood corroborated by the said photographs‑‑‑Was not proved that both the accused had committed Zina one by one at the same time and took the photographs‑‑‑Said photographs did not indicate that those were of both the accused taken on the same day and time and the statement of the victim in this regard was not corroborated by any other independent evidence‑‑‑Conviction of accused under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was consequently altered to S.10(3) and their sentence of death was reduced to ten years' R.I. each‑‑‑Sentence of accused under S.11 of the said Ordinance was also reduced to ten years' R.I. with the reduction in fine‑‑‑Both the sentences were ordered to run concurrently with benefit of S.382‑B, Cr. P. C.

Muhammad Inayat Ullah Cheema for Appellants.

Nazam ud‑Din Arif for the State.

Date of hearing: 28th February, 2002.

2002 Y L R 1146

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD JEHANGIR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 261 and Murder Reference No. 102 of 1997, heard on 25th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Appreciation of evidence‑‑­Accused had been nominated in the promptly lodged F.I.R. ‑‑‑Occurrence had been admitted by the accused to have taken place under "Ghairat "‑‑‑Accused had failed to explain as to why he was implicated falsely in the case‑‑‑Relationship of the prosecution witnesses with the deceased was no ground to discard their testimony as they had no previous enmity with the accused‑‑‑Ocular evidence was corroborated by the medical evidence‑‑‑Conviction of accused was maintained in circumstances‑‑‑Motive for the occurrence was not established‑‑‑ Complainant had himself stated in the F.I.R. that the accused on seeing the prosecution witnesses in his house was provoked and he fired at the deceased‑‑‑Murder thus was not premeditated and preplanned and it was not clear as to what had happened at the spur of the moment‑‑‑Accused had also not repeated the fire shot‑‑‑Sentence of death awarded to accused by Trial Court was altered to imprisonment for life in circumstances.

Rana Muhammad Arshad Khan for Appellant.

Abdur Rauf Farooqi for Complainant.

Ch. Abdur Rasheed Monan for the State.

Date of hearing: 25th February, 2002.

2002 Y L R 1150

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD NADEEM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 153‑J and Murder Reference No.208‑T of 1998, heard on 6th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 365/34, 377/34 & 201/34‑‑­Appreciation of evidence‑‑‑Accused were nominated in the promptly recorded F.I.R.‑‑­Occurrence had taken place in day light‑‑­Eye‑witnesses were independent and impartial being residents of the same locality having no enmity for false implication of accused‑‑­Accused had not only admitted their guilt in the properly recorded judicial confessions but had also admitted the same in their statements recorded under S. 342, Cr. P. C. ‑‑‑Accused had committed a heinous offence and no mitigating circumstance was available in their favour‑‑‑Convictions and sentences of accused including the sentence of death were upheld in circumstances.

Shaukat Ali Khawaja for Appellants.

M. Aslam Malik for the State.

Date of hearing: 6th March, 2002.

2002 Y L R 1154

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD ZAMAN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.96 and Murder Reference No.341‑T of 1999, heard on 5th March, 2002.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑

‑‑‑‑Ss.10(4), 10(3) & 11‑‑‑Penal Code (XLV of 1860), Ss. 354‑A/149, 452/34 & 148‑‑­Appreciation of evidence‑‑‑Ocular account regarding trespass of accused in the residential Kotha of the complainant and abduction of his daughter by them from there was consistent and was corroborated by the motive and the recovery of broken bangles and the crime empties from the spot‑‑‑No previous enmity existed for false implication of accused in the case who had been ascribed specific role and participation in the commission of the heinous crime‑‑‑Abductee had been recovered from the possession of accused who had led to the recovery of her torn‑clothes‑‑‑Report of the Chemical Examiner was in the positive‑‑‑No witness from the public was examined by the prosecution to show that the abductee was stripped of in public and such allegation had been introduced by her during investigation which was not corroborated by any other prosecution witness‑‑‑Conviction and sentence of accused under S.354‑A/149, P. P. C. were consequently set aside‑‑‑Conviction of accused, under S.10 (4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was altered to S.10 (3) of the said Ordinance and the sentence of death was reduced to imprisonment for life in circumstances‑‑Other accused alleged to have made only ineffective firing appeared to have been involved falsely in the case being the relatives of the main accused and they were acquitted on benefit of doubt accordingly.

Khawaja Sultan Ahmad and Ihtisham Qadir Shah for Appellants.

Zahid Hussain Khan for the Complainant.

Malik Muhammad Aslam Khokhar for the State.

Date of hearing: 5th March, 2002.

2002 Y L R 1159

[Lahore]

Before Khawaja Muhammad Sharif, J

FAYYAZ and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1444‑B of 2002, decided on 1st March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.498‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Pre‑arrest bail‑‑‑Accused were not named in the F.I.R. ‑‑‑Complainant had lodged the F.I.R, on the basis of what was told to him by an eye‑witness‑‑‑Said eye­witness had exonerated the accused from the charge‑‑‑Civil and criminal litigation was pending between the parties‑‑‑No evidence admittedly was available on record to connect the accused with the commission of the offence‑‑‑Nothing was to be recovered from the accused‑‑‑State Counsel had not supported the prosecution case‑‑‑Case against accused appeared to have been lodged with mala fides and ulterior motive‑‑‑Pre‑arrest bail was allowed to accused in circumstances.

Syed Waqar Abbas Kazmi for Petitioners.

Ashfaq Ahmad Chaudhary for the State.

2002 Y L R 1160

[Lahore]

Before Khawaja Muhammad Sharif, J

ALLAH DITTA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1847 of 2000, heard on 8th March, 2002.

Penal Code (XLV of 1860)‑‑‑

-‑‑S.302(b)‑‑‑Appreciation of evidence ‑‑‑Eye‑witnesses had changed their version trial in order to bring the same in line with the post‑mortem report‑‑‑Eye‑witnesses were not residents of the place of occurrence and they had not seen the incident ‑‑‑F.I.R. had been recorded after due deliberation and consultation ‑‑‑Post‑mortem examination of the deceased was delayed‑‑‑No crime empty having been recovered from the spot, recovery from the accused had no value‑‑Motive for the murder was not proved ‑‑‑Co­-accused had been acquitted on the same evidence by the Trial Court who was attributed fire‑arm injury on the right thigh of the deceased‑‑‑Deceased was not a resident of the place of incident but resided at a distance of 25/26 kilometres from that place‑‑­Accused was acquitted in circumstances.

Ashraf Ali Javaid and Mian Abdul Qadoos for Appellant.

Mumtaz Ahmad Niazi for the State.

Syed Zahid Hussain Bukhari for the Complainant.

Date of hearing: 8th March, 2002.

2002 Y L R 1164

[Lahore]

Before Muhammad Sayeed Akhtar, J

SIYAR KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 55/B of 2002, decided on 6th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 337-A (ii)/34/336 ‑‑‑ Bail ‑‑‑ Accused had allegedly caused a "Chhuri " injury on the head of the brother of the complainant‑‑­Medico‑legal report of the injured witness appeared to be doubtful in respect of the dates of his arrival and discharge from the hospital‑‑‑Said witness looked quite healthy when summoned in the Court‑‑‑Accused party admittedly had also received injuries in the scuffle and it was yet to be determined as to which party was aggressor‑‑‑Trial of accused, no doubt, had commenced, but there was no bar against the Court to grant him bail if otherwise he was entitled to same‑‑­Withholding of bail as a measure of advance punishment would neither promote cause of justice nor the object of law‑‑‑Accused was behind the bars for the last more than six months and no useful purpose could be served by keeping him in Jail‑‑‑Bail was allowed to accused in circumstances.

Malik Qamar Afzal for Petitioner.

Malik Abdul Qayyum for the State.

Shad Ali for the Complainant.

2002 Y L R 1165

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD MUZAMMAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1139‑B of 2000, decided on 1st March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11‑‑­Bail‑‑‑Delay of eight months in lodging the F.I.R. by the abductee or her father had made the prosecution case doubtful‑‑‑Suits for jactitation of marriage and restitution of conjugal rights were pending between the parties‑‑‑Case against accused was found to be false by the police‑‑‑Further inquiry as contemplated under S. 497 (2), Cr. P. C. was required in the case‑‑‑Accused was admitted to bail in circumstances.

Safdar Javaid Chaudhry for Petitioner.

Sh. Mimi Ahmad for the State.

2002 Y L R 1166

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

RAJ BAIG and 6 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 158‑M of 2002 and Criminal Appeal No. 661 of 1997, decided on 11th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/149‑‑‑Criminal Procedure Code (V of 1898), Ss.35, 397 & 561‑A ‑‑‑ Direction

sought for the sentences to run concurrently‑‑­Accused were awarded death sentence each on three counts by Trial Court for causing death of three persons‑‑‑High Court in appeal altered the death sentence of each accused on each count to imprisonment for life‑‑‑In absence of any direction by the High Court for the sentences of imprisonment for life of each accused. to run concurrently, the same were being considered as consecutive by the Jail Authorities‑‑‑According to Ss.35 & 397, Cr. P. C. a person could not be imprisoned for more than 25 years‑‑‑Sentences of imprisonment for life could be awarded to accused on different counts to run concurrently‑‑‑Sentences of imprisonment for life of each accused on three counts were directed to run concurrently accordingly.

Criminal Appeal No.289/97, 290/97, 291/97; 2000 PCr.LJ 1905, Writ Petitions Nos. 8795/96, 16836/96 and 11085/98 ref.

Ch. Zahid Nawaz Cheema and Muhammad Rafiq Jathol for Appellants.

Sheikh Afzaal Ahmad for the State.

2002 Y L R 1167

[Lahore]

Before Zafar Pasha Chaudhary, J

JAVED IQBAL‑‑‑Petitioner

Versus

THE STATE‑--Respondent

Criminal Appeal. No.265‑J of 2001, heard on 7th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(c)‑‑‑Appreciation of evidence‑‑‑Eye-witnesses had so ill‑will or motive for false implication of accused‑‑‑Ocular account of occurrence was consistent, true and appealed to reason‑‑‑Medical evidence and recovery of pistol had supported the prosecution version‑‑‑Incident had taken place in the manner as described by the eye‑witnesses‑‑­Accused had committed the murder on account of provocation meted out to him‑‑­Conviction of accused was consequently maintained‑‑‑Deceased after coming to the house of accused forcibly caught hold of his sister and tried to drag her away which would have naturally provoked the accused immensely‑‑‑Sentence of 14 years' R.I. awarded to accused was reduced to five years in circumstances.

Mansoor Ahmad Mian for Petitioner.

S.D. Qureshi for the State.

Date of hearing: 7th March, 2002.

2002 Y L R 1171

[Lahore]

Before Khawaja Muhammad Sharif, J

IKRAM ULLAH and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 314 and Criminal Revision No. 155 of 2001, heard on 28th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.324/149 & 148‑‑‑Appreciation of evidence‑‑‑No specific injury was attributed to accused‑‑‑No crime empty was recovered from the place of occurrence‑‑‑Five accused had been acquitted on the same evidence‑‑‑Case of accused was on the same footing as that of acquitted co‑accused‑‑‑Three persons of the accused party were also injured in the occurrence, but the prosecution suppressed their injuries and did not approach the Court with clean hands‑‑‑All the accused being closely related inter se, possibility of false implication of accused in the case, could not be ruled out‑‑‑Accused were acquitted in circumstances.

Rab Nawaz Niazi for Appellants.

Ch. Ghulam Hussain for the Complainant.

A. H. Masood for the State.

Date of hearing: 28th March, 2002.

2002 Y L R 1174

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM HAIDER ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.48 of 2001, heard on 14th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.326 & 334 [as amended by Criminal Law (Second Amendment) Ordinance (VII of 1990)]‑‑‑Appreciation of evidence‑‑‑Accused who did not challenge his conviction, had contended that he could not be convicted and sentenced under S.334, P.P.C. [as amended] because offence had been committed in 1979 and provisions of P. P. C. prevailing at that time would be applicable to the case‑‑‑Accused had also prayed for reduction in sentence‑‑‑State Counsel had conceded to the legal proposition stated by the accused‑‑‑Trial Court, in circumstances, had erred in law by awarding conviction to accused under amended S.334, P. P. C. and also had wrongly imposed sentence of Arsh, as occurrence had taken place in the year 1979 when P. P. C. was not amended‑‑‑Conviction and sentence of Ta'zir and Arsh awarded to accused under S. 334, P. P. C. [as amended] were set aside and High Court convicted the accused under S. 326, P. P. C. as applicable to the case at the relevant time and convicted and sentenced the accused accordingly.

Ch. Muhammad Saleem for Appellant.

Syed Shams‑ud‑Din Shah for the State.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Date of hearing: 14th February, 2002.

2002 Y L R 1177

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

SHABBIR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.915 and Murder Reference No.461‑T of 2000, heard on 4th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Day­light occurrence‑‑‑F.I.R. was promptly lodged‑‑‑Accused was nominated in F. I. R. ‑‑‑Complainant though was father of the deceased, but he had no previous enmity against accused for his false implication‑‑‑Ocular account had fully been corroborated by medical evidence and recovery of weapon of offence‑‑‑Specific plea taken by accused that he raised Lalkara which attracted many persons from locality, had not been established as nobody appeared in defence to prove his version‑‑‑Occurrence had taken place outside the house and not inside as alleged by the accused‑‑‑Place of occurrence was proved by fact that blood‑stained earth and empties were taken into possession from the lane and dead body was also lying there when Investigating Officer arrived at the spot after registration of case‑‑‑Prosecution having successfully proved its case against accused beyond any shadow of doubt, conviction of accused was maintained‑‑­Offence having been committed by accused under Ghairat, and in order to save his family honour, capital imprisonment was not warranted‑‑‑Sentence of death awarded to accused by Trial Court was converted to imprisonment for life and benefit of S.382‑B, Cr. P. C. was also extended to accused.

Qadeer Ahmad Siddiqui for Appellant.

Mehmood H. Mirza for the State.

Date of hearing: 4th April, 2002.

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2002 Y L R 1190

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

Haji MUHAMMAD AZAM and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.1026, 1552 and Criminal 'Revision No.575 of 2000, heard on 3rd April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/337‑D/337-F(vi)/148‑‑ Appreciation of evidence‑‑‑‑Accused was nominated in promptly recorded F.I.R. with specific role‑‑­Time and place of occurrence had been admitted‑‑‑Accused could not prove that complainant party was aggressor; that he was attacked by complainant party and that in exercise of right of self‑defence, his employee fired at deceased‑‑‑‑Said plea of accused was neither supported by his employee nor by any independent source‑‑­Case against accused had been proved beyond any shadow of doubt by complainant and prosecution witnesses who were also injured in occurrence and their presence at spot could not be doubted‑‑­Recovery of weapons of offence was corroborated by medical evidence‑‑‑­Conviction and sentence awarded to accused by Trial Court were maintained‑‑­Co‑accused were nominated in supplementary statement which was made without any basis or source of information and had made the case against co‑accused doubtful‑‑‑One of co‑accused having been declared innocent during investigation, his involvement and active participation in occurrence, was doubtful‑‑‑From nature of injuries allegedly caused by co‑accused by blunt weapon, possibility could not be ruled out that those could have been caused by hitting deceased on hard surface‑‑‑Case against co‑accused having not been proved beyond doubt, benefit of doubt was extended in their favour‑‑‑Conviction and sentence awarded to co‑accused by Trial Court were set aside.

Muhammad Afzaal Siddiqui for Appellants.

Ch. Abdur Rasheed for the Complainant.

M. Saleem Shad for the State.

Date of hearing: 3rd April, 2002.

2002 Y L R 1196

[Lahore]

Before Muhammad Farrukh Mahmud, J

HOZAIFA and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.405‑B of 2002, decided on 19th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal. Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Both the accused did not cause any injury to the deceased nor any specific injury was attributed to them in F.I.R.‑‑‑F.I.R. showed that two groups were exchanging fire when accused saw complainant and his companion and member of other group fired at the brother of complainant who lost his life‑‑‑Allegation against accused needing further inquiry, they were admitted to bail.

Muhammad Zafar Khan Siyal for Petitioners.

Sh. Muhammad Rahim for the State.

2002 Y L R 1197

[Lahore]

Before Muhammad Farrukh Mahmud, J

LIAQAT ALI alias PAPPA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.323-B of 2002, decided on 20th February, 2002.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss: 324/337-D/337-F(i) (vi)/337-L (ii)/34---Bail, grant of---Matter was reported to police without any loss of time---Accused was named in F.I.R. with a specific role of causing injury to prosecution witness--­Prosecution witness in his statement had fully supported version of F.I.R. and medico-legal report had also shown that an injury by a sharp-edged weapon was caused on chest of prosecution witness---Prima facie, provisions of S. 337-D, P. P. C. were attracted in circumstances of case which was punishable up to ten years--­Reasonable grounds existed to, connect accused with offence which fell within prohibitory clause of S.497, Cr.P.C.---If grant of bail was a rule in offences which did not attract prohibitory clause of S.497, Cr. P. C. then refusal of bail was also a rule in cases where prohibitory clause of S.497, Cr. P. C. was attracted---Bail was refused in circumstances.

S.A. Sahgal for Petitioner.

Qazi Khalid Pervez for the Complainant.

Sh. Arshad Ali for the State.

Date of hearing: 20th February, 2002.

2002 Y L R 1199

[Lahore]

Before Muhammad Farrukh Mahmud, J

MANSOOR AHMAD and others‑‑­Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.235 of 1999, heard on 14th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302/324/148/149‑‑‑Appreciation of evidence‑‑‑Complainant and prosecution witnesses had levelled general allegations against all accused‑‑‑Complainant had stated that nothing was taken in his presence from place of occurrence by Police on day of registration of case‑‑­Complainant was declared hostile and was cross‑examined ‑‑‑Complainant, during cross‑examination had stated that F.I.R. was not read over to him and that his thumb‑impressions were obtained on blank paper‑‑‑Complainant had denied whole prosecution story‑‑‑Other prosecution witnesses had also stated that they knew nothing about the case and when, cross­ examined by public prosecutor, they made it clear that accused present in Court were not culprits‑‑‑Nothing incriminating was available against accused to (ink them with murder of deceased‑‑‑Prosecution witness stated that it was a night occurrence and assailants were not known-‑‑Ocular testimony, in circumstances, could not be used against accused‑‑‑Delay in reporting matter to police had not been reasonably explained‑‑‑Medical evidence showed that deceased died due to injuries caused by fire‑arm, but no inference could be drawn that fires were inflicted by accused‑‑‑Motive as given in F.I.R. was not proved during trial as nothing was on record to show that accused had any motive to participate in occurrence‑‑‑Accused were convicted on basis of recoveries alone, but no report of Forensic Science Laboratory was available on record to show that empties recovered from place of occurrence were fired from weapons recovered from accused ‑‑‑Co­-accused were acquitted by Trial Court on basis of same evidence whereas accused were convicted despite no independent strong corroboratory evidence was available. against accused‑‑‑Prosecution having failed to prove case against accused, judgment passed by Trial Court was set aside and accused were acquitted of all charges against them.

Ch. Pervez Aftab for Appellants.

Sheikh Naseem Rashid for the State.

Date of hearing: 14th February, 2002.

2002 Y L R 1203

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD RAFIQUE‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.410‑B of 2002, decided on 19th March, 2002.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.506/387‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art 163‑‑‑Bail, grant of‑‑‑Date of occurrence was not mentioned in F.I.R:‑‑­No handwriting specimen of accused was taken and letter allegedly written by accused was not sent to Handwriting Expert to ascertain whether same was written by accused or not‑‑‑No case was registered against accused previously‑‑‑Trial Court while dismissing bail application of accused was influenced by oath taken on Holy Qur'an by a person‑‑‑Such‑like proceedings conducted by Trial Court were in clear violation of Art. 163 of Qanun‑e‑Shahadat, 1984 and dictum laid down by Supreme Court‑‑‑None of the offences against accused attracted prohibitory clause of S. 497, Cr. P.C. ‑‑‑Accused was admitted to bail, in circumstances.

Bashiran Bibi v. Nisar Ahmad and others PLD 1990 SC 83 ref.

Mian Jamal‑ur‑Rehman for Petitioner.

Muhammad Abdullah Bhatti for the Complainant.

Tariq Usman Joiya for the State.

2002 Y L R 1205

[Lahore]

Before Muhammad Farrukh Mahmud, J

SAJID---Appellant

Versus

THE STATE--- Respondent

Criminal Appeals Nos. 857 and 714 of 2001, heard on 15th March, 2002.

Penal Code. (XLV of 1860)---

----Ss.302/316/337-L(ii)/34---Appreciation of evidence---F I. R. was recorded after a delay of about 21 hours though police station was at distance of 1-1/2 K.M. from place of occurrence---No recovery was effected either from accused or from place of occurrence--­Investigation showed that none of the accused had any intention to cause Qatl-i-Amd--- Trial Court had also come to conclusion that accused did not intend to cause Qatl-i-Amd and had convicted accused under S. 316, P. P. C. which was Qatl-i-Shibh-e-Amd--- None of the injuries was declared to have contributed towards death of deceased and it was nobody's case that deceased received any injury near or on his heart---Doctor had clearly opined that deceased died because of cardiac arrest and nowhere was stated that deceased suffered cardiac arrest due to injuries attributed to accused---No adverse presumption could be drawn against accused as it was duty of prosecution to prove its case beyond doubt against accused---Doctor had given considered opinion that deceased had been suffering from cardiac disease and died due to cardiac arrest---Ingredients of S.315, P. P. C. read with S.316, P. P. C. having not been made out, conviction and sentence awarded to accused under S.316, P. P. C were set' aside---Accused had been proved to have manhandled deceased and inflicted simple injuries to him which fell within definition of S.337-L(ii), P.P.C.---High Court in appeal maintained conviction of accused, but altered same from S.316, P.P.C. to S.337-L(ii)/34, P. P. C. and sentenced accused to imprisonment to a period which they had already undergone.

Syed Sajjad Haider Zaidi for Appellant.

Muhammad Rafique Rajput for the State.

Date of hearing: 15th March, 2002.

2002 Y L R 1209

[Lahore]

Before Muhammad Farrukh Mahmud, J

ALLAH DITTA‑‑‑Petitioner

Versus

THE STATE‑‑‑ Respondent

Criminal Miscellaneous No. 364‑B of 2002, decided on 13th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/34‑‑‑Bail, grant of‑‑‑Prosecution case was based on story of extra-­judicial confession of accused alone and veracity of which was yet to be determined by Trial Court after recording of evidence‑‑­Complainant, according to F.I.R. came to know about murder of his brother after three days of occurrence, but matter was not reported to police‑‑‑Statement of prosecution witnesses with regard to confessional statement of accused were recorded after a delay of seven months‑‑‑Four co‑accused who were allegedly involved in commission of offence, were found to be innocent during investigation‑‑‑Despite a lapse of eight months after registration of case, Investigating Officer had not completed investigation and there was no likelihood of commencement of trial in a near future‑‑‑Story of administration of tablets containing intoxicant to the deceased, was also found to be false according to report of Chemical Examiner‑‑­Accused was admitted to bail in circumstances.

Rana Maqsood Akbar Khan for Petitioner.

Tahir Mahmood for the Complainant.

Masood Sabir for the State.

2002 Y L R 1211

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM ABBAS ‑‑‑Petitioner

Versus

THE STATE‑‑‑ Respondent

Criminal Miscellaneous No. 1 of 2002 in Criminal Appeal No.272 of 2001, decided on 19th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.426‑‑‑Penal Code (XLV of 1860), S.308/34‑‑‑Petition for suspension of sentence‑‑‑Accused was empty‑handed at the time of occurrence and deceased lost his life on account of injury caused by the co‑accused with a Churri‑‑‑Report of Superintendent of Jail showed that un-expired portion of sentence of accused was about two years and ten months and appeal was not likely to be heard in a near future‑‑‑Sentence was suspended accordingly and accused was admitted to bail.

Sahibzada Farooq Ali for Petitioner.

Muhammad Pervez Qamar Butt for the State.

2002 Y L R 1212

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM YASIN‑‑‑Petitioner

Versus

THE STATE‑‑‑ Respondent

Criminal Miscellaneous No. 444‑B of 2002, decided on 19th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/16‑‑­Bail, grant of‑‑‑Alleged abductee had not been recovered and at the time of arrest of accused she was not accompanying him‑‑­Nikahnama placed on record showed that accused was married with the alleged abductee and the Nikahnama was registered one‑‑‑Complainant had also produced a Nikahnama showing alleged abductee to be wife of a person other than the accused, but no evidence had been recorded to ascertain the validity or genuineness of such Nikahnama‑‑‑Matter was reported to police after a delay of four days‑‑‑Allegations against accused needing further probe and inquiry, accused was admitted to bail.

Ch. Muhammad Siddique Safdar for the Petitioner.

Tariq Mehmood Qureshi for the State.

2002 Y L R 1213

[Lahore]

Before Muhammad Farrukh Mahmud, J

FIDA HUSSAIN and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑ Respondent

Criminal Appeal No. 598 and Criminal Revision No.297 of 2001, heard on 14th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑­Accused remained on physical remand for about twenty days, but nothing was recovered from them‑‑‑Night of occurrence was dark and cold and prosecution witnesses were not supposed to be at place of occurrence at late hours of' night‑‑‑Complainant and other prosecution witnesses were real brothers of deceased and they had improved their statements, but said improvements did not improve the case of prosecution‑‑‑Prosecution witnesses had tried to change time of occurrence in desperate attempt to become eye‑witnesses ‑‑‑Post‑mortem reports had made it clear that cause of death was not ascertainable and according to Doctor who conducted post‑mortem, deceased might have met with a natural death‑‑None of Medical Officers who conducted post‑mortem had opined that death of deceased was due to asphyxia strangulation or throttling‑‑‑Medical evidence consisting of three doctors out of­ whom two were Specialists, had knocked out the story of prosecution in totality‑‑‑New motive was set up during trial as against motive which was set up in F.I.R. and prosecution witness who introduced the new motive deviating from motive stated in F.I.R. could offer no explanation for the deviation‑‑­Motive as given in F. I. R. being too weak, prosecution witness after a considerable time, had chalked out a new motive which appeared to be more serious and prosecution witnesses had totally failed to prove the new motive‑‑­Even otherwise motive by itself could not be termed as substantive evidence‑‑‑No recovery was effected from‑An accused‑‑‑One of prosecution witnesses had stated on oath before Trial Court that according to his opinion accused were innocent and such witness was not declared hostile and his statement remained unchallenged‑‑‑Story of prosecution was replete with doubts and prosecution witnesses had not only deviated from their statements, but they had also made dishonest improvements‑‑‑Prosecution having failed to prove its case beyond doubt, judgment passed by Trial Court convicting and sentencing accused, was set aside and accused were acquitted of charges against them.

Muhammad Irfan Wyne, for Appellants.

Zafar Mehmood Anjum for the State.

Dates of hearing: 20th February, 12th, 13th and 14th March, 2002.

2002 Y L R 1220

[Lahore]

Before Muhammad Farrukh Mahmood, J

AZIZ UR REHMAN‑‑‑ Petitioner

Versus

THE STATE‑‑‑ Respondent

Criminal Miscellaneous No. 612‑B of 2002, decided on 27th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑No suspicion was shown against the accused in F.I.R.‑‑‑No incriminatory evidence was found against accused except that deceased was last seen in company of accused‑‑‑Pistol allegedly recovered from accused was sent to Forensic Science Laboratory and, according to 'its report, recovered empties did not tally with pistol recovered from accused‑‑‑Three other persons were also involved as accused during investigation who were already on bail‑‑­Accused was found innocent in two investigations conducted by D. S. P. and S. P. (Crime Branch)‑‑‑Prosecution had shown that accused led to the recovery of sandals belonging to deceased which could hardly be termed as incriminating evidence against accused‑‑‑Allegations against accused needing further inquiry, he was admitted to bail.

Sahibzada Farooq Ali for Petitioner.

Zawar Hussain Mahuta for the State.

2002 Y L R 1221

[Lahore]

Before Mian Muhammad Jehangir, J

KHADIM MAHAYU‑UD‑DIN‑‑‑Appellant

Versus

SARDAR ALI and another‑‑‑Respondents

Criminal Appeal No. 121 of 2000, heard on 21st February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.448‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Out of seven prosecution witnesses only three private witnesses were examined by the prosecution‑‑‑Remaining four police witnesses including the Investigating Officer did not appear in the Trial Court despite bailable warrants having been issued against them‑‑‑Trial Court consequently closed the prosecution evidence and after completing further proceedings in the case acquitted the accused as prosecution had failed to prove its case against him‑‑‑Recording of the statements of the said police witnesses was quite essential for the purpose of fair trial which the Trial Court could do by adopting coercive measures, but it neither preferred to issue non‑bailable warrants for their attendance, nor summoned the D. S. P. Circle or Incharge of the Police Station concerned‑‑­Impugned order of acquittal of accused was set aside being illegal‑‑‑Case was not remanded to the Trial Court as the accused was an old man of 88 years and he had faced a protracted trial of seven years‑‑‑Even otherwise the complainant had lost the civil litigation and even after recording of the statements of his witnesses there could be no output of retrial except a round of agony of trial by an old man‑‑‑Appeal was disposed of accordingly.

State v. Muhammad Saleem alias Seema and another PLD 1994 Lah. 459; Muhammad Bashir v. Ramzan and others 1991 PCr.LJ 1695; The State v. Khawaja Manzoor Hassan and 10 others 1993 MLD 544 and Ghulam Sikandar and another v. Hamaraz Khan and others PLD 1985 SC 11 ref.

Muhammad Qamar‑uz‑Zaman Appellant.

M.A. Zafar for Respondent No. 1.

Ashfaq Ahmad Ch. for the State.

Date of hearing: 21st February, 2002.

2002 Y L R 1224

[Lahore]

Before Ijaz Ahmad Chaudhary, J

HABIB ULLAH ‑‑‑Appellant

Versus

THE STATE‑‑‑ Respondent

Criminal Appeal No. 1229 of 2001, decided on 29th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365/511 & 354‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(b)-‑‑Appreciation of evidence‑‑‑Prosecution witnesses including the victim had made consistent statements on material points showing their presence on the spot at the time of occurrence‑‑‑Act of catching hold of the arms of the victim girl by the accused was also proved on record‑‑­Version that the victim was taken to 9/10 paces by the accused was an improvement made at the trial in order to make out the case under S. 365, P.P.C.‑‑‑Mere catching hold of the arm of the victim without .any other act for the purpose of abduction was not sufficient to constitute an attempt of abduction‑‑‑Convictions and sentences of accused under Ss. 365/511, P. P. C. and S.7(b) of the Anti‑Terrorism Act, 1997 were consequently set aside being not proved on record‑‑‑Conviction of accused under S.354, P. P. C. was based on cogent evidence and the same alongwith the sentence awarded thereunder was upheld in circumstances.

M.A. Zafar for Appellant.

Qayyum Bajwa for the State.

Date of hearing: 22nd March, 2002.

2002 Y L R 1228

[Lahore]

Before Muhammad Farrukh Mahmud, J

ZULIFQAR ALI and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 482 of 2001, heard on 27th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.392‑‑‑Appreciation of evidence‑‑­Prosecution witness who was neither inimical towards accused nor had any grudge against him so as to involve him falsely, had given a straightforward account against accused‑‑­Stolen motorcycle was also recovered from the accused and according to F.I.R. and statement of prosecution witness, it was the accused who took away motorcycle belonging to complainant‑‑‑Evidence also showed that it was accused who removed cash, watch and purse containing identity card of the complainant‑‑‑Accused, in circumstances, was rightly convicted and sentenced and appeal qua accused was dismissed‑‑‑Evidence on record has shown that nothing had been recovered from the co‑accused and record was also silent as to who had arrested the co­accused‑‑‑According to F.I.R. and statement of prosecution witnesses all allegations were levelled against the accused‑‑‑Investigating Officer stated that when accused was arrested he was all alone and was not accompanying the co‑accused‑‑Prosecution, in circumstances, had failed to establish its case against co­accused beyond doubt‑‑‑Conviction and sentence passed against co‑accused by Trial Court, were set aside to this extent and he was acquitted of all charges.

Aqeel Ahmad Chughtai for Appellant.

Azmat Ali for the State.

Date of hearing: 27th March, 2002.

2002 Y L R 1231

[Lahore]

Before Muhammad Farrukh Mahmud, J

ZAHOOR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑ Respondent

Criminal Appeal No. 305 of 2001, heard on 18th March, 2002.

Explosive Substances Act (VI of 1908)‑‑‑

‑‑‑‑S.4‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑B‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑ Appreciation of evidence‑‑‑None from public was associated with recovery proceedings which was violation of provisions of S.103, Cr.P.C‑‑­Police Officer prosecution witness, had stated that respectables of locality were summoned to witness recovery, but none joined‑‑‑Author of F.I.R. on same point had stated that no person from public came at spot at time of recovery and no person from locality was summoned at that time‑‑‑Material discrepancies were found in statements of prosecution witnesses with regard to recovery‑‑‑Recovered articles were not sealed into a parcel at spot and case properly was not sent to any expert for obtaining his opinion‑‑‑No Explosive Substance Expert was taken along by prosecution witnesses at tithe of recovery‑‑‑Not a single witness was produced to prove that recovered articles were taken by him to any Expert to ascertain whether recovered articles fell within definition of explosive substance‑‑­Prosecution case was replete with doubts and prosecution witnesses had contradicted each other on almost all material points‑‑­Prosecution having failed to prove its case against accused beyond doubt, conviction and sentence awarded to accused by Trial Court, were set aside and accused were acquitted of all charges.

Muhammad Azam v. The State PLD 1996 SC 67 ref.

Rana Meraj Khalid for Appellant.

Javed Iqbal for the State.

Date of hearing: 18th March, 2002.

2002 Y L R 1234

[Lahore]

Before Asif Saeed Khan Khosa, J

HAQ NAWAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3064‑B of 2002, decided on 23rd May, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 337‑F(iii)/337‑F(v)/34/379/411‑‑‑Bail‑‑­Grant of‑‑‑F. I. R. showed that the accused had given a blow with the butt of a .30 bore pistol on the nose of the complainant‑‑‑Police investigation had found that the accused was not initially armed with any weapon and had taken the gun of his co‑accused‑‑‑No weapon had been recovered from the accused during investigation ‑‑‑Offences invoked in the F.I.R. and in the challan did not attract the prohibitory clause of subsection (1) of S.497, Cr. P. C. ‑‑‑Additional Sessions Judge in his impugned order had observed that the allegations against the accused attracted provisions of S.337‑A(iii), P.P.C. but same had not been added to the F.I.R. or in challan‑‑‑Apparently the accused was not connected with the motive set up in the F.I.R.‑‑‑Two co‑accused of the accused allegedly taking an active part in the occurrence had already been granted bail by the Trial Court‑‑‑Challan of the case had already been submitted after completion of investigation‑‑‑Case of accused calling for further inquiry, he was granted bail.

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

‑‑‑‑‑S.497‑‑‑Bail, grant of‑‑‑Consideration‑‑­Principles‑‑‑Only such of the penal provisions which have been invoked in the F.I.R. or in the challan have to be considered while deciding a matter of bail and not those penal provisions which, in the opinion of the Court could also be attracted to the allegations levelled by the complainant party.

Shahid Hussain Kadri for Petitioner.

Muhammad Khawar Kaleem for the State.

2002 Y L R 1235

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD IRSHAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous. No. 3200-B of 2001, decided on 22nd January, 2002.

Criminal Procedure Code (V of 1898) ‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss. 337‑F(i)/337‑F(iv)/337‑L(2)/34‑‑‑Bail, grant of‑‑‑During investigation, mother of the accused, herself a co‑accused, had admittedly, stated before the police that she was attempted, to be raped by the injured who was brother of the complainant and upon that the accused had given the injured a beating out of `Ghairat'‑‑‑Motive alleged in the F.I.R. was rather vague and it was repellant to common sense that accused would attack the injured merely because the complainant party was helping a rival party in a murder case‑‑­No reference of the particulars of the said murder case had been made in the F.I.R.‑‑­Alleged offence did not fall within the prohibitory clause of S. 497, Cr. P. C.‑‑­Accused was no more required for further investigation‑‑‑Accused was granted bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Wajid Ali Bhatti for the State.

2002 Y L R 1236

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHBAZ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1665‑B of 2002, decided on 28th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16-‑‑Bail, grant of‑‑‑Eighteen months had passed and trial had not even started‑‑­Without going into the merits of the case bail was allowed to accused in circumstances.

M.A. Zafar for Petitioner.

Ishaq Malik for the State.

2002 Y L R 1237

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD ZAMAN alias ZAMMI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 350‑B of 2002, decided on 27th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Evidence on record had prima facie shown that accused was in jail in another case on the day of occurrence‑‑‑Such fact had established that he did not participate in the occurrence and that he was falsely implicated in the case‑‑‑Challan had been submitted‑‑­Case against accused requiring further inquiry, he was admitted to bail.

Arshad Ali Chohan for Petitioner.

Malik Muhammad Qasim A.A.‑G. for the State.

Date of hearing: 27th March, 2002.

2002 Y L R 1239

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD YASIN and another‑‑­Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3095 of 2001, decided on 14th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), Ss.394/411‑‑‑Bail, grant of‑‑‑Accused were named in F.I.R. and specific roles were attributed to them‑‑‑Certain recoveries were effected from accused during investigation‑‑­Section 394, P.P.C. was punishable with imprisonment for life‑‑‑Reasonable grounds existed to connect accused with offence alleged against them‑‑‑Bail application, was dismissed, in circumstances.

Tariq Muhammad Iqbal Chaudhry for Petitioners.

Muhammad Fakhar Razzaq Chaudhry for the State.

Date of hearing: 11th February, 2002.

2002 Y L R 1240

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD GHAFOOR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3178 of 2001, decided on 16th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S.497‑‑‑Penal Code (XLV of 1860), S.337‑F(v)/337‑A(I) ‑‑‑Bail, grant of‑‑‑Accused was alleged to have caused an injury to left wrist of complainant with his stick‑‑‑Alleged injury being on non‑vital part of body of complainant, offence against accused did not fall within prohibitory clause of S.497, Cr. P. C. ‑‑‑Delay of 14 days in lodging F. I. R. ‑‑‑Medical examination of complainant was conducted after period of 6 days‑‑­Accused was behind the bars for the last more than three months‑‑‑Application of accused for constituting a Medical Board to determine and verify nature of alleged injury had not been disposed of by Competent Authority‑‑­Accused was not convicted previously and there was no likelihood of his influencing prosecution witnesses‑‑‑Accused was admitted to bail in circumstances.

Arshad Ali Chowhan for Petitioner.

Zafar Mehmood Anjum for the State.

Date of hearing: 16th January, 2002.

2002 Y L R 1241

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Malik KHALID MAHMOOD‑‑‑Petitioner

Versus

THE STATE and 6 others‑‑‑ Respondents

Writ Petition No. 10947 of 2002, decided on 24th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.516‑A & 517‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Application for Superdari of car‑‑‑Car in question was taken into possession by Authority as a suspected property and to have the same examined from Forensic Science Laboratory‑‑‑Applicant had claimed that he had purchased the car from rival applicant who had handed over the same to him alongwith Registration Book, transfer deed and sale receipt and that as rival applicant had not paid Token Tax of car for certain period, he had handed over original Registration Book to rival applicant for clearance of Token Tax and rival applicant undertook to make payment within few days, but he did not return original registration book to applicant and demanded additional amount for handing over the book which applicant did not accept and during that period car was taken into possession by the Authority‑‑‑Judicial Magistrate after taking into consideration facts of the case concluded that rival applicant had better case for grant of Superdari of car to him as his name still existed in Registration Book as owner of car and he was also in possession of said book since its alleged sale‑‑‑Validity‑‑‑Car which still was in name of rival applicant and had never been transferred to applicant, could not be handed over to applicant on basis of certain documents which applicant claimed to be genuine, but rival applicant denied genuineness of those documents‑‑‑Mere possession of said documents would not entitle applicant for grant of Superdari of car especially when no case was pending against that car in any Court of law‑‑‑Courts below had rightly given car on Supedari to rival applicant‑‑‑Applicant could avail remedy by filing a civil suit.

2001 PCr.LJ 428, 1994 PCr.LJ 2148 and 1986 SCMR 1539 ref.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 24th June, 2002.

2002 Y L R 1243

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD AJMAL‑‑‑Petitioner

Versus

M. SOHAIL and others‑‑‑Respondents

Criminal Miscellaneous No. 3390‑CB of 2002, decided on 14th June, 2002.

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

‑‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860) Ss.302/109/148/149‑‑‑Pre‑arrest bail, cancellation of‑‑‑Accused had already joined investigation‑‑‑No weapon had been recovered from custody of accused persons during investigation‑‑‑Different Investigating Officers had opined about innocence of accused‑‑‑Challan had already been submitted after completion of investigation‑‑‑Accused had been appearing before Trial Court in connection with the case as well as connected complaint, status of accused as proclaimed offenders thus was quite doubtful‑‑‑Accused persons had not been alleged to have misused or abused concession of bail‑‑‑Physical custody of accused person was no longer required for purposes of investigation‑‑­Reasons advanced by Trial Court for admitting accused to pre‑arrest bail being not adverse to the settled principles governing law of pre‑arrest bail, no useful purpose was likely to be served by sending accused behind bars‑‑‑Application for cancellation of bail, was dismissed, in circumstances.

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

‑‑‑‑S.497(5)‑‑‑Grant and cancellation of bail‑‑‑Considerations for‑‑‑Considerations for grant of bail and those for its cancellation were entirely different‑‑‑Court was generally slow in cancelling bail‑‑‑Concession of bail once allowed could not be recalled only for wreaking vengeance upon the other side.

Akmal Masih and others v Salamat Masih and 4 others 1988 SCMR 918 and Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Pervaiz Inayat Malik for Petitioner.

Ibne Hsssan for Respondents Nos. 2 to 4.

Mareena Parveen for the State.

Date of hearing: 14th June, 2002.

2002 Y L R 1246(1)

[Lahore]

Before Farrukh Lateef, J

GULZAR alias JHARA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 885‑B of 2002, decided on 22nd May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(2)‑-‑Penal Code (XLV of 1860), Ss. 302/34/109‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Only a proverbial Lalkara was attributed to accused and his presence at the spot was not established‑‑‑Fire‑arm allegedly in possession of accused at the time of occurrence was not recovered during investigation and no injury to deceased was attributed to accused‑‑‑Act of sharing common intention with principal accused was to be determined during trial‑‑‑Case of accused being of further inquiry, he was admitted to bail.

Arshad Ali Chohan for Petitioner.

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 22nd May, 2002.

2002 Y L R 1248

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD RIAZUL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1323 of 2000 in Murder Reference No. 54‑T of 2001, heard on 2nd July, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a), 302(b) & 353‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence ‑‑‑Accused had been specifically nominated as the principal perpetrator of four murders in the promptly lodged F.I.R.‑‑‑Such a prompt nomination of accused .in the F.I.R. was also consistent with the claim of the complainant and other eye‑witnesses regarding identifying the accused at the scene of the occurrence‑‑‑Gun recovered from the accused had matched with four crime empties recovered from the spot soon after the incident‑‑‑Eye‑witnesses could conveniently identify the accused in the light of the torches carried by the deceased‑‑‑Consistent and straightforward statements had been made by the eye‑witnesses who had no personal animous for false implication of accused in the case‑‑‑Ocular testimony was corroborated by the incriminating recoveries made from the accused as well as by the medical evidence‑‑­Accused had not only stolen State property but had also butchered four functionaries of the Forest Department who while performing their official duty had gone to his house to recover the stolen wood‑‑‑No mitigating circumstance was available in favour of accused‑-‑No proof as required by S.304, P. P. C. being available, conviction of accused under S.302(a), P. P. C. was altered to S.302(b), P. P. C. but his sentence of death on four counts passed thereunder was confirmed‑‑‑Other convictions and sentences of accused were also upheld in circumstances.

Ghulam Muhammad v. The State 1985 SCMR 1442; Asif Ali Zardari and another v. The State PLD 2001 SC 568; Sheral alias Sher Muhammad v. The State 1999 SCMR 697 and Imran Ullah v. The Crown PLD 1954 FC 123 ref.

Raja Muhammad Anwar, Raja Hashim Sabir and Shafqat Khan Abbasi for Appellant.

Syed Zahid Hussain Bokhari for the Complainant.

Mrs. Erum Sajjad Gull for the State.

Date of hearing: 2nd July, 2002.

2002 Y L R 1255

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

ZULFIQAR ALI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 470 in Murder Reference No. 11‑T and Criminal Revision No.329 of 2001, heard on 17th April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302(6)/34, 324/34, 353/34, 337‑F(ii) & 337‑F(iii)‑‑‑Appreciation of evidence‑‑­Accused were neither named in the F.I.R. nor in the statements of the witnesses recorded under S. 161, Cr. P. C. immediately after the occurrence‑‑‑None of the eye‑witnesses admittedly knew the accused prior to the day of incident‑‑‑Evidence of recovery of the rifle and the pistol from the accused did not corroborate the ocular testimony as no crime empty had matched with those .fire‑arms‑‑­Occurrence had taken place in a dark night‑‑­No marks of identification of accused were given in the F.I.R.‑‑‑16 'specific role was assigned to the accused by the witnesses during the identification parade which even otherwise suffered from other legal infirmities‑‑‑Prosecution had failed to prove its case against the accused beyond reasonable doubt in circumstances‑‑‑Accused were acquitted accordingly.

Muhammad Yousuf Zai v. The State PLD 1988 Kar. 539 and Murid Abbas and 2 others v. The State and 2 others 1992 SCMR 338 distinguished.

Ismail and others v. The State 1974 SCMR 175; Farman Ali v. The State 1997 SCMR 971; Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Khadim Hussain v. The State 1985 SCMR 721 and Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 324/34, 353/34, 337‑F(ii) & 337‑F(iii)‑‑‑Identification parade‑‑­Holding of identification parade is not a mandatory requirement of law‑‑‑In a case primarily hinging on circumstantial evidence evidentiary value of identification parade is crucial and it has to be proved beyond reasonable doubt that the witness had correctly identified the accused, otherwise an incorrect identification if credited with truth can send an innocent accused to the gallows.

Ismail and others v. The State 1974 SCMR 175; Farman Ali v. The State 1997 SCMR 971; Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Khadim Hussain v. The State 1985 SCMR 972 and Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 ref.

Shaukat Rafique Bajwa for Appellants.

Mrs. Yasmin Sehgal, Asstt. A.G. for the State.

Mian Sikandar Hayat for the Complainant.

Date of hearing: 17th April, 2002.

2002 Y L R 1262

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

MUNSHI KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 513 and 512 of 2000, heard on 24th July, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 324/34 & 336/34‑‑­ Appreciation of evidence‑‑‑Eye‑witnesses including the complainant and the, injured witness had fully corroborated each other while supporting the prosecution case‑‑­ Motive for the occurrence was established‑‑­F.I.R. was prompt‑‑‑Occurrence had taken place in daytime within the Court house‑‑Ocular testimony was not discrepant ‑‑­ "Lalkara " attributed to one accused hurled for giving vent to his own anger against the complainant party had become an overt act for purposes of exhortation and provocation, so that the assailants might, attack at once and it could not be equated with the signal' by raising of the hand by the co‑accused‑‑­ Convictions and sentences of accused were upheld in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 324/34 & 336/34‑‑­Appreciation of evidence‑‑‑ "Lalkara "‑‑­ Lalkara is an expression of anger, hate and acrimony against the one to whom it is addressed while exhorting and provoking those sharing the feelings of attack ‑‑‑Lalkara is like a command in a battle field for heating up the passions‑‑‑Lalkara also serves as a reminder of what had been previously agreed ‑‑‑Lalkara may be simpliciter or it may combine a physical gesture‑‑‑Every allegation of Lalkara which is often termed as a proverbial Lalkara because of its misuse is not to be always taken as a falsely ascribed role and the circumstances ensuing therefrom are to be deeply appreciated and evaluated for coming to a conclusion.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 324/34 & 336/34‑‑­Appreciation of evidence‑‑‑Accused was assigned the role simpliciter of having signalled the assailants with his hand about the movements of the deceased and the injured prosecution witness when they were fired at and no other overt act or even a shout was attributed to him‑‑‑Such raising of hand might have many reasons‑‑‑Long‑standing enmity inter se the parties was not established against one of the accused who was acquitted in circumstances.

(d) Words and phrases‑‑‑

‑‑‑‑ "Lalkara "‑‑‑Connotation.

Syed Zahid Hussain Bukhari for Appellant.

Tariq Mehmood Khan for the Complainant.

Najam‑ul‑Hassan Gill for the State.

Date of hearing: 24th July, 2002.

2002 Y L R 1279

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

MUHAMMAD IRSHAD‑‑‑Appellant

Versus

THE STATE‑‑Respondent

Criminal Appeal No. 746 and Murder Reference No. 286 of 1997, heard on July, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(6) & 302 (c)‑‑‑Appreciation of evidence‑--Injury sustained by the accused on his head having been suppressed by the complainant side, the prosecution case was not straightforward‑‑‑Complainant party in the presence of a dispute and an injunction was violating the same and had continued with the construction in question‑‑‑Deceased had contributed actively to the occurrence and he was not a "Masoom‑ud‑Dam "‑‑­Accused, however, instead of using a brick­bat in retaliation had used his pistol and while hitting the deceased standing on a roof under provocation from below had exceeded the exercise of his right of defence‑‑‑When the complainant side was responsible for breaking the law itself and for providing a provocation and was responsible for the occurrence, the accused in re‑action to this had to be extended the benefit of mitigation‑‑­Conviction of accused under S.302(b), P. P. C. was altered to S. 302 (c), P. P. C. in circumstances and his sentence of death was reduced to twelve years' R.I. with benefit of S. 382‑B, Cr. P. C.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Qazi Siraj‑ud­-Din v. Misbah‑ul‑Islam PLD 1977 SC 14; Malik Waris Khan and another v. Ishtiaq alias Naga and others PLD 1986 SC 335; Mishkat­-al‑Masabih, Book XV, Vol. II Chap.III translated by James Robson and Allah Diwaya v. The State PLD 1993 SC 35 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 302(c) ‑‑‑ Appreciation of evidence‑‑‑Principle‑‑‑While appraising the

evidence and analysing the facts plausible inferences can always be drawn and even the incomplete part of the story can be completed.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502 and Qazi Siraj­-ud‑Din v. Misbah‑ul‑Islam PLD 1977 SC 14 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 100, 101 & 102‑‑‑Right of private defence, exercise of‑‑‑Scope‑‑‑Individual under imminent threat to his person is not expected to "weigh in golden scales" or to keep his own re‑actions in total control and as long as the apprehension persists, his right to re‑act also continues.

Malik Waris Khan and another v. Ishtiaq alias Naga and others PLD 1986 SC 335 ref.

(d) Islamic Jurisprudence‑‑‑

‑‑‑‑ Crime and punishment‑‑‑Self‑defence, right of‑‑‑Scope and extent‑‑‑Amplitude of right of self‑defence under the Injunctions of Islam is far wider than what is available under the Anglo Sexon Law or in the Pakistan Penal Code.

Mishkat‑al‑Masabih, Book XV, Vol. II, Chap. III translated by James Robson ref.

Sardar Muhammad Latif Khan Khosa for Appellant.

Mirza Abdullah Baig for the State.

Date of hearing: 17th July, 2002.

2002 Y L R 1287

[Lahore]

Before Muhammad Sayeed Akhtar, J

INAM ULLAH and others‑‑‑Petitioners

Versus

CHAIRMAN, EVACUEE TRUST PROPERTY and others‑‑‑Respondents

Writ Petitions Nos. 2147, 3598, 3599, 3600, 3731 of 2001, 1154, 1247, 1275, 1285, 1286, 1287, 1289, 1300, 1308, 1419, 1611, 1951, 1952, 1953, 195.4, 1955, 1956, 1957, 1958, 1959, 1960, 1961 1969 and 1976 of 2002, decided on 10th July, 2002.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑‑

‑‑‑‑Ss. 4(2) (d), 6, 25 & 30‑‑‑Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977, para. 8‑‑‑Trusts Acts (II of 1882), Ss. 16 & 18‑‑‑Constitution of Pakistan (1973), Arts. 2A, 20, 22, 23, 24, 38 & 199‑‑‑Constitutional petition‑‑‑Sale of Evacuee Trust Properties through public auction‑‑‑Petitioners who were statutory tenants of Evacuee Trust Properties had challenged the sale of those properties through public auction and had also challenged the authority of Evacuee Trust Property Board in that respect‑‑‑Provisions of S.4(2) (d) of Evacuee Trust Properties (Management and Disposal) Act, 1975 and para. 8 of Scheme for Management and Disposal of Urban Evacuee Trust Properties, 1977 prepared under S.30 of Evacuee Trust Properties (Management and Disposal) Act, 1975, whereunder Evacuee Trust Property Board was empowered to dispose of properties, had been challenged by petitioners contending that said provisions of law were repugnant to Arts. 2A, 20, 22, 23, 24 & 38 of Constitution of Pakistan (1973)‑‑‑Petitioners had also contended that properties could not be sold in bulk, but could be disposed of by negotiation‑‑‑Validity‑‑­Petitioners could not prove as to how, the said provisions of law were repugnant to Arts. 2A, 20, 22, 23, 24 & 38 of Constitution of Pakistan (1973)‑‑‑Petitioners had only challenged the auction of properties in question and had not prayed for declaring the Scheme for Management and Disposal of Urban, Evacuee Trust Properties, 1977 as ultra vires‑‑‑Under S.4(2) (d) of Evacuee Trust Properties (Management and Disposal) Act, 1975‑‑‑Board was empowered to prepare scheme with prior approval of Federal Government for promoting objects of the Act‑‑‑Legislature had also, conferred the Board with powers under S.30 of Evacuee Trust Properties (Management and Disposal) Act, 1975 to prepare such Scheme‑‑‑Board so empowered had proposed to dispose of properties in question through open auction‑­Petitioners being tenants of said 'properties' had no locus standi to challenge sale of properties‑‑‑Trustees, under the Trusts Act, 1882 were bound to protect trust property and under S.16 of Trusts Act, 1882 if trust property was of a wasting nature trustee was bound to convert the same into property of a profitable character and under S.18 of Trusts Act, 1882, trustee was responsible for taking all possible measures to prevent any kind of waste, destruction or injury to trust property‑‑‑Board having rightly exercised its jurisdiction in disposing of properties in question through open auction, Constitutional petitions were dismissed.

State v. Zia‑ur‑Rehman and others PLD 1973 SC 49; Mian Muhammad Saeed and 6 others v. The Lyallpur Central Cooperative Bank Ltd., Lyallpur through Administrator and 4 others PLD 1973 Lah. 421; Mst. Amina Bai through Legal Heirs v. Karachi Metropolitan Corporation 1994 SCMR 804; Zahida Farooq and another v. Anjuman Jamia Masjid and 4 others 1995 SCMR 1584; Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384; Malik Aslam Pervez Advocate v. Province of Punjab through Secretary, Auqaf Department, Lahore and 15 others 1994 MLD 1986; Sahibzada Mansoor Ahmad v. Chief Administrator, Auqaf and others 1993 MLD 2529; Mian Manzoor Ahmad Wattoo v. Governor of the Province of Punjab, Lahore and another PLD 1999 Lah. 115; Halsbury's Laws of England, Vol.38, 3rd Edn., para.1346; Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508; Government of N.‑W.F.P. through Secretary and 3 others v. Mejee Flour and General Mills (Pvt.) Ltd., Mardan and others 1997 SCMR 1804; Messrs Airport Support Services v. The Airport Manager, Quaid‑e-­Azam International Airport, Karachi and others 1998 SCMR 2268; Muhammad Sadiq v. Secretary to the Government of Pakistan, Ministry of Religious Affairs, Zakat and Ushr and Minority Affairs, Islamabad and 4 others 2002 CLC 1049; Abdul Rauf and others v. Abdul Hamid Khan and others PLD 1965 SC 671; Sh. Abdul Majid and others v. Pakistan and others PLD 1967 Lah. 459; A.R. Niazi, Advocate and others v. Pakistan through the Secretary and others PLD 1968 SC 119; Sfi. Abdul Majid v. Pakistan PLD 1967 Lah. 459; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.‑W.F.P. and others v. Messrs Madina Flour and General (Pvt.) Ltd. and 18 others PLD 2001 SC 1 and 1994 SCMR 804 ref.

Sh. Iftikhar Ahmad for Petitioners.

Tauheed‑ur‑Rehman and Babar Ali for Respondents.

Ch. Sultan Mansoor, Deputy Attorney‑General.

Dates of hearing: 1st, 2nd, 3rd and 4th July, 2002.

2002 Y L R 1299

[Lahore]

Before Muhammad Sayeed Akhtar, J

MUHAMMAD ASLAM and others-‑‑Petitioners

Versus

UNION COUNCIL, NOORPUR and others-‑‑Respondents

Writ Petition No. 3476 of 2001, heard on 25th June, 2002.

Punjab Local Government Ordinance (XVIII of 2001)‑‑‑

‑‑‑‑Ss. 2(xxii) & 88(1)(b)(f)‑-‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Imposition of Service Tax, on transport vehicles‑‑‑Validity‑‑‑Petitioners engaged in business of transportation of coal from mines to different places through trucks, had challenged notification whereby Union Council had imposed a tax on coal‑‑­Respondent‑Union Council in its parawise comments had stated that Service Tax was not chargeable from any mine owner or lease holder, but same was levied on transport vehicles which came within local limits of Union Council and used temporary roads which connected the quarries with the main road and to which Union Council provided service of construction, repair and maintenance‑‑‑Local Commission had submitted report wherein it had stated that a very negligible portion of road was being maintained by Union Council and major part of road was being maintained by those who claimed to be owners of mines and the said road‑‑‑Union Council which failed to place on record any title documents regarding ownership of road, had also failed to prove that any service was being provided by Union Council to the said road‑‑‑Phrase 'services' had not been defined in Punjab Local Government Ordinance, 2001 but 'municipal services' had been defined under S. 2(xxii) of that Ordinance and public roads were included in definition of 'municipal services'‑‑‑Union Council could not charge for provision of a function which it was duty bound to provide‑‑‑In absence of anything on record to show that Union Council was providing any service, no fee or tax could be charged by it‑‑‑Notification whereby Union Council had imposed service tax, was declared to be without lawful authority and of no legal effect by High Court in exercise of its Constitutional jurisdiction.

Mc Carthy & Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames 1994 SCMR 1393 ref.

Syed Qalb‑i‑Hassan for Petitioners.

Arshad Majeed Malik for Respondents.

Syed Sajjad Hussain Shah. Asstt. A.‑G.

Date of hearing: 25th June, 2002.

2002 Y L R 1302

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD ASLAM‑‑‑Petitioner

Versus

MEMBER BOARD OF REVENUE‑‑‑Respondent

Writ Petition No.4417 of 2002, decided on 6th June, 2002.

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXI‑‑‑Execution of decree‑‑‑Decree in order to be executed should be capable of execution i.e. it should order doing or restraining the doing of an act.

(b) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), S. 38‑‑‑Suit for declaration and perpetual injunction‑‑‑Execution of decree‑‑­Scope‑‑‑Portion of decree which is purely declaratory cannot be executed.

(c) Specific Relief Act (1 of 1877)‑‑‑

‑‑‑‑S.55‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.42‑‑‑Civil Procedure Code (V of 1908), S.38‑‑‑Mandatory injunction‑‑­Attestation of mutation‑‑‑Execution of decree‑‑‑Decree‑holder wanted direction to functionary of judgment‑debtor to implement the decree by attesting mutation in favour of the decree‑holder and incorporating his ownership in Revenue Record‑‑‑Validity‑‑­Such direction could have been possible only if the terms of decree contained a mandatory injunction under S.55 of Specific Relief Act, 1877, to compel performance of the requisite act.

(d) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXI‑‑‑Execution of decree‑‑‑Decree is to be executed in accordance with its terms and conditions without modification.

(e) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 51 (e)‑‑‑Enforcement of decree‑‑­Granting of supplementary or alternate relief‑‑‑Powers of Executing Court‑‑‑Scope‑‑­Executing Court is empowered to order execution of decree under the provisions of S.57 (e), C. P. C. in such manner as the nature of relief may require‑‑‑Provision being a residuary clause, the same is resorted to when the decree cannot be executed by any of the means provided by cls. (a) to (d) of S. 51 C.P.C‑‑‑Executing Court is not authorized under S. 51(e), C. P. C. to grant supplementary or alternate relief or a relief not allowed by the decree.

(f) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S.38‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Execution of decree ‑‑‑Declaratory decree was passed in favour of petitioner whereby title of the suit property was declared in his favour‑‑­Petitioner instead of filing execution petition before the Executing Court, applied to Revenue Authorities for making entries in Revenue Record on the basis of the decree‑‑­Revenue Authorities refused implementation of the decree‑‑‑Validity‑‑‑Decree being not executable, application for its execution/implementation was not filed before the Court which had passed the decree but was moved before the Revenue Authorities (Tehsildar) requiring him to do an act which the terms of the decree did not direct to be done by the judgment‑debtors and on his reluctance to do the needful, a direction was being sought from High Court through the Constitutional petition for directing the Revenue Authorities to do that which he was not required by law to do‑‑­High Court declined to issue direction sought by the petitioner under, Constitutional jurisdiction‑‑‑Petition was dismissed in circumstances.

Tariq Muhammad Iqbal for Petitioner.

2002 Y L R 1311

[Lahore]

Before Maulvi Anwarul Haq and Mian Hamid Farooq, JJ

HAMEEDA BEGUM‑‑‑Appellant

Versus

FARZAND ALI ‑‑‑Respondent

Regular First Appeal No.53 of 1991, decided on 25th February, 2002.

(a) Benami‑‑‑

‑‑‑‑Benami transaction‑‑Proof‑‑‑Transaction has to be established to be with the funds of the real owner and that he was in custody of the original documents of title and plaintiff was retaining possession of suit property.

(b) Benami‑‑‑

‑‑‑‑Benami transaction ‑‑‑Determination‑‑­Criteria‑‑‑For determining the question whether a transaction is a benami transaction or not and according to the law, factors to be taken into consideration were the source of consideration; from whose custody the original title deed and other documents came in evidence; who is in possession of the suit property; and motive for the Benami transaction.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

(c) Benami‑‑‑

‑‑‑‑Benami transaction‑‑‑Onus to prove‑‑­Initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in defence evidence does not relieve a plaintiff from discharging his burden of proof.

(d) Benami‑‑‑

‑‑‑‑Benami transaction‑‑‑Payment of consideration amount‑‑‑Proof‑‑‑Plaintiff alleged that the amount of consideration was paid from her own Bank account‑‑‑Amount remitted in the account maintained by the plaintiff was sent by the defendant and the same, was proved from the statement of plaintiff witnesses‑‑‑Effect‑‑‑Amounts, out of which the land in question was purchased, were remitted by the defendant in the account maintained in the name of the plaintiff and thus the plaintiff purchased the land in question from the said amount‑‑‑Land in question was purchased from the income of the defendant‑‑‑Plaintiff failed to prove payment of consideration amount in circumstances.

(e) Benami‑‑‑

‑‑‑‑Benami transaction‑‑‑Possession of original documents‑‑‑Onus to prove‑‑­Plaintiff did not mention about the possession of the original documents in plaint ‑‑‑Effect‑‑­Onus was upon the plaintiff to prove that she was in possession of the original documents‑‑‑Where the plaintiff claimed to have purchased the land in dispute from her own earnings, then the presumption would be that she should have been in possession of the original sale‑deeds‑‑‑In the absence of production of original documents by plaintiff the presumption in law would be that all the original documents were in possession of defendant‑‑‑Plaintiff failed to prove her custody over' the original documents in circumstances.

(f) Benami‑‑‑

‑‑‑‑Benami transaction‑‑‑Possession‑‑‑Proof‑‑Revenue Record proved that defendant' was in cultivating possession of suit property through tenants‑‑‑Land in question was purchased in the name of defendant since then he was recorded as owner of land ‑‑‑Effect‑‑­Defendant was deemed to be in possession through his tenants‑‑‑Plaintiff was not in possession of the suit property in circumstances.

(g) Benami‑‑‑

‑‑‑‑Benami transaction ‑‑‑Proof‑‑‑Motive‑‑­Plaintiff neither in her plaint nor through the production of the documentary evidence or through adducing the oral evidence had anywhere stated as to why the land in question was purchased in the name of the defendant, when according to her own statement the entire consideration was paid from her income‑‑‑Effect‑‑‑Ingredient of motive and intention was completely lacking in the instant case, which the plaintiff had failed to even assert in the plaint‑‑‑Motive was not proved in. circumstances.

(h) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑Ss.33 & 42‑‑‑Civil Procedure Code (V of 1908), S.96‑‑‑Benami transaction‑‑‑Plea of fraud and connivance‑‑‑Plaintiff alleged that the suit land was purchased by her through her brother, yet instead of mentioning her name in sale‑deed, the defendant in connivance with her brother was able to incorporate his name in the sale‑deeds‑‑­Plaintiff was conscious about the fact that the property was intentionally being purchased in the name of the ostensible owner‑‑‑Trial Court dismissed the suit as the plaintiff failed to prove that the defendant was Benamidar‑‑­Validity‑‑‑Plaintiff by incorporating the plea of connivance in the plaint had completely ravished her case‑‑‑If such was the case, then suit' for benami transaction was not at all maintainable under the law and in view of the contents, the plaintiff should have filed a suit for declaration or cancellation of documents, as the case might be‑‑‑Trial Court after ably tabulating the facts of the case, taking into consideration the evidence on record and after discussing the oral as well as evidence on record had rightly come to the conclusion that the plaintiff was not able to make out a case and had rightly dismissed the plaint‑‑­Judgment and decree passed by the Trial Court did not call for interference by High Court.

(i) Benami‑‑‑

‑‑‑‑Benami transaction ‑‑‑Limitation‑‑‑Sale-­deeds were registered in the years 1975 and 1978‑‑‑Suit was filed in the year 1986 and during all the period the plaintiff did not challenge execution of sale‑deeds‑‑‑Even according to the plaintiff the parties remained as husband and wife till the year 1984‑‑‑Effect‑‑‑Although the plaintiff was aware about the sale‑deeds, yet she failed to challenge the same or to file the suit for such a long time‑‑-Trial Court had rightly arrived at the conclusion that the suit was belated and was rightly dismissed.

Syed Muhammad Zain‑ul‑Abidin and Malik Ghulam Siddique Awan for Appellant.

Ahmad Waheed Khan Respondents.

Date of hearing 20th September, 2001.

2002 Y L R 1320

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD IQBAL and 9 others‑‑‑Petitioners

Versus

MUHAMMAD RAFIQUE‑‑‑Respondent

Civil Revision No.2243 of 1995, heard on 27th February, 2002.

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑

‑‑‑‑S.42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 117 & 120‑‑‑Mutation‑‑‑Transaction‑‑­Onus to prove‑‑‑Mere fact that mutation stood incorporated in the Revenue Record would not absolve the beneficiary thereof from proving the factum of transaction evidenced by the mutation.

Abdul Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 ref.

(b) Islamic Law‑‑‑

‑‑‑‑Gift‑‑‑Void gift‑‑‑Intention of donor‑‑­Depriving of legal heirs‑‑‑Validity‑‑‑Muslim can gift away his property to anyone, which of course, results in disinheritance of all or some of the heirs‑‑‑Where the transfer is made with intent to deprive the heirs of their right of inheritance such gift would be void.

(c) Islamic Law‑‑‑

‑‑‑‑ Gift‑‑‑Necessary ingredients ‑‑‑Proof‑‑­Parties were children from two wives of the original owner of the suit property‑‑­Defendants claimed their ownership over the suit property on the basis of gift mutation attested in their favour‑‑‑Plaintiff assailed the gift mutation ‑‑‑Donees did not appear before the Trial Court as witnesses, instead their attorney appeared as witness who stated nothing as to when the declaration of gift was made by the donor in favour of donees‑‑‑Fact of acceptance of gift by donees and delivery of possession to the donees was also not proved‑‑ Attorney of the defendants (donees) was not a witness to any mutation, or any other transaction‑‑‑Trial Court dismissed the suit but the Appellate Court allowed the appeal, set aside the judgment and decree passed by the Trial Court and the suit was decreed in favour of the plaintiff ‑‑‑Validity‑‑­ While reversing the finding on issues regarding declaration of gift in favour of defendants and attestation of gift mutation, the Appellate Court had not misread the evidence on record‑‑‑High Court declined to interfere with the judgment and decree passed by the Appellate Court in favour of the plaintiff in circumstances.

A.‑G. Tariq Chaudhry for Petitioners.

Atta Ullah Chaudhry for Respondent.

Date of hearing: 27th February, 2002.

2002 Y L R 1323

[Lahore]

Before Maulvi Anwarul Haq, J

Haji MUHAMMAD ASHIQ‑‑‑Petitioner

Versus

ZAFAR AHMAD‑‑‑Respondent

Civil Revisions Nos.3931 and 3932 of 1994, heard on 8th March, 2002.

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑Ss. 12(2), 47, 151 & 115‑‑‑Decree, setting aside of‑‑‑Executing Court‑‑‑Jurisdiction‑‑‑In response to execution of decree passed against the petitioner, application under S.12 (2) C. P. C. read with Ss. 47 & 151, C. P. C. was filed‑‑‑Petitioners sought setting aside of decree on the ground that the Trial Court had no jurisdiction and the respondent had practised fraud and misrepresentation‑‑­Executing Court and Appellate Court dismissed the application and appeal respectively‑‑‑Contention of the petitioner was that the Executing Court had jurisdiction to set aside the decree passed without jurisdiction‑‑‑Validity‑‑‑Decree or order or decision or proceedings could be challenged on the ground of absence of jurisdiction, fraud and misrepresentation only by filing application under S.12(2), C. P. C. before the Court who had passed the final order‑‑‑Both the Courts below had rightly declined to set aside the decree as the matter had to be decided by the Court which passed the final decree‑‑‑Revision was dismissed in circumstances.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 distinguished.

Wali Muhammad Chaudhry Petitioner.

Nemo for Respondent.

Date of hearing: 8th March, 2002.

2002 Y L R 1324

[Lahore]

Before Maulvi Anwarul Haq, J

Rai ASGHAR ALI KHAN‑‑‑Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, KASUR/ELECTION TRIBUNAL and 2 others‑‑‑Respondents

Writ Petition No.2524 of 2002, heard on 11th March, 2002.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑Rr. 40(6) & 71‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Re‑counting of votes‑‑‑Non‑recording of evidence‑‑‑Election petition was filed against the returned candidates in which various allegations were made‑‑‑Allegations made in the petition were denied by the returned candidates‑‑‑On simple request for re­counting of votes‑ by the unsuccessful candidate, Election Tribunal allowed re­counting of votes‑‑‑Contention of the returned candidate was that re‑counting could not be allowed without recording of evidence‑‑­Validity‑‑‑Mere request of counsel was not enough to hold a re‑count‑‑‑Minimum requirement of the case was that in the first instance, the statement of election petitioner was to be recorded on oath and subject to cross‑examinations by the returned candidate and thereafter the returned candidate was required to be called upon to rebut the same by entering the witness‑box in similar manner‑‑‑Order of re‑count passed by Election Tribunal was set aside and case was remanded to Election Tribunal.

Muhammad Zulqarnain v. Muhammad Anwar and others 1990 CLC 736; Nawab Khan and others v. Qamar‑ud­-Din and others 1999 SCMR 299; Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others 2000 MLD 746 and Knawar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 ref.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 71‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Non‑joinder of patties‑‑­Election for the seat of Nazim and Naib Nazim was assailed by unsuccessful candidates‑‑‑Election Tribunal passed an order for recounting of votes‑‑‑One of the returned candidates assailed the order of re­counting in Constitutional petition‑‑‑Plea raised by unsuccessful candidate was that the Constitutional petition of one returned candidate was not maintainable‑‑‑Validity‑‑­Aggrieved person could invoke the jurisdiction of the High Court under Art. 199 of the Constitution and the petitioner was an aggrieved person‑‑‑High Court repelled the question of non joinder of parties observing that in any case lis would not fail on the ground of non joinder of parties even in terms of Civil Procedure Code, 1908‑‑­Constitutional petition was maintainable in circumstances.

Zafar Iqbal Chohan for Petitioner.

Ms. Fauzi Zafar, A. A.‑G.

Riaz‑ul‑Haq for Respondents Nos.2 and No. 3.

Date of hearing: 11th March, 2002.

2002 Y L R 1330

[Lahore]

Before Maulvi Anwarul Haq, J

Rana MUHAMMAD LATIF and 2 others‑‑‑Petitioners

Versus

CHIEF ELECTION COMMISSIONER, PAKISTAN and 5 others‑‑‑Respondents

Writ Petition No.21182 of 2001, heard on 18th March, 2002.

(a) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 83‑‑‑Re‑election‑‑‑Disqualification of returned candidate‑‑‑Setting aside of election‑‑‑Principles‑‑‑Some grounds have to be made out for treating votes of majority to be thrown away votes and it has to be alleged and established that the disqualification found attributable to a candidate was notorious and despite knowledge of the disqualification, the electorate proceeded to vote for the candidate.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 ref.

(b) Punjab Local Government Elections Rules, 2000‑‑‑

‑‑‑‑R. 83‑‑‑Punjab Local Government Elections Ordinance (V of 2000) S.14(e)‑‑­Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑Re‑election ‑‑­Disqualification of returned candidate‑‑­Setting aside of election by Election Tribunal‑‑‑Objection to the qualification of returned candidate was raised that the candidate was not matriculate‑‑‑Objection was overruled and nomination papers were accepted‑‑‑Appeal against the order of acceptance was dismissed‑‑‑Elections were held and the candidate was declared elected and was notified as such‑‑‑High Court in exercise of Constitutional petition directed the Authorities to de‑notify the returned candidate‑‑‑Election Tribunal de‑notified the returned candidate and declared the petitioners as returned candidates as they had secured second highest votes‑‑‑Chief Election Commissioner directed the District Returning Officer to de‑notify the petitioners and to hold fresh elections‑‑‑Plea raised by the petitioners was that when the returned candidate was disqualified after the elections, the petitioners stood elected and there was no need of fresh elections‑‑‑Validity‑‑‑Petitioner neither mentioned in his election petition that electorate was aware of the disqualification of the returned candidate, nor it was suggested in the election petition that the disqualification was notorious and known to the electorate‑‑‑Ultimately it was the constituency who had the right to elect person of its choice and entire machinery of law related to election worked towards that end‑‑­In absence of any allegation against the electorate that they had proceeded to cast vote for a disqualified person with knowledge of disqualification, the electorate could not be denied the right to choose a person of its choice‑‑‑Petitioners had not been able to gain a majority in elections already held and it would be a violation of law in case the petitioners were thrust upon the electorate‑‑­Order of re‑election passed by Chief Election Commissioner was neither improper nor against law and was not only lawful but eminently just as the constituency had been given a chance to elect its representatives‑‑­ Petition was dismissed in circumstances.

Ch. Anwar‑ul‑Haq Pannun with M. Saleh Naru for Petitioners.

Ms. Fauzi Zafar, A.A.‑G.

M. Jamil Sadiq for Respondents Nos. 4 and 6.

Imran Nazir Qureshi for Respondent No.5.

Date of hearing: 18th March, 2002.

2002 Y L R 1334

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD HUSSAIN and 4 others‑‑‑Petitioners

Versus

MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.3877 of 1995, heard on 18th February, 2002.

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑Ss. 4 & 21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Right of pre‑emption, exercise of‑‑‑Improving of status by inheritance‑‑‑Effect‑‑‑Original pre‑emptor died during the pendency of suit for pre‑emption and his legal heirs were impleaded‑‑‑Suit was decreed by the Trial Court and appeal against the judgment and decree was dismissed‑‑‑Board of Revenue in exercise of revisional jurisdiction allowed the revision and dismissed the suit on the ground that the right of pre‑emption was not heritable ‑‑‑Validity‑‑‑Pre‑emptor who had no right on the date of sale could not improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action---Where plaintiffs were lacking right to pre­empt a sale at the time of sale transaction, they could not acquire such a right even upon devolution of land from their predecessor‑in­-interest who possessed such a right at the time of sale‑‑‑Board of Revenue had rightly ­dismissed the suit‑‑‑Petition was dismissed in circumstances.

1994 CLC 2268; 1991 SCMR 1075; 1989 SCMR 69 and PLD 1988 SC 384 rel.

M. Anwar Basit and M. Aftab Iqbal for Petitioners.

Abdul Majeed Khan for Respondent No.4.

Date of hearing: 18th February, 2002.

2002 Y L R 1337

[Lahore]

Before Muhammad Akhtar Shabbir, J

TANVIR HUSSAIN ‑‑‑Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE, LIAQUATPUR and 3 others‑‑­Respondents

Writ Petition No.4987/BWP of 2001, decided on 5th March, 2002.

West Pakistan Family Courts Act (XXXV of 1964)‑‑‑

‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Ex parte decree, setting aside of‑‑‑Imposing of condition of deposit of decretal amount‑‑­Failure to use substituted modes of service‑‑­Allegations against Presiding Officer of Family Court‑‑‑Registered envelope returned unserved with a report that the defendant was out of station‑‑‑Family Court instead of issuing substituted mode of service proceeded ex parte and decreed the suit of maintenance in favour of plaintiff‑‑‑Defendant alleged that the Presiding Officer and the plaintiff were from the same village having close relations and that was the reason that the suit was decreed within 13 days without complying with legal requirements‑‑‑Appellate Court set aside the decree with a condition that the decretal amount be deposited in Court, failing which the application for setting aside the ex parte decree would stand dismissed‑‑­Validity‑‑‑In spite of receiving report on the envelope, the Family Court did not adopt further mode of service to satisfy his conscience nor substituted service was effected upon the defendant‑‑‑Ex parte decree in favour of the plaintiff was passed by Family Court hurriedly and arbitrarily without satisfying his conscience and no other mode of service was adopted by the Court‑‑­High Court found the condition of deposit of decretal amount as too harsh and the same was converted into deposit of surety bond of a person of sound financial position equal to decretal amount‑‑‑Petition was allowed accordingly.

Malik Muhammad Aslam for Petitioner.

Muhammad Akhtar Meo for Respondents Nos. 3 and 4.

2002 Y L R 1339

[Lahore]

Before Maulvi Anwarul Haq, J

NASIR KHAN‑‑‑Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN and 3 others‑‑‑Respondents

Writ Petition No.20120 of 2001, heard on 27th February, 2002.

Punjab Local Government Elections Ordinance (V of 2000)‑‑‑

‑‑‑‑S. 14(g)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Writ of quo warranto‑‑‑Disqualified persons holding seat of Labour Councillor‑‑‑Returned candidate was employee of National Bank and was on leave before his retirement‑‑­Nomination papers were accepted by Returning Officer and the candidate won the elections‑‑‑Plea raised in the Constitutional petition was that as the returned candidate was not qualified under S. 14(g) of Punjab Local Government Elections Ordinance, 2000, how he was holding the seat‑‑­Validity‑‑‑Candidate had contested elections before the expiry of six months as prescribed in S.14(g) of Punjab Local Government Elections Ordinance, 2000‑‑‑Since person on leave was considered to be in service, therefore, the candidate was holding office of Labour Councillor without lawful authority and was liable to be removed from the office‑‑‑Constitutional petition was allowed in circumstances.

Sabiruddin v. Mushtaq Hussain Bhatti and 2 others PLD 1993 SC 412 ref.

Nasir Mehmood Qureshi for Petitioner.

Respondent No.4 in person.

Date of hearing: 27th February, 2002.

2002 Y L R 1345

[Lahore]

Before Ch. Ijaz Ahmad, J

LAHORE DEVELOPMENT AUTHORITY through Director‑General and 4 others‑‑‑Petitioners

Versus

MUHAMMAD QASIM KHAN‑‑‑Respondent

Civil Revision No.611 of 2001, decided on 26th March, 2002.

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S.2‑‑‑Concluded contract‑‑‑Acceptance of bid subject to approval‑‑‑Effect‑‑‑Where acceptance of bid was subject to approval of Authorities, such acceptance would not amount to acceptance of offer constituted by bid to ripen into a concluded contract.

Chaudhry Muhammad Younas's case PLD 1972 Lah. 847 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑Ss.2, 7 & 8‑‑‑Civil Procedure code (V of 1908), S. 115---Public auction---Revocation of bid‑‑‑Concurrent findings of fact by the Courts below‑‑‑Respondent offered the highest bid for purchase of plot being sold by the petitioners through public auction and 1/10th of bid price was deposited by the respondent at the time of auction‑‑‑Auction was subject to final approval of Authorities within 8 days failing which the offer would become void‑‑‑Authorities did not approve the offer and 23 days after the auction, the respondent withdrew his offer and informed the petitioners telegraphically that he was no more interested in purchase of the plot‑‑­Petitioners did not reply the telegram and about three weeks after the telegram, the petitioners directed the respondent to deposit the balance 9/10 of the auction price‑‑­Respondent refused to deposit the balance amount and demanded his 1/10 amount deposited at the time of auction‑‑‑Petitioners refused to the amount, resultantly suit for recovery of the amount was filed by the respondent‑‑‑Trial Court decreed the suit and judgment and decree were maintained by Appellate Court‑‑‑Validity‑‑‑Tender in law was only an offer for the purchase of property and if the tender of a person even if it was the highest, was not accepted, such person could not make a grievance of the fact‑‑‑Offer for sale of property did not give right to the offerer for its purchase‑‑‑Tender only when accepted constituted a binding contract and unless the contract came into existence the mutual rights and obligations did not arise‑‑­Both the Courts below had given concurrent finding of fact against the petitioners who failed to point out any piece of evidence which was misread by both the Courts below or violated any principle of law‑‑‑High Court declined to interfere with the concurrent findings of fact by the Courts below.

Joravarmul Champalal v. Jeygopaldas Ghanshamdas AIR 1922 Mad. 486; Trustees of Port of Karachi v. Messrs Muhammad Bakhsh & Sons PLD 1959 Kar. 658 and Board of Intermediate and Secondary Education v. Syed Khalid Mahmood NLR 1995 Civil 114 ref.

Muhammad Rashid Ahmad for Petitioners.

Malik Muhammad Waqar Saleem for Respondent.

2002 Y L R 1350

[Lahore]

Before Syed Zahid Hussain, J

K.M. MOON through General Attorney‑‑‑Petitioner

Versus

M.C., GUJRAT through Administrator and another‑‑‑Respondents

Writ Petition No. 1452 of 1998, heard on 6th March, 2002.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑­Cancellation of allotment of plot‑‑‑Plot in question was allotted to petitioner in the year 1986 by Small Industrial Corporation‑‑‑Building plan was sanctioned by the Corporation and the petitioner took certain steps for the construction of his industrial unit‑‑‑Municipal Authorities were given the charge providing civic facilities to the industrial estate‑‑‑Administrator Municipal Committee issued a notice to the petitioner for cancellation of allotment of his plot on the ground that the plot was at such a location which should not have been leased out or that the same was needed for public use‑‑­Validity‑‑‑Right from the establishment of industrial estate till the year 1997, the Municipal Committee never took up the matter with the Small Industrial Corporation‑‑‑Such abrupt action against the petitioner smacked of something else‑‑‑After execution of registered lease deed, it was only for the parties thereto to act in accordance with the conditions of the lease, none else had jurisdiction in the matter to take any step which could have the effect of denuding the petitioner of his rights in the plot‑‑‑Municipal Committee which had been charged with the functions of maintaining the roads, sewerage and other civic services could not take any step as would have disturbed the establishment of the Small Industrial Corporation‑‑‑Municipal Committee had acted illegally and without lawful authority in the matter‑‑‑Order passed by the Committee was not sustainable in law and the same was unlawful and was of no legal effect‑‑­Constitutional , petition was allowed in circumstances.

Anjuman‑e‑Ahmadiya v. The Deputy Commissioner, Sargodha and others PLD 1966 SC 639 and The Majlis‑i‑Intizamia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore PLD 1975 SC 355 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 24‑‑‑Protection of property‑‑­Depriving a person of his property‑‑‑Public functionaries and Government Departments‑‑­Role‑‑‑Such functionaries are expected to act in such a manner that their actions and conduct should itself have reflection of fairness and justice‑‑‑To deprive someone of his property except by following due course of law is not contemplated by the Constitution and the law‑‑‑Any deviation from the observance of due process of law cannot be countenanced.

Mian Bashir Zafar and Nasir Ali Kamboh for Petitioner.

Muhammad Ramzan Ch. For Respondent No. 1.

Tariq Ahmad Farooqi for Respondent No.2.

Date of hearing: 6th March, 2002.

2002 Y L R 1353

[Lahore]

Before Pervez Ahmad, J

MUHAMMAD KHAN‑‑‑Petitioner

Versus

MUHAMMAD HUSSAIN and 2 others‑‑‑Respondents

Civil Revision No. 1406‑D of 1996, heard on 22nd March, 2002.

Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S.31‑‑‑Civil Procedure Code (V of 1908), O. VII, R.II‑‑‑Right of pre‑emption, exercise of‑‑‑Public notice‑‑‑Failure‑‑‑Limitation---Suit land was purchased vide registered sale deed‑‑‑Possession was token by vendee after expiry of period of limitation for suit for pre-emption‑‑‑Pre‑emptor, on gaining knowledge of the sale, immediately made Talb‑i-Muwathibat followed by Talb‑i‑Ishhad and then suit was filed ‑‑‑Vendee filed application under O. VII, R. 11, C. P. C. for rejection of plaint as being barred by limitation‑­--Application was allowed by the Trial Court and plaint was rejected‑‑‑Appeal against the order of Trial Court was dismissed by Appellate Court‑‑‑Plea of the pre‑emptor was that the officer registering the sale‑deed did not make public notice as required under S.31 of Punjab Pre‑emption Act, 1991, therefore period of limitation would start from the date of knowledge‑‑‑Validity‑‑‑In absence of proof of compliance of provisions of S.31 of Punjab Pre‑emption Act, 1991, the only crucial date for determination of period of limitation was the date of knowledge of the sale of the pre-emptor‑‑‑Date of knowledge of sale of pre-emptor was a question of evidence which could not be determined and disposed of it summary manner‑‑‑Orders passed by both the Courts below were not in accordance with law and the same suffered from illegality and material irregularity‑‑‑High Court set aside the orders passed by the Courts below and the case was remanded to the Trial Court for framing issues including question of limitation of filing of the suit.

Mian Asif Islam v. Mian Muhammad Asif and others PLD 2001 SC 499 rel.

Ahmad Waheed Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd March, 2002.

2002 Y L R 1355

[Lahore]

Before Mian Hamid Farooq, J

ZAFAR SHARIF‑‑‑Appellant

Versus

MUHAMMAD SHUJA and another‑‑‑Respondents

Second Appeal from Order No. 61 of 2001 decided on 25th April, 2002.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(6)‑‑‑Term 'rent due'‑‑‑Rent Controller, jurisdiction of‑‑‑Scope,‑‑Rent Controller can direct a tenant for deposit of 'rent due' but such rent must be 'legally due' and not otherwise‑‑‑If a rent is not legally due, in that case the same would not fall within the term 'rent due', thus Rent Controller is not empowered to order for deposit of such rent under S. 13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S. 13(6)‑‑‑Arrears of rent, deposit of‑‑­Jurisdiction of Rent Controller‑‑‑Scope‑‑‑Rent Controller is only empowered to direct a tenant to deposit arrears of rent for three years from the date of institution of ejectment petition.

Ashfaq‑ur‑Rehman Khan v. Muhammad Afzal and another PLD 1971 766 ref.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)‑‑‑

‑‑‑‑S.13(6)‑‑‑Ejectment of tenant‑‑‑Time--barred rent‑‑‑Striking off defence‑‑‑Void order‑‑‑Non‑deposit of arrears of rent ‑‑‑Rent Controller passed tentative rent order against tenant and directed him to deposit arrears of rent for past four years‑‑‑On failure of the tenant to deposit the rent, the Rent Controller struck off his defence and ejectment application was allowed‑‑‑Appeal before Appellate Court also met the same fate and the eviction order was maintained ‑‑‑Plea raised by the tenant was that the tentative rent order was a void order as the same was for the deposit of time‑barred rent‑­--Validity‑‑‑Rent Controller could order for deposit of arrears of rent under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959, for a period of three year, from the date of institution of ejectment petition‑‑‑Rent Controller while directing the tenant to deposit time‑barred rent had committed a grave illegality, thus the order passed by the Rent Controller was not only without jurisdiction but void also‑‑‑Basic order being without jurisdiction and void, all the subsequent orders passed by the Rent Controller and the Appellate Court were nullity under the law‑‑‑Order of eviction passed by both the Courts below was set aside and case was remanded to Rent Controller for decision afresh‑‑‑Appeal was allowed in circumstances.

Pervaiz Akhtar and another v. The Additional District Judge, Rawalpindi and 4 others PLD 1990 SC 681 distinguished.

Ashfaq‑ur‑Rehman Khan v. Ch. Muhammad Afzal and another PLD 1971 SC 766; Ashfaq‑ur‑Rehman Khan v. Ch. Muhammad Afzal PLD 1968 SC 230 and Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 rel.

(d) Void order‑‑‑

‑‑‑‑Effect‑‑‑Order without jurisdiction and void‑‑‑Where such order is passed, subsequent orders passed either by the same Authority or by other Authority, the whole series of such orders together with the super­structure of right and obligations of the parties built upon them would fall to the ground.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104 rel.

Malik Abdul Wahid for Appellant.

Syed Ahmad Saeed Kirmani for Respondents.

Date of hearing: 21st February, 2002.

2002 Y L R 1359

[Lahore]

Before Syed Zahid Hussain, J

Mst. AMINA BIBI and 7 others‑‑‑Petitioners

Versus

RAB NAWAZ and another‑‑‑Respondents

Civil Revision No.82‑D of 1992, heard on 24th April, 2002.

West Pakistan Land Reforms Regulation, 1959 (M.L. R. 64)‑‑‑

‑‑‑‑Para. 22‑‑‑Aala Malkiyat rights‑‑­Plaintiffs claimed possession on the basis of such right‑‑‑Trial Court decreed the suit whereas the Appellate Court dismissed the same as the rights had been abolished under the provisions of Para.22 of Martial Law Regulation 64‑‑‑Validity‑‑‑With the coming into force of Para.22 of Martial Law Regulation 64, no decree or possession or ejectment of tenants could be passed on the basis of Aala Malkiyat rights‑‑‑Plaintiffs could not bring a suit for possession against the defendants nor any decree could be passed‑‑‑Trial Court had wrongly passed the decree and the same was nugatory having no legal efficacy, nor same was executable‑‑­View of the Appellate Court being consistent with the law, called for no interference by High Court.

Khanan and 2 others v. Fateh Sher through Ahmad and 15 others 1993 SCMR 1578 ref.

Malik Noor Muhammad Awan for Petitioners.

Allah Wasaya Malik Respondents.

Date of hearing: 24th April, 2002.

2002 Y L R 1362

[Lahore]

Before Ch. Ijaz Ahmad, J

Mrs. ANJUM NAEEM and another‑‑‑Petitioners

Versus

CANAL VIEW COOPERATIVE HOUSING SOCIETY, MULTAN ROAD, LAHORE through Secretary and 3 others‑‑‑Respondents

Writ Petition No. 11715 of 2000 and Civil Miscellaneous No.1 of 2001, heard on 30th April, 2002.

(a) Cooperative Societies Act (VII of 1925)‑‑‑

‑‑‑‑S. 54‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Main­tainability‑‑‑Alternate remedy‑‑‑Arbitration proceedings‑‑‑Validity‑‑‑Where the dispute was touching the business of the Cooperative Society, the Constitutional petition would not be maintainable.

(b) Disposal of Land by Development Authorities (Regulation) Ordinance (VI of 1998)‑‑‑

‑‑‑‑S. 5‑‑‑Cooperative Societies Act (VII of 1925), S.58‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑­Maintainability‑‑‑Alternate remedy‑‑‑Change in scheme of Cooperative Housing Society‑‑­Society converting place earmarked for public use and utility into plots for construction of commercial building‑‑‑Petitioner assailed such act of the Society in Constitutional petition‑‑‑Plea raised by the Society was that in view of provisions of S.54 of the Cooperative Societies Act, 1925, the petitioner had alternate remedy available, therefore, the Constitutional petition was not maintainable‑‑‑Validity‑‑‑Where the dispute was touching the business of Cooperative Society, the provisions of S.54 of Cooperative Societies Act, 1925, were applicable‑‑­Controversy, in the present case, did not fall within the parameters/ingredients mentioned in S.54 of Cooperative Societies Act, 1925‑‑­Cooperative Society had no authority to convert the public utility earmarked place into any other use in view of S.5 of Disposal of Land by Development Authorities (Regulation) Ordinance, 1998‑‑­Constitutional petition was allowed in circumstances.

Sardar Begum and others v. Delhi Mercantile Cooperative Housing Society Limited and others 1997 CLC 962; Siraj Farooqi v. Pir Ellahi Bux Cooperative Housing Society PLD 1956 Sindh 95; Ardeshir Cowasji's case 1999 SCMR 2883 and Fazal Din's case PLD 1969 SC 223 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Locus standi‑‑‑Petitioners were purchasers of plot from the original allottees in the Cooperative Housing Society‑‑‑Constitutional petition was filed to restrain the Society from misusing the plots earmarked for public utility‑‑‑Objection of the Society was that the petitioners had no locus standi to file the petition‑--Validity‑‑­Constitutional petition was validly filed by the petitioners in circumstances.

Ardeshir Cowasji's case 1999 SCMR 2883 and Fazal Din's case PLD 1969 SC 223 ref.

(d) Lahore Development Authority Act (XXX of 1975)‑‑‑

‑‑‑‑S. 18(3)(1)‑‑‑Approved scheme‑‑­Alteration detrimental to interest of allottees‑­Opportunity of being heard‑‑‑Disputed plots were reserved for specific purposes i.e. for parking place, and the same was evident from master plan as well as report and parawise comments of Lahore Development Authority‑‑­After allotment of the plots, the Cooperative Housing Society made certain changes in the master plan‑‑‑Validity‑‑‑Once the scheme was acted upon only Housing Society had authority to change the same in terms of the provisions of Lahore Development Authority Act, 1975, and scheme prepared thereunder which prescribed to invite the objections as vested right had accrued to the residents‑‑‑No change could be made in the approved scheme without giving opportunity of hearing to the allottees of plots.

Muhammad Sharif's case 1989 MLD 95; Ahmad Javaid Shah's case 1996 CLC 748; Masih Ullah Khan's case 1994 MLD 603; Mian Fazal Din's case PLD 1969 SC 223; Abdul Razzaq's PLD 1994 SC 512 and Sh. Ahmad Din's case 1984 CLC 3304 ref.

Ahmad Waheed Khan for Petitioners.

Shahbaz Khurshid Chaudhry and Mian Muzaffar Hussain for Respondents.

Ch. Hafeez‑ur‑Rehman Atif for Respondent No.4. (in C.M. No. 1 of 2001).

Date of hearing: 30th April, 2002.

2002 Y L R 1367

[Lahore]

Before Ch. Ijaz Ahmad, J

Syed KHAWAR MUNIR‑‑‑Petitioner

Versus

PROVINCE OF PUNJAB through Member, Revenue Board, Punjab Lahore and 5 others‑‑‑Respondents

Writ Petition No.5079 of 2002, decided on 29th March, 2002.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Constitutional petition-‑‑­Approbate and reprobate, principle of‑‑­Applicability‑‑‑Petitioner filed two applications, one after the other on the same subject‑matter‑‑‑High Court disposed of the earlier petition with a direction to the Authorities‑‑‑Petitioner objected to the jurisdiction exercised by the Authorities‑‑­Validity‑‑‑Contention of the petitioner had no force on the well‑known principle of approbate and reprobate.

Ghulam Rasool's case PLD 1971 SC 376 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Substituting findings of Tribunal below‑‑‑Validity‑‑‑High Court does not have jurisdiction to substitute its own finding in place of finding of Tribunal below in exercise of Constitutional jurisdiction.

Musaddaq's case PLD 1973 Lah. 600 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Constitutional jurisdiction of High Court is discretionary in nature‑‑‑He who seeks equity must come to the Court with clean hands.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑­Substantial justice‑‑‑Petitioner assailed order of Authorities in earlier petition which was disposed of by High Court in terms of direction to the Authorities‑‑‑Authorities complied with the directions of High Court and one of the respondents was appointed on disabled quota‑‑‑Effect‑‑‑As substantial justice had already been done between the parties, High Court declined to exercise discretion in favour of the petitioner‑‑­Constitutional petition was dismissed in circumstances.

Muhammad Rashid v. Government of Azad Kashmir 1993 PLC (C.S.) 153; Akhtar Hussian v. A.C. 1996 PLC (C.S.) 943; Munshi Safdar Ali v. A.C. 1998 SCMR 107; Rao Abdul Rashid v. Federation of Pakistan 1993 PLC (C.S.) 419; Airport Support Service v. Airport Manager 1998 SCMR 2268 and Dr. Zahir Ansari v. Karachi Development Authority PLD 2000 Kar. 168 distinguished.

Nawab Syed Ronaq Ali's case PLD 1973 SC 236 and Imtiaz Ahmad's case PLD 1963 SC 382 ref.

(e) Constitution of Pakistan (1973)‑‑‑

---Art. 199‑‑‑Constitutional jurisdiction---Scope‑‑‑Each and every case is to be decided on its own peculiar circumstances.

Hafiz Ahsan Ahmad Khokhar for Petitioner.

2002 Y L R 1369

[Lahore]

Before Maulvi Anwarul Haq, J

KHUSHI MUHAMMAD through Legal Heirs and 7 others‑‑‑Petitioners

Versus

KHURSHID ALAM‑‑‑Respondent

Civil Revision No.2055/D of 1995, heard on 4th February, 2002.

(a) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 113‑‑‑Suit for specific performance of contract‑‑‑Limitation‑‑‑Provisions of Art.113 of Limitation Act, 1908‑‑‑Scope‑‑‑Two sets of facts are contemplated by Art.113 of Limitation Act, 1908, one where a date is fixed by the parties for performance in the agreement itself and second where no such date is fixed‑‑‑Prescribed period of 3 years in the second case is to start from a point of time when plaintiff had notice that the defendant refused to perform the contract.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 113‑‑‑ "Date fixed "‑‑‑Meaning‑‑­Expression "date fixed" means a date fixed by calendar.

Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 fol.

(c) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Art. 113‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Suit for specific performance of agreement to sell‑‑‑Limitation‑‑‑Point of time settled between the parties‑‑‑Owner of property agreed to execute registered sale-­deed in favour of plaintiff after conferment of rights on him‑‑‑Effect‑‑‑Date of conferment of proprietary rights were not the date fixed for performance within the contemplations of Art. 113 of Limitation Act, 1908.

Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314 ref.

(d) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 12‑‑‑Suit for specific performance of agreement to sell‑‑‑Registered agreement‑‑­Plaintiffs made the payments as per agreement and possession was delivered to them‑‑‑Suit was decreed by the Trial Court but Appellate Court allowed the appeal and dismissed the suit as time‑barred ‑‑‑Validity‑‑­Defendant had not said a word during the trial except that he denied the execution of the Appellate Court by allowing appeal had acted with material irregularity in exercise of its jurisdiction which was against law‑‑‑Judgment and decree passed by Appellate Court was set aside and that of the Trial Court was restored by High Court.

Muhammad Yasin v. Allah Din 1991 CLC 1457; B. Muniswani Goundar and another v. B.M. Shamanna Gouda AIR 1950 Mad. 820; Mir Hasmat Ali v. Birendaa Kumar Ghosha and others PLD 1965 Dacca 56 and Manick Lal Seal and another v. K.P. Chowdhry AIR 1976 Cal. 115 ref.

(e) Words and phrases‑‑‑

‑‑‑‑ "Date fixed "‑‑‑Meaning.

Syed Muhammad Kaleem Ahmad Khurshid for Petitioners.

Malik Saeed Hassan for Respondent.

Date of hearing: 4th February, 2002.

2002 Y L R 1376

[Lahore]

Before Muhammad Sair Ali, J

MUHAMMAD RAMZAN‑‑‑Petitioner

Versus

MUHAMMAD SARDAR and another‑‑‑Respondents

Civil Revision No. 1128 of 1999, decided on 13th March, 2002.

(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑

‑‑‑‑S. 13(3)‑‑‑Pre‑emption suit‑‑‑Talb‑i-­Ishhad‑‑‑Onus to prove‑‑‑Notice not produced in Court‑‑‑Substantial compliance of provisions of S.13(3) of Punjab Pre‑emption Act, 1991‑‑‑Requirement‑‑‑Pre‑emptor specifically pleaded service of registered notices of Talb‑i‑Ishhad in terms of S.13(3) of Punjab Pre‑emption Act, 1991, yet failed to produce such notice on record to show timely performance of Talb‑i‑Ishhad as per express provisions of S.13(3) of Punjab Pre‑emption Act, 1991‑‑‑Both the Courts below concurrently dismissed the suit and appeal on the ground that the pre‑emptor had failed to prove Talb‑i‑Ishhad‑‑‑Plea raised by the pre­emptor was that provisions of S.13(3) of Punjab Pre‑emption Act, 1991, were substantially complied with‑‑‑Validity‑‑­Having set up concise case and having specifically made pleadings in the plaint, it was the duty of the pre‑emptor to prove the same in evidence‑‑‑Both the Courts below through proper and detailed analysis and appreciation of evidence found that the pre­emptor failed to serve notice of Talb‑i‑Ishhad as mandatorily required by S.13(3) of Punjab Pre‑emption Act, 1991‑‑‑Plea of substantial compliance was in fact an admission of non­compliance with the express provisions of law and did not provide any escape route to the pre‑emptor ‑‑‑High Court declined to interfere with the concurrent findings of fact by the Courts below.

Abdul Malik's case 1999 SCMR 7117 distinguished.

(b) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑S. 115‑‑‑Revision‑‑‑New plea, rising of‑‑­Scope‑‑‑Petitioner cannot be allowed to raise a case different from one raised in the plaint.

Rana Abdul Rahim Khan for Petitioner.

Rana Muhammad Anwar for Respondents.

2002 Y L R 1378

[Lahore]

Before Ch. Ijaz Ahmad, J

M.D. TAHIR, ADVOCATE‑‑‑Petitioner

Versus

THE FEDERAL GOVERNMENT through Ministry of Law, Parliamentary Affairs and Human Rights, Islamabad and 4 others‑‑‑Respondents

Writ Petition No. 1966 of 2002, decided on 15th February, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 203‑G‑‑‑Constitutional petition‑‑‑Celebration of festival of Basant/Jashn‑e‑Baharan was assailed by Constitutional petition and direction to the Authority was sought for immediate efforts for release of Pakistani citizens in Cuba, Afghanistan and India‑‑‑Maintainability‑‑­Petitioner had further prayed that celebration of festival of Basant/Jashn‑e‑Baharan, be declared illegal, un‑Islamic and un-­Constitutional, as it amounted to wastage of public money and Authorities be permanently restrained from continuing with activities in connection with Basant/Jashn‑e‑Baharan and money reserved for that purpose be directed to be spent on defence and poverty elimination‑‑‑High Court under Art. 203‑G of Constitution of Pakistan (1973) had no authority in law to determine that Basant/Jashn‑e‑Baharan was un‑Islamic‑‑‑Authorities were directed to look into the matter qua second prayer of the petitioner with regard to release of Pakistani citizens in larger interest of justice‑‑‑Constitutional petition was disposed of r accordingly.

Muhammad Yousaf's case PLD 1969 SC 153; Ramzan Welfare Trust's case PLD 1997 Lah. 235 and M.D. Tahir, Advocate's case 2001 CLC 1180 ref.

Petitioner in person.

Maqbool Elahi Malik, A.G., Punjab.

Sher Zaman Khan, Deputy Attorney-­General for Pakistan.

Ch. Aitzaz Ahsan (on Court's call).

2002 Y L R 1383

[Lahore]